Issue link: https://maltatoday.uberflip.com/i/634260
48 maltatoday, SUNDAY, 31 JANUARY 2016 Opinion No documentary evidence to show that the installation would generate unacceptable noise levels M r Justice Joseph Azzopardi, presiding in the First Hall of the Civil Court in John Mary sive Jimmy Fsadni and Darkar Building Construction Limited -v- Georgina Mallia and Francis Mallia, held that the plaintiffs had purchased the property and on the plans the windows were indicated, therefore, there is no spoliation if the defendants decided to construct these windows. This was decided on 27 January, 2016. The plaintiffs explained in the application that they are the owners of a private drive- in in Hal Luqa, which leads to a number of garages which lie under a property owned by the defendants. Before the application was lodged the defendants constructed a new window overlooking the drive-in and this, according to the plaintiffs, was done against the law. They asked the court to order the defendants to close the new window. In their statement of defence, the defendants pointed out that the plaintiffs have to point out their juridical interest in the action. They denied doing anything illegal and held that all they did was open a window which was shown on the plans and permits. Mr Justice Azzopardi analysed the facts of the case which showed that the plaintiffs were owners of the drive-in. They had exhibited photos of it before and after the window was constructed. The defendants then exhibited their contract of purchase of October 1994, and approved plans, which indicated that a window was meant to be opened. The Court held that this action was that of spoliation and the plaintiffs complained that the opening of this particular window was an act of spoliation. The elements of spoliation are that there must be possession, the act of spoliation has to be done clandestinely and against the plaintiffs' consent and that the action must take place within two months from when the spoliation occurred. In fact Article 535(1) of the Civil Code stipulates: "Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention, as provided in article 791 of the Code of Organization and Civil Procedure." The Court quoted from a previous judgement, Vincenzina Cassar -v- Annetto Xuereb Montebello decided on 28 May, 1956, which held that the action of spoliation is essential to keep public order and is to avoid from one taking the law in his/ her own hands without judicial intervention. In another judgement, Margherita Fenech -v- Pawla Zammit of 12 April, 1958, the action of spoliation is required to protect possession. The court need not examine the type of possession, but material possession is sufficient. Therefore, in this particular case, the court does not need to examine the purchase contract and the annexed plans. The plaintiffs had originally purchased the property for themselves, however, they had a change of heart and wanted to use it for business purposes. The most essential evidence is the plans the plaintiffs had submitted for their permits. In his testimony Mr Fsadni confirmed that the plans submitted to MEPA had indicated that a window was to exist when they were going to use the property as their residence, but then put it up for sale. The window was not opened for 20 years but was opened a few weeks before the action was instituted. If the defendants wanted to disturb the possession of the plaintiffs, they had to institute an action for the court to authorise this. However, in this particular case the plaintiffs had sold the property to the defendants, when the same plaintiffs had a right to open the window themselves. The defendants purchased the property with the approved permits. This would have been a different story if the action was done against a third party. Therefore, the window was not opened clandestinely. Therefore, one cannot sell a property with a permit to open a window and then object to it. The Court dismissed the claim. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt No spoliation if defendant had purchased the property, with plans showing windows A development application for the construction of a lift structure and two levels of apartments overlying third party property was approved by the Environment and Planning Commission. The case officer maintained that the proposal was in line with the land-Use Zoning Conditions and Height limitations of the area. (The building is situated in Triq ir-Rihan, Fgura.) Essentially, the permit drawings show the proposed addition of residential units at second f loor and overlying penthouse level. The street is almost level and the proposed building height is equivalent to 11.8 metres above the lowest finished pavement level, thus within the 12 metre height limitation stipulated in the relative Local Plan. Furthermore, the case officer observed that the residential units feature "adequate outlook ", thus enjoying sufficient natural light levels. The drawings also feature the introduction of a lift shaft with a view to facilitate access to the proposed f loors, the design of which was deemed acceptable since the structure is adequately receded from both the building line and the rear façade. Following the issue of the permit, the owners of the underlying dwelling filed an appeal against the permit before the Environment and Planning Tribunal. Appellants contended that the permit should be revoked since the proposed lift shaft would be supported by the roof of one of their bedrooms, as a result of which they would be subjected to undue noise and vibrations, particularly at night. Appellants maintained that the Authority may not simply state that the permit was issued "subject to third party civil rights" and ignore the provisions of Structure Plan Policy BEN 1 (which states that 'development will not normally be permitted if the proposal is likely to have a deleterious impact on existing or planned adjacent uses because of visual intrusion, noise, vibration, atmospheric pollution, unusually high traffic generation, unusual operating times or any other characteristic which in the opinion of MEPA would constitute bad neighbourliness'.) On its part, the MEPA reiterated that the proposal was in line with current planning policies and requested the Tribunal to dismiss the appeal. In its assessment, the Tribunal observed that the objectors failed to submit any documentary evidence to show that the proposed lift would generate unacceptable noise levels as alleged. More so, the Tribunal observed that the lift system would employ a series of shock absorbers to contain the noise. The Tribunal also noted that, eventually, a compliance certificate would only be issued subject to an engineer's report. Against this background, the Tribunal concluded that the permit should stand. 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 Residents object against lift structure