The Administrative Review Tribunal held that the Lands Authority has a right to refuse the request from a restaurant to place tables and chairs on the pavement irrespective of the fact that a few metres away, there are other catering establishments with table and chairs on the pavement. This was held in a judgement delivered on 20 December 2018 in John Paul Winfield -v- L-Awtorita’ tal-Artijiet, presided by Magistrate Dr Charmaine Galea.
Winfield is an owner of a restaurant in Gzira Road, Gzira and he presented an application to place tables and chairs in front of his establishment. The Boards of Governors of the Lands Authority turned down the application. The land where he wants to place the tables and chairs belongs to the government and the Lands Authority does not have absolute discretion. There was no reason when the refusal was announced. Furthermore, Winfield pointed out that the Planning Authority issued a permit for this change of use where the tables and chairs were to be placed. Transport Malta agreed with the PA application.
The Lands Authority replied to the appeal, explaining that the refusal was based on the grounds that this was not the best use of the land in question.
The Tribunal analysed the evidence produced before it and pointed out that when Winfield applied before the Planning Authority, it did not need to consult the Lands Authority. However, when the permit was issued, the applicant needed to the get the Lands Authority’s consent.
In the appeal the Transport Malta representative confirmed that there was no objection for the applicant to place a timber platform where to place the tables and chairs.
The permit was subject to the applicant being granted permission from the relevant authority or government authority. The secretary of the Board of Governors explained to the Tribunal that the reason behind the refusal was that the area has a serious parking problem. The Authority decides on the encroachment permit depending which is the best use of the area. The Tribunal was informed that a number of establishments in the same street did not have an approved encroachment, while others did have approved encroachments. One of these establishments had the encroachment approved in April of this year, another was approved in March.
Article 7(c) of the Lands Authority Act states:
“to administer in the most ample of manners and make best use of all the land of the Government of Malta and all land that form part of the public domain such as the coastal perimeter, foreshores, harbours, quays, wharfs, pontoons, portbeaches, landing places, berthing places, waterways, aqueducts, lakes, natural springs, cliffs, valleys, public squares, streets, alleys, lanes, access routes to other public places including those leading to the coastal perimeter, woods, parks, areas of ecological or environmental importance and sites of cultural, social or historical importance;”
These functions are to be carried out by the Board of Governors, set up by the Lands Authority Act.
The applicant argued that the refusal was not made according to the law as this was not the best use for this land.
The Tribunal disagreed that the Board’s decision was unclear, because the Board wanted the same area served for parking spaces. The applicant argued that some authorities, including Transport Malta agreed with the proposed use of tables and chairs. It is this authority which has the function to look out for parking spaces and not the Lands Authority.
The Tribunal held that there was no need of any scientific evidence of the use of the area where the proposed encroachment was being sought. It is also aware that a number of encroachments were given by this Authority and by its predecessor, but the Tribunal is not competent to decide matters of discrimination. Therefore, the Tribunal limited its decision on whether the Authority could have taken the decision it took. As mentioned, the Authority is to see that public land is used in the best way possible.
The dilemma of the Tribunal is to see whether the best use is for parking or for tables and chairs. The Authority has a right to decide one way and not another. It is a known fact that the street has an acute parking problem and the street is an important intersection. It is obvious that it would be more prudent for there to be more parking spaces. The fact that there are similar establishments holding a valid encroachment, is a matter to be brought before another forum. The Tribunal drew the Authority’s attention to the fact that it should not allow illegal tables and chairs.
The Tribunal moved to dismiss the appeal.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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