Issue link: https://maltatoday.uberflip.com/i/887355
50 maltatoday SUNDAY 15 OCTOBER 2017 A plea claiming that an action is time barred, may be cancelled if one pleads that the claim itself is overstated. This was held in a judgement delivered by Ms Justice Anna Felice on 10 October, 2017 in Arnold Joseph Grech and Doris Grech -v- Jimfard Company Limited, Muscat and Gatt Construction Limited and GAM Limited. In their application the Grechs asked the court to find the defendant company responsible for damages after they carried out construction works next door to them. They also asked the court to order the companies to pay for the damages. In their application they explained that they reside in Attard and the house next door was demolished and a new building was constructed. At first they filed a warrant of prohibitory injunction, but following discussions and an agreement, the warranty was dropped. Jimfard Company Limited and Muscat and Gatt Construction Limited accepted responsibility, but learned that GAM was the owner. However, the plaintiffs felt that the defendants did not honour the agreement when the construction was underway, since their residence suffered damages. The defendant companies replied by saying that GAM had no judicial relationship with the Grechs and that the action was time barred. They argued that the claim put to them was inflated and therefore, exaggerated. From the evidence produced it transpired that the parties tried to reach an agreement on which works had to take place, but never managed to identify the damages attributed to the construction work and the amount due. On 29 July, 2009, the plaintiff 's architect indicated that the remedial works amounted to €31,327.56, which the defendants' architect estimated to tot up to €25,321.45. The insurance company offered another sum, which was considered as a pittance. On 10 November, 2010, the defendants' offer was of a payment of €11,876, and that they would be doing the works themselves in the well or else they would be doing all the works themselves under the supervision of the plaintiffs' architect. The plaintiffs argued that it was the companies which were being difficult, since they never wanted to start the works. Ms Justice Felice then dealt with the pleas raised, the first of which was that GAM had no judicial relationship. The Court turned down the plea on the ground that the action was one of damages and not breach of contract. Although the agreement was entered into by the two other defendant companies, GAM had purchased the property. The companies argued further that the action was time barred in according with Article 2153 of the Civil Code, since two years had elapsed. However, this plea was incompatible which another plea listed in the statement of defence, that the sum requested was exaggerated. In a previous judgement, Lorry sive Lawrence Cuschieri -v- Minister of the Environment, of 25 February, 2005, the Court had said that if the defendant is saying that not all the claim is due, this would be incompatible with a plea that the action is time barred. This was echoed in Guido J Vella A&CE -v- Dr Emmanuel Cefai of 5 October, 2001. Ms Justice Felice had pointed out that the companies always accepted that they had caused some damage. Therefore, this plea was also turned down. The Court turned its attention to the merits of the case. It criticised the stance taken by the defendant companies that the agreement of 16 March, 2007 allowed them to carry out the works and they were barred from filing an action for the liquidation of damages. The Court pointed out that the agreement did not exclude them from seeking damages. There was no renunciation to a damages claim. From the evidence produced it was clear that the companies did not agree with the total list of damages sustained. With regard to whether the damages included the well, the Court pointed out that the companies already had offered to fix it. The only contestation that existed before the lawsuit was instituted, was the quantum of the damages. But the same companies pinned certain damages to another adjacent development. Although it was true that this other development took place, the companies failed to prove that this was the cause of the damages. On the amount due for the damages, the Court made reference to the court appointed expert's report, which concluded that €22,885.71 was to be paid. The expert warned that while the works were being carried out the Grechs could not live in the premises and this added to the expense. The Court held that Article 681 of the Code of Organisation and Civil Procedure stipulates that the Courts are not bound by the experts' reports, but in Philip Grima v Carmelo Mamo et noe decided on 29 May, 1998, the Court should not set aside the expert's report at a whim – there must be serious reasons. The Court then moved to uphold the claims limited to €22,885.71 and ordered the companies to pay this sum to the plaintiffs. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Opinion T he Planning Authority had granted planning permission for the construction of a terraced house in an 'edge plot' bordering the periphery of the schemed development boundary in Qala, notwithstanding there being a number of objections. A third party appeal was lodged before the Environment and Planning Review Tribunal following approval of the permit. In their submissions, the objectors insisted with the Tribunal that the Authority's decision should be reversed for a number of reasons: 1. The building alignment went beyond the schemed boundary as defined in the Gozo and Comino Local Plan, as a result of which 'almost 55% of the building's footprint was located outside the development zone'; 2. The Environment and Resources Authority was objecting to the proposal; 3. A side garden of 1.5 metres was being provided whereas established planning policies require a minimum three-metre curtilage; 4. Traffic hazards were also envisaged in view of the 'narrowness and the right angled shape' of the street; 5. In the past, the Authority had turned down similar proposals, insisting that any development along the schemed periphery should be 'contained' within the development zone. Nevertheless, the Planning Authority defended its decision to issue the permit. It was argued that the proposed designs provided a neat transition along the periphery of the schemed boundary. Furthermore, it was held that the proposal would cover an unsightly blank party wall. With regard to the side garden, the case officer explained that a 1.5 metre buffer would suffice in this case since the applicant's plot was restricted in terms of width. In point of fact, the plot had a width of seven metres – opting for a three metre side garden, as suggested by the objectors, 'would result in a reduced built frontage and development width of just four metres'. The Authority felt that 'this resultant reduction, besides impinging on the "reasonable quality of residential amenity/living space" would also be contrary to Policy P6 of DC2015.' In its assessment, the Tribunal made reference to Policy P6 of DC 15 which, as a matter of principle, states that "While the development of existing edge plots located outside the Development Zone will be acceptable in principle, the Authority will ensure that a suitable transition will be achieved in terms of built volume between the sites within the Development Zone and the ODZ." The same policy provides that within 'edge plots', the development must be stepped in a manner so that "the height of development immediately adjacent to the ODZ will not be higher than 8.5 metres measured externally until it reaches the height established for the rest of the Development Zone". The Tribunal went further to observe that terraces having a minimum depth of three metres must be provided at each and every level together with a three metre side garden 'landscaped using indigenous species and designed in a manner to mitigate the impact of the built fabric'. Against this backdrop, the Tribunal went to conclude that a three-metre side garden should be provided in keeping with Policy P6 – this, notwithstanding that the resultant width of the façade was now reduced to a mere four metres. Dr Robert Musumeci is an advocate and a perit robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud When one plea may cancel another Tribunal convinced by objectors Policy P6 (DC 5) requires a three- metre side garden 'landscaped using indigenous species and designed in a manner to mitigate the impact of the built fabric'