Issue link: https://maltatoday.uberflip.com/i/855205
48 maltatoday, SUNDAY, 30 JULY 2017 Opinion I n the case where a plaintiff is seeking payment and the defendant alleges that the debt has been paid, the defendant must prove the payment. This was decided by Magistrate Dr Gabrielle Vella in Blue Media Marketing Limited -v- Anton sive Claude Camilleri on 26 July, 2017. The plaintiff company filed an action against Camilleri for a claim of Euro10,307.50 for the payment of advertising and publishing of articles. Camilleri filed a statement of defence, where he explained that he had written the articles himself and that the advertising is not due. The Court had pointed out that the defendant in his submissions, stated that the plaintiff company no longer pursued the original claim for articles and adverts, but converted the claim to advertorials and as a result the claim should be turned down. The defendant had quoted from a previous judgment Melita Cable plc -v- Malta Communications Authority decided by the Court of Appeal of 13 February, 2009, which held that the court is barred from deciding upon claims which are not included in the original claim. The Court further pointed out that this particular case concerned an administrative dispute and not a civil law case. Therefore, if the Court is convinced that the defendant had to pay for advertorials and not strictly adverts and articles, then the claim may still be upheld. Regarding the merits of the case, the plaintiff company had produced copies of the advertorials published on Skylife magazine for a number of months in 2007, 2008 and 2009 together with invoices sent to Camilleri of Euro 1,030.75 each. Magistrate Vella held that she was satisfied with this evidence that Camilleri owed the company. The Court held in its judgment that if the defendant is claiming that the debt is paid or not owed then he should produce the evidence. The general principle at law is that who alleges must prove. This is derived from Article 562 of the Code of Organization and Civil Procedure. In this particular case, the defendant is claiming that the invoices are not due because, he was giving in the articles and the adverts were not according to the level agreed. Camilleri explained that he is a restaurant owner and a journalist and he showed the Court a number of magazines he contributed to. He explained that in these magazines which are published abroad, he would have been contacted by the publisher and would have been paid for them. With regard to Skylife, Camilleri explained that he had stopped contributing articles and when this took place, he was contacted in order to advertise on the same magazine. He refused the offer, but the offer was changed in the sense that he would continue to contribute articles and he would be able to mention his restaurant. He did not consider these as advertorials. The Court pointed out that the defendant's version was contradicted by the fact that he paid Euro 1,030.75 per month from November 2007 to February 2009. It seems that he was not realizing that these payments were being made and his accountant explained that he was paying for a listing. But the claim of plus Euro 10,000 was not for listing but for full page adverts. Camilleri explained that he did not realize that these adverts were being published. However, the cheques were being signed by the defendant. These contradictions convinced the court that the company's claim is due. The Court ordered the defendant to pay the full claim to the plaintiff company. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates T he Malta Environment and Planning Authority refused a planning application contemplating the demolition of an existing building followed by the construction of a new one. The Authority's commission had held that access to the site was only possible via a restricted passageway situated off an alley in Mistra Road, St Paul's Bay. Aggrieved by the decision, the applicant filed an appeal before the Environment and Planning Review Tribunal, insisting that the Authority's decision should be reversed. The applicant argued that the site was already 'physically' committed. The Tribunal, however, rejected the appeal after it considered that the applicant's proposal was deemed to be an internal development. In point of fact, the Tribunal made specific reference to policy 3.8 of the 2005 Policy and Design Guidance, being the policy 'in vigore' when the appealed decision was taken by the Authority. According to policy 3.8, the following design parameters were to be satisfied for the Authority to uphold proposals for internal developments: • The highway network in the area, and in particular the approach road(s) to the site should be capable of accommodating the traffic likely to be generated by the development safely and conveniently. In particular, approach roads should not be less than 4.1 metres wide; • An adequate means of vehicular and pedestrian access to the site should be also provided from an adjoining street – once again, having a minimum access width of 4.1 metres together with a turning space to enable vehicles to enter and leave the site in a forward gear; • The submitted designs should be in keeping with the character of the area and in accordance with the zoning of the site in terms of the type of dwelling unit permitted, the height and the other applicable criteria; • An effort should be made on the part of the perit to ensure that the proposed development is compatible in height, scale, design and form with adjoining property; • A satisfactory layout and building form having an adequate outlook, particularly with regard to the windows of the main habitable rooms, is a prerequisite; • Adequate separation between buildings to provide privacy is a must; • A minimum distance of at least six metres separation between buildings should be retained whereas at least three metres separation where buildings adjoin the backyards of adjacent buildings should be provided; • Where there is an existing party wall adjoining the site, such a party wall should not remain exposed; • The height of party walls of the new development should not exceed the height limitation for the area; • Satisfactory access arrangements for service (refuse collection etc.) and emergency vehicles are compulsory; • At least 20% of the site needs to remain as a public open space in the form of open space between buildings, including piazzas or other public spaces and/or play areas; • It must be shown that the site can be adequately provided with the necessary infrastructure services; • A satisfactory proposal for the maintenance of common areas, landscaping and utility services should accompany the proposal; All parking provision should be underground and the open space at ground floor level should be a pedestrian space. In this case under review, it was immediately clear to the Tribunal that the width of the approach road was three metres, hence way below the minimum required by policy 3.8 (namely 4.1 metres). Based on this assessment, the Tribunal felt that there was no point in delving further into the merits of the proposal and the Authority's decision was consequently confirmed. Dr Musumeci is an advocate and an architect with a particular interest in development planning law robert@robertmusumeci.com Robert Musumeci Approach roads to internal developments should not be less than 4.1 metres wide Malcolm Mifsud Allegation of payment must be proved Internal development rejected due to restricted access