Issue link: https://maltatoday.uberflip.com/i/776046
46 maltatoday, SUNDAY, 22 JANUARY 2017 Classifieds T he First Hall of the Civil Court is competent to decide on all civil matters that are raised before it, unless expressly excluded by law. This was held by Mr Justice Mark Chetcuti on 16 January, 2017 in Emanuel and Carmen Falzon v Rita Dalmas. The Falzons had filed a sworn application in which they told the Court that the Rent Regulation Board had issued a warrant of prohibitory injunction in favour of Dalmas to desist from removing equipment at a petrol station in St Julians. In those proceedings Dalmas had explained that according to the lease agreement of 1987, upon termination of the lease all permits had to be transferred to Ms Dalmas. In November 2015 the Board decided that the lease was terminated and Falzon was to vacate the premises. Dalmas noticed that the Falzons were removing equipment from the petrol stations which meant that they were to transfer the petrol station licence to another site. Furthermore they applied for a Planning Authority permit to transfer their operations. The Falzons replied that the Rent Regulation Board is not competent to issue such a warrant because it is not a Court. The Falzons also held that there is no prima facie right to issue a warrant of prohibitory injunction and also lacked the element of irremediable prejudice. The Board did issue the warrant by means of a decree on 13 July, 2016. The Falzons challenged this decree on the ground that the Board did not consider all the issues which were raised. The Falzons asked the Court to declare that the Board's decree to issue the warrant of prohibitory injunction is null and void. Dalmas in her statements of defence held that the Court is not competent to annul a decree issue by the Rent Regulation Board and that the plaintiff 's demands are vague. Furthermore, this action was unsustainable because it should have taken the form of an application of a counter warrant in terms of Article 836 of the Code of Organisation and Civil Procedure. Other pleas dealt with the merits of the case. Mr Justice Chetcuti dealt with the first plea, that of lack of competence to annul a decree issued by the Rent Regulation Board. Art. 836(1) of the Code of Organisation and Civil Procedure gives the right against whom a warrant is issued to file an application for its revocation before the Court that issued the warrant. However, the article starts off "Without prejudice to any other right under this or any other law,…". The Court pointed out that Article 32(2) of the Code of Organisation and Civil Procedure gives the civil Court full competence and without limitation to hear and decide cases of a civil nature. Consideration also has to be given to the fact that if a law excludes the competence of the civil courts, then the court will not be competent. However, Article 836(1) does not exclude the party subject to a warrant to apply to the civil courts and seek a remedy as the revocation of a precautionary warrant. Therefore, the Court turned down this plea. As to whether the plaintiff filed the application before the correct court, Mr Justice Chetcuti held that the action is not based on Article 836 of the Code of Organisation and Civil Procedure, but on the general action that the Court has the authority to revoke a decree. This is explained in detail in the sworn application which was filed. The Court then moved to dismiss these pleas Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A n application to renew a planning permit for 'the installation of a kiosk and placing of tables and chairs' was turned down by the Environment and Planning Commission after it found that 'the proposed renewal was submitted once the validity of the permit had already expired'. The kiosk in question is located in Triq il-Qawra, San Pawl il-Bahar. But even so, the Commission opined that the applicant's proposal could not be considered since a number of illegalities were detected on site and the applicant made no attempt to either sanction or remove them. Following the Commission's decision, the applicant submitted an appeal before the Environment and Planning Review Tribunal, insisting that, in previous years, he owned a kiosk close to the Aquarium project. The applicant explained that the Malta Tourism Authority had ordered the kiosk's relocation, following which he was granted planning permission to construct a kiosk in another location. In the meantime, the kiosk was installed but the relative permission was allegedly expired since a year had passed since it was published. It was for this reason that the applicant went on to renew the said permit. Concluding, the applicant contended that the Authority should not have a problem in renewing his permit since the relative policies governing the area remained unchanged. In reply, the Authority gave notice of a preliminary plea, namely that the Authority could not hear and decide on the merits of the appeal since there was evidence of an illegal cordoned area adjacent to the kiosk reserved for the placing of tables and chairs. Nevertheless, the Authority maintained that the permit subject of the appeal was valid for a year, adding that a renewal application could only have been accepted if submitted within a one year timeframe. In its assessment, the Tribunal observed that permit 'to be renewed' contained a specific condition stating that 'the development permission was valid for a period of one year from the date of publication of the decision in the press but will cease to be valid if the development is not completed by the end of this validity period.' According to the Tribunal, the said condition was taken to mean that the kiosk had to be constructed within one year as what had actually happened. In other words, the Authority was wrong to insist that the kiosk had to be removed within one year unless the permission is renewed. In the circumstances, the Tribunal concluded that the applicant utilized his permit within the stipulated timeframes and hence there was no need to renew the permit. Against this background, the Tribunal abstained from taking further cognizance of the case. Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law robert@rmperiti.com Tribunal says renewal application not required Robert Musumeci 'Valid for a period of one year from the date of publication' should be construed as development to be completed within one year Civil courts are competent to decide on all civil matters Malcolm Mifsud mmifsud@mifsudadvocates.com.mt