Issue link: https://maltatoday.uberflip.com/i/712521
50 maltatoday, SUNDAY, 7 AUGUST 2016 Opinion A judgement should give a final decision on the issues a court is asked to decide upon and not leave any pending issues. This was decided by the Court of Appeal on 29 July, 2016 in Untours Insurance Agents Limited, as subrogated by the insured Giovanna sive Jane Catania and the same Giovanna sive Jane Catania -v- Gilbert Grima, Ruth Zammit in her name and in the name of her son Niko Zammit and GasanMamo Insurance Limited, the insurance company of the vehicle of Gilbert Grima. The arbitration had decided that Gilbert Grima and Niko Zammit were responsible for a traffic accident that took place on 30 July, 2010 in Gudja between two vehicles, one of which was driven by Niko Zammit, but owned by Gilbert Grima, while the other vehicle was driven by Milaine Gabri and owned by Jane Catania. Grima and Niko Zammit were to pay for the damages to Untours. Grima was to be exempted from responsibility, if it were to present a police report to the arbiter showing that the report was made before the theft of the car. The facts of the case are that on the day of the accident Niko Zammit was underaged and was driving Grima's car. Grima claimed that the vehicle was stolen from him. Gasan Mamo appealed the award, by stating that the arbiter went beyond his brief on the issue of the theft and should not have entered into this issue. The arbiter did not follow the procedure since the award was subject to a substantive change and therefore, was not definitive. The court immediately, in its considerations of the appeal, held that it did not agree with the appellants that the arbiter went beyond his brief. The arbiter had to decide whether Niko Zammit was responsible for the accident and since the accident report mentioned that the vehicle was stolen, then it was an important consideration. The arbiter had to determine whether the vehicle was in fact stolen, however, the court held it did not agree with how the arbiter went about this. The arbiter had to decide this definitively on the basis of the evidence produced. A decision should be final on the evidence produced and not subject to evidence that had to be produced after the award. The court commented that there was no doubt that Niko Zammit was responsible for the accident. In the police report, Zammit admitted he was speeding and this was confirmed in criminal proceedings. Since Zammit was a minor then, he was not covered by an insurance policy. If the arbiter wanted to assure himself of when the police report for the theft was filed, he was authorised to order a copy of the police report. If Grima wanted to exonerate himself of responsibility, it was within his interest to present this police report. However, all there was present was the accident report, which merely declared that the theft of the car took place before the accident. The court commented that the arbiter was correct, not the rest of this evidence only. However, the court disagreed that the arbiter gave Grima the opportunity to present further evidence after the award. The court held from the examination of the evidence that it is not convinced of when the theft took place. If Grima was not to exonerate himself he should have testified under oath. Mr Justice Anthony Ellul, who delivered the judgement, ordered that the last part of the award, where the arbiter asked Grima to present the police report, but then confirmed the rest of the award Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Judgements should be a final decision A planning permission for the demolition of an existing building and the subsequent construction of a " basement level, semi- basement garage, apartments at elevated ground f loor, first, second, third and fourth f loor plus overlying penthouse" was issued by the then Malta Environment and Planning Authority (the MEPA) on condition that the applicant makes a financial contribution to the amount of €12,578.62. The property is located in Sliema and the payment was requested in compensation of a shortfall of six parking spaces as a result of the new development. Indeed, the amount was worked out assuming that the existing building already caters for four vehicles whereas the proposed development requires 10 car parking spaces in terms of current policies. Even so, the applicant filed an appeal before the Environment and Planning Review Tribunal insisting that the amount was not due. The applicant argued that the authority had in the past 'continually assessed one parking place for a two- bedroom unit' whereas in his case, he was being requested to provide two spaces for each unit. The appellant thus contended that he had a shortfall of only two parking places as opposed to six as requested. In reply, the authority stated that 'the size and layout of the proposed apartments are adequate to accommodate a three-bedroom unit rather than a two-bedroom unit', adding that the study shown in the plans can be indeed used as a third bedroom. Furthermore, the authority noted that the gross f loor area of the proposed dwelling units exceeded 96 square metres. Consequently, the said dwellings qualified as a three-bedroom unit in practice. Concluding, the authority pointed out to the tribunal that Sliema has long been considered as a heavily congested locality. In its assessment, the tribunal reasoned that parking requirements should be based on the number of proposed bedrooms within the individual unit rather than the actual gross f loor area as purported by the authority. Furthermore, the tribunal made reference to a planning permit which was issued in the vicinity, where the authority had indeed adopted a similar reasoning. The tribunal added that a new permit would nonetheless be required should the applicant insist on converting the study into a third bedroom. Against this background, the fee was reduced to €4,192.87 with a view to ref lect the required two parking spaces by reason of the new development. 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 Parking requirements assessed on number of bedrooms Malcolm Mifsud mmifsud@mifsudadvocates.com.mt Judgements should be a final decision mmifsud@mifsudadvocates.com.mt Judgements should be a final decision Judgements should be a final decision Permit would be required should the applicant insist on converting the study into a third bedroom A decision should be final on the evidence produced and not subject to evidence that had to be produced after the award