Issue link: https://maltatoday.uberflip.com/i/755517
52 maltatoday, SUNDAY, 27 NOVEMBER 2016 Opinion T he First Hall of the Civil Court decided that once parties to a legal action have concluded their differences in a contract, the court case can become futile. This was decided by Mr Justice Mark Chetcuti in Bernardette Licari -v- Carmel Attard, Joy Attard and Benjamin Rizzo as liquidator of Denelir Properties Limited on 21 November, 2016. In Licari's application in 2010 she explained that in August 1994, Attard had purchased an apartment in Tower Road, Sliema. In the description of property in the contract, the address indicated Sir Luigi Camilleri Street, but there was also access from Tower Road. In January 1995, the plaintiff had purchased from Denelir Properties the airspace and roof of a block of apartments in Sir Luigi Camilleri Street, Sliema. The owners of the apartments had a right to place a water tank and aerial. However, the Attards made more use by hosting BBQs and also sunbathing on the roof. The former owners, Denelir, denied giving the Attards this right. The Attards filed a lawsuit asking the court to confirm that they had a servitude over the roof. In December 1998 the Attards and Denelir signed a contract defining and outlining the property which was sold in 1994. Licari complained that the 1998 contract did not correct the 1994 contract, but the Attards had purchased another apartment in the same block and therefore, was a simulation. Licari asked the court to declare that the 1998 contract was not a correction of the 1994 contract, and therefore, a simulation of a sale and so order the defendants to enter into a correctional public deed. The defendants filed a statement of defence, including that this action was decided by a judgement delivered in December 2013 Bernardette Licari -v- Benjamin Rizzo noe. Mr Justice Chetcuti held that the court would first examine and decide this point. The Court went through the 2013 judgement which went through the facts of the case, which among other things highlighted that the 1994 contract, mentioned that the Attards acquired pro-rata the use of the roof. Licari had closed off access to the roof from the common stairway, by changing the lock. In May 1989 the Attards had instituted an action asking for access to the roof. In March 2004, another action was instituted, which was then decided in 2013. In that judgement, it made mention of a contract signed in January 2012 between Attard and Denelir, where the Attards accepted to use the roof limited to the placing of water tank and other services and renounced to using the roof for any other purpose. In the same contract they also corrected the 1994 contract. The same parties signed another contract in October 2012, again correcting the 1994, 1998 and 2012 contracts, which was to supersede and settle any dispute. The Court pointed out that the plaintiff in this case and in the case decided in 2013 were the same. In the previous case the plaintiff was asking for damages, while in the present case was to annul the 1998 contract. In the 2013 judgement the Court had commented on the 2012 contract and said that the withdrawal of rights was to be clearly mentioned in order to leave no doubt. The 2012 contract renounced the rights on the roof from the Attards. The fact that the plaintiff was not a party to the contract, affected Licari positively because the withdrawal of the Attards' rights was established. The defendants Attard asked in this case that the Court applies the 2012 contract in the same manner. The Court pointed out that when this action was instructed in 2010, the contract was not signed and therefore the plaintiff had a judicial interest. The 2012 contract crystalized the position of all partiers involved, where the defendants' rights and reach established once and for all the plaintiff 's right on the roof and own space. Therefore, there is no need to annul the 1998 contract, when in 2012 the situation was corrected by means of another contract. Although the 2012 contract was between the defendants, Article 1000 of the Civil Code states that it may also be to the advantage of third parties. In this particular case the contract was in the favour of the plaintiff, although she was not a party. The Court then moved to uphold the plea that with the 2012 contract the plaintiff did not have any judicial interest in the merits of the case. Av. Malcolm Mifsud, partner, Mifsud & Mifsud Advocates A planning application entitled "Proposed alterations and construction of a canopy at level 3'' was approved by the Environment and Planning Authority. The proposed works concern a third f loor dwelling forming part of a complex of apartments situated in Marsaxlokk. Essentially, the drawings show a cantilevered canopy projecting over an open terrace pertaining to third parties. Having said that, the canopy does not extend beyond the extents of the third party projection. Following approval, an objector filed an appeal before the Environment and Planning Review Tribunal, insisting that the proposed works run counter to a number of planning policies. The objector specifically referred to Policy 11.6 of DC 2007 which states that canopies may not extend beyond a distance of one metre from a façade. In this case, the appellant alleged that the cantilevered distance added up to 3.48 metres. Moreover, the objector requested the Tribunal to take note of the fact that Policy 11.6 does not refer to the official building line but the actual facade. The objector therefore contended that the canopy (as approved) is not visually related to the façade of the building, adding that 'the proposed canopy adversely affects the uniformity in the elevation, particularly in respect to fenestration at the underlying levels.' On the same lines, it was argued that 'the proposed canopy fails to respect the architectural equilibrium and rhythm of the streetscape, particularly since the subject apartment block forms part of a wider Housing Authority development whose facades are complementary and exhibit a rhythmic distribution of facade elements. The objector also alleged that the proposed development is in breach of Structure Plan policy BEN 2, as it is "unlikely to maintain the good visual integrity of the area in which it is located". Concluding, it was highlighted that the canopy amounts to 'a significant security risk', since 'the roof of the canopy would be easily accessible from a terrace in common parts of neighbouring house block.' For his part, the case officer representing the defendant (the Planning Authority) reiterated that 'the canopy is set within the building line and does not extend beyond the building footprint'. More so, it was counter argued that the proposal is likely to maintain the good visual integrity of the area in which it is located. In its assessment, the Tribunal observed that the projection was adequately set back from the front garden alignment. Moreover, the Tribunal disagreed with the objector, concluding that the canopy would maintain the visual integrity of the area. As a final point, the Tribunal pointed out that the permit should stay regardless of any third party civil rights which objector was possibly entitled to. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com Permit stays without prejudice to third party rights Robert Musumeci Tribunal observed that the projection was adequately set back from the front garden alignment No need of court case, once contract solves the differences Malcolm Mifsud mmifsud@mifsudadvocates.com.mt