Issue link: https://maltatoday.uberflip.com/i/809226
48 maltatoday, SUNDAY, 9 APRIL 2017 Opinion W orks carried by one of two warring bar owners constituted spoliation of the other bar owner. This was decided by Magistrate Joanne Vella Cuschieri on 4 April 2017 in Kenneth Grech v Pubblius Buttigieg. In his application, Kenneth Grech told the Court that he runs Royal Lady Bar in Mgarr and the defendant runs the bar next door to him. Grech accused Buttigieg of placing concrete on the pavement in front of his car. Grech held that this constitutes spoliation. Buttigieg replied by saying that the elements of spoliation did not exist. Vella Cuschieri examined the evidence which was brought by the parties, amongst which was a previous action between the parties where the defendant sought to issue a warrant of prohibitory injunction with the aim of stopping the plaintiff from making any modification to the pavement. The two barmen had a dispute on how they divided the pavement to place tables and chairs in front of their respective bars. The application for the warrant was turned down because the two had encroachment and the defendant did not prove that he would suffer any prejudice if the works would have been carried out. The work Grech wanted to carry out and which Buttigieg objected to was for him to make the pavement level with his bar. In fact, a wooden platform was to be placed outside the bar. When the wooden platform was not placed, two large plants were placed instead. In October 2015, Buttigieg gave instructions for the plants to be removed and a concrete platform was placed. In fact, the evidence showed that it was Buttigieg who had ordered these works to be carried out and for the plants to be removed from in front of Grech's bar. The Court analysed the legal issues in play and quoted from Article 535(1) of the Civil Code, which reads: "Where any person is by violence or clandestinely despoiled of the possession, of whatever kind, or of the detention of a movable or an immovable thing, he may, within two months from the spoliation, bring an action against the author thereof demanding that he be reinstated in his possession or retention, as provided in article 791 of the Code of Organization and Civil Procedure. " From this article of law, the action of spoliation has three elements, that of possession, the act of spoliation and that it has to be instituted within two months. The Court explained that this type of action is required to protect one's possession and is intended to block someone to take the law in one's hands. If one's possession was deprived, then the Court may order that the possession be given back. Other judgements were quoted such as Delia -v- Schembri decided by the First Hall of the Civil Court on 4 February 1958, Margherita Fenech -v- Pawla Zammit of 12 April 1958 and Cardona -v- Tabone of 9 March 1992 of the Court of Appeal. The Court disagreed with the defendant who said that the elements of spoliation did not exist in this case. There is ample evidence to show that the defendant ordered that the concrete platform be placed outside Grech's bar and that the plants were removed. The action was filed in court within the two months limitation. The Court then moved to uphold the plaintiff 's requests and ordered Buttigieg to remove the concrete platform within one month. Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates A n outline development planning application to develop residential units was submitted to the Malta Environment and Planning Authority way back in 2007. The site lies outside the development zone in Ghaxaq, opposite the building scheme. Further to a thorough assessment, the request was turned down on a number of counts. The Authority had in fact pointed out that the site lies outside the limits for development defined in the Rationalised Development Zone Boundaries for Ghaxaq and "so it is located in an area which should remain undeveloped and open". It was further highlighted that the proposed development "would represent unacceptable urban development in the countryside", thus in conf lict with Structure Plan Policy SET11 which expressly prohibits urban development outside existing and committed built-up areas. Reference was also made to Structure Plan Policy SET12 which essentially provides that new development should be channeled into committed built- up areas. In this case, the site was evidently a rural area where urban development should be strictly prohibited, unless it is shown that the interventions are essential to agricultural, ecological or scenic interests. In reaction, applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that his site formed part of a small hamlet. Applicant, now appellant, underlined that the development would "certainly contribute to the closure of said hamlet". In addition, specific reference was made to a development permit that was issued "directly adjacent to the site". Appellant thus maintained that refusing his application was tantamount to absolute discrimination. Moreover, the proposed side elevation bordered the edge of the built up area and would therefore prevent any further ribbon development, eliminating an exposed blank party wall at the same time. Nevertheless, the Authority held to its previous decision, reiterating that the proposed massing was considered excessive. According to the case officer, "any positive benefits resulting from the screening of the existing blank party wall are clearly overweighed by the negative impacts that so much land is being lost to be transformed from agricultural land into a residential development which could easily (and should) be located within designated developable areas". Concluding, the Authority's representative reminded the Tribunal that the Local Plans put an emphasis over the need for the protection of the countryside so that "any urban development should be directed towards designated urban areas". In this assessment, the Tribunal pointed out that appellant's arguments were not convincing. The Tribunal observed inter alia that the permit quoted by appellant did not create a "strong" precedent so as to allow further construction outside the development zone. Concluding, the Tribunal suggested that, if anything, appellant had an option to submit a Planning Control Application with a view to change the current site designation. Against this background, the appeal was rejected. Dr Robert Musumeci is an advocate and a perit Adjacent site did not create a 'strong' precedent Robert Musumeci Malcolm Mifsud Works on a pavement may contribute spoliation Any positive benefits resulting from the screening of the existing blank party wall are clearly overweighed by the negative impacts