Issue link: https://maltatoday.uberflip.com/i/866589
46 maltatoday, SUNDAY, 27 AUGUST 2017 Opinion A Magistrate's Court upheld an application for a warrant of prohibitory injunction, even though the applicant had a special hypothec in his favour. This was decided by Magistrate Charmaine Galea on 21 August, 2017 in San Lawrenz Leisure Resort Limited and San Lawrenz Operators Limited -v- Waldemar Woyseth von Turow and his wife Halina Dunin-Woyseth von Turow. The applicant companies asked the Court to inhibit the defendants from transferring in any manner a residential suite forming part of a residential block adjacent to the Kempinski San Lawrenz hotel. Woyseth von Turow filed a reply objecting to the warrant being issued, since the application did not satisfy the elements of the warrant in terms of Article 873(2) of the Code of Organisation and Civil Procedure. It seems that the applicant companies, prima facie did not have any rights to protect by means of the warrant. Furthermore, according to the public deed of 26 June, 2006, there was registered a special hypothec of €11,646.87 in order to guarantee the fulfilment of the association rules and "in warranty of the proper observance of the restrictions regarding the use and occupation of the Residence and Block Common Parts". Consequently, the defendants cannot transfer the property without the consent of the applicants. Furthermore, according to the contract, the companies have a right of first refusal in case the defendants choose to sell the property. Magistrate Galea analysed the evidence brought before her and saw that San Lawrenz Leisure Resort Limited had entered into a temporary emphyteusis contract on 26 June, 2008 for 250 years. The defendants had bound themselves to contribute to the expenses incurred in the maintenance of common area. The applicant companies filed a warrant of prohibitory injunction in order for the defendants to stop any dealings with the property, since there is a claim against them. The Court then dealt with the plea that San Lawrenz Operators Limited have no judicial interest in this case and one of the directors testified, where she explained that San Lawrenz Leisure Resort Limited entered into the contract with the defendants, but San Lawrenz Operators Limited have a management agreement with the sole purpose of administrating the complex. The electricity and water bills are to be paid to San Lawrenz Operators Limited, and this company issues the invoices. In case of defaults San Lawrenz Leisure Resort Limited has to pay the other company. The Court pointed out that the contract caters for a special hypothec in favour of the administrators, which are the San Lawrenz Operators Limited and therefore, this company does have a judicial interest in the proceedings. The defendants held that the claim was adequately protected with the special hypothec registered, together with a right of first refusal, in the companies' favour. They described this warrant as arm twisting, in order to put undue pressure to accept the companies' claims. Article 874 of the Code of Organisation and Civil Procedure reads: "874.* (1) A warrant of prohibitory injunction may also be demanded by a creditor to secure a debt or any other claim amounting to not less than eleven thousand six hundred and forty seven euro (11,647). The object of such a warrant is to restrain the debtor from selling, alienating, transferring or disposing inter vivos such property as may be indicated in the application by onerous or gratuitous title or in any manner creating a burthen or real and, or personal rights; provided that such a warrant shall not apply to the constitution of any right on, or alienation or transfer of any property made pursuant to a court order, or over bank guarantees and letters of credit." The Court at this stage is allowed to examine whether the applicants have a prima facie claim or otherwise. In Sonia Grech pro et noe -v- Stephanie Manfre decided by the Court of Appeal on 14 July, 1988, held that a prima facie right is objective and not subjective. The Court pointed out that these proceedings are summary proceedings and are intended to be swift. Furthermore, if the warrant is refused it has no bearing on whether the claim exists or otherwise, since the court at this stage has no competence to delve into the merits of the case. As to whether the warrant is justified if there exists special hypothecs, the applicant companies argued that the sum claimed is higher than the sum guaranteed in the special hypothecs and for it to benefit from the right of first refusal, it would have to first fork out money and pay the defendants. The Court agreed with the companies and decided that there is a prima facie claim and moved to uphold the warrant. Dr Malcolm Mifsud is Partner, Mifsud & Mifsud Advocates T he Planning Authority had to decide whether to give planning permission "to demolish a two storey house and build a block with nine car spaces at semi-basement, six residential apartments and a penthouse". The said building is located in Triq il-Madonna tas-Sacro Cuor, Sliema. Following a thorough analysis, the Planning Commission turned down applicant's request, insisting that the proposed development ran counter to the provisions of policy P27 of the Development Control Design Policy, Guidance and Standards 2015 which specifies that 'the depth of the built footprint as measured from the official alignment shall not be allowed to exceed 30 metres'. Moreover, the Commission found that the applicant's designs were in breach of guidance G3 of the Development Control Design Policy, Guidance and Standards 2015. Guidance G3 lays down that 'dominant defining design considerations of adjacent buildings should be identified and reinterpreted into the new development'. Reference was also made to Urban Objective 3 of the Strategic Plan for Environment and Development which aims to protect and enhance the character and amenity of urban areas. The designs, according to the Commission, also failed on this count. As a final point, it was observed that the applicant's proposal lacked sufficient mitigation measures against noise and vibration 'from the lift'. As a reaction, the applicant lodged an appeal with the Environment and Planning Review Tribunal, insisting that the Commission's decision should be reversed. In his arguments, the applicant made the following observations: The 30-metre restriction aims to maintain the integrity of existing gardens and to ensure that the developed buildings in the area will have sufficient lighting and ventilation. In his case, such a restriction bore no relevance since the site bordered a schemed road on its rear. Contrary to the Authority's assertions, the proposed elevations 'matched the elevations directly opposite and to the right together with those proposed for the adjacent development', the latter having been approved very recently, featuring a modern design with open balconies, glass and aluminium apertures. As for the lift, the applicant was willing to undertake any mitigation measures as the Tribunal deemed fit. In reply, the case officer representing the Authority stood firm on the Commission's decision to reject the permit, reiterating that the applicant's site was surrounded by existing gardens and green enclaves. The case officer warned that the development as proposed would have a 50 metre building depth, hence way above the stipulated 30 metre limit. More so, the case officer maintained that the façade design was not in keeping with 'the existing traditional row of townhouses'. In its assessment, the Tribunal immediately observed that the proposed building depth was in breach of policy. Once again, reference was made to Policy P27 which provides that "in order to safeguard the integrity of existing gardens and backyards that provide a positive contribution to the urban grain of a street, neighbourhood or locality in terms of important green enclaves, the depth of the built footprint as measured from the official building alignment will not be allowed to exceed 30 metres, including any basement f loors, unless adjacent existing legal buildings on both sides exceed this limit.' The Tribunal went on to observe that the said policy applies in the case of both new developments and redevelopments, such as in the case under review. The Tribunal reasoned out that the Commission was therefore justified to reject the permit. Dr Musumeci is an advocate and an architect with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Policy P27 aims to safeguard the integrity of existing gardens and backyards that provide a positive contribution to the urban grain of a neighbourhood Malcolm Mifsud Warrant of prohibitory injunction approved irrespective of special hypothec 50-metre building depth not allowed