MaltaToday previous editions

MT 19 October 2014

Issue link:

Contents of this Issue


Page 44 of 55

45 maltatoday, SUNDAY, 19 OCTOBER 2014 Opinion A development application "to sanction the removal of a corrugated iron structure and its replacement by a removable wooden roof structure" pertaining to a restaurant located in Merchants Street, Valletta was initially turned down by MEPA's Environment and Planning Commission after it was held that the proposed development runs counter to Structure Plan policy UCO10 and Grand Harbour Local Plan policy GV 15 in that it does not respect the topography of the area and detracts from the traditional urban skyline. Additionally, it was argued that the proposed development would detract from the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas and so does not comply with Structure Plan policy UCO6. The Commission also made reference to policy Circulars 2/96 and 2/98 (incidentally, these policies were effectively repealed on the date of the decision), stating that the site subject to this application featured a number of illegalities consisting inter alia of air conditioning units and surrounding timber screens overlying the said roof structures and which applicant made no attempt to sanction or remove. The Commission went on to conclude that "the proposal was not endorsed in terms of sanitary laws and regulations since it could not be properly assessed in view of unknown use of room being sanctioned and lack of information relating to the underlying levels.'' As expected, the applicant appealed the decision before the Environment and Planning Tribunal, attesting by way of photo evidence that the mentioned illegalities were in the meantime removed. Referring to the skyline, the applicant argued that when viewed from Senglea and Vittoriosa, one can safely deduce that the structures under consideration do not "disturb" the topography or urban skyline in any way. More so, the applicant made express reference to a number of Valletta planning applications, including a permit relative to the Bologna Restuarant and another application in relation to the Casa Rocca Piccola site, whereby the Authority authorised construction at roof level in both instances. On its part, the Authority stood firm, stating that the reasons for refusal included sanitary considerations and the Tribunal was therefore legally bound to dismiss the appeal forthwith since it has no jurisdiction to decide on sanitary matters (reference was made to the seminal decision in the names "Pater Holding Co. Ltd. vs Il-Kummissjoni ghall-Kontroll ta' l-Izvilupp" in support of this argument). In its assessment, the Tribunal noted that the applicant had in fact addressed all pending sanitary considerations by way of fresh drawings showing an open courtyard. With regard to the remaining reasons for refusal, the Tribunal observed that following a site inspection, it was in a position to conclude that the timber structure (subject to the application under appeal) is easily demountable. But even so, the Tribunal assessed that the timber structure, besides being of an appropriate height, is adequately screened by surrounding planters. Against this background, the Tribunal ordered the MEPA to issue the permit. Robert Musumeci is an architect who also pursued a degree in law T he First Hall of the Civil Court awarded damages to the owners of rural land and a farmhouse following the eviction of the occupiers of the land. This was decided by Mr Justice Silvio Meli on 15 October, 2014 in Loreta Williams et -v- Mario and Carmen Spiteri. The plaintiffs stated in their application that the Court of Appeal on 9 November, 2009 ordered that the defendants vacate rural land in Zurrieq and the plaintiffs allowed to take possession of the same land. When possession took place the plaintiffs discovered that the property was abandoned and there were a number of damages. In order to carry out reparatory works the expense amounted to €68,134.17. They also claimed damages due to the fact that they were inhibited from the possession of the land and that therefore, they could not cultivate any products. They asked the court to condemn the defendants to pay damages. The Spiteris raised a number of pleas, including that they occupied the land with the consent of one of the plaintiffs and that they had no juridical relationship with the plaintiffs. Furthermore, they argued that the action was time barred. Mr Justice Meli made reference to the report presented by the technical expert, who explained that the property is situated close to the Hal-Far industrial estate. The property was purchased by the plaintiff 's father in 1942 and in 1972 Joseph Cachia took possession of the land, however, it was not established under which title. In 2001, Mario Spiteri appeared on the scene and Cachia did not feature any more. Spiteri was later evicted by means of the Court of Appeal judgement. The court expert further explained that the farmhouse had to be rebuilt and agreed with the plaintiff 's claim of €68,134.17. The expert held that the property was illegally occupied from 2001 to 2005 and therefore, adequate compensation for this would be €32,874. As regards loss of earnings this amounted to €2,620.55. A further €20,000 was due to works that were made by Joseph Cachia. The court held in its judgement that there was nothing precluding it from agreeing with its expert and therefore, the total damages amounted to €124,959.88. Mr Justice Meli examined the pleas of the defendant, the first of which was whether the parties had a juridical relationship. The court pointed out that the court of appeal judgement bound the parties and had upheld the plaintiffs' request for the defendants to be evicted. As regards whether the action was time barred by two and five years respectively, according to articles 2153 and 2156(f) of the Civil Code, the court pointed out that the prescription period commences when the right is established or else when action is taken to establish that right. In previous judgments Calleja -v- Said of 31 October, 2003, the prescription period begins when the action may be exercised. The plaintiff could not claim damages when the eviction case was pending. Therefore, the prescription period commenced from the date of the court of appeal judgement. Therefore, the court concluded by ordering the defendants to pay the plaintiffs the sum of €124,959.88 Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud The timber structure, besides not being of an excessive scale and height, is adequately screened by surrounding planters Robert Musumeci MEPAwatch Permit for Valletta timber roof structure approved Damages awarded following eviction The expert concluded that the property was illegally occupied between 2001-2005

Articles in this issue

Archives of this issue

view archives of MaltaToday previous editions - MT 19 October 2014