Issue link: https://maltatoday.uberflip.com/i/640308
46 maltatoday, SUNDAY, 14 FEBRUARY 2016 Opinion MEPA was wrong to refuse application on aesthetic merits when design was not being changed T he First Hall of the Civil Court ruled against a claim that the use of a cesspit, and of windows violated the property rights of the plaintiff. This was decided on 9 February, 2016 by Mr Justice Silvio Meli in Giovanna Camilleri -v- Lorenza Micallef and Mario Micallef. In her application Camilleri explained that she is the owner of a property in Bahrija and her property is adjacent to that of the defendants. The defendants make use of a cesspit which is situated in her property and to make use of the cesspit they pass across her property without having the legal right to do so. Camilleri further explained that she purchased the property in 2002. The defendants have win- dows and other apertures over- looking her property and as such are violating her rights as a prop- erty owner. According to Camill- eri, this constitutes a molestation in terms of Articles 425 and 534 of the Civil Code. The plaintiff is asking the court to declare that the right of passage to the cess- pit does not exist and also that the windows and apertures over- looking her property constitute a servitude and therefore, order the defendant to remove them, together with the cesspit. The Micallefs presented their statement of defence and held that according to Article 534 of the Civil Code the action should be instituted within one year when the windows were opened. These windows and the cesspit have been in existence for over 30 years. However, they claimed that the action is null and void since it is based on a number of claims which are distinct from each oth- er and therefore contrary to Arti- cle 789 (c) of the Code of Organi- sation and Civil Procedure. Mr Justice Meli in his judgement held that this issue deals with two properties adjacent to each other. The defendants have win- dows and apertures overlooking the plaintiff 's property. Further- more, the properties are situated in a rural area and they cannot connect to the national drainage system and therefore, make use of a cesspit. However, the cesspit is in the plaintiff 's property and every time maintenance works are done, the defendants have to enter her property. Camilleri is claiming that although she pur- chased the property in 2002, she came to know of this situation in 2008. She instituted the case in 2010. The Court then analysed the legal points and that the action is based on Article 534 of the Civil Code, which according to Domenica Mamo et -v- Antonia Galea et decided on 18 February, 2004, the action has three ele- ments. These are that there must be possession of the immove- able or moveable property, the act must qualify as a molestation and the action must be instituted within a year. According to the defendant the plaintiff admitted that she knew of the situation in 2008, but was in possession of the property in 2002, and had been in the fam- ily previously. The action was in- stituted in 2010 and, as a result, the one year time limit was sur- passed. With regard to the plea of plu- rality, since the first action deals with the molestation, the other is an action negatoria. The defend- ants state that this runs counter to the principle electa una via non datum recursus ad alteram, where the plaintiff must choose one action. However, these two actions are intrinsically connect- ed and therefore, the claims are acceptable. With regard to the claim to close the windows and apertures, the plaintiff held that these are causing a servitude on her prop- erty, however, according to a pre- vious judgement in Vella v Spi- teri pf 11 March, 1983, the action cannot be a possessory action but one establishing a title. With regard to the servitude, the property of the defendants is actually of Elisa Company Lim- ited and it is merely leased out to the defendants, and the action in question is one of title, since it is asking the court to determine whether a servitude exists on her property, however, the plaintiff failed to prove her case. Mr Justice Meli therefore, moved to dismiss the action Malcolm Mifsud, Partner, Mif- sud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Court disagrees with easement claim Showroom converted to dwelling A planning application for the conversion of a showroom into a dwelling was turned down by the Environment and Planning Commission. The premises are located in Triq Rudolfu, Sliema. In its refusal report, the Commission objected to the façade design, concluding that the proposed development is incompatible with the urban design and environmental characteristics of the Urban Conservation Area and thus would not maintain the visual integrity of the area. Moreover, the Commission stated "the proposed development would detract from the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas and so does not comply with Structure Plan policy UCO6". In addition, the Commission made reference to the fact that the depth of the building exceeds 30 metres, being thus in violation of established planning policy. In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal. In his appeal submissions, the applicant maintained that the showroom was covered by a planning permit, adding that the façade was in line with the approved permit drawings. Nevertheless, the appellant underlined that he was willing to undertake any structural measures aimed to improve the aesthetics of the façade to render it in synch with the surrounding urban context. Nonetheless, the Authority reiterated that the proposed development was incompatible with the urban design and environmental characteristics of the Urban Conservation Area. Whilst maintaining that it was not against the proposed residential use, the Authority insisted that "the front elevation does not respect the residential nature". Once again, the Authority retained that the building depth was in excess of 30 metres, thus running counter to established planning regulations. In its conclusive remarks, the Authority recalled that the Tribunal may not entertain changes to drawings during appeal proceedings. In its assessment, the Tribunal observed that, in principle, the Authority was not against the fact that the showroom was being converted into a dwelling. Moreover, the Tribunal noted that the Authority was wrong to refuse the application on aesthetic merits when the proposal did not contemplate any changes in the current design. But even so, the Tribunal noted that the appellant was willing to modify the design and thus ordered the Authority to issue the permit subject to the applicant submitting fresh plans showing a smaller doorway similar to the one in the adjacent plot. 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 Showroom converted to dwelling The action has three elements: there must be possession of the immoveable or moveable property, the act must qualify as a molestation and the action must be instituted within a year