Issue link: https://maltatoday.uberflip.com/i/869387
46 maltatoday, SUNDAY, 3 SEPTEMBER 2017 Opinion T he First Hall of the Civil Court turned down a request to issue a warrant of prohibitory injunction to block an eviction, when the court marshals had already changed the locks and deposited the keys in court. This was decided by Mr Justice Lawrence Mintoff in Cecil Herbet Jones -v- Charles and Mares Dolores Grech on 29 August, 2017. Jones filed an application for a warrant of prohibitory injunction in order for the court to block his eviction from his home and that the keys would not be handed to the Grechs. This followed a warrant of eviction which the Constitutional Court suspended provisionally. The Court marshal entered the building just the same and changed the locks. The First Hall of the Civil Court in its constitutional jurisdiction cancelled the decree which suspended the eviction. Jones is claiming that there are other pending actions such as an appeal from the eviction and a retrial of another pending case. Charles and Maria Dolores Grech filed a statement of defence, stating that this request for a warrant of prohibitory injunction, was the last of a string of actions allowing Jones to remain to live in their property and this was in violation of a judgment delivered by the courts. They pointed out that what was being asked from Jones had already taken place and he has effectively been evicted from the property. The Court pointed out that in a sitting Jones withdrew the request for the Court to stop the eviction, however, he wanted the courts to refrain from passing the keys to the Grechs. Mr Justice Mintoff held that in a judgement of 9 February, 2012 and later confirmed on 29 April, 2016, Jones was ordered to return a property in Birkirkara, which was originally rented to his mother, who is now deceased. The Court of Appeal ordered the suspension of the eviction in the retrial proceedings, however, after this decree was cancelled. The Court of Appeal order of eviction was carried out, when the locks were changed and the keys were deposited. The Court quoted from Article 873(2) of the Code of Organisation and Civil Procedure: "(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right." There are three elements that are needed for a warrant to be issued. The first is that the act may be prejudicial to the rights sought by the applicant. The second is that the blocking of that act is required to protect that right, which is that if that act takes place there would be no further remedy for applicant and that right would be lost. The courts have not considered a financial loss irredeemable. This was held in Francis Barbara -v- Carmelo Barbara decided on 13 May, 2014. The third element is that the applicant must have a prima facie right. The Court at this stage is not empowered to investigate whether the right in fact exists. This is a precautionary warrant, therefore, decided before the actual case and this is why this is a summary procedure, once the merits will be investigated in depth. The Court pointed out that a warrant of prohibitory injunction is a procedure of an exceptional nature. This was held in Charles Mugliett -v- Saviour Bonnici, decided on 25 January, 2005. However, it cannot be used to as an arm twisting tactic, as it is used to block the defendant from using his or her rights. The elements of a warrant must be all present. With regard to this particular case, Jones is asking the court to block the return of the keys to the Grechs, however, the former had to show what prejudice he would suffer, if the keys are handed over to the defendants. The issue of the keys was ancillary to the eviction. The keys are handed over as part of the eviction order which does not prejudice the applicant's right to continue with the constitutional court's case and the retrial. Furthermore, the Court found it hard to understand how the handing of the keys would prejudice his case indefinitively. The eviction would not affect the outcome of the pending cases, since even if Jones is successful in his actions, he will not lose his right if the warrant is issued. Anyhow, the applicant would remain evicted during the actions. Therefore, the Court moved to turn down the request for a warrant of prohibitory injunction. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A third party appeal was lodged with the Environment and Planning Review Tribunal after the Planning Authority issued planning permission for the construction of a multi storey complex in Zebbug. The approved drawings show 11 garages at basement level overlain by a complex of 10 residential units. In their appeal, the neighbouring objectors insisted that the permit should be revoked for the following reasons: The permit was approved in breach of policy document DC 2015 and local plan policies since 'the approved development abuts onto a green enclave established by the same local plan and no regard was given in the said permit of transition between the different zoning parameters'; Their property lies within an Urban Conservation Area and the back garden in a designated green enclave; The approved development features five f loors 'with back windows and terraces' overlooking their property; The approved development is receded from their property by a mere 3.5 metres. This amounts to visual intrusion; The approved plans show a basement depth in excess of 30 metres, which is the maximum building depth allowed by policy; The enclave 'constitutes an eco system also comprising the hydrology of the place'; The traditional nature of the green enclave was set to be destroyed and 'a canyon effect created onto this green enclave'; No landscaping was included in the proposal despite being required 'to provide a much needed transition between the enclave and the proposed development'; No regard was given to the design of the side and back elevations in terms of architectural quality. More so, 'the features of constructions and additions' were not in keeping with the traditional architectural characteristics; Parcelling of new developments should not be allowed where the site frontage is less than six metres, such as in this case; The site was of an irregular shape. At most, the development that should be accommodated in this case is one terraced unit; No green buffer or other transition elements, design or massing were provided; and The ventilation report submitted by the applicant was based on wrong information. On his part, the permit holder insisted that a buffer distance of 4.6 metres was being provided. Moreover, it was highlighted that the development did not encroach onto the 'enclave' territory. The back elevation was not visible from any public roads and was otherwise compliant with sanitary law. The applicant reminded the Tribunal that the approved plans showed a frontage totalling 7.9 metres, therefore 'way above' the stipulated minimum of four metres. Concluding, the permit holder maintained that his development was adequately receded from neighbouring properties. In its assessment, the Tribunal made reference to Policy P6 of DC 2015, concluding that transition solutions are required when two sites having different designations have their respective frontage on the same road. According to the Tribunal, this was not the case in the present circumstances. Moreover, the Tribunal observed that the building had a façade frontage of six metres. More so, the building depth, when taken in relation to the official building alignment, measured 30 metres in line with policy. Against this background, the Tribunal held that the permit should stay. Dr Robert Musumeci is an advocate and architert with an interest in development planning law robert@robertmusumeci.com Robert Musumeci Transition solutions are required when two sites having different designations have their respective frontage on the same road Malcolm Mifsud Eviction cannot be blocked by the Court, if it has already been carried out Transition policy finds no applicability