Issue link: https://maltatoday.uberflip.com/i/439085
28 maltatoday, SUNDAY, 28 DECEMBER 2014 Opinion T he First Hall of the Civil Courts ordered that excavation works be stopped immediately after it resulted that the distance stipulated in the law was not being respected. This was decided on 22 December, 2014 by Ms Justice Jacqueline Padovani Grima in Angelo and Josephine Cutajar -v- Mark Vella. The Cutajars filed an application for the issue of a warrant of prohibitory injunction against Mark Vella. They explained that Vella was carrying out excavation works next door to their property in Hal Kirkop. The warrant is essential in order to protect their property since the excavation works were taking place without the necessary precautions for their safety and that of their property. These works were being made within the prescribed distance of 76 cms from their property. Their interest is that the distance be respected and that that part of the excavation which is within the 76 cm mark be filled in again and therefore, the property will not remain in risk of damage. Mark Vella defended this action by stating that the request for a warrant of prohibitory injunction was excessive because the complaint was with regard to the dividing wall, but the warrant made reference to the whole building site, even if the other parts of this site did not offer any danger. Furthermore, Mr Vella pointed out that the excavation work close to the boundary wall had already taken place and therefore, the warrant was useless and not required. He explained that all the works were being supervised by an architect and tests were being carried out to insure that there was no danger . They worked according to a procedure that assured that the adjacent properties would not suffer any vibrations and in fact now that the excavation works are complete no damages were caused. Mr Vella pointed out that he is covered by an insurance policy. From a legal point of view, Mr Vella held that the Cutajars did not have the necessary elements to sustain their request for a warrant of prohibitory injunction according to Article 873(2) of the Code of Organisation and Civil Procedure. He quoted a judgment Connie Galea -v- Joseph Gauci of 7 October, 1991, which held that the warrant should not be allowed if it is not intended to safeguard the rights of who requested it. In other judgments quoted Borg Grech -v- Gasan et noe of 2 January, 1999, Mr Vella held that a warrant should not be issued if the merits of the case consisted in merely an inconvenience which can be easily remedied. In fact he held that this issue can be easily remedied by financial compensation and therefore, there was no need of the warrant. Ms Justice Padovani Grima examined the evidence produced, including Josephine Cutajar's testimony, who explained that Mark Vella started works next door to her by cutting into the rock within the 76 cms prescribed by the law. Her architect was concerned that the roof may cave in and the beams may give way. Mark Vella also testified and assured the court that the excavation works were now complete and he can start building the structure. The Court made reference to Article 873(1) and (2) which allows the court to stop anybody from causing a prejudice to another, but should not issue the warrant if it is not satisfied that it would not safeguard the applicant's rights. The evidence should reach the prima facie level. The Court quoted Grech pro et noe -v- Manfre of 14 July, 1988 which stated that the requisites for the warrant are objective and not subjective and therefore, do not depend on the judge's discretion. The Court also held that this procedure is of an exceptional nature and quoted from another judgement Charles Mugliett -v- Saviour Bonnici of 25 January, 2005, which held that this procedure is to protect a right, which would be lost without the warrant. In another judgement Dr John Gauci -v- Direttur tal-Kuntratti of 18 July, 2008, a warrant should not be used as an arm twisting tactic. Therefore, the warrant should not be used to stop the enjoyment of a right, instead of the protection of a right. From the evidence produced in this particular case, it is clear that the excavation took place within the distance established in Art. 439 of Civil Code. The scope of this distance imposed by the legislator is to avoid a tragedy. With scientific progress the distances may not be respected if concrete steel structures are placed, which in this case did not take place. Therefore the Cutajars managed to prove that excavation may cause irremediable damage to them and is a danger to human life. The Court concluded by upholding the request for a warrant of prohibitory injunction. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning permit for the construction of basement and semi-basement garages, domestic stores as well as overlying maisonettes, apartments and penthouses was issued in Triq Patri Tumas Xerri in Bahrija, in consequence to which, a registered neighbouring objector lodged a third party appeal, insisting that the permit should be revoked. Appellant insisted inter alia that the proposal amounted to over development and further argued that the draft Local Plan (which was issued in 2001) had highlighted that the site in question was to remain a "Public Open Space". Indeed, the objector made reference to the relative excerpts of the draft Plan which expressly provided that the site in question was to be "allocated as a public open space and developments which compromise the enjoyment of the sites by the general public would not be permitted." The initial draft version also provided that "priority should be qiven to landscapinq schemes and play areas", adding that "excavation of the site for the construction of basements was not to be permitted unless it is demonstrated to the satisfaction of the Planning Authority that these works and the use of the space below ground will not adversely affect the use of the site for recreation by the general public." Notwithstanding, the eventual Local Plan document which was approved by the minister in the year 2006 omitted the said provisions and introduced a policy to the effect that the MEPA would "favourably consider the development of a mix of dwelling units" on the specific condition that a comprehensive development application incorporating a "holistic design" covering the whole site is submitted while construction is limited to a maximum 40% site area coverage and a height of three f loors with a basement. More so, the final plan provided that a public open space facing the church be retained. The objector insisted that these changes were carried out without any prior public consultation, adding that such behaviour went contrary to the law. In order to support his arguments, the objector made reference to a recent Court judgment in the names of Falcon Investments Ltd vs MEPA, wherein the Court of Appeal held that any material changes to subsidiary plans carried out without prior public consultation amount to abusive conduct on the part of the executive. In its assessment, the Environment and Planning Tribunal observed nonetheless that the Authority acted intra vires (that is, within its legal authority), since the proposal was after all in conformity with the design criteria set out in the approved Local Plan. The Tribunal refrained from entering into the merits as to whether the minister had acted unlawfully as claimed by the objector and dismissed objector's requests. Robert Musumeci is an architect. He also holds a Masters degree in Conservation and a degree in law. robert@rmperiti.com Tribunal says that the Authority acted intra vires Robert Musumeci MEPAwatch Objector claims that 2006 Local Plans were promulgated in an 'abusive' manner Court halts excavation after legal distance not respected