Issue link: https://maltatoday.uberflip.com/i/688389
49 maltatoday, SUNDAY, 5 JUNE 2016 Classifieds T he Constitutional Court composed of the Chief Justice Silvio Camilleri and the Justices Giannino Caruana Demajo and Noel Cuschieri, turned down an appeal from a partial judgement since it was filed beyond the obligatory 20 days. This was held on 27 May 2016 Dr Cedric Mifsud and Dr Michael Camilleri as special mandatories of Nazzareno Bezzina, Joseph Bezzina, Catherine Avero, George Bezzina, Angelo Bezzina heirs of the Bartolomeo and Giuseppa Bezzina –v- Andrew and Theresa sive Azzopardi. The defendants Azzopardi had appealed from a preliminary judgement delivered by the First Hall of the Civil Court which turned down two pleas on the court's jurisdiction and competence to hear the case. This case deals with a property in Gharghur, which is the property of the plaintiffs. The defendants had acquired the temporary emphyteusis of this property in 1974 for 17 years and when the 17 years expired the emphyteusis was converted to a lease in terms of Article 12(2) of the Housing (Decontrol) Ordinance. The plaintiffs are asking for the defendants to vacate the property following another Constitutional judgement of 25 October 2013, which held that the defendants cannot use the Housing (Decontrol) Ordinance to remain occupying the same property. With regard to the competency of the First Hall of the Civil Court in its constitutional jurisdiction, the Court held in its judgement that the competency of a court is established by means of the plaintiffs' claims and the defendants' pleas. This was held in a past judgement Frankie Refalo noe v Jason Azzopardi decided by the Court of Appeal on 7 October 1997, which held that for the court to establish its competency depends on the circumstances of the case and an analysis of the particular laws. With regard to the whether the Rent Regulation Board was competent to decide on the issue in question one had to look at the recent 2009 amendments to the Civil Code. In Article 1525(1) of the Civil Code states that the Rent Regulation Board (RRB) "shall have exclusive competence to decide on all matters relating to contracts of lease of urban property and of a residence and of commercial tenements. Other leases fall under the competence of the courts of civil jurisdiction while matters relating to agricultural leases shall fall under the competence of the Rural Leases Contol Board". The 2009 amendments to the rent laws also amended Article 16(4) of the Reletting of Urban Property (Regulations) Ordinance which reads: "Without prejudice to any other law the Board shall also decide all matters affecting the leases of urban property including residential as well as commercial property in terms of Title IX of Part II of Book Second of the Civil Code, Of Contracts of Letting and Hiring, including causes relating to the occupation of urban property where such leases have expired." Therefore, the 2009 amendments gave the RRB exclusive jurisdiction on all issues concerning leases, including the termination of a lease. In Strickland Limited v Maria Frendo decided on 24 March 2015 it was explained that although the RRB has an increased its competency, those issues that do not fall within this law, should be dealt with by the ordinary court of law. The plaintiffs' request to vacate the premises following a Constitutional Court judgement is such cases and therefore, does not fall within the RRB's jurisdiction. The defendants appealed from this preliminary judgement on 12 June 2015 arguing that their title was derives from Article 12(2) of the Housing (Decontrol) Ordinance. In fact Article 1525(1) states that the RRB has exclusive jurisdiction of all issues concerning leases. The plaintiffs replied that the appealed was filed after the time period of 20 days had elapsed. The defendants had asked the Court permission to be able to appeal in terms of the Article 231(1) of the Code of Organisation and Civil Procedure. The plaintiffs argued that according to Article 234 of the same code the defendants did not require this permission, as the judgement dealt with the competency of the court. The judgement was delivered on 21 April 2015, while the appeal was filed on 12 June 2015. The plaintiffs further explained that Article 12(2) of the Housing (Decontrol) Ordinance was not applicable to them according to the Constitutional and therefore, they in effect had no legal title to remain in the premises. The Court commented that the period in which an appeal had to be lodged is a matter of public order and must to be observed to the letter. In a part judgement Kenneth Abela v Alpan Limited decided on 6 April 2008, held that the time period in which one can appeal cannot be ignored nor can the parties waive it. It cannot be suspended nor interrupted. The Court then upheld the plea that the appeal was filed late and turned down the appeal Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Eviction request: appeals should be filed within time prescribed by law A n application for the "reinstatement, additions and alterations to an existing farmhouse" located outside the development zone of Zebbug was turned down by the then Environment and Planning Commission within the MEPA. In reaching its conclusion, the Commission held that "the existing building for conversion does not have the minimum habitable area of 100sqm", which is clearly required by the rural policy. The Commission went further to state that "the proposal would result in the creation of a new residential unit outside the limits to development, and hence runs counter to Structure Plan policy SET 11 which prohibits the further intensification of urban development in the countryside." Moreover, an objection was rsised with respect to the proposed scale and massing, in that "the proposed extension is excessive in relation to the scale and massing of the existing rural structure" entailing " a significant increase in the footprint of the building and will therefore result in substantial changes to the visual composition of the original building." Ultimately, it was highlighted that "the proposal goes beyond the sensitive rehabilitation" of an existing rural structure. Following the decision, applicant filed an appeal before the Environment and Planning Commission. In a strongly worded appeal, applicant made reference to an application for "alterations at ground f loor and additions at first f loor level" which was granted approval on the basis of the original building had been used for habitation purposes. In this particular case, the relative applicant had submitted a copy of the 1981 electoral register supported by an affidavit stating that building was inhabited by his great grandparents. Consequently, the permit was issued regardless of the fact that the area was less than 100 square metres. Appellant also contended that in his case, the Authority never requested an affidavit which he could easily obtain. On a separate note, the now appellant stated that "this rural structure was built as a rustic dwelling for farmers working the surrounding fields" as could be easily attested by professionals working "in the field". In reaction, the Authority considered that in this case, the existing building occupies a net f loorspace of 30 square metres which was set to increase to a fully f ledged residence. The Authority reiterated that the proposed alterations and additions are unacceptable in principle since these will alter the character of this "rare remaining vernacular building". As a final remark, the case officer reminded the Tribunal that the permit quoted by appellant refers to a legally established residence whereas in the case under appeal, no such evidence was forthcoming. In its assessment, the Tribunal immediately observed that the "rehabilitaion and change of use of existing buildings of architectural, historical (not scheduled), vernecular, or of other significance ODZ)" to a dwelling need not be supported by a proof of residence. Having said that, the Tribunal maintained that the existing aggregate f loorspace is required to exceed 100 square metres. In appellant's case, it was evident that the aggregate f loorspace totaled 30 square metres and the Tribunal thus concluded that the Commission was correct in its 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 Too small to be converted to an ODZ residence Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Aggregate floor space totalled 30 square metres