Issue link: https://maltatoday.uberflip.com/i/761508
48 maltatoday, SUNDAY, 11 DECEMBER 2016 Opinion A Court held in a judgement that in order for someone to claim a right of property, there must be strong evidence to back the claim. This was decided in a judgement handed down on 7 December, 2016, in Lawrence and Maria Dolores Gauci -v- the Director General of Lands and the Commissioner of Lands and the Joint Office. In their application, the Gaucis explained that they are in possession of two pieces of land known as Tal-Blat in Wardija, which are owned by the government. They took over the land 20 years before, from the two sisters Micallef, who rented the land, but stopped working it. The plaintiff applied to be recognised as the tenant of the land in accordance with the Disposal of Government Land Act, Chapter 268 of the Laws of Malta. The Lands Department refused the application on the ground that there were similar claims by others, but Gauci held that this was unjust and unreasonable, once they held the land in good faith. The government's decision caused serious prejudice to them, since their income depended on this land. The Gaucis asked the Court to order the Lands Department to recognise them as the lawful tenants of the land. The Lands Department pleaded that there was no judicial relationship with the Gaucis and on the merits of the case part of the land was agricultural land, while another part was not. According to the 1991 agreement between the Maltese government and the Santa Sede only agricultural land may be transferred. The transfer may only take place in accordance with Article 3 of the Disposal of Government Land Act. Mr Justice Mark Chetcuti, who presided the proceedings, examined the facts of the case, where it was established that the plaintiff, Lawrence Gauci, is a farmer and worked several fields, including Tal-Blat, limits of St Paul's Bay. The plaintiff said that he worked this field since the 1980s and several witnesses confirmed this. Two sisters, Dolores and Maria Micallef testified that they used to till the land, but when they retired, Lawrence Gauci took over the land. A MEPA official testified that the plaintiff had applied and obtained permits to transfer soil to the land. The defendant produced as a witness Martin Bajada – the scheme issued by the Government allowed persons to be given leases on land administered by the Joint Office, which was formally of the Curia. The scheme was limited to agricultural land. It also resulted that Lawrence Gauci had applied to be recognised, but two objections were filed in respect of this application. One of the objectors, Joseph Galea, who was called in the action, had written to the Curia showing interest in the same land, but the reply was that the land belonged to the government. Galea, then wrote to the government. Rent receipts for payments made by Galea were produced for the years from 2000 to 2010. Galea had told the Court that prior to this he lived in rooms close by, which he rented from the government. In front of these rooms, there was abandoned land. He asked the Micallef sisters to identify the owners. He wanted to build a wall around, since people dumped rubbish there. From the evidence produced six years after the application the plaintiff's architect had made amendments to the plans after claiming he was asked to do so by the department, however, this version of events was contested by the department. The amended plans included non-agricultural land which was therefore not eligible for the scheme. Martin Bajada testified that a technical report was drawn up and on the basis of this report the Director General assigned part of the land to the plaintiff, another part to Galea and two portions were part of a public call. A meeting was held between Gauci and Galea, but there was no agreement. Then the Court examined the plea that there was no juridical relationship between the Government Property Section and the plaintiffs. The evidence showed that the land in question was administered by the Joint Office, however, leases are taken care of by the Commissioner of Lands. These two entities are subordinate to the Director General of Lands. Furthermore, the two letters which Gauci received were from the Department of Government Property. Therefore, the Court ruled there was a juridical relationship between the two. Regarding the legal title issued, the transfer of property is governed by the Disposal of Government Land Act, meaning that all transfers must be done following a public call. This particular scheme listed a number of conditions, including that the applicant must work the land for not less than two years. Therefore, the mere possession was not sufficient and the application could not be accepted. This scheme did not include non-agricultural land. The Court pointed out a number discrepancies to the versions given by the plaintiff. In his affidavit he stated that he cleaned and tilled the land, with Micallefs' consent, however, in another declaration he stated he was helping the Micallefs with their work in the field. When asked how long had he worked the land, he replied one month. In another instance, Gauci explained that the Micallefs worked the land in question for 60 years and in the last 15 years he helped them. This was contradicted by Dolores Micallef, who testified that she did not prevent Gauci from working the land. Faced with these conflicting versions, Mr Justice Chetcuti referred to a previous judgement, Emanuel Ciantar -v- David Curmo noe, decided on 19 June, 2006, where it was stated that the judge would have to identify the version which is probably truthful and sustained by the evidence. The Court pointed out that although the Micallef sisters wanted to help out the plaintiff, the court took the impression that in order to create a right in 2001, Gauci occupied the land and after six years from the application, tried to take more land by amending the plans. Therefore, the Court concluded that the plaintiff did not occupy the land in bona fede and as a result rejected their claims. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application "to construct four residential units with basement garages" was approved notwithstanding strong objections from a neighbouring resident. Currently, the site consists of a field located in Triq il-Kromb il-Bahar, Gharghur. Following the issue of the permit, the neighbour filed a strongly worded appeal before the Environment and Planning Review Tribunal, insisting that the development would result in the 'take up' of good quality agricultural soil. The appellant pointed out to the Tribunal that the applicant had already submitted an outline application in 2008 and the Planning Directorate had, at the time, made a negative recommendation. The Planning Authority had nonetheless issued the outline permit in 2011 but the decision was once again overturned by the Tribunal in 2013. The objector explained that he could not understand how the current application was indeed approved on the strength of an outline permit that was subsequently thrown out at the appeals stage. The objector pointed out that 'Gharghur still retains a natural delineation all around the village, separating it entirely from surrounding localities', adding that 'the rural open spaces that are lacking in other localities' should be retained. Even so, the objector warned that the site in question 'is useful agricultural land that forms part of a series of fields that border the urban conservation area of Gharghur and extend down into the valley on to the Victoria Lines'. In his conclusive remarks, the objector said that 'the proposal will destroy the very nature of this conservation and rural area in a zone that is registered as a listed area and site of scientific importance in the Local Plan', insisting that the works 'will eliminate further useful agricultural land and goes against all the main structure plan policies protecting agricultural land in particular AHF 1, 5, & 8 and RCO 1, 2 & 4.' In reply, the Authority stated that the site under appeal lies within the designated development zone. Whilst acknowledging that the development would result in the 'take up' of good quality agricultural land, the officer pointed out that the site 'forms part of land the within the development scheme boundaries.' Contrary to what the appellant had previously asserted, the site in question was not located within a Strategic Open Gap, nor within an area of scientific importance or an area of Agricultural Value. Consequently, the case officer insisted that policies AHF 1, 5 & 8, RCO 1, 2, 4 & 5 (quoted by the objector) carried little relevance. In its assessment, the Tribunal observed that the outline application concerned a development which was substantially different from that under appeal. Even so, the Tribunal assessed that the site was located within the designated schemed residential boundaries of Ghargur. Moreover, the Tribunal considered that the proposed development was limited to four apartments and thus was not deemed intensive. Against this background, the Tribunal concluded that the permit should stay. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com Ghargur permit to stay Robert Musumeci Site was not located within a Strategic Open Gap, nor an area of scientific importance or an area of Agricultural Value Strong evidence required to prove a right Malcolm Mifsud mmifsud@mifsudadvocates.com.mt