Issue link: https://maltatoday.uberflip.com/i/741600
52 maltatoday, SUNDAY, 23 OCTOBER 2016 Classifieds W hen a court stays the proceedings of a case, this must be done for very good reasons, because a case should start and end. This was decided on 19 October, 2016 in Carmelo Stivala Group Limited -v- Maria Carmela sive Marlene Borg et. The plaintiff company in its application explained that in January 2014, it had purchased one fourth of an undivided property in Msida. The defendants were the owners of the other part of the property, however, the company does not want to share the property and it cannot be divided between the owners. Therefore, it asked the court to order the judicial sale of the property. The defendants argued in their statement of defence that the action was untimely, since another company, C Stivala & Sons Limited, had illegally built on part of this property. The defendants further explained that in another court judgement, Dennis Cassar et -v- Michael Stivala et decided on 31 October, 2013, the court ordered that a part of the building built by C Stivala & Sons Limited was to be removed. This judgement is under appeal. They further argued that it was not true that the plaintiff company of this case had approached them to agree on the future of the property and also that the purchase of part of the property was done in bad faith. Mr Justice Lawrence Mintoff examined the facts of the case. From the acts of the proceedings it results that C Stivala & Sons had built close to an alley which gave way to the rest of the property. According to the judgement of Dennis Cassar et -v- Michael Stivala et, the Court had ordered that the defendants in that case return part of the property which was now built to Dennis Cassar within six months. In January 2014, Carmelo Stivala Group purchased one quarter of the property in dispute and then instituted this action. "The defendants pleaded that this action was untimely, however, in their verbal submission, it was explained that what they wanted to say is that this action should be suspended until the other action decided on the title of the property. The defendants argued that this stay of proceedings was necessary because the other action was to decide on the size of the land and whether the heirs who sold one quarter of the property to the plaintiff company had in fact that share, or else one eighth. Therefore, the value of the property in case of the judicial sale, would be more, since the property would be larger. The Court commented that the law does force common ownership, but the right to dissolve co-ownership cannot be abused of, by avoiding the effects of a judgement or to prejudice other co-owners. With regard to whether a case was instituted in a timely fashion or not, means that a right of the disposal that can be used by the plaintiff, could not be invoked at the time of the action being instituted. Examples of this is if the defendant still has time to fulfil his/her obligations or else a contractual condition has not taken place. If this is the case the claims of the plaintiff would have to be turned down. Article 496 of the Civil Code says: "No person can be compelled to remain in the community of property with others, and each of the co-owners may, at any time, notwithstanding any agreement to the contrary, demand a partition, provided such partition has not been prohibited or suspended by a will under the provisions of article 906." In their submissions the defendants argued that there should be a stay of proceedings until the Court of Appeal delivers its decision in Dennis Cassar -v- C Stivala & Sons. Mr Justice Mintoff held that a stay in proceedings does not require a formal plea in the statement of defence, but may be raised at any time of the proceedings. A stay of proceedings may be allowed if for example a point of law depends on the outcome of another case. However, the principle should be that a stay is an exceptional measure, since a lawsuit should start and finish. In this present case, the size of the property has still to be definitively determined by the Court of Appeal. The court then moved to accept a stay of proceedings until a final judgement of the Court of Appeal in Dennis Cassar et -v- Michael Stivala et Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application entitled "to sanction construction of agricultural store and proposed extension to same" was submitted to the then Malta Environment and Planning Authority. The store is situated in a field located in an area known as Rdum Tal-Qammiegh in the limits of Mellieha. The Environment and Planning Commission had highlighted that 'the proposal runs counter to Criterion 4 of policy 2.5A of the Rural Policy & Design Guidance (2014), since the proposed agricultural store is not considered appropriate due to the sensitive nature of the area and the scheduling of the site as a Natura 2000 site, a Level 2 Area of Ecological Importance and an Area of High Landscape Value as per Government Notice 400 of 1996'. On this basis, the applicant's request was rejected. In reaction, the applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the Agriculture Advisory Committee had formally opined that the proposal should be favourably considered. Moreover, the applicant pointed out that 'other agricultural stores were approved within the same area' and went on to give the pertinent application details. In reply, the case officer reiterated the Authority's concerns. The officer explained that the applicant's proposal 'includes an extension to the said agricultural store which results in an overall external footprint area of 15sqm.' The officer also stated that 'although the existing/proposed agricultural store conforms with most of the criteria listed in Policy 2.5A of the Rural Policy and Design Guidance 2014, the Authority was concerned about its location since the site in question is designated as a Level 2, Area of Ecological Importance, an Area of High Landscape Value in view of coastal cliffs and a Natura 2000 site.' To this end, the interventions were held to detract from the landscape and the rural character of the area, thus contributing to the 'overall environmental degradation of the surrounding rural context'. Concluding, the officer remarked that the AAC's comments, though evidently in favour of the application, 'do not take into consideration other planning issues which may arise.' As for the quoted permits, it was underlined that such permits were issued prior to the site being designated as a Natura 2000 site. In its assessment, the Tribunal immediately confirmed that the room under consideration is located within a Natura 2000 site. Having said that, the Tribunal observed that interventions in such areas should be prohibited 'unless it can be duly demonstrated through the necessary assessment that the development does not compromise the site scheduling characteristics". In this case, the Tribunal found that the then Environment Directorate had described the proposal as 'unlikely to have had a significant negative impact on the integrity, structure and function of the coastal cliffs Natura 2000 site.' Once the AAC had recommended the application favourably, the Tribunal concluded that the permit should be issued subject to a fine. robert@rmperiti.com Dr Musumeci is a perit and a Doctor of Laws Farmer convinces tribunal Robert Musumeci Development not found to compromise the site scheduling characteristics Stay of proceedings is an extraordinary measure Malcolm Mifsud mmifsud@mifsudadvocates.com.mt