Issue link: https://maltatoday.uberflip.com/i/637230
50 maltatoday, SUNDAY, 7 FEBRUARY 2016 Opinion Tribunal not in a position to conclude whether a room was ever in place T he First Hall of the Civil Court presided by Mr Justice Mark Chetcuti accepted on 3 February 2016 a request of jactitation in a lawsuit Lars-Goran Berglund and Kerstin Anita Berglund -v- Hector Spiteri and Nadine Spiteri. In their application the Berglunds held that the Spiteris had registered a claim against them that they had an easement in their favour in that the air space above an apartment in Sliema should not be developed in any way. In fact defendants Spiteri had requested the plaintiffs to remove a construction on the air space of the block of apartments. This was done by correspondence and even through judicial letters. Therefore, the plaintiffs asked the court to order the defendants to follow up the case by taking legal action to establish their rights, or, alternatively to stop making claims against them. The Spiteris in their statement of defence held that their rights on the property precede those of the plaintiffs. They further explained that this action was being used to turn the tables by making them file a lawsuit when it was the plaintiffs who had to file an action on property rights. The defendants had a right not to say anything unless contrary evidence is presented. According to the defendants, there exists no contrary evidence because their title was created well before that of the plaintiffs. The defendants quoted from jurists of the likes of Laurent, Fadda and Baudry Lacantinerie. Mr Justice Chetcuti considered the legal points and in doing so, he quoted a judgement, Mario Pickard -v- Grace Anderson, decided by the Court of Appeal on 25 November, 2011, which held that the action of jactitation takes place when a person places a claim by means of a judicial right or in writing. In order to get rid of this claim the other party presents this action to order the party with the claim to file a lawsuit within a year. The Court considered the facts of the case, where the defendants had sent two judicial letters in August 2014 and December 2014 to the Berglunds calling upon them to remove a wooden structure on the air space of the penthouse of the block of apartments, because the Spiteris claimed they enjoyed an easement of the same air space for nothing to be built. This is mentioned in their contract of purchase of 2 January, 2004. This claim is therefore, made in writing. From the evidence the air space is in the possession of the plaintiffs, as established in the contract of their previous owners, of 4 June, 1988, where the penthouse and the roof were purchased, with the right of the apartment owners to fix a tank and an aerial. This dispute was proved by the erection of a wooden structure on the roof of the penthouse in 2006. At first there was no opposition. The Court at this stage and in this action should not enter into the merits of the case. The scope of this action is not to leave pending issues and baseless allegations. The Court held that it would have decided the defendant's written claim was provoked had the letters been written immediately after the wooden structure was erected. However, the judicial letters were sent eight years later and therefore, the claim had to be settled judicially and permanently. The Court then moved to order the defendants to institute the action against the plaintiffs within 30 days and set a court sitting for 7 March, 2016. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Court orders defendants to follow up judicial letters by instituting lawsuit against plaintiff A development application contemplating the "reconstruction" of an agricultural store situated in the limits of Zurrieq was turned down by the Environment and Planning Commission. Although the description of the application refers to the "reconstruction of a collapsed roof ", the proposed drawings show a new room which is yet to be constructed, having an area equivalent to circa 45 square metres and an external height of 3.4 metres. The Commission considered that the request was tantamount to a "relocation". At the same time, the Commission underlined that the applicant had failed to demonstrate that the original building was covered by a development permit or that it existed prior to 1978. Consequently, the Commission concluded that the applicant's proposal ran counter to paragraph (1) of Policy 6.2C of the Rural Policy and Design Guidance (2014) and refused the application. In reaction, the applicant appealed the decision before the Environment and Planning Tribunal, arguing that his proposal seeks to relocate an agricultural store "that is visible on the 1957 plan". The applicant stated that case law has consistently shown that the structural replacement of buildings which appear on the pre-1967 survey sheets is acceptable "unless these rooms have a visual impact on the surroundings and are not built in accordance with the relevant ODZ characteristics." As a final point, the applicant remarked that the foundations of the old structure were still evident on site. On its part, the Authority reiterated that the 1957 Survey Sheets cannot be considered as sufficient proof attesting that the structure is legally established since no structures could be traced on the applicant's site. Against this background, the Authority insisted that the applicant's request needs to be assessed in the light of policies regulating new agricultural stores. In this case, the applicant cultivates 11 tumoli of land and is thus not considered eligible for a new agricultural store of 45 square metres. In its assessment, the Tribunal observed that the 1957 survey sheets feature the presence of ruins on the applicant's site. Therefore, it was not in a position to conclude with certainty whether a room was ever in place. Moreover, the Tribunal was not convinced that the proposal was aimed "to support development that is essential and genuine to the needs of sustainable agriculture and rural development in order to complement the competitiveness of the rural economy" as required by Policy. Against this background, the Tribunal confirmed the Commission's decision. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree. Robert Musumeci MEPAwatch Tribunal refuses ODZ redevelopment The judicial letters were sent eight years after the wooden structure was erected so the claim had to be settled judicially