The Lands Authority have a legal duty to decide on all aspects of public property and had a right to refuse an application to increase demarcation of a development. This was held in a judgement delivered by the Administrative Review Tribunal presided by Magistrate Dr Charmaine Galea in Richard Attard -v- L-Awtorita’ tal-Artijiet, decided on August 3, 2020.
Attard filed an application stating that in October 2019 the Board of Governors in the Lands Authority rejected his application to move an existing building alignment of a property in Sta Venera. This land was never used since he purchased it in 1983, but part of it was acquired by the government for public use when constructing the road. The applicant, Attard, asked the Planning Authority to shift the building alignment in order for the alignment will be the same as other buildings in the same streets. He was prepared to purchase this area again in question from the government. Attard described how he tried to get some sort of reply from the Authority in 2017 and sent several emails and letters, which were all unanswered. Attard filed an application before the Planning Authority, but had to withdraw it as it was expected to be unsuccessful, given that the lands Authority did not indicate their position. Meanwhile, the fact is that the land was not being used as a public space, and is therefore being held illegally.
Attard further argued that the Lands Authority could not refuse the application, since there were no objections from entities like Transport Malta. He asked the Tribunal to declare the Authority’s rejection illegal and to revoke this decision.
The Lands Authority rebutted these claims, by stating that Article 7(2)(c) of the Lands Authority Act says that it is “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…” Apart from this, the Authority gave its reasons for the rejection, as it is bound to do. It also held that the Tribunal is not competent to take any decision on public land, as it is the competent authority to do so. The Authority also pointed out that the proposed re-alignment would reduce parking spaces in the road in question.
The Tribunal analysed the evidence. Attard testified and pointed out that if the alignment took place, there will be little loss of parking since cars cannot park five metres away from the corners. The Tribunal also saw the Lands Authority, which stated: “The site in question is currently used for on-street parking. It forms part of the acquisition which was undertaken for the construction of part of Triq Joseph Abela Scolaro. The proposal will result in the loss of a number of parking spaces in an area which has a lack on street parking with minimal gains for Government.”
And therefore, this was the reason why Attard’s application was rejected.
The Tribunal held that Article 7(c) of the Authority for Transport in Malta Act, states:
“(c) to plan, design, regulate and authorise road traffic signs or signals, road markings and traffic calming measures, the installation of traffic control equipment and related lighting equipment, the construction of road ramps, the installation of speed cameras and other road traffic facilities for the purposes of traffic, management and control”.
Notwithstanding that this is Transport Malta’s function, the Lands Authority is still responsible for the governance of expropriated property. The Tribunal pointed out that although Transport Malta did not object to the applicant’s proposal, it is the Lands Authority, which has to be evaluate this application in terms of its legal obligations. The Tribunal also observed that although the area concerned has no parking markings, but it is clear that it is being used for parking of cars.
The five metre distance from each corner, means that the legal car spaces are very limited and would allow only three car spaces. Saying this, parking spaces are in high demand in the area.
The Applicant argued that the Lands Authority breached its fundamental human right to a fair hearing, as stipulated in Article 39 of the Constituted. The Tribunal held that it is not the competent forum to decide on human rights, but explained that this Article makes reference to courts of judicial authorities. The Board of Governors of the Lands Authority is an administrative authority and not a judicial authority. The Tribunal sympathised with the applicant in that the Authority took too long to decide, but it was the applicant’s choice to go ahead with the Planning Authority application, knowing that he did not have the Lands Authority’s blessing. The Lands Authority carried out its duties imposed by the law with regard to the public land. The Tribunal, then moved to reject the Attard’s application.
Avv Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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