Among others, it is the Lands Authority’s function to administer in the amplest of manners and make best use of all the land of the government and all land that forms part of the public domain. One of the ways by which the authority may transfer government land is by granting an encroachment (by payment or gratuitously) to any person occupying government land for temporary and specific use.
On June 12, 2020, the Lands Authority refused Steve Aquilina’s application for the change of use of a Senglea boathouse to a class 4D restaurant and placing tables and chairs and umbrellas on the Senglea promenade as well as along the boathouse’s facade.
The reasons given to the applicant were that this would cause high risk for pedestrians and clients in the event of a traffic accident, high risk of visibility for drivers/visibility interference for drivers, lack of parking spaces and lack of pedestrian safety while crossing the pavement to render the service.
Aquilina appealed the authority’s decision before the Administrative Review Tribunal, which is the forum having jurisdiction to review the administrative act on points of law and points of fact.
The Administrative Review Tribunal in ‘Steve Aquilina v L-Awtorità tal-Artijiet’ decided on January 6, 2021, confirmed that the Lands Authority has the power to ensure that the land administered by it does not create danger, as well as to ensure that the best use is made of such government land. In the above-cited case, the Lands Authority had also consulted Transport Malta, which had objected to the issuing of this specific permit since, according to Transport Malta, Aquilina’s Senglea boathouse proposals created security problems.
The tribunal acknowledged that even though one letter of refusal had been sent by the Lands Authority to Aquilina, the plaintiff had requested encroachment on two sites within the same street. The two sites are the pavement outside the boathouse itself and the promenade across the street, adjacent to the sea at the Senglea waterfront.
From the evidence submitted throughout this case, it resulted that the Lands Authority’s decision was based on the recommendations given to it by the authority for transport. In turn, Transport Malta’s objection was based on the vicinity or lack thereof of a pedestrian crossing to the proposed site. Indeed, the applicant himself had failed to indicate that there had been a pedestrian crossing nearby.
Moreover, the tribunal considered that it was more likely for any staff member of the proposed restaurant to cross from the nearest point, other than walk towards the pedestrian crossing and cross from that point, and this could create a dangerous scenario for both staff and potential clients. The tribunal further considered the potential danger to any customers sitting at the tables and chairs on the side of the boathouse-turned-restaurant who would be in great danger in case of a traffic accident, yet this danger would not apply to those sitting at the second proposed encroachment site, across the road on the promenade.
The tribunal highlighted that the Lands Authority should regularise its position regarding the number of [encroachment] permits which are renewed from year to year
The tribunal dismissed the authority’s submissions regarding the loss of parking spaces and considered that the Lands Authority had failed to give the appropriate reasoning according to the specific proposed sites, while blindly following the recommendations given by Transport Malta.
In its decision, the tribunal delved into the nature of an encroachment and highlighted that such a temporary permit may be revoked at any time by the authority. This means that even though similar permits to the ones requested in this case may have been awarded by the Lands Authority’s predecessor, prior to 2016, the authority still had the right to revise them.
The tribunal did not agree with Aquilina in so far as he argued that by refusing his application for the requested encroachment, the Lands Authority was discriminating against him. However, the tribunal itself highlighted that the authority should regularise its position regarding the number of permits that are renewed from year to year.
The Administrative Review Tribunal is only competent to decide on the appeal at hand: to accede to the appeal lodged by Aquilina and revoke the decision taken by the authority or refuse the appeal. It is not within its power to order the issuing of the permit for the change of use of the boathouse to a restaurant, since this would go beyond simply ‘reviewing’ the issuing by the public administration of any order, licence, warrant, permit, concession, refusal, decision, authorisation to any demand by the public.
On January 6, the Administrative Review Tribunal revoked the authority’s decision whereby it refused Aquilina’s permit application and stated that such an application should be decided afresh, this time considering both sites separately.
This author anticipates that this judgment should nudge the Lands Authority in so far as it concerns the renewal of encroachment permits granted prior to 2016.
Surely, the authority is aware of the powers it has when it comes to the renewal of temporary permits of encroachment and, following this judgment, it could be harder for it to point its fingers at its predecessor, especially if such permits are not in line with the current policies and, more so, if they put people’s lives in danger. Will restaurants with permits for tables and chairs on streets see their equipment reduced or at least moved to safer locations following the outcome of this judgment? Time will tell.
Either party to the proceedings before the Administrative Review Tribunal who feels aggrieved by its decision may appeal to the Court of Appeal within 20 days from the date of the decision of the same tribunal. In turn, the Court of Appeal has the power to confirm, revoke or alter the decision appealed against and to give such directions as it may deem appropriate.
Rebecca Mercieca is a junior associate at Azzopardi, Borg & Abela Advocates.