Issue link: https://maltatoday.uberflip.com/i/841483
48 maltatoday, SUNDAY, 25 JUNE 2017 Opinion T his was held by the Court of Appeal on 16 June, 2017 in Fogg Insurance Agencies Ltd noe v Local Council, Luqa et. In their application, Fogg Insurance had filed an action against the local council claiming payment of €491.76 following damages sustained by a vehicle due to a pothole. The council contested the claim and argued that the accident took place in a road which is the responsibility of Transport Malta. The Small Claims Tribunal in its judgement on 9 April, 2015 turned down the council's pleas and ordered it to pay the insurance company €436. The council appealed on two grounds. The first was that the judgement was null and void according to Article 789(1)(c) and (d) of the Civil Code, since the tribunal failed to give the reasons why it decided as it did. The second ground was on the statement the tribunal made when it condemned the council when the accident took place in Triq il-Kunsill tal-Ewropa, which is an arterial road and therefore fell under Transport Malta's responsibility. Transport Malta replied to the appeal stating that the appeal was inadmissible in accordance to Art 8 of the Small Tribunals Act, since the grounds of appeal were not a point of law. Mr Justice Anthony Ellul, who delivered the judgement, analysed the evidence produced, including the testimony of the driver of the car, who told the tribunal that he was driving in the main road in front of Miller. He drove into a pothole in the middle of the road and two of his tyres burst. He also had to change his shock absorbers. He had written to Luqa Council asking if the road was its responsibility or Transport Malta's. No reply was received. The driver had then reported the accident to the police and explained that it was in front of Miller, but had said it was in Tarxien Road. The Executive Secretary of the Council testified that the claim was passed on to Transport Malta, and that Triq il-Kunsill tal-Ewropa falls under the sole responsibility of the Central Government. The insurance representatives confirmed that the amount of the claim was correct. The Transport Malta representative explained that in Luqa it was responsible for two roads Triq il-Kunsill tal-Ewropa and Vjal l-Avjazzjoni. Therefore Triq Hal Tarxien is in the Council's competence. Miller's Distribution offices are in Triq Hal Tarxien. The Court of Appeal then analysed the legal issues under Article 8(2) and (3) of the Small Claims Tribunal Act which reads: "(2) Independently of the amount of the claim, an appeal shall always lie in the following cases: (a) on any matter relating to the jurisdiction of the Tribunal; (b) on any question of prescription; (c) on any non-compliance with the provisions of article 7(2); (d) where the Tribunal has acted in a serious manner contrary to the rules of impartiality and equity according to law and such action has prejudiced the rights of the appellant. (3) A right of appeal on all grounds shall also lie where the amount in dispute, calculated in accordance with the provisions of article 3(2), exceeds one thousand and five hundred euro (€1,500)." The council complained that the judgement delivered by the Small Claims Tribunal was not motivated as it was meant to be in terms of Art 789(1)(1) of the Code of Organisation and Civil Procedure. The Court of Appeal quoted from a number of witnesses and it quoted from the judgement which shows the reasoning of the Tribunal when it delivered its judgement. In fact, it had upheld the plaintiff company's claim. The Court of Appeal had to see whether Art 8(2)(d) of the Small Claims Tribunal Act applies. The court quoted from Atlas Insurance PCC Ltd v BAS Ltd of 13 January, 2015 which stated that there is no legal definition of equity but it has to follow the law and supplement the law. With regard to whose responsibility the road fell, that is an issue concerning the merits of the case and therefore could not be a ground. The court then moved to reject the appeal. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A development planning application was lodged with the Planning Authority in an attempt to sanction a freestanding billboard which was installed without first obtaining planning permission. The billboard is located on the Mriehel By pass. The applicant's request was initially turned down by the Environment and Planning Commission after the Planning Directorate had previously insisted that 'new' billboards should be installed solely in 'designated' locations. Moreover, it was observed that the closest designated site was located only 150 metres away. In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. The applicant submitted that Transport Malta had found no objection to his proposal and further contended that the authority acted 'unfairly' in his regard, the more so since it had acceded to similar requests pertaining to the same road. In reply, the case officer representing the authority reiterated that freestanding billboards may only be permitted in 'designated' locations. The case officer explained that, at present, there are only 114 designated locations, which excluded the applicant's chosen location. He went on to argue that 'the aim of 'designated sites' is to control the proliferation of such billboards'. Having a site with similar characteristics to a designated location 'does not mean that it should be justified by default.' The officer warned that 'the piecemeal justification of singular additional billboards over and above the 'designated sites' would in time lead to an unnecessary profusion of advertising along roads', particularly so since the authority had designated other sites along the same road. In its assessment, the Tribunal observed that, as a matter of principle, the authority should exercise 'strict control' with regard to new locations unless these are officially 'designated'. Nevertheless, the Tribunal maintained that there may be instances where requests may still be entertained provided that the chosen site is 'congruent' to the characteristics applicable for designated locations. The Tribunal recalled that billboards should be ideally located in arterial and distributor roads on condition that there are no traffic safety issues. The Tribunal opined that in the applicant's case, the chosen location had similar characteristics to a designated site in terms of its 'location and surroundings'. More so, the Tribunal held that the distance between the billboard under examination and the closest designated location was deemed to be adequate. Against this background, the authority was ordered to issue the relative sanctioning permit. Dr Robert Musumeci is an advocate and a perit with an interest in development planning law Billboard approved despite chosen location Robert Musumeci Location deemed acceptable as it was 'congruent to those indicated on the relative maps' Malcolm Mifsud Appeals of Small Claims Tribunal are limited to points of law