Issue link: https://maltatoday.uberflip.com/i/835410
48 maltatoday, SUNDAY, 11 JUNE 2017 Opinion A court turned down an action which was instituted after a 20-day period stipulated by Article 466 of the Code of Organisation and Civil Procedure. This was decided by Mr Justice Lawrence Mintoff in ARMS Limited -v- Uddin Hallim on 2 June, 2017. In the defendant's application, Uddin Hallim explained that he filed the action in terms of Article 466 of the Code of Organisation and Civil Procedure, after ARMS filed a judicial letter against him in December 2016 calling upon him for payment of pending utility bills. He admitted to renting a property between 2007 and 2008, but this was then rented to another company. He left the island at that time only to return in 2016. Therefore, he could not have consumed the electricity and water that ARMS Limited are claiming. ARMS Limited filed a statement of defence stating among others that the action was filed beyond the 20-day period prescribed by Article 466(2), since their judicial letter was notified to Hallim on 28 November, 2016, but the action was filed on 21 December 2016. Article 466 reads as follows: "466. (1) Where the head of a government department or the person vested with the legal representation of a body corporate established by law or with the legal representation of any company or other body which has been authorised by or under any law to collect any amounts due to a government department or to a body corporate established by law, desires to sue for the recovery of a debt due to a government department or to any administration thereof or to a body corporate established by law, for any services, supplies, penalties, rent, ground rent, other burdens on property, compensation for occupation and or for any licence or other fee or tax due, he may make a declaration on oath before the registrar, a judge or a magistrate wherein he is to state the nature of the debt and the name of the debtor and confirm that it is due: "Provided that the provisions of this article shall also apply in respect of amounts due for the supply of water and electricity and for the rental of the relative meters but they shall not apply where prior to the service required under sub-article (2) the person from whom the amount is claimed shall have notified the claimant either by means of a judicial act or by registered post that he is disputing the metering, calculation or the charge in respect of such supply or rental. "(2) The declaration referred to in sub-article (1) shall be served upon the debtor by means of a judicial act and it shall have the same effect as a final judgment of the competent court unless the debtor shall, within a period of 20 days from service upon him of the said declaration oppose the claim by filing an application demanding that the court declare the claim unfounded." The court agreed that from the acts of the case the action was in fact instituted 20 days after Hallim was notified of the judicial letter sent by ARMS. The last day within which the action had to be filed was on 18 December, which was a Sunday and therefore, it could have been filed by the 19th December, 2016. The court held that various judgements had established that these time limits within which actions have to be filed are of a public order nature and cannot be ignored, even if the other party does not object. In a previous judgement Mirjana Kovecevic -v- Myoka Management Limited, the Court of Appeal held: "Unlike prescription, for the filing of action under substantive civil law, as a rule time-barred procedures are not open to any extension, suspension or interruption, save in the exceptional circumstances envisaged by procedural law (Articles 108 and 109 of Chapter 12). Besides public order, such is motivated by reason of certainty and uniformity." In another judgement Anthony Mario Vella -v- ARMS Limited decided on 16 December 2014, the First Hall of the Civil Court, that even if the delay was not the fault of the plaintiff, this is not sufficient to turn down the plea. The court then moved to uphold the plea and held that the action was null and void. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A development planning application contemplating the demolition of a two-storey building, retaining its façade, followed by the construction of a five-storey block was turned down by the Planning Commission. In fact, the proposed drawings show a four-storey building with a receded topmost floor. The applicant's premises are situated in Triq il-Kbira San Guzepp, Hamrun. To justify its decision, the Commission observed that the proposed building envelope ran counter to Urban Objective 2.3 of the Strategic Plan for Environment and Development (SPED) which promotes "a context driven approach for the control of building heights within Urban Conservation Areas in order to protect the traditional urban skyline". Consequently, the proposal could not be justified on the basis of similar commitment in the immediate vicinity. As a reaction, the applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. The applicant argued that the Commission applied the wrong policy since his application was submitted prior to the introduction of the 2015 Policy and Design Guidelines. In his submissions, applicant stated that the Commission failed to note that the 2015 guidelines provide a specific transitory provision on the basis of which, applicants may request the Authority to assess their applications in terms of the previous 2007 Policy and Design Guidelines. According to the applicant, the Authority should have ignored the provisions of the Strategic Plan for Environment and Development and, instead, relied on the 1992 Structure Plan on which basis, the 2007 guidelines were grounded. The applicant further pointed out that the street was, in any case, committed with tall buildings despite the Authority having given a different impression. In reply, the Authority took strong objection to the applicant's arguments. The case officer insisted that the application was validated on 4th November, 2015, on which date the SPED had been approved since August 2015. Consequently, the applicant was wrong to assert that the SPED was not applicable in the given circumstances. In addition, the case officer reminded the Tribunal that the premises was sandwiched between a three-storey building on the right and a two-storey building on the other end. Were it to be approved, the proposed development would have resulted in the creation of unsightly high blank party walls to the detriment of the low lying streetscape In its assessment, the Tribunal immediately observed that as a matter of legal principle, "the application of policies and proposals in approved Subsidiary Plans should not prejudice the implementation of SPED." In other words policy UO2.3 of the SPED, which was designed "to improve the townscape and environment in historic cores and their setting with a presumption against demolition of property worthy of conservation by adopting a context driven approach to the control of building heights within Urban Conservation Areas (UCAs)", was certainly applicable. Nevertheless, the Tribunal noted that the Hamrun Local Plan equally provides that within UCAs, the designated building height limitations as indicated in the Building Height Limitations Maps do "ref lect the predominant height of the existing buildings". In this case, the proposal was consonant with the set height limitations, which allow for a building height of four storeys and an overlying receded f loor. The Tribunal therefore observed that applicant's proposal was in line with policy and should be approved. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law Hamrun multi-storey approved as being according to local plan Robert Musumeci Malcolm Mifsud Actions must be filed within the prescribed time