Issue link: https://maltatoday.uberflip.com/i/731331
50 maltatoday, SUNDAY, 25 SEPTEMBER 2016 Classifieds T he First Hall of the Civil Court upheld a warrant of prohibitory injunction requested by one company against another, since it proved that it had all the legal requisites to block the transfer of a pharmacy licence it was to purchase. This was decided in Labomed Limited -v- Superintendent of Public Health on 15 September, 2016 by Mr Justice Silvio Meli. In an application Labomed Ltd explained to the court that it had been in discussions with Catherine Mifsud, since January 2016 to receive the transfer of a licence of a pharmacy in Mosta. These discussions continued into July when the company and Mifsud signed a preliminary agreement, where she bound herself to transfer the licence for a price. The agreement also mentioned that the company would purchase the stock and equipment at the pharmacy. The payment had to be effected when the deed was drawn up by the notary and signed by the parties. However, after this preliminary agreement Mifsud sent an sms that she was no longer interested in selling to the company. Mifsud had entered into another agreement with the company's competitor, Brown's Pharma Limited, which would purchase the licence at a better price. This was on condition that the Superintendent of Public Health would accept that the transfer of the licence takes place. In fact the application was submitted on 2 August, 2016. Labomed Ltd informed the Court that further legal action was being taken against Mifsud, but it needed to block the transfer first. The Department of Public Health disagreed that the process to transfer the licence should be halted and argued that in the process the applicant company was not a party. The department further pleaded that the company does not have any legal right to protect and that the department has a legal obligation to process such applications. Mr Justice Meli explained that the procedure to issue a warrant of prohibitory injunction is laid down in Article 873 of the Code of Organisation and Civil Procedure. As laid down in Sammut v Sammut, decided on 5 June, 2003, the applicant must prove prima facie that it has a right to protect and that if it is not protected, it will suffer a prejudice. These two elements must both exist. From the Court's point of view it must be objective and also give a strict interpretation to what is asked for, since the warrant of prohibitory injunction is of an exceptional nature. The Court must not enter into the merits of the case, in that if the warrant is accepted, it should not reflect the outcome of the lawsuit. In this particular case, the Court pointed out that there was a preliminary agreement between the applicant company and Mifsud, but it seems that Mifsud negotiated the same licence with another company. If the licence is in fact transferred then Labomed would suffer a prejudice and such prejudice is real, which permits protection by the courts. The Court then moved to accept that the mandate be issued permanently. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application to allow 'cooking' on an already established catering establishment was approved by the Environment and Planning Commission, following which a number of third party objectors filed an appeal before the Environment and Planning Review Tribunal, requesting the revocation of the permit. In their submissions, the objectors pointed out that the premises in question are 'sandwiched' between dwellings. Moreover, it was alleged that the premises are located within an urban conservation area, where 'the proposed use is not acceptable because it is not listed as an acceptable use.' More so, the objectors insisted that the commercial floor space exceeded the allowable 50 square metres. In the circumstances, the objectors argued that there were no 'overriding reasons' which could possibly justify the location of such use in this particular location. The objectors went on to explain that the road 'is largely residential in nature', consisting of 'a row of traditional terraced houses.' Moreover, specific reference was made to a planning application whereby the Authority had refused a request for the change of use of a garage to a showroom situated in a nearby location Furthermore, the objectors underlined that the permit could not be justified on the basis of the recent 'flexibility' policy (known as "General Policy relating to Regeneration/Consolidation Initiatives" of January 2013) which indeed allows for "justifiable departures from policies which can be adequately justified from a planning perspective". According to the objectors, the 'flexibility policy' may not overrule the provisions of the Local Plan. Concluding, the objectors maintained that 'there was hardly any need of emphasizing that the development approved will most likely have a deleterious impact on the adjacent residential uses owing to visual intrusion, noise, vibration, pollution and unusually high traffic generation and the fact that the hours of operation are all day long until late at night', so much so that the applicant had already placed a site advert for 'private parties'. For its part, the Authority defended the permit. Indeed, the case officer stated that the proposal is acceptable in terms of the flexibility policy. Even so, the proposal was supported by an engineer's report 'to mitigate any nuisance from noise and odours emission.' As regards the floor space, the Authority maintained that the premises were already covered by a commercial class 4 C permit, adding that the proposal is tantamount to a 'better re- organisation of the approved catering establishment, which includes an increase in the floor space of the kitchen and storage area.' In its assessment, the Tribunal noted that the premises were already approved as a wine bar. In addition, the Tribunal held that the cooking operations are still "deemed to be neighbour compatible with no result in unacceptable cumulative adverse impacts on the locality". Against this background, the Tribunal concluded that the applicant's proposal falls within the ambit of the flexibility policy, which document 'complements' established local plans. Finally, the Tribunal observed that there was nothing in the engineer's report to suggest that the mitigation measures (which applicant obliged himself to implement) were inadequate. The Tribunal thus rejected the appeal. robert@rmperiti.com Dr Musumeci is a perit and a Doctor of Laws Flexibility policy complements local plans Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Robert Musumeci Nothing in the engineer's report to suggest that the mitigation measures were inadequate Company blocks transfer of licence to competitor The applicant must prove prima facie that it has a right to protect and that if it is not protected, it will suffer a prejudice. These two elements must both exist