Issue link: https://maltatoday.uberflip.com/i/664438
52 maltatoday, SUNDAY, 10 APRIL 2016 Opinion T he Magistrates' Court disallowed the introduction of a new plea at the final submissions stage of the proceedings. This was decided in Gasan Mamo Insurance Agency Limited noe -v- Vella Aluminium Limited, on 6 April, 2016. The plaintiff company in its application asked the court to order Vella Aluminium Limited to pay it the sum of Lm2,303.89 representing damages its client Bonfiglioli Engineering Limited suffered due to a fire that took place in 2000. They further claimed that the defendant company was responsible for causing the fire. Vella Aluminium Limited presented its statement of defence, stating that it was not responsible for causing any damages to Bonfiglioli, however, without prejudice, the sum was inf lated. The background of the case, goes back to 29 February, 2000 when a fire broke out in the factory of Vella Aluminium and everything was destroyed. The fire broke out when Joseph Vella, the owner of the company, was carrying out works, when he heard a small explosion and saw smoke in the store where he kept the thinner. When he opened the door of this store the fire spread. Bonfiglioli had a factory next door and it claimed that the fire affected it, and it suffered structural damage as well as damage to the electrical system. The insurance company confirmed that these damages did exist and paid Bonfiglioli the sum of Lm2,303.89. Magistrate Marse-Ann Farrugia, who delivered the judgement, made reference to a preliminary judgement. The insurance company had presented the reports of the Magistrate's enquiry report. The defendant company challenged this evidence, since it was not given under oath in the proceedings. The court in 2009 held that these experts had to be produced in these proceedings. In fact the experts were produced as witnesses. Magistrate Farrugia pointed out that in the written submissions presented by the defendant, they held that since Bonfiglioli were not the owners of the property, but merely tenants, the proceedings should not have been instituted on behalf of this company but on behalf of the Malta Development Corporation, the owners of the factory. The court held that numerous judgements have dealt with the issue as to whether pleas could be introduced during the proceedings, after the statement of defence would have been presented. In Pace Associates Limited -v- Drawing Techniques Limited, the court had referred to Article 728 and 731 of the Code of Organisation and Civil Procedure. Article 731 states: "…all pleas whether dilatory or touching the merits shall be raised in the sworn answer, as the case may be. Those pleas touching the merits shall be raised without prejudice to the dilatory pleas." The defendant would have to present the pleas according to the format prescribed at law and within the time frame established in the law. This is because this issue is one of public order and therefore, the interpretation of the law should be literal and strict observation of the law is required. In another judgement, Fogg Insurance Agencies Limited noe -v- Raymond Azzopardi it was held that pleas cannot be introduced in written or verbal submissions. In this particular case, the defendants could have argued that there was no evidence of the ownership of the factory, but this did not prevent them from filing an application asking leave of the court to allow them to present an additional plea, once the plaintiffs concluded their evidence. The court held that it could not take cognisance of this additional plea. With regard to the merits of the case the court analysed the evidence, that the damages caused to the Bonfiglioli factory was not cosmetic, but substantive. If the defendant company was responsible for the damages, the court quoted from Michael D'Amato noe -v- Filomena Sptieri et, decided on 3 October, 2003. Responsibility is established by analysing the behaviour of the persons involved. There is no civil law definition of civil negligence, but this consists of an absence of prudence or diligence. In this particular case the work of electrostatic paint carried out by the defendant company is dangerous and risky. The only person present in the factory was its owner, who was spraying. Joseph Vella did not testify in these proceedings. Furthermore, there is no contestation that he was the only one in the factory at the time of the accident. The court then moved to uphold the insurance company's claims and order the defendant company to pay it €5,366.62 equivalent to Lm2,303.89. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates No pleas may be introduced in submissions A planning application was submitted in 2002 for "the reclamation of a disused quarry including construction of garages, stores, offices and a boat park and landscaping works". The quarry is located in the limits of Siggiewi. The proposal was turned down on a number of counts. The Authority had held that the site lies in a Rural Conservation Area, where no urban development is permitted. In this case, the proposed structures were not considered to qualif y as "a facility which is essential to agricultural, ecological or scenic interests." Additionally, the Authority found that the proposal would generate a considerable volume of vehicular movements which would have a significant and unacceptable impact on the road network in the area. Reference was also made to Structure Plan policy MIN 13 which "favours the reuse of quarried areas, but gives priority to uses which are difficult to locate elsewhere because of their visual or other undesirable impacts." In conclusion, the Authority underlined that "the proposal runs counter to South Malta Local Plan policy SMCO 08 which serves to protect groundwater resources and water quality." In furtherance to the said decision, the applicant lodged an appeal before the Environment and Planning Review Tribunal. In his appeal, the appellant emphasized that the Authority had stated in a letter dated 10th January, 2006 that the proposed warehouses at basement level were not objectionable. The applicant also made reference to a permit issued in 2009 for the construction of five garages in a nearby quarry. In reaction, the Authority reiterated that in this case, "there is no apparent justification why the proposed warehouses, garages and storage cannot be located in existing and proposed built-up areas, and industrial estates." Once again, the Authority pointed out that the quarry, subject of the appeal, is located in a predominantly agricultural area outside the development zone. The Authority kept on insisting that the site is located in the vicinity of an Area of Ecological Importance and a Valley Protection Zone. More so, the Authority maintained that, in the past, it had turned down similar requests. As a final point, the case officer argued that the 2009 permit (referred to by the applicant) was of little relevance since it relates to the construction of garages within an operational quarry and which would be demolished once quarry activity ceased. In its assessment, the Tribunal noted that the proposed development could prima facie qualif y in terms of Policy SMIA 11 of the South Local Plan. But even so, it observed that the Authority failed to establish whether the said proposal qualifies for an Environmental Planning Statement (EPS) or an Environmental Impact Statement (EIS) prior to delivering its final decision. Against this background, the Tribunal redirected the case to the Planning Authority for reassessment. 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 Tribunal orders Planning Authority to reassess case Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Authority failed to establish whether an Environmental Planning Statement (EPS) or an Environmental Impact Statement (EIS) were needed