Issue link: https://maltatoday.uberflip.com/i/817563
48 maltatoday, SUNDAY, 30 APRIL 2017 Opinion T he First Hall of the Civil Court decided on 26 April, 2017 that any property used under or above an immovable property belongs to the owner. The judgment was delivered by Mr Justice Joseph Azzopardi in John Cachia and his wife Maria Cachia v Emmdor Limited, Emmanuel Vassallo and Mary Vassallo. In their application the Cachias said that they are the owners of a maisonette with a garage, marked D. In Qawra. On the other hand the defendants own the maisonette above the Cachias', together with a garage marked C. When the block was originally built a floor under the Cachias' maisonette was blocked off and sealed. This was done due to the excavation that took place when the buildings were being built. In 2002 the plaintiff decided to make use of the land under the maisonette, by removing some bricks to allow access. There he noticed that his next door neighbour had constructed a very small access also, between the defendants' garage and the sealed off area. The plaintiff blocked off their area again and approached the defendants, who refused to remove their access to the defendants' property. The plaintiffs asked the court declare that the land under their maisonette is theirs and to define the boundaries of the two properties and order the defendants to vacate that part of the property. The defendants filed a statement of defence arguing that the plaintiff must prove their title over this disputed area, since the contract when the plaintiffs purchased the place did not mention this area. The Court analysed the contracts and the other evidence presented before it. The Court had also nominated an architect as its expert, who presented a report. The Court quoted Article 323 of the Civil Code: "Whosoever has the ownership of the land, has also that of the space above it, and of everything on or over or under the surface; he may make upon his land any construction or plantation, and, under it, any work or excavation, and draw therefrom any products which they may yield, saving, however, the provisions relating to Praedial Easements under Title IV of Part I of Book Second of this Code and any other provision of law in regard to fortifications or other works of defence." The Court also quoted from a previous judgement Francis Portelli -v- Stanislaw Pisani et decided on 24 September, 2004, which held that the owner of land was also the owner of the airspace and also underground. Therefore, once the property is transferred to a third party, the airspace and the underground property is also transferred, unless the contract imposes a limitation. If there is no exclusion in the contract, the law allows a presumption that whatever is found above or under the land is of the owner. The court-appointed expert confirmed that the defendants placed a door which leads to under the plaintiff 's garage and was constructed after the property was built. The expert pointed at what the defendant, Emanuel Vassallo said in his affidavit that confirmed that the door had been made. The plaintiffs and their son confirmed that in 2002, they were carrying out works in the garage and when they opened part of the wall, they saw that the defendant was occupying part of the area under the plaintiffs' garage. The Court noted that the passage did not constitute a servitude of the plaintiffs' property. The Court then moved by rejecting the defendants' pleas and confirming the area as belonging to the plaintiff and ordered the defendants to vacate the area within three months Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning application entitled 'Construction of a ground floor store and overlying store as an end of development' was turned down by the Environment and Planning Commission after it found that there were no reasons, at least from a planning point of view, as to why the development could not be located in an area designated for development or in an existing built up area. The development in question is located outside the schemed boundary of Zurrieq. The Commission observed that the proposed development was in conflict with Structure Plan Policy SET 11, 'which does not permit urban development outside existing and committed built-up areas'. Moreover, it was specifically pointed out that the proposed interventions would result in 'the subdivision of agricultural land holdings in view of the construction of a boundary wall across the whole site from one end of the site to another'. Consequently, the proposal was considered to be in violation of Policy NWAG 01 of the North West Local Plan, which militates against the 'parcelling of agricultural land holdings against the contours of the site.' In reaction, the applicant filed an appeal before the Environment and Planning Review Tribunal. In his detailed submissions, the applicant's architect argued that the proposed building was to replace an old building having a footprint of 61 square metres. Reference was also made to another planning application, where the Authority had allegedly approved a dwelling outside the development zone due to the fact that the site was located on the fringe of the development boundary. The Authority, however, stood firm by its earlier position. As regards the application quoted by the applicant, the Authority said that the development in that case was sandwiched between two terraced houses whereas, in this case, the proposed store would only mitigate part of an existing blank party wall. The Authority contended that 'if every blank party wall in ODZ justifies a new development, then the cumulative massing and uses in ODZ would render these areas as small urban areas'. To conclude, the case officer representing the Authority reiterated that the proposal involved the construction of a boundary wall 'against the contours of the terraced fields', in conf lict with current environmental policies. In its assessment, the Tribunal immediately observed that the appellant was a genuine farmer and therefore required a considerable amount of storage space. The Tribunal further considered that the proposed construction works would, indeed, mitigate a two storey blank wall. For this reason, the Tribunal acceded to the appellant's request, provided that the height of the store would be limited to one f loor above street level. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law Farmer in need of storage Robert Musumeci Malcolm Mifsud Property above and below land belongs to the landowner The proposal was deemed acceptable since the proposed interventions would mitigate a two storey blank wall Whoever has the ownership of the land has also that of the space above it, and of everything on or over or under the surface