'A massive win for walkers': Court confirms illegality of Baħrija gate

The Court of Appeal has rejected a bid to overturn a planning decision refusing to sanction a gate on a countryside passage leading to Blata tal-Melħ in Baħrija. 

In a judgment delivered on Monday, Mr Justice Mark Simiana confirmed that the term “public country pathway” in planning policy is not determined by who owns the land, but by whether the path is used by the public. 

The case concerned planning application PA/3024/21, through which Touchstone Properties Ltd sought to sanction a gate on land at Blata tal-Melħ, limits of Baħrija, Rabat. 

The Planning Authority had refused the application, saying the gate would obstruct a pre-1967 footpath and undermine policy objectives safeguarding public access to the coast. 

That refusal was later confirmed by the Environment and Planning Review Tribunal, which dismissed Touchstone’s appeal in September 2025. Touchstone then took the case to the Court of Appeal. 

The company argued that the passage passed over private land and that no formal expropriation had taken place. It also argued that the coast could still be reached through alternative routes. 

But the court dismissed all four grounds of appeal, finding no legal error in the tribunal’s reasoning. 

“The correct meaning of the term ‘public country pathway’ is therefore not referable to the ownership of the pathway, but properly to its use,” the court said. 

Mr Justice Simiana said rural planning policy required the Planning Authority to safeguard traditional or historic country pathways “irrespective of ownership”. 

He said the tribunal had been right to consider evidence that the route had long been used by the public to reach the coast. 

The court noted that public use of a pathway over private land was not a new legal concept. It referred to earlier case law holding that roads or paths opened to public use over private land may remain privately owned while still being public in terms of their use. 

The court also rejected Touchstone’s argument that alternative routes to the coast should have changed the outcome. 

“The fact that the coast may be reached from more than one path does not mean that what is not permissible under the supplementary policy can become permissible,” the judgment said. 

The court said the existence of alternative routes did not justify closing one of them. 

The appeal was dismissed, with costs against Touchstone Properties Ltd. 

‘End of the road' for the case

Reacting to the judgment, the Ramblers’ Association, which has been at the forefront of the campaign to remove the gate, described the decision as a “massive win” for rights of way, saying the court had affirmed that the gate was illegal and could not be sanctioned. 

“This is the end of the road for this case in planning court,” the association said. 

It said the judgment confirmed that “no more gates can be installed on ancient footpaths which have been in use by the public, even when the footpath passes on private land”. 

The association thanked its lawyer, Dr Joseph Ellis, saying his legal work had helped “reverse a legal trend” which, it said, sought to destroy collective community rights and privatise access to the countryside. 

It also thanked other walking organisations which supported the case and helped establish use of the Blata tal-Melħ passage over the years, naming Trekking Malta, Trail Makers, Xir Cammini, Leisure Ventures, the Malta Geographical Society and Trail Runners. 

The association said the case was “a victory for all walkers” and urged supporters to join the organisation so it could continue campaigning to protect countryside access.

The Baħrija gate has been at the centre of controversy since 2021, when the Planning Authority ordered its removal after hikers spotted it blocking a path to Blata tal-Melħ. 

At the time, the PA confirmed that the gate had been installed without a permit and said the contravener had been instructed to remove it. 

Soon after, a sanctioning application was filed, meaning the gate remained in place while the Planning Authority considered whether it could be regularised. 

In April 2022, the Planning Commission refused to sanction the gate. The PA said the structure restricted public access to the shore platform known as Blata tal-Melħ, which lies in a Natura 2000 site, and that sanctioning it would close off a pre-1967 footpath contrary to rural policy and the Strategic Plan for the Environment and Development. 

The dispute unfolded amid wider concern over blocked countryside routes, including Fomm ir-Riħ and other rural paths.