Issue link: https://maltatoday.uberflip.com/i/753405
48 maltatoday, SUNDAY, 20 NOVEMBER 2016 Opinion T he Magistrates Court in its Superior Jurisdiction in Gozo ruled that a damages case relating to the construction of a cemetery is Nadur, should have been filed against the parish and not against the parish priest. This was decided by Magistrate Joanne Cuschieri on 15 November, 2016 in Martin Camilleri et -v- Rev Archpriest Jimmy Xerri and Victor Guzman. The plaintiffs, a group of farmers who filed the lawsuit against the Nadur parish priest, held in their application that they work the land in Nadur, Gozo, where there are two wells that receive natural and pure water from the aquifer. This aquifer lies under the property where the cemetery is being constructed, and now the quality of water is inferior and to some extent the flow has also decreased. The farmers asked the court to order the archpriest to pay damages. The defendants filed a statement of defence saying that they have no judicial relationship with the plaintiffs, since they do not personally own the property in question, which is owned by the Gozo Curia. On the merits of the case, the defendants said the farmers do not enjoy a legal right of servitude, and that the parish is developing its own property. Magistrate Cuschieri commented that two of the plaintiffs did not produce any evidence at all, while others presented affidavits. The farmers' land is found beneath the new cemetery and the water they use for the land is derived from the property which was developed into a cemetery. There is a constant supply in winter and in summer. The farmers make use of this water daily. The new cemetery is situated above the plaintiffs' fields and across the road. Some of the plaintiffs were objectors to the MEPA application. The application was filed by Archpriest Saviour Muscat on behalf of the Nadur parish church. The application included a report by Dr Saviour Scerri, a geologist, who explained: "Groundwater in the Ramla Valley area occurs at two levels, one in the Globigerina limestone at sea level in the form of an extensive aquifer, and the other at the base of the Coralline plateaux of Xaghra and Nadur in the form of a perched aquifer of much limited extent. Both aquifers are exploited by farmers from private wells and gravity springs while the mean sea-level aquifer is also exploited from public boreholes… Where this groundwater emerges at the edge of the plateaux, it vies rise to gravity springs such as at Ghajn Hozna and Tal-Ghejjun to the south, Ghajn Qasab gravity spring located at the foot of the cliff west of the site.' (fol. 354);4. 'It is immediately noted that the catchment of the site is very small when compared to that of Wied Ghajn il-Qasab. In addition it is also important to note that the catchment of the site lies entirely on Upper Coralline Limestone while that of Wied Ghajn il-Qasab is predominantly on Blue Clay and Upper Globigerina. The proposed development is unlikely to have any adverse impact on these resources if sanitary effluents generated on site are discharged into the public sewage network and not into cesspits." These conclusions were accepted by MEPA on approving the application. The Court then moved to consider the first plea, in that the defendants had no judicial relationship with the plaintiffs. The Court pointed out that the plaintiffs failed to produce evidence on whose property the new cemetery lay. Neither did the defendants produce much evidence on this point, and the defendant, Archpriest Jimmy Xerri, testified that he entered the parish church in February 2010 and the cemetery was also completed. The defendants explained that the land belonged to the Curia in Gozo, while the development was made by the Nadur parish. The defendants were sued in their personal capacity only because at the time when the lawsuit was instituted, Fr Xerri was the Archpriest, while Victor Guzman was the administrator of the Cathedral in Gozo. The Court then quoted a judgment delivered by the First Hall of the Civil Court on 8 November, 2016 in Louis Bonavia et -v- John Bonello et, which held that according to Articles 1031 to 1033 of the Civil Code, every person is responsible for damages caused. The plaintiff must prove that the defendant caused the damage sustained. In this case, the plaintiffs are alleging that the defendants caused damages to them through their actions. The plaintiffs failed to prove that there was some connection between the damage caused and the defendants personally. From the evidence produced Fr Xerri was appointed to Nadur in 2010 and his predecessor had always acted on behalf of the parish and never in his personal name. This could be seen in the permit applications and experts who testified that they were engaged by the parish and not by the Archpriests personally. The Court then moved to uphold the plea of lack of judicial relationship between the parties. A planning application entitled "change of use of a shop into a cafeteria and placing of tables and chairs in the front garden" was turned down by the Environment and Planning Commission after it was held that the proposal constitutes bad neighbourliness (thus, in conf lict with Structure Plan Policy BEN 1 which seeks to safeguard the amenity of the existing uses). Essentially, the proposal sought permission for the cooking and serving of food within an already licensed commercial premises in Triq Il-Halel, St Paul's Bay having access from a common walkway. Following the decision, the applicant lodged an appeal before the Environment and Planning Review Tribunal, stating that his application should have been approved once 'the area in question, is already committed as an entertainment area'. The applicant submitted a number of photos to attest that "there should be no issue of bad neighbourliness" because "the entertainment elements in the area have been years ago, amply exhausted with the developments existing in the whereabouts of the proposal." The applicant contended that "no new impact affecting the residents in the whereabouts will be created" by way of his proposal since his premises were already licensed as a commercial outlet. Moreover, the applicant went on to highlight that the case officer initially entrusted with the processing of the application had referred to Policy NWCM 03 of the North West Local Plan which "permits food and drink outlets, including hot food takeaways" on condition that "the sale of food and drink for consumption on or off the premises is to be at ground f loor level only." The applicant pointed out to the Tribunal that, in his case, the premises were located at street level. Concluding, the applicant obliged himself to install "fumes and smell absorbing equipment in case of any smells and fumes not presently anticipated and which will cause nuisance." For its part, the Authority stood firm with its decision. Whilst acknowledging that the premises were located in an entertainment area, the Authority observed that the outlet was accessible via a common access serving dwellings within the same block. The Authority insisted that approving the application would be tantamount to "a further loss of residential amenity in terms of disturbance, noise and loss of security within the internal development." In its assessment, the Tribunal immediately acknowledged that the applicant's premises were indeed located within an Entertainment Priority Area where, strictly speaking, catering establishments are deemed acceptable. Having said that, the Tribunal maintained that the proposal would "compromise" the residential amenity due to the likely increase in the number of customers visiting the complex. For this reason, the Tribunal confirmed the Authority's decision. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com No to Bugibba catering outlet Robert Musumeci Food and drink outlet not permitted due to shared access used by residents living within the same block Is it the parish or the parish priest? Malcolm Mifsud Is it the parish or the parish priest? Is it the parish or the parish priest? Is it the parish or the parish priest? mmifsud@mifsudadvocates.com.mt