Updated 3pm, adds judgement details

An appeals court on Wednesday confirmed a decision by the Administrative Review Tribunal that annulled a decision by the Lands Authority to take back part of a public garden that had been leased to Gżira local council.

The authority had wanted to use the site for the relocation of a petrol station.

Gżira council, which has administered the Yacht Marina Garden for 22 years, had challenged the Lands Authority decision.

In its judgement on Wednesday, the court ruled that principles of natural justice and reasoned decisions must be aimed at by every public authority so as to ensure correctness and transparency in public administration,.

Mayor Conrad Borg Manche' welcomed the court's decision on Wednesday saying this was a victory for the people. He thanked all involved including the media and those who had signed a petition to preserve the garden.

The authority whad wanted to take back part of the garden so as to use the site for relocation of a petrol station. 

It had issued a letter dated April 11, 2022 informing the council that the lease over the 902 square metre garden was to be terminated in part within one month, in terms of a clause in the lease agreement. 

However, the council had challenged the authority’s decision arguing that the garden in question was the only green lung in an increasingly commercialised locality where development continued unchecked. 

The Tribunal had decided in favour of the council, prompting the appeal by the Lands Authority. 

In challenging the decision, the council had argued before the tribunal that the garden in question was the only green lung in an increasingly commercialised locality, where development continued unchecked.

The council, assisted by lawyer Claire Bonello, based its appeal on three grounds.

In the first place, it argued, the authority had never sent for the council representatives to hear what they had to say about the decision to claim back a substantial part of the garden that was administered for the benefit of the local community. By so doing the authority had violated the principle of audi alteram partem, a basic tenet of natural justice.

Secondly, the authority failed to give reasons for its decision and did not even provide a copy of the decision taken by the board of governors.

Thirdly, the authority had failed to administer the public property in the best manner possible, basing its action on “irrelevant and inappropriate considerations.” 

The authority had argued that the council had long known about the issue concerning the relocation of the petrol station. A minute recorded at a council meeting on June 3, 2021 was evidence of that.

When delivering judgment, the court of appeal, presided over by Mr Justice Lawrence Mintoff, acknowledged that a clause to terminate the lease did exist in the agreement, but the reasons for which the authority wanted the land back were not explained in public. 

Nor was the council informed of those reasons. 

That was where the Lands Authority had failed, observed the court. 

It was to be borne in mind that the council had administered the garden for many years, paid for its maintenance and had even sought to incorporate it within public projects for the benefit of those living in the locality. 

An administrative decision is taken when the public administration has various options.

Such a decision is good and correct if it aims to safeguard the best interests of the greatest number of persons and is judged in line with the test of reasonableness. 

It was certainly not reasonable for the authority to take such a decision and insist that it was not subject to review by the tribunal. 

The first judgment delivered by the Tribunal did not run counter to the lease agreement between the Council and the relative authority.

This decision impacted not only Gżira residents but the public who frequented the gardens.

In such matters of public administration, there had to be a higher degree of transparency, reasonableness and safeguards to the principles of natural justice, observed Mr Justice Mintoff. 

The council was acting in the interest of residents when objecting to the authority’s decision to take back possession of part of the garden and at least, the council ought to have been heard. 

Such consultation and hearing what the other contracting party had to say was the least expected if such an administrative decision was to be deemed correct and protecting the interests of the greatest number of affected persons. 

The authority should not shirk nor complain about some burden placed upon it simply because it was asked to give effect to the principles of natural justice in its decision-making process.

That was the “least expected of public authorities,” went on the court. 

Were that not so, the council would simply have to relinquish possession of the land without any reaction whatsoever as soon as it is faced with a written request from the public authority whose function is to administer public land for the common good. 

The authority must make sure to operate within a framework of maximum transparency by ensuring that when taking decisions of a certain bearing, it cites the reasons behind such decisions.


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