Issue link: https://maltatoday.uberflip.com/i/791658
48 maltatoday, SUNDAY, 26 FEBRUARY 2017 Opinion A n application for a retrial was turned down because the applicant failed to prove that he was not notified of proceedings. This was decided by Magistrate Gabriella Vella in Angelo Aquilina -v- Eurofreight Services Limited on 20 February, 2017. Angelo Aquilina in his application for a retrial asked the Court to revoke a judgement handed down on 4 February, 2008. The plaintiff is arguing that he was not notified of this lawsuit and only learned about it when the bank informed him that he had a garnishee order following a judgement, which had ordered Aquilina to pay Eurofreight €7,644.65 with interest. Eurofreight replied by saying that the application asking for a retrial was null due to the fact that no deposit was paid in terms of Article 815 of the Code of Organisation and Civil Procedure. The company also argued that the Court acts of Eurofreight Services Ltd v Angelo Aquilina was notified according to law and therefore there is no ground for a retrial. On 4 June, 2010 the Court had turned down the first plea on whether a deposit was paid. Magistrate Vella examined the evidence produced before the Court. The proceedings were notified by means of the procedure of publication. The application and the notice of the Court appointment was fixed in the Gzira Local Council and Police Station and on the entrance of the block of apartments of Aquilina's residence in Triq Turu Rizzo Gzira. The notices of the same documents were also published in the Government Gazette and on two newspapers. However, Aquilina argued that at the time he moved residence from Triq Turu Rizzo to Triq Nazju Ellul, both in Gzira. Aquilina produced family and friends to testify that he had actually moved residence in February 2007, before the procedure of notification took place. However, his son testified that the move took place in January 2008 and this was corroborated by his uncle who testified that the Aquilinas moved in January or February 2008. The Court commented that it was clear that the witnesses did not agree on this vital fact. The difference was not of a few days but there is a substantial difference. Furthermore, friends who helped in the transport of the furniture said that they helped out in February 2007, however, they were not very clear in their testimony. Aquilina and his wife said that they remained registered at the first address because the identity cards department was not accepting changes of addresses at that time. This was contradicted by an official of the Electoral Commission, who explained that what had stopped was not the change of address but the renewal of identity cards. The Court noted also that Aquilina did not apply for redirection of post. His wife testified that she did not receive post directed for the old address. An official from Maltapost plc testified that delivery of the envelope of the case Eurofreight Services Ltd v Angelo Aquilina had been attempted five times at the Triq Turu Rizzo, Gzira address. Aquilina's wife, Maria, testified she rarely went to the old address. However, she had also testified that she was annoyed going and coming from the other property to collect the post and therefore she applied for a redirection. The Court quoted from a previous judgement, Anna Cassar v Lawrence Attard, decided on 25 September, 2003 by the First Hall of the Civil Court which stated that retrial is an extraordinary procedure aimed at a judgement. The party asking for a retrial must prove the reason why the case should be heard again. The Court must be convinced of this reason and the party requesting a retrial must not prove anything apart from the reason for a retrial. Magistrate Vella held that from the evidence produced she was not convinced that the correct procedure for notification of the acts were not followed and therefore turned down the request for retrial. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A development application entitled "To construct agricultural store in agricultural field" was turned down by the Environment and Planning Commission. The field is located outside the development zone of Ghasri. To support its decision, the Commission said that the proposed store was considered as 'unjustified' in this location since the field measured 104 square metres. The Commission made express reference to Policy 2.5A (criteria 10) and Rural Objective 4 of the Strategic Plan for Environment and Development which seeks "to protect the most sensitive landscapes and aim at guiding the control of location of development within the landscape." As anticipated, the applicant filed an appeal before the Environment and Planning Review Tribunal against the decision. The applicant insisted that his proposal was "within the legal framework and sensitive to environmental and planning issues." The appellant pointed out that the land in question was chosen for its strategic location due to the fact that it was deemed as "most appropriate" in terms of visual impact. The applicant went on to explain that the Commission had indeed observed that there were other similar structures "around the site". The Tribunal was reminded that the applicant was in possession of eight tumoli of agricultural land and the proposed agricultural store was to be centrally located with a view to serve the remaining holdings. Moreover, it was highlighted that the former Environment Protection Department had noted that the site location was not environmentally sensitive. In reply, the Authority reiterated that the proposal was against policy 2.5A (criteria 10) of the Rural Policy and Design Guidance 2014 and Rural Objective 4 of the Strategic Plan for Environment and Development. Contrary to what the applicant tried to portray, the site was, according to the case officer, "highly visible from both the arterial road and from the surroundings." The officer went further to argue that the applicant's proposal "was meant to demarcate the site from third party properties". It was underlined that the Authority incessantly objects to having "agricultural rooms on fragmented small plots of land" as this would result in a cumulative adverse impact on an area's overall rural character. In addition, the Authority highlighted that it was preoccupied with the chosen location rather than the size of the store. In conclusion, it was noted that the Agriculture Advisory Committee had recommended "an agricultural store should not be located within a small parcel of land but on the applicant's largest holding". In its assessment, the Tribunal immediately noted that the Rural Policy Design Guidance was designed to promote 'farming facilities intended for sustainable farming'. In this case, it was clear that the site location was not considered 'sustainable' in terms of it being considerably distant from the remaining holdings. For this reason, the Tribunal maintained that the Authority was correct in its decision. Dr Robert Musumeci is an advocate and perit with an interest in development planning law Rural store refused due to 'unsustainable' location Robert Musumeci Rural Policy Design Guidance should promote 'farming facilities intended for sustainable farming' Conflicting evidence leads to judgment confirmation Malcolm Mifsud