Issue link: https://maltatoday.uberflip.com/i/540322
52 maltatoday, SUNDAY, 12 JULY 2015 Opinion T he First Hall of the Civil Court presided by Mr Justice Joseph Azzopardi held that the fact that a local council replaced street lighting which was fixed on private property does not constitute a spoliation. In Arcidiacono Ltd and Boris Archidiacono Ltd -v- Msida local council, Enemalta Corporation and Nexos Street Lighting Limited, the plaintiffs held that they are owners of a showroom in Gzira. On 10 November, 2010, the council, by means of its contractor Nexos, carried out works by fixing street lighting in its façade and placed wires. This took place immediately after the companies finished renovation works on the façade. The council failed to consult and seek authorisation from the plaintiff companies. The plaintiffs asked the court to declare that the act was illegal by spoliation and to order the defendants to remove the street lighting. Enemalta defended the action by stating that it has no relationship with the companies and was not responsible for fixing the lighting where it was fixed. The corporation also argued that the street lighting had been in that place for a long time and was removed provisionally because the companies were carrying out works on the façade. Msida council agreed with the corporation, in that it was simply a question of replacing what had existed previously and the council has a right to install street lighting according to law. Nexos explained that all it did was to follow the instructions of the local council. Mr Justice Azzopardi explained that the action of spoliation has three elements – that of possession that the spoliation took place against the will of the plaintiff and that the action was instituted within two months. The court quoted from a previous court judgement, Vincenzina Cassar -v- Annetto Xuereb Montebello of 28 May, 1956, in which the court had said that the action of spoliation is an action of public order and is intended to block one from taking the law into one's own hand and without the intervention of the courts. In another case Delia -v- Schembri of 4 February, 1958, it held that this action is intended to protect possession. The court held that the facts of the case show that the plaintiff companies decided to carry out works on the façade of their showroom in accordance with their rights. As a consequence they asked for a street light fixed on their façade to be removed. The street light seemed to have been there for decades. Once the works were completed the plaintiffs failed to again fix the street light. In response the local council engaged a contractor to place a new light in the same place. This is not spoliation, since this was not any breach of public order. In this particular case a public authority carried out its duties and replaced a street light. It was the plaintiffs who caused spoliation when they failed to put back the light they had removed. The court then moved to uphold the statement of defence of all three defendants. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A 2012 planning application concerning an established winery was initially turned down by the Environment and Planning Commission after it held that the proposal contemplated the sanctioning of an unauthorised area increase equivalent to 345 square metres, of which 220 square metres were located above ground level. The Commission pointed out that a basement had already been approved with an area that exceeds the maximum allowable floor space, and therefore any increase is considered as constituting "unnecessary sprawl and intensification of development in rural areas", running counter to Structure Plan policy RCO2. In addition, the Commission maintained that the unauthorised interventions on the existing rubble walls, terracing of the fields, and landscaping, involve substantial changes in the topography and visual composition which are not considered to be in line with the rural conservation objectives of Structure Plan policy RCO 4. In reaction, the applicant lodged an appeal before the Environment and Planning Tribunal, insisting that he cultivates about 40 tumoli of land. The applicant made specific reference to a permit where a winery having a considerably larger area was approved. More so, the applicant contended that the basement is covered by a layer of soil, adding that the Environment Protection Directorate was not objecting to the proposal. On his part, the case officer reiterated that the winery building has already been granted permission for a basement area of 510 square metres, which in turn exceeds the permitted 180 square metre limit specified in the policy. Based on this account, the case officer underlined that there are no valid justifications for the sanctioning of the unauthorised additional 345 square metre basement extension. As a final point, the case officer pointed out that the permit quoted by the applicant refers to an industrial type of winery surrounded by 22 hectares of vineyards, whereas the applicant tills much less in area. In its assessment, the Tribunal observed that in the applicant's case, there are sufficient material considerations allowing same to depart from established policies. The Tribunal further noted that no significant interventions were carried out above ground level whereas the extensions at basement level did not result in loss of soil. These extensions were justified due to the increased production demand. The Tribunal also concluded that the removal of rubble walls was necessary to afford the amalgamation of the various parcels of land. Against this background, the Tribunal ordered that the MEPA issues the permit against a fine of €2,329. 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 Robert Musumeci MEPAwatch Winery extension approved Sufficient material considerations allowing Tribunal to depart from established policies Replacement of street lighting does not constitute spoliation