Issue link: https://maltatoday.uberflip.com/i/897139
50 maltatoday SUNDAY 5 NOVEMBER 2017 I f two parties are making claims on the same property, the plaintiff may be allowed to show the Court that he has a better title than that of the defendant. This was held by Mr Justice Azzopardi in a judgement delivered in Joseph Camilleri and Michael Camilleri v John Mary Deguara decided on 27 October 2017. In their application the plaintiff claimed that they are owners of a property in Mosta, which was donated by their father by means of two public deeds. This property included a cave under it. They explained that the father had acquired part of the property by means of a contract in 1985. On this part Gio Maria Deguara had acquired the property from judgement following an inheritance case. Deguara was assigned 1/7 of the property which included the property transferred to Camilleri. The cave formed part of the property the Camilleri's had claimed illegally. The Camilleris asked the court to declare that they are owners of the cave and for Deguara to be evicted. The defendant presented a statement of defence in which she alleged that the cave belongs to her due to acquisitive prescription of 30 years. She also claimed that this cave did not form part of the land transferred to Camilleri. The Court, in its judgement, held that this action is called actio reivindicatorie and also pointed to Art 323 of the Civil Code, which stipulates: "323. Whosoever has the ownership of the land, has also that of the space above it, and of everything on or over or under the surface; he may make upon his land any construction or plantation, and, under it, any work or excavation, and draw therefrom any products which they may yield, saving, however, the provisions relating to Praedial Easements under Title IV of Part I of Book Second of this Code and any other provision of law in regard to fortifications or other works of defence." Mr Justice Azzopardi quoted from a previous judgement Francis Portelli v Slanislaw Pisani delivered 24th September 2004. In this judgement the court pointed out a property should have the airspace above it and also the undersoil and therefore, when the property is transferred the purchaser also acquires the airspace and undersoil, unless it specifies that these are excluded from the transfer. If there is no exclusion it is presumed that the purchaser also acquires what is found above and below the property. The Court pointed out that it had been on site and knows that the cave is under the plaintiff 's property, however it is not possible to access the cave from this property. The only access is from the defendant's property. This is why the defendant held that the property has been in her hands for 30 years. Because of this position the plaintiff is given the opportunity to show the court that she has a better title. This action is called actio publiciana. This is explained in a number of judgments such as Frank Pace -v- Kummissarju tal-Artijiet decided on 19 February 2002, Cassatr Desain -v- Cassar Desain Viani decied on 25 June 1945 and Curmi et noe -v- Depiro et decied on 12 February 1936. Furthermore, the defendant had acquired the property in question in 1985 and this action was instituted in 2011. Therefore, 30 years did not lapse and therefore, the acquisitive prescription cannot be made use of. Mr Justice Azzopardi order the defendant to vacate the cave within 3 months. Dr Malcolm Mifsud Partner, Mifsud & Mifsud Advocates Opinion A planning application contemplating an 'extended supermarket' together with an increase in the parking floor area was initially dismissed by the Planning Commission after the Board found that the proposal was in breach of various planning policies. The application in question refers to the LIDL supermarket which is located outside the development zone of Ghaxaq and which has direct access from Triq il-Barrani. In its decision, the Commission made the following observations: The proposed car parking area fell outside the limits to development and in an area outlined as an 'Area of Agricultural Value' in the South Malta Local Plan; The proposed development ran counter to the provisions of Policy SMAG 01 which seek to protect and support the agricultural industry by encouraging activities in the countryside which are essential to the needs of agriculture; The proposed parking area ran counter to Thematic Objectives 1 & 1.10 and to Rural Objectives 3 & 4 of the Strategic Plan for Environment and Development in terms of land-use in that the proposal was not considered legitimate or necessary within the rural area; Due to the fact that the new parking area was unacceptable in principle, the proposed supermarket extension would reduce the present parking spaces, hence in conf lict with Thematic Objective 10.6 of the Strategic Plan for Environment and Development Policy (the SPED). Nevertheless, the applicant took the matter further, demanding the Environment and Planning Review Tribunal to reverse the Authority's decision and order it to issue the permit. The principal argument in the applicant's defence was that the area in question was already 'committed' as a parking area for heavy vehicles. Moreover, the applicant (now appellant) argued that the Planning Commission had, during the first public hearing, noted that proposal could be justified since the area in question was covered by a planning permit, thus constituting a legal commitment in terms of law. Nevertheless, to the applicant's surprise, the Commission decided to reject his application in the subsequent hearing, despite having already expressed itself in favour of the proposal during the previous hearing. Moreover, applicant made specific reference to the PAMA supermarket which was approved despite located outside the development zone. In reply, the Planning Authority stood firm, insisting that that the Commission's observations during the first sitting were made 'without prejudice' to the eventual decision. The case officer argued that 'the Planning Commission can independently regulate its own hearing and take any decision it deems applicable at its final hearing'. As to the quoted precedent, the case officer underlined that the PAMA supermarket was not located in an 'agricultural area'. In its assessment, the Tribunal concurred with the arguments brought forward by appellant. The Tribunal was satisfied that once the Commission had expressed itself in favour of the development, it was not in a position to 'change tack' in a subsequent hearing. On this basis, the Tribunal gave judgment by accepting appellant's appeal. Dr Robert Musumeci is an advocate and a perit robert@robertmusumeci.com Robert Musumeci Malcolm Mifsud Parties may compete with different titles over the same properties Of legitimate expectations in planning law Once the Commission had expressed itself in favour of the development, it was not in a position to 'change tack' in a subsequent hearing