Court halts excavation after legal distance not respected

This was decided on 22 December, 2014 by Ms Justice Jacqueline Padovani Grima in Angelo and Josephine Cutajar -v- Mark Vella.

The Cutajars filed an application for the issue of a warrant of prohibitory injunction against Mark Vella. They explained that Vella was carrying out excavation works next door to their property in Hal Kirkop. The warrant is essential in order to protect their property since the excavation works were taking place without the necessary precautions for their safety and that of their property. These works were being made within the prescribed distance of 76 cms from their property. Their interest is that the distance be respected and that that part of the excavation which is within the 76 cm mark be filled in again and therefore, the property will not remain in risk of damage. 

Mark Vella defended this action by stating that the request for a warrant of prohibitory injunction was excessive because the complaint was with regard to the dividing wall, but the warrant made reference to the whole building site, even if the other parts of this site did not offer any danger. Furthermore, Mr Vella pointed out that the excavation work close to the boundary wall had already taken place and therefore, the warrant was useless and not required. He explained that all the works were being supervised by an architect and tests were being carried out to insure that there was no danger . They worked according to a procedure that assured that the adjacent properties would not suffer any vibrations and in fact now that the excavation works are complete no damages were caused. Mr Vella pointed out that he is covered by an insurance policy.

From a legal point of view, Mr Vella held that the Cutajars did not have the necessary elements to sustain their request for a warrant of prohibitory injunction according to Article 873(2) of the Code of Organisation and Civil Procedure. He quoted a judgment Connie Galea -v- Joseph Gauci of 7 October, 1991, which held that the warrant should not be allowed if it is not intended to safeguard the rights of who requested it. In other judgments quoted Borg Grech -v- Gasan et noe of 2 January, 1999, Mr Vella held that a warrant should not be issued if the merits of the case consisted in merely an inconvenience which can be easily remedied. In fact he held that this issue can be easily remedied by financial compensation and therefore, there was no need of the warrant.

Ms Justice Padovani Grima examined the evidence produced, including Josephine Cutajar’s testimony, who explained that Mark Vella started works next door to her by cutting into the rock within the 76 cms prescribed by the law. Her architect was concerned that the roof may cave in and the beams may give way. 

Mark Vella also testified and assured the court that the excavation works were now complete and he can start building the structure.

The Court made reference to Article 873(1) and (2) which allows the court to stop anybody from causing a prejudice to another, but should not issue the warrant if it is not satisfied that it would not safeguard the applicant’s rights. The evidence should reach the prima facie level.

The Court quoted Grech pro et noe -v- Manfre of 14 July, 1988 which stated that the requisites for the warrant are objective and not subjective and therefore, do not depend on the judge’s discretion.

The Court also held that this procedure is of an exceptional nature and quoted from another judgement Charles Mugliett -v- Saviour Bonnici of 25 January, 2005, which held that this procedure is to protect a right, which would be lost without the warrant. In another judgement Dr John Gauci -v- Direttur tal-Kuntratti of 18 July, 2008, a warrant should not be used as an arm twisting tactic. Therefore, the warrant should not be used to stop the enjoyment of a right, instead of the protection of a right.

From the evidence produced in this particular case, it is clear that the excavation took place within the distance established in Art. 439 of Civil Code. The scope of this distance imposed by the legislator is to avoid a tragedy. With scientific progress the distances may not be respected if concrete steel structures are placed, which in this case did not take place. Therefore the Cutajars managed to prove that excavation may cause irremediable damage to them and is a danger to human life.

The Court concluded by upholding the request for a warrant of prohibitory injunction.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates