Issue link: https://maltatoday.uberflip.com/i/794736
48 maltatoday, SUNDAY, 5 MARCH 2017 Opinion T his was held by Ms Justice Lorraine Schembri Orland presiding at the First Hall Civil Court in the judgement Paul Farrugia et v. Gordon Calleja decided on 28 February 2017. This case was filed by Paul and Maria Lourdes spouses Farrugia against Gordon Calleja who owns the property situated adjacent to their garden. Mr Calleja had extended his property by building a room on his airspace and installed a window in the corner of one of the walls of this room which directly overlooked the property of spouses Farrugia. The plaintiffs argued that this development amounted to spoliation since it created an illegal servitude on the property of the plaintiff in accordance with Article 535 of the Civil Code (Chapter 16 of the Laws of Malta) and sought remedy before the Court to be reinstated in full possession of their property. The defendant argued that no violent or clandestine spoliation was committed since he had access to his roof and had a pre-existing right to the view overlooking onto the property of the plaintiffs and was not limited or precluded from the enjoyment of the said right. The defendant additionally argued that for this reason, the element of possedisse was not satisfied by the plaintiffs since he was not denying the latter from the possession of their property and the window did not amount to the creation of a new servitude upon the property of the plaintiffs. When considering the facts of the case, Ms Justice Schembri Orland stated that in accordance with the law and constant jurisprudence when proving that an act of spoliation has been committed the vital elements of possedisse, spoliatum fuisse and infra bimestre deduxisse must subsist. From previous judgements it persists that the matter of this action solely give rise to the investigations required for establishing the fact of possession or detention of the property suffering the spoliation and the fact of spoliation since an action of this nature is limitedly rigorous and stern. As held in Carlo sive Charles Cardona et vs. Francesco Tabone decided on the 9th March 1992 in order for an action of spoliation to be successful no animus spoliandi is required to be proven. Additionally, in this context material and factual possession is satisfactory and there is no burden on the plaintiff to prove that he has ownership or a servitude on the property which was violently or clandestinely spoliated. In accordance with Maltese jurisprudence the requirement of possession is also satisfied when the aggrieved person enjoys simple detention on the property as long as this possession is unequivocal and is manifest as a state of fact and not as one of mere tolerance. Furthermore, as stated in the judgement Grogan et vs. Scerri et in order for a successful action of spoliation it is not essential for the possessor to suffer full deprivation from the enjoyment of the property or is obstructed from the use of the object in a determinate manner. It is sufficient that he is impaired in the way he enjoys that object or that the possession is diminished. Along these lines, Pacifici Mazzini, a renowned legal jurist, argues that in order for the action of spoliation to be satisfied there must be the lack of the consent, whether tacit or express, of the person suffering the spoliation and that the action was made against the said person. In this current case Judge Schembri Orland, did not agree with the argument of the defendant that no spoliation had occurred since the view onto the property of the plaintiffs existed prior to the development of the room since in an action of spoliation the fact which has to be examined is not whether the defendant enjoyed a pre-existing right of the view or whether he could see the property of the plaintiff from his roof preceding the development but whether by means of the new apertures the plaintiff was dispossessed in terms of the action of spoliation and reintegration. As reiterated in previous judgements it is undoubted that the action of spoliation is admissible also in case of incorporeal objects including all rights including rights of servitudes. Therefore an action is remediable even in case of openings of windows or other apertures overlooking properties of third parties if these create servitudes. The judge also held that this fact also subsists in those instances where the development is made with all the necessary permits issued by the Planning Authority since permits granted to an applicant by the Authority are issued without prejudice to the rights of third parties. Similarly, in the case of Emanuel Ellul v Joseph Caruana et decided on the 14th June 2012, the Court differently presided, had held that although the defendants in those proceedings had obtained the permit from the Planning Authority to install high level windows, such permit was granted without prejudice to the rights of third parties. In addition, Judge Joseph R. Micallef in the judgement Leonard Gallo et vs. Maja Brown et decided on the 18th November 2004 maintained that little weight should be given to the argument that a building was developed in accordance with the necessary permits or that the installation of windows is obligatory under sanitary laws since in connection to real and private rights, the law specifically provides for the way in which the property of an owner may be also burdened by a servitude in favour of property of third parties. In such a case, the obtainment of a building permit is an obligation of the developer or applicant but it may never be translated into an obligation against the owner of the adjacent property or third parties. Lastly whilst analysing the fact Judge Schembri Orland noted that in this case it was evident that Mr Calleja never requested consent from spouses Farrugia in order to install the window in question and therefore the issue of mere tolerance did not subsist since the plaintiffs never consented to this development and in fact they immediately proceeded with the action of spoliation as soon as they realised that this window overlooking their property had been installed abusively. In delivering her judgement the Judge accepted the plaintiffs' requests and ordered that the plaintiffs were to be re-instated in the full possession and enjoyment of their property as enjoyed prior to the installation of this window. A development planning application "to sanction the construction of a boathouse" in Dwejra (Gozo) was lodged with the then Malta Environment and Planning Authority in the year 2000. In the meantime, the then Minister for the Environment had approved the Qawra / Dwejra Heritage Park Action Plan in 2005 (QDHPAP), providing the possibility for boathouse owners to regularise their position. Having said that, the Environment and Planning Commission still held that the sanctioning works were deemed not "suitable" due to the area being of "high scenic value and ecological protection". In addition, the Commission maintained that the proposed sanctioning was not "in the public interest." Following the Commission's decision, the applicant filed an appeal before the Environment and Planning Authority, insisting that Policy RC037 of the Structure Plan mandated the Authority to set up a "management authority" with a view to formulate management plans for this area. As a result, the Qawra / Dwejra Heritage Park Action Plan was eventually published in 2005 (QDHPAP). It was further pointed out that according to the Action Pan, boathouses qualify as a "permitted use" subject to a number of conditions including the imposition of a planning obligation. Applicant explained that these funds are subsequently "invested to upgrade a Heritage Park Area". More so, the Action Plan stipulates that the boathouses should be limited to one storey, the roof tops should be "finished" in natural stone whereas all external apertures should be constructed in timber. Against this background, the applicant reminded the Tribunal that his proposal was turned down by the Commission despite being in line with these requirements. Consequently, the Authority had "chosen to go against these policies and consider the proposal subjectively" while accepting similar requests, including the boathouse located in the adjacent plot. This, according to applicant, amounted to "inconsistency in judgment". In reply, the Authority rebutted the applicant's claims, reiterating that his property was located outside the Development Zone. Moreover, the area was scheduled as a Special Area of Conservation of International Importance, a Special Protection Area, a Bird Sanctuary, a Site of Scientific Importance (Level 2) and an Area of High Landscape Value. The case officer went on to highlight that the applicant was correct to note that a number of permits were indeed issued by the Authority. But even so, the case officer argued that the applicant's proposal merited a refusal nonetheless. In its assessment, the Tribunal immediately observed that further to the publication of the Dwejra Action Plan, a number of similar proposals to that of the applicant were given the green light. The permits quoted by the applicant were governed by the same Policy GZ-Slwz-1 which was equally applicable in applicant's case. In the circumstances, the Tribunal felt that there was no justified reason to reject the appeal. Consequently, the permit was issued subject to a fine of €2,329.37. Dwejra boathouse approved by virtue of a 2005 MEPA policy Robert Musumeci The permits quoted by applicant were governed by Policy GZ- Slwz-1, which was equally applicable in applicant's case Malcolm Mifsud Pre-existent view of adjacent property does not automatically exclude spoliation