Issue link: https://maltatoday.uberflip.com/i/955503
50 maltatoday SUNDAY 18 MARCH 2018 P laintiffs' plea was rejected, with an order to pay all costs, in a hearing on the 12th of March concerning the filing of a case against, what appeared to be, the wrong defendant. This was held by Adv. Kevin Camilleri, adjudicating a European Small Claims Procedure instituted by the plaintiff in line with Regulation (EC) no. 861/2007 in the case of Christopher Warner vs Bilom Group. The plaintiff held that he had purchased a property on the island and had engaged a contractor to carry out scheduled works which were not completed on time. The plaintiff demanded that he be compensated for the time he and wife spent at a hotel because the property was not "fit for purpose". The plaintiff however, failed to prove the connection between the company mentioned in the contract, by the name of 'BLMG Limited', and the defendant. The Tribunal held that it was highly disappointed by the level of preparation on the part of the plaintiff and commented on the fact that it is the responsibility of all the parties involved to provide the necessary clarifications and documentary evidence to the Court for their consideration. The Court commented especially on the ambiguity regarding the identity of the defendant. While the proceedings were instituted against Bilom Group, another company, by the name of BLMG Limited, appeared to be on the public deed which was provided to the Court for proof of a contractual relationship between the parties. The plaintiff received an e-mail by the Court asking for clarifications but remained inert and did not heed to the warning at the bottom of the e-mail which instructs the relevant party that: "Failure on the part of the claimant to abide by the directions/orders herein contained within the time-frame above- stipulated, shall empower the Tribunal to proceed toward judgment on the acts of the proceedings as compiled at present. In light of the minimal evidence produced, the Court reiterated that proceedings are to be instituted against the proper and relevant defendant and that any connection between the two parties appearing as defendant in the courtroom and in the public deed must have been clarified by the plaintiff. It was explained that this is in line with the principle that both parties must have a direct interest in the case at hand, and that therefore, if Bilom Group was not in a contractual relationship with the plaintiff then this means that a grave error occurred on his part. The Italian author Foramiti was quoted in this respect where he claimed that "contradittorio - tutto ciò che si fa in presenza delle parti interessate" which means that the adversarial principle rests on everything that is done in the presence of the interested parties. The Tribunal dismissed the claim and reminded the parties that it is not the role of the adjudicator to investigate ex officio unless expressly stated by law. Citing a previous judgement by the name of F. Advertising Limited v. Simon Attard et, it was explained that the role of the adjudicator in a case is to decide solely on the allegation which has been proved and not on what should have been proved and which was never produced. Dr Malcolm Mifsud is partner Mifsud & Mifsud Advocates Opinion A planning application contemplating the 'change of use from a domestic store to a bar' was rejected by the Planning Commission after it held that the proposal was in breach of various planning policies. Applicant's premises are located in Triq l-Isptar in Valletta. According to the Grand Harbour Local Plan, the site in question qualifies as a residential area. In order to justify its decision, the Planning Commission held that the proposed commercial use ran counter to the provisions of Policy GO 08 of the Grand Harbour Local Plan which specifies inter alia that 'small shops should comply with the Local Shops Policy (1997) or subsequent amendments that are allowed within residential areas'. Reference was also made to the SPED Urban Objective 3.5 which aims at controlling 'the proximity of non-residential uses in residential areas'. In addition, the Commission observed that structural works had already been carried out inside the premises and the proposal was therefore in breach of SPED Thematic Objectives 8.1, 8.2 and 8.7 which provides that 'applications for development which will affect important archaeological areas and sites will normally be refused.' Aggrieved by the said decision, applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the permit should have been granted. In his appeal submissions, applicant (now, appellant) argued the that a number of similar requests (in Valletta) were granted permission. Appellant made mention of a bar known as "Off Beat" which allegedly was of a 'similar scale' and was granted a permit in recent weeks. The Tribunal was reminded that applicant's premises measured a floor area of 36 square. Appellant therefore insisted that the area was small and 'excess traffic' was not envisaged. Moreover, appellant contended that the structural works, though undertaken without a permit in hand, were in line with a restoration method statement and limited to the removing of 'a part flagstone ceiling (approximately 4.5sq.m) and a small, lightweight spiral staircase, which led to the basement'. Finally, the Tribunal was reminded that Urban Objective 2 of the SPED aims at encouraging 'small scale compatible business uses particularly tourism related which complement the character and distinctiveness of historic cores'. In reply, the case officer representing the Authority acknowledged that the area of the premises was small. Nevertheless, the use was deemed objectionable as it would 'cause a deleterious impact on the neighbouring residential uses because of the high level of activity and its operating times'. With regard to the unauthorised interventions, the officer reiterated that the building had a historical and architectural value 'within the Urban Conservation Area of Valletta, which is a UNESCO World Heritage Site'. As a result, the unauthorised interventions should not be sanctioned. In its assessment, the Tribunal observed that as a rule, "small shops in residential areas offer a vital service to the neighbourhood". Nevertheless, the Tribunal added that new commercial activity should not cause 'nuisance for neighbouring residents through noise, smell, lighting, hours of servicing and operation or other factors'. After taking into consideration all arguments, the Tribunal reasoned out that the premises were located in a quiet residential area of Valletta and rejected the appeal. Dr Robert Musumeci is an advocate and a perit with an interest in development planning legislation robert@robertmusumeci.com Robert Musumeci New commercial activity should not cause 'nuisance for neighbouring residents' Malcolm Mifsud Plaintiffs' plea will be rejected when claims are not directed towards 'proper and relevant' defendant Valletta bar denied permit @ maltatoday