Issue link: https://maltatoday.uberflip.com/i/448091
32 maltatoday, SUNDAY, 18 JANUARY 2015 Opinion M r Justice Lawrence Mintoff in the First Hall of the Civil Courts, decided on 12 January, 2015, in Giljan Agius v Mark Micallef, that once the parties agreed on the lease agreement that the tenant had to pay for the first year's rent, this was binding on both of them. In his application, Giljan Agius explained that Mr Micallef owed him Lm15,000 in terms of a lease agreement of 25 January, 2002. Mr Micallef disagreed with this, since it was subject to a clause that said that this sum was not due "should the business prove unfruitful in the first twelve months from the opening date". He also stated that the restaurant was not licensed and therefore, other conditions of the lease agreement were not adhered to. The court analysed the evidence given, in that Mr Agius contested the fact that the restaurant was not licensed by the Malta Tourism Authority (MTA). He explained further that since the restaurant was not used he had asked the MTA to suspend the licence in order not to incur these expenses. When the defendant took over the restaurant, arrangements were being made for the licence to be transferred to Mr Micallef 's name. There was no problem with this. With regard to the debt of Lm15,000, the court examined the lease agreement, which stipulated that the lease period was for five years from 15 April, 2002 and the lessee had an option to extend for a further five years. However, the lessee could be released from his obligations for the "other years should the business prove unfruitful in the first 12 months from the opening day". Therefore, the defendant could be released only after the first 12 months. Dr Anna Mallia, who drafted the lease agreement, told the court under oath, that Mr Micallef had to spend one year in the premises and in that year he had to decide whether or not to continue. There was also a note which stated that Dr Mallia had explained the clauses of the agreement to the parties. Therefore, the defendant was bound to pay the Lm15,000. Mr Micallef told the court that he had returned the keys because the premises was not covered by a MTA licence. But this was not the reason given when he returned the keys. He had explained that he was not doing well. It was only during the case that he raised this argument. Mr Justice Mintoff quoted from the MTA representative who testified that were the payment to be sent the licence would be issued. The court observed that the defendant had in fact opened the premises for business and the MTA had inspected the place. There were a few things not in place, such as fire precaution equipment and emergency alarm system, however, these were considered as minor and the licence would have been issued. Mr Justice Mintoff commented that after Mr Micallef returned the keys, he had rented and opened another restaurant in a different place. The Court held that the parties are bound by the agreement they themselves signed and therefore ordered Mr Micallef to pay Mr Agius €34,941 equivalent to Lm15,000. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning request which led to a permission for a catering establishment along with tables and chairs, to be located in the front garden, was entertained by the Planning Commission after it held that the proposal was in accordance with current policies. A neighbour, who resides above the premises, lodged a third party appeal against the approved permit with the Environment and Planning Tribunal, insisting that the permit should be revoked since he was worried that the conversion of the premises into a catering establishment would inevitably create an unbearable nuisance. The third party objector also pointed out that members of his immediate family suffer from a medical condition which "will be surely aggravated if the outlet in question is going to be operated as a food establishment, enabling the operator to operate from the front garden by the placing of tables and chairs". The objector made specific reference to a proposed horizontal duct which, once the establishment commences operations, would generate fumes directly under his balcony. The objector further argued that the proposed activity amounts to a violation of Structure Plan Policy BEN 1 which in turn provides that any new development which is likely to have a deleterious impact on existing or planned adjacent use because of visual intrusion, noise, vibration, atmospheric pollution, unusually high traffic generation or unusual operating times should not be permitted. Notwithstanding the appellant's objections, the tribunal turned down the objector's request after it held that the site falls in a designated Primary Town Centre, noting further that the applicant had submitted a Noise and Ventilation Report where it was indicated that extracted air would be filtered through active carbon filters prior to being discharged in the outside environment via an exhaust pipe terminating on the front façade. In its conclusions, the tribunal remarked that the policy objectives would still be attained should the applicant provide adequate filtering and fume extraction systems, by way of which fumes are "filtered and vented away from overlooking windows". In reaction, the objector appealed the tribunal's decision before the civil courts, arguing inter alia that the tribunal gave a wrong policy interpretation in that the applicant had no option but to provide a chimney flue extending vertically above the building envelope. After assessing the policy in detail, the court held that the objector was correct to state that there is no allowance for alternative "fume extract solutions" other than vertical chimney stacks that ought to terminate above the topmost part of the building. On this basis, the court revoked the tribunal's decision and ordered the tribunal to review the case. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law ...No allowance for alternative "fume extract solutions" other than vertical chimney stacks There were a few things not in place, such as fire precaution equipment, but these were considered as minor and the licence would have been issued Robert Musumeci MEPAwatch Court revokes permit for catering establishment without a chimney stack Court sticks to tenant's and landlord's initial intentions