Issue link: https://maltatoday.uberflip.com/i/506094
32 maltatoday, SUNDAY, 3 MAY 2015 Opinion T he First Hall of the Civil Courts in its constitutional jurisdiction held that it was empowered to hear and decide on a constitutional application asking for the eviction of tenants of a property in Gharghur. This was decided by Ms Justice Lorraine Schembri Orland on 21 April, 2015 in Dr Cedric Mifsud and Dr Michael Camilleri noe v Andrew Azzopardi and Teresa sive Tessie Azzopardi. In their application Cedric Mifsud and Michael Camilleri on behalf of their clients, who do not reside in Malta, held that they are owners of a property in Gharghur which was granted on temporary emphyteusis on 6 August, 1974 for 17 years. The ground rent was Lm50 per year. After the 17 years period expired the Azzopardis continued to occupy the property in terms of Housing (Decontrol) Ordinance (Chapter 158 of the Laws of Malta). On 25 October, 2013 the Constitutional Court in Dr Cedric Mifsud and Dr Michael Camilleri noe v Attorney General held that the Ordinance ran counter to the owner's fundamental human rights and therefore the effects of this law were declared null. As a consequence the applicants claimed that the defendants Azzopardi did not have a legal title to continue living in this particular property. Therefore Mifsud and Camilleri asked the court to order the eviction of the Azzopardi family. The Azzopardis filed a statement of defence where they claimed that the court did not have jurisdiction to hear the case and that they were occupying the property in terms of a law which is still law. The Azzopardis also pleaded that they invested thousands of euros in the property and should be compensated. The court's judgement was limited to the first two pleas, that of jurisdiction and the validity of the possession. On the competence of the court Ms Justice Schembri Orland quoted from a previous court of appeal judgement, Frankie Refalo noe v Jason Azzopardi of 7 October, 1997, which held that the issue of competence of the court very much depends on the facts of the case and does not solely depend on the requests of the plaintiff; competence may depend on the pleas raised with the amendments of 2009 to the Civil Code concerning leases, the law gave exclusive competence to the Rent Regulation Board on residential and commercial leases. In another judgement Antonia Frendo et v Christopher Agius of 10 July, 2014 held that the Rent Regulation Board has jurisdiction over the possession of all urban tenants. The court held that the Rent Regulation Board is a special tribunal, which competence is to be limited to that dictated at law. Issues not found in these laws are to be dealt with by the ordinary courts. In this particular case the plaintiffs are asking for the eviction following the Constitutional Court's judgement, which held that the defendants cannot claim a title on the Gharghur property on the Housing (Decontrol) Ordinance. Therefore, what the plaintiffs are asking for is beyond the usual request for eviction, because of a breach of a lease agreement. The court is being asked that the Constitutional Court's judgement be made effective and therefore, it has competence to examine if it should. Regarding the second plea of the defendants the Court divided it into two. Firstly, the defendants are claiming that they were not parties to the Constitutional Court case, but were merely included as parties "for any interest that they may have", since they were not the direct parties – the case was against the state. The second element of the plea was that the lease is still valid at law, since the Housing (Decontrol) Ordinance has not been repealed as yet. The Court did not agree that the Azzopardis were not parties to the first constitutional case. In fact the Constitutional Court did not exempt them from being parties to the suit. In a similar case Raymond Cassar Torregiani et -v- AG of 22 February, 2013, the Constitutional Court held that the tenants had a direct interest in the case, since the lease is the subject of the court action. In this case the Azzopardis were considered as defendants in the previous constitutional action, and as such the judgement applies to them also. They did not appeal the case and therefore the judgement of first instance is final in their respect. With regard to the validity of the law, the court made reference to the Constitution and the European Convention, which mentions that the Constitutional Court judgements are notified to the Speaker of the House of Representatives, who is to inform Parliament by presenting a copy. Anyhow the Constitutional Court declared that Article 12(2) of the Housing (Decontrol) Ordinance as inconsistent with the Constitution and as a consequence the defendants cannot use this law as the basis of their title of the enjoyment of the property in question. The Court then moved to turn down the pleas and ordered the case to continue to be heard. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application entitled "Extension of existing pavement and placing of tables and chairs" fronting a catering establishment in Triq ix-Xatt, Sliema was initially turned down by the Environment and Planning Commission after it held that the proposal involved the extension of a pavement which will remove existing on-street parking spaces. The Commission concluded that the proposal would "exacerbate potential highway danger and vehicular and pedestrian conf lict, and is thus counter to Structure Plan policy TRA 4 and PA circular 3/93." Even more so, the Commission maintained that "the proposed area for tables and chairs is not in line with Class 14 of the Development Notification Order (LN 115 of 2007) in that the clear and unobstructed pedestrian passage is not located between the area reserved for tables and the edge of the pavement", adding that "clearance from Transport Malta was not obtained". For his part, the applicant lodged an appeal before the Environment and Planning Tribunal, whereby it was argued that Transport Malta was no longer objecting to his proposal. The applicant (now the appellant) pointed out that in the case of another application in the same street, a similar permit was approved once a "no objection letter" was forthcoming from Transport Malta. The authority reacted by stating that the permit which the appellant made express reference to in his appeal submissions, was not approved. But even so, the case officer representing the authority underlined that in the appellant's case, "the negative comments by Transport Malta were not the sole purpose for having the development refused". The case officer reiterated that the "proposed extension to the pavement would result in the relocation of the existing parking bays, resulting in the removal of two parking spaces" in an area which already features "a significant shortfall in car parking provision". In its assessment, the tribunal observed that Transport Malta had indeed consented to the proposal on the express condition that a 1.5 metre stretch for the footpath alignment is kept unobstructed for pedestrian use. Furthermore, the tribunal stated that the site in question falls within a zone which is formally designated for "mixed use". By way of conclusion, the tribunal added that the scale of the proposal is relatively small and held that the permit should be approved on condition that no permanent structures are placed on site. A condition stating that "the permit hereby being granted shall in no way compromise any proposed upgrading of the Gzira/ Sliema Strand and in such an eventuality, the applicant is to conform with the requirements of such upgrading and have no right to any compensation" was also to be included in the permit. 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 The site in question falls within a zone which is formally designated for "mixed use" while the scale of the proposal is relatively small Robert Musumeci MEPAwatch 'Tables and chairs' approved subject to strict conditions Constitutional Court has jurisdiction to hear eviction case