Issue link: https://maltatoday.uberflip.com/i/527016
52 maltatoday, SUNDAY, 14 JUNE 2015 Opinion T he First Hall of the Civil Court turned down a request made by a plaintiff to allow the defendant to produce the evidence first. This was decided in a partial judgement of a law suit, Mark Napier -v- Andre Bianchi, of 5 June, 2015, delivered by Mr Justice Lawrence Mintoff. The plaintiff, Mark Napier, informed the court that the parties are owners of two adjoining properties in Lija. The defendant, Andre Bianchi is claiming that he has a right of the roof and airspace of the plaintiff and therefore, wants a declaration that such right does exist. Mr Bianchi defended the action by saying that his claim on the roof and airspace is based on a 1969 contract of inheritance and another 1991 contract. He claimed that the plaintiff was never the owner of the roof and airspace. On 9 April, 2015, the plaintiff presented an application asking the court to order the defendant to start the case by producing its evidence, since the defendant is claiming he has a legal title, and not the plaintiff. In his reply the defendant objected to this request, since the action is one of action of proving the original title (action rei vendicatoria) and according to jurisprudence the defendant may remain silent. Independently of who has possession of the property in dispute, the defendant has a right to demand from the plaintiff the evidence of the title. Therefore, he should not start with producing evidence. Mr Justice Mintoff held that in essence the case concerns whether the plaintiff has a title on the property and therefore, has an interest that the court declares that he is the owner of the roof and the airspace and also proving that the defendant has no claim. The court case instituted by the plaintiff is classified as an action vindicatoria, since he is asking the court to declare that he is the sole owner of the roof and airspace and therefore order the defendant to remove any of his property on the roof. The Court quoted from Torrente, an Italian jurist who held that the action rei vindicatoria is intended to establish who is the owner of a property held by others, and it is also intended to establish the property rights. It is the plaintiff who has to show that he is in possession of this title and acquired the original title. The Court pointed out that the defendant is claiming that he is also the owner of the same property and therefore, cannot limit itself to possession. As a result the court must compare the titles both parties hold on the roof and airspace and decide upon who has the best evidence. The court quoted from a previous judgement Cassar noe -v- Barbara et decided on 7 October, 1980, where the court held that it is the plaintiff 's responsibility to prove his title in an action of rei vendicatori. The Court held it is not the case to ask the defendant to commence with the production of evidence and ordered that the case continue with the plaintiff first producing all his evidence. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application entitled "Proposed open yard for parking of heavy vehicles, canopy made of reversible material and construction of boundary walls", in Xewkija, was initially approved by the MEPA board subject to an express condition stating that "the use being permitted on site shall cease after two (2) years from the publication date of this development permission". In other words, the permit was issued on a temporary basis, following which the site would need to be reinstated. In reaction, the applicant lodged an appeal before the Environment and Planning Tribunal, insisting that the condition is "unreasonable and illogical." The applicant explained that such condition was "never mentioned during the hearing of the application by the MEPA board." In his arguments, the applicant described as "senseless" the decision to construct a canopy, covering an area of 722 sq. mts. at a substantial cost, only to have it dismantled again after two years. The applicant went on to highlight that the approved development would take a minimum of six months to complete – in turn, the canopy would in effect be used for less than 18 months "because by the end of the two year period the site will have to be "reinstated to its original state". As a final point, the applicant made the interesting argument that the Authority made him pay the full fees applicable for a "normal permit", rather than for a "temporary permit". For his part, the case officer maintained that the permit was approved by the MEPA board because the applicant's architect fully agreed to alter the proposal description as suggested by the board. Indeed, the applicant was aware of MEPA's intentions since a written communication to that effect was sent prior to the final hearing. The board had indeed justified the permit on the basis that the proposal was downscaled to ensure reversibility excluding built structures and noted further that the proposed use (namely, an open yard for parking of heavy vehicles) should be allowed until the Authority identifies an adequate site for such uses. In his conclusions, the case officer underlined that the applicant never raised an issue with respect to the fees charged by the Authority. In its assessment, the tribunal observed that the applicant was indeed informed about the board's intention to approve a "temporary" permit prior to the final sitting. Nonetheless, the tribunal contended that the permit conditions do not, at least prima facie, reflect the board's intentions as expressed in the minutes. Indeed, the board had said that a permit should be issued until a policy is in place whereas the permit stipulates that the permit is only valid for two years. In the circumstances, the Tribunal opined that it would be more reasonable to extend the validity of the permit to five years, which period should commence "from the date of issue of a Compliance Certificate (partial or full whichever is first issued)". Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law robert@rmperiti.com Robert Musumeci MEPAwatch Open yard permit extended by three years Court refuses to invert the order of production of evidence in legal title claim on property Tribunal: permit conditions do not, at least prima facie, reflect the board's intentions as expressed in the minutes It is the plaintiff's responsibility to prove his title in an action of rei vendicatori