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MT 8 May 2016

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50 maltatoday, SUNDAY, 8 MAY 2016 Opinion A Magistrate's Court in Gozo decided that the fact that a person had access to another person's property for years cannot constitute spoliation at law. This was decided on 3 May, 2016 in Carmelo Xerri –v- the couple Emmanuel and Frances Saliba by Magistrate Joanne Vella Cuschieri. In his application Xerri explained that he is the owner of land in Munxar, and that he has its effective possession. Xerri claimed that in February and March of 2012, the Salibas started entering this land and vandalising it by removing trees, throwing away a water tank and even changing the lock of a room. He asked the court to declare that this constituted spoliation and order them to revert the property to what it was. The Salibas in their statement of defence, argued that the elements of spoliation did not exist. Magistrate Vella Cuschieri in her judgement examined the evidence of the case. The evidence showed that the land belonged to the plaintiff 's family for generations. The plaintiff 's grandfather had lived in the rooms on the land. These rooms and the land lie side by side. One has to pass through a narrow passage to arrive to these rooms. The land forming part of the dispute lies beyond these rooms. The plaintiff always contended that the two portions of land were his and his family's. In fact it formed part of their division of an inheritance. The land was used to let off fireworks for the feast of Munxar as the permits showed. The plaintiff testified and that he and his brother worked in the fields in 2011 until March 2012, when they saw a number of trees broken. A police report was filed. The defendants did not contest that the land was owned by the plaintiff 's family, but the passage in their land was theirs. The land in dispute was not used and was abandoned. Notwithstanding this they admitted entering the plaintiff 's land. From the acts of the case it resulted that a certain Stephen Farrugia had entered into a promise of sale to purchase it and had authorised the defendants to clean the land in question. A door was placed in its original place and a lock was fixed. This was confirmed on oath by Farrugia. The defendants denied that they vandalised the site. On examining the legal point, the Court held that Article 535 of the Civil Code mentions three elements for spoliation. Possession, molestation and that the action has to be filed within two months. The court explained that this type of action is one of public order and is intended to prevent persons taking the law into their own hands. In a previous judgement Delia –v- Schembri decided on 4 February, 1958, the court held that spoliation is intended to protect possession that has violently been dispossessed. The second element of molestation refers to any violent or abusive act that is preformed against the person who is in possession. In Trevor Arends et –v- Veronica Mizzi decided on 11 January 2013, it was held that the two months rule has to be proved by the plaintiff to the judge's satisfaction. In Georgina Borg –v- Errol Cassar decided on 21 October, 2002, the requisite that the action has to be filed within two months is essential for it to be satisfied. Magistrate Vella Cuschieri held in her judgement, that the evidence produced showed that the plaintiffs had limited possession in that they went to the land once a year to let off fireworks. There exists no evidence that he even had a mere detention of this land. On the other hand, the defendants did visit the land occasionally, but that cannot qualify as possession of the land. However, the possession in a spoliation action can result in a mere detention. The defendants admit to entering the land and this was done for years before the incident that provoked this case. There is no evidence that it was they who had vandalised the land. As to the changing of the lock, the Court pointed out that this was done by the prospective buyer Stephen Farrugia and well before the two months when the action was initiated. Therefore, the Court moved to uphold the pleas and declare there was no spoliation. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Long term possession of other's property is not spoliation A planning application for the construction of villa incorporating a semi basement garage together with a swimming pool, was approved by the MEPA's Environment and Planning Commission. As a result, a number of neighbouring objectors lodged an appeal against the permit before the Environment and Planning Review Tribunal, insisting that the permit should be revoked. In their appeal submissions, the objectors argued that the area in question is zoned for terraced houses, whereas the development resembled a detached villa on four floors. Against this background, the objectors described the applicant's proposal as being "contrary to all logic and to the zoning provisions". Consequently, the objectors warned that the proposed development does not respect the zoning policy as specified in the North Harbours Local Plan – Map SG3. Additionally, the objectors alleged that the three storey development and the underlying semi-basement level were approved in an area which is landlocked overlooking existing villa development. The objectors underlined that the Authority "breached its own approved plans", thereby prejudicing their rights, particularly so since the proposal exceeded the established height limitation. In addition, it was alleged that the development lacked "the required transition that should have been created between the two zones (the terraced zone and the villa zone) within the same site." Moreover, the objectors stated that the development, though not spread over the entire garden, "will affect long views from the nearby valley and will create a negative visual intrusion of a blank wall which will dominate and negatively affect the area." Concluding, the objectors maintained that the proposed design is unlikely to maintain the good visual integrity of the area in which it is located, adding that any development encroaching onto back gardens "should be justified and 'minor' so as to safeguard the integrity of the overall green lung as well as the character of the overall urban area", particularly when a site lies contiguous to a different zone type such as in this case. As expected, the applicant countered by stating that the permit should stay. In his arguments, the applicant insisted that the approved permit is in line with the zoning parameters of the area. The applicant observed that, contrary to what the objectors had previously stated, the building envelope is contained within the height limitation of the area. The applicant went on to highlight that "the three floors and semi- basement that the objectors are alleging to be constructed are in fact a semi-basement, two overlying floors and a washroom." In its assessment, the Tribunal confirmed that the site under consideration is subject to two different designations – part of which is zoned as a residential area whereas the remaining part is designated for villa development. Having said that the Tribunal noted that the depth of the proposed plot exceeds 30 metres from the outer building alignment. In addition, the Tribunal considered that the designs failed to provide an adequate transitory solution once no consideration was given to the aesthetics of the contiguous development. Against this background, the Tribunal came to the conclusion that the building envelope should be scaled down and redesigned to address the visual impact. Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree. Robert Musumeci Building volume and garden wall scaled down Malcolm Mifsud property is not spoliation The proposals failed to provide an adequate transitory design solution

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