Issue link: https://maltatoday.uberflip.com/i/981272
| SUNDAY • 13 MAY 2018 maltatoday 17 LAW & PLANNING A development application contem- plating warehouse construction close to the airport was rejected by the Planning Commission. Applicant's site measured circa 3000sq.m. To jus- tify its decision, the Commission held as follows: 1 The proposed development ran counter to Thematic Objective 1.10 and to Rural Objective 4 of the Strategic Plan for Environment and Development in terms of land-use in that the proposal is not considered le- gitimate or necessary within the rural area; 2 The proposed development would compromise the Planning Au- thority's ability to re-examine the fu- ture planning of this site as outlined in Thematic Objective 12.5 of the Strate- gic Plan for Environment and Develop- ment; 3 The proposal would gener- ate a considerable volume of vehicular movements which would have a sig- nificant and unacceptable impact on the road network, thus reducing road safety in the area; 4 The proposal failed to meet the minimum required distance from corners/bends for any new vehicular access. In this context, the proposed development ran counter to policies 4.1 and 4.7 of the Policy and Design Guidance 2007; 5 The proposal ran counter to Thematic Objective 10.6 of the Stra- tegic Plan for Environment and De- velopment in that it failed to provide the required car parking spaces, thus giving rise to unacceptable additional on-street car parking which would not be in the interests of the amenity of the area; 6 The proposal was not in line with the Thematic Objective 1 of the Strategic Plan for Environment & De- velopment for limiting the land take up for uses which are not necessary or legitimate in rural areas. 7 The proposed development ran counter to the provisions of policy 4.14 of the Policy and Design Guidance 2007 which specifies that ramps used by more than five vehicles should have a waiting area not steeper than 1: 10. In reaction, applicant lodged an ap- peal with the Environment and Plan- ning Review Tribunal, insisting that permission should have been granted. In his appeal submissions, applicant (now, appellant) argued that the Com- mission had contradicted itself in say- ing that that the proposed use was not considered as 'legitimate or necessary within the rural area' while holding that the site in question was of 'stra- tegic importance'. Appellant pointed out that Thematic Objective 2.5 of the SPED aims to support initiatives for the growth of aviation related activi- ties and the logistics sector close to the Airport. Appellant went on to state that the proposal contemplated 'the erection of warehouses and not indus- trial uses' as wrongly purported by the Planning Directorate. According to appellant, the area was committed by 'an extensive list of industrial activities' including concrete batching plants, warehouses, storage facilities, offices and a boat storage yard. With regard to traffic concerns, ap- pellant maintained that the streets surrounding the site were 'adequately wide where car spaces could be easily accommodated as it is the norm in cit- ies, towns and villages and industrial estates to provide car parking'. In its assessment, the Tribunal con- sidered that the site consisted of an old quarry measuring an area of 2800sq.m. Furthermore, the Tribunal confirmed that the site was surrounded by a mul- titude of legal commitments. In addi- tion, it was highlighted that, indeed, Thematic Objective 12 promotes 'the continuing efficient operation of the Harbours and Airport whilst minimis- ing adverse environmental impacts by safeguarding land around the Airport for the growth of aviation related ac- tivities and the logistics sector'. For this reason, the Tribunal ruled in ap- pellant's favour on condition that no structures are built at groundfloor level. ARTICLE 495A is intended to ensure that when a majority of co-owners be- lieve that the sale of a co-owned prop- erty is advantageous, but the minority of the co-owners do not authorise the sale, then the courts can intervene and order that the property be sold. The particular elements of this sec- tion in the Civil Code were explained by Honourable Judge Mark Chetcuti in the case of Abela Carmelo Et Vs Abela Fiorella, heard on the 30th of April 2018. The Court heard the facts of the case explained by the plaintiffs where it was explained that a property bequeathed by the deceased Tereza Abela was in- herited by her ten descendants in 1986, all of whom became co-owners of the property. One of the descendants Al- fred Abela had passed away in 2002, and left his wife, Fiorella Abela, as his universal heir. Ms Fiorella Abela, the defendant, lived in England and was represented in the Court by the cura- tors of the property. The plaintiffs, who were nine out of the ten co-own- ers, pleaded with the Court to allow for the sale of the property without the defendant's approval. It was explained that the prospective buyer of the house had signed a promise of sale agreement and that the house would be sold for a very profitable amount of €150,000. There were no counterclaims made, since the representatives of the defend- ant claimed that they had no means of communicating directly with her and thus could not make an account for her wishes. The Court proceeded to explain that the procedure for a Court decree un- der Article 495A was not available to any co-owner who wishes to sell the property despite the disagreement of the others. It was held that in order for such a claim to be considered, five req- uisites had to be cumulatively fulfilled. The Court explained how first of all, the co-owners must have had shared ownership of the property for at least ten years. It is, however, to be noted that due to 2016 amendments, this pe- riod of time has been lowered to three years. The second condition is that during those three years, none of the co-own- ers had instituted an action before a court or other tribunal for the partition of the property held in common, and therefore, the property is not pending any action nor has it been the subject of a judicial action for partition. Thirdly, there must be disagreement between co-owners on whether or not the prop- erty should be sold. The fourth con- dition is that the majority of the total number of co-owners are in agreement on the sale of the property. In this case 9/10 of the co-owners agreed on the sale and therefore this condition was fulfilled by the plaintiffs. The final condition expounded by the Court was that it must be satisfied that the dissident co-owners are not seriously prejudiced by the sale of the property. In this case, the Court ap- pointed an expert architect who con- firmed that the property was worth €140,000. This meant that all of the co-owners would be in a highly ad- vantaged position if they went through with the sale. In commenting on the promise of sale agreement, the Court held that the presence of such an agreement was neither required for the institution of a claim under Article 495A, nor was it a guarantee of a suc- cessful action. Nevertheless, the Court stated that it was satisfied that in this particular case all the requisites were satisfied. It held that the property was to be sold in accordance with the plaintiffs' re- quests. Court explains elements of Article 495A allowing co-owners to bring action for the sale of a property in cases of disagreement mmifsud@mifsudadvocates.com.mt ASK MALCOLM Dr Malcolm Mifsud is partner at Mifsud & Mifsud Advocates LAW robert@robertmusumeci.com ASK ROBERT Dr Robert Musumeci is an advocate and a perit having an interest in development planning law PLANNING Kirkop warehouses justified on Thematic Objective 12