Issue link: https://maltatoday.uberflip.com/i/863487
maltatoday, SUNDAY, 20 AUGUST 2017 E asements have featured prominently in Maltese legislation since their formal introduction by the Roman Empire following the Second Punic War. Retaining their importance in subsequent centuries, they were formally codified through the Code de Rohan and finally the original version of the Civil Code in the 19th Century. Easements were duly considered a fundamental part of Roman Law and a basis for Maltese legislation. The notion of easements and servitudes has rarely been revisited, with sporadic amend- ments to the Maltese Civil Code since their formal introduction. However, it must be recognized that the situation in Malta today is diametrically opposed to the days when easements were introduced. Nonetheless, they have retained their importance and continue to regulate important bilateral rights between property owners. Following Malta's independence, the Maltese islands have expe- rienced several building booms which persist to this day. Ease- ments and servitudes, particularly rights and corresponding obliga- tions entered into in contractual deeds have not caught on with regard to new construction devel- opments and skyscrapers. This has particularly affected the altius non tollendi easement, which restricts the development of buildings over a specific height. Under Maltese law, the Civil Code states that all easements must be registered at the Public Registry. Maltese Courts have been particularly strict on the re- quirement to register easements at the Public Registry, as well as with regard to the exact wording used to establish such easement. Regardless of the measures un- dertaken to formalise easements, the construction of high-rise buildings has brought new con- siderations to the matter. This is particularly noteworthy due to the government's intention to focus on solar energy as the Maltese Islands' main source of renewable energy in order to reach the 10% target in renewable energy by the year 2020, as established by the EU 2020 targets. Malta's share of renewable energy produced through solar en- ergy has increased significantly in recent years, the result of several financial incentives promulgated by the government and Malta Enterprise. Solar energy accounts for the largest share of renewable energy in Malta, exceeding 3%. This figure is estimated by the draft National Renewable Energy Action Plan (NREAP) to increase to 4.7% by 2020, amounting to 11.5% of the gross final consump- tion of electricity. The installation of solar panels is also estimated to increase in the near future, however, the development of high-rise buildings provides additional challenges. Such construction may obscure rooftops occupied by photovol- taic cells, greatly reducing their production potential and increas- ing the timespan to recover capital expenditure to such an extent that installing solar panels would be financially unfeasible. This situa- tion is already happening around Malta, with reports of solar panels obscured by adjacent develop- ments making the rounds on social media and printed media alike. The lack of solar rights legisla- tion in Maltese law has been acknowledged in the NREAP Report, which states that it is a major hindrance to investment in photovoltaic energy in Malta. This lacuna is also reflected in EU law, which remains uncommitted re- garding solar easements and other solar rights despite the recognition of such easements in US law since the 1970s. Given the provisions of the Civil Code with regard to easements, it is reasonable to assume that the introduction of solar easements would be effective only if these are voluntary, with the owner of the servient tenement entitled to withhold permission. However, it would be incorrect to assume that the creation of a solar easement is akin to the creation of an altius non tollendi easement since a solar easement does not overtly concern itself with the height of a proposed development but with its effect on the photovoltaic system. In this regard it would be perti- nent to analyse the situation in the US State of California, which has implemented some of the world's most progressive solar rights legis- lation. This legislation attempted to balance the needs of private property owners and photovoltaic owners through the development of solar access rights. Californian legislation defined a solar easement as the right 'to re- ceive sunlight across real property of another for any solar energy system'. This provision ensured that solar easements are protected at law whilst the condition of hav- ing a solar energy system served to prevent the invocation of this clause to oppose any development which affected sunlight. Additionally, Californian law contains provisions regulating the installation of photovoltaic cells and impediments to their installa- tion. Unreasonable impediments are prohibited by law through specific benchmarks. It is time for Malta to legislate similar provisions to reassure private investors through solar easements. It is not sufficient to merely facilitate the installation of photovoltaic cells through fi- nancial schemes if this investment is not backed up by legislation designated to protect the right to solar energy for all. Additionally, the introduction of solar rights would not only reiterate Malta's commitment as a country towards solar power, but also as part of a comprehensive long term strategy as established by the draft NREAP. Dr Edward Mario Camilleri holds a Masters Degree in Interna- tional Maritime Law (IMLI) and Energy & Natural Resources Law (QMUL). He is a lawyer at SAGA Juris Advocates edwardcamilleri@sagajuris.com 22 Opinion I f the PN were an individual human being instead of a political party, there would be grounds to put it on 'suicide watch' right now. All this infighting, public squabbling, this naked drive for factional supremacy at all costs... no good can possibly come of it, you know. You cannot fight wars with both yourself and your political adversaries, and expect to one day emerge victorious. In fact, under those circumstances you cannot realistically expect to win even one of those two wars... let alone both. Yet this has somehow become the only discernible 'strategy' at work in the corridors of the Stamperija these days. Ever since those four candidates stepped forward to vie for the party leadership, the 'war on Labour' seems to have been forgotten altogether. It's now a 'war on Frank Portelli and Adrian Delia'... waged mostly by Daphne Caruana Galizia, with the vociferous backing of thousands of her (Nationalist) followers. In other words, it's an open war waged by Nationalists against Nationalists... a no- holds-barred confrontation where no prisoners will be taken, no quarter will be shown, and – most likely – no survivors will even be left standing after next September. So in case you were wondering why the Labour Party's gone so quiet all of a sudden... why it hasn't even bothered dishing out any dirt on any of those four candidates... well, the answer should be perfectly obvious by now. What's the point? Why get your own hands dirty through political warfare... when you just sit back, crack open a beer, and enjoy the gory spectacle of the PN literally ripping itself to pieces, limb by bloody limb? No, indeed. People like Glenn Bedingfield may as well close shop for what's left of the August holidays. His blog is no longer necessary... the PN is doing a good enough job of eviscerating itself without any outside help whatsoever. OK, time to look at a few of the skirmishes in this ongoing war. Let's start with Frank Portelli... the 73-year-old former Nationalist MP who is now the target of so much online vilification. So far, he has been called out over a) his age; b) his debts; c) his 'homophobic, racist' views, and; c) his personal family life... including the circumstances under which he married his second wife, and (more recently) allegations that he somehow 'mentally abused ' his 17-year-old son. Regarding the first objection, Simon Mercieca – a (Nationalist) columnist with the Independent – has already said it better than I ever could. Simon Busuttil was no old fogey when he became leader in 2013... and just look how severely the party has suffered under his leadership since then. 'Nuff said. As for the second concern... well, that's an entirely acceptable line of criticism in itself. Portelli has been ordered by the law courts to pay back a 12 millon euro bank loan. He is not exactly very well-positioned to take over a political party, with that sort of thing dangling over his head. This was, however, also known to one and all from long before Portelli threw his hat into the ring. I'll come back to this hugely significant detail after dealing with the other objections. His beliefs and ideas, for instance. This is where things start to get a little cock-eyed. On paper, Portelli favours large-scale deportation of migrants, and using detention as a deterrent. These are indeed problematic positions, which are distasteful to a lot of people. BUT... the sort of person who would object to that, would also have had deep concerns about the Nationalist Party pursuing those very same policies all the time it was in power. Malta's detention regime was in fact set up by the Nationalist government; to date, it was a Nationalist government that was responsible for the largest mass-deportation of migrants this country has ever witnessed. In fact, I see no difference whatsoever between Portelli's views, and the policies enacted by Tonio Borg when he was minister of home affairs. It is a case of condemning Portelli for merely saying what the PN had actually been doing for years. Much the same could be said for his views on gay rights. We all seem to have forgotten that it was the PN which initially opposed same Raphael Vassallo Edward Mario Camilleri Time for solar rights The lack of solar rights legislation in Maltese law is a major hindrance to investment in photovoltaic energy in Malta