The state has very broad powers to act in the public interest and undertake projects for the national good. But does this mean that these powers are unlimited? This issue was at the core of a judgment delivered on November 7, 2024 by the Court of Appeal.

The case involved an action for damages filed by the owners of a villa in Kappara due to the depreciation of the value of their property owing to the construction of the Kappara flyover. The residents lost the view over Marsamxett Harbour they previously enjoyed from the villa and also suffered increased noise and dust pollution.

The Court of Appeal began by delineating the contours of the government’s powers. Under Maltese law, there is no legal provision explicitly giving property owners the right to sue the government for compensation for the depreciation of their land due to a public project.

Instead, the issue is regulated by ordinary civil law rules on abuse of rights. This concept means that all rights are limited by the obligation to exercise those rights within their proper limits and with due regard to the rights of others. This holds true even when the government undertakes a public project, just as for any other person who develops a plot of land. The fact that the government has the power to carry out public projects does not entitle it to ride roughshod over the rights of others.

The question to be determined therefore was: did the government act within the lawful limits of its right to construct the Kappara flyover in the public interest, notwithstanding the depreciation in value of the villa in question as a result of the project?

The owners of a villa sought compensation after the building of the Kappara flyover.

The Court of Appeal observed that it is settled law that the simple fact that the exercise of a right causes harm or inconvenience does not mean that the right has been exercised outside its proper limits. A key component of human interaction is the obligation to tolerate the inconveniences created while others exercise their rights. This is referred to as ‘good neighbourliness’. Legal responsibility arises where the government (or any other person, for that matter) exceeds the limits of just exercise of its rights.

Therefore, the government could not claim that it could not be found responsible for breaching the rights of the Kappara property owners because the damage arose from a public project.

However, it was the landowners who needed to prove that the government exceeded the limits imposed on it by law and caused them harm as a result.

Need for proof that government exceeded limits imposed by law

The court noted that the Kappara landowners had failed to prove the government’s excesses with the project, for two reasons.

First, they were unable to prove that they had a right to the view over Marsamxett Harbour. Were such proof to be forthcoming, the landowners would have had a right to compensation for the expropriation of their view. However, no evidence of the sort was brought forward and so they had no right to retain that view uninterruptedly. The fact that the villa’s value decreased due to the loss of view therefore did not entail the government’s responsibility.

Second, there was no proof that the Kappara flyover project was legally out of line. The court conceded that the ‘just limits’ of the exercise of the right to undertake construction projects could be exceeded through excessive fumes and dust from a project. These could still constitute illegal invasions into another’s property. The government was under an obligation to reduce these inconveniences as far as possible, while neighbouring landowners were under an obligation to accept the same as long as they did not exceed what was reasonably tolerable.

What was ‘reasonably tolerable’ was a question of fact to be decided by the Court on a case-by-case basis. The Court of Appeal observed that it must balance the government’s right to implement projects of public utility against the right of landowners to enjoy their properties. The public was expected to bear certain inconveniences in the interests of social solidarity while the government was expected to not seriously prejudice the enjoyment of one’s property.

In this case, the court noted that the increase in dust and noise due to the flyover and traffic was not proven to be beyond what was reasonably tolerable.

This judgment highlights the balancing exercise that accompanies roadwork projects of the type and magnitude complained of. The balancing exercise occurs between individual rights and the interests of the community, as manifested in the government’s roadworks project.

The judgment underscores the legal limits of the exercise of the government’s power to undertake projects in the public interest and that ‘public interest’ in itself is never a trump card to justify excesses to the detriment of the enjoyment of property by its owners.

David Chetcuti Dimech, Junior Associate, AB&A Advocates.