The Administrative Review Tribunal on Tuesday 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 administered the Yacht Marina Garden for 22 years, challenged the Lands Authority decision.

It argued before the tribunal that in a letter dated April 11, 2022, the Lands Authority stated that 902 square metres of the garden administered by the local council, was being claimed back because it was needed by the government.

Consequently, the lease was being terminated in part within one month of communication of that letter to the council, the authority said.

That decision stemmed from clause 2 of the lease agreement signed on March 8, 2000 which stated that “if at any time during the term of lease, the government requires back the property let or any part thereof, the lessee shall surrender” that property “within one month from a written notice to this effect.”

In challenging the decision, the council argued 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, they 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.”

Council should have at least been heard

When delivering its decision the tribunal, presided by Magistrate Charmaine Galea, observed that back in the 1990s, infrastructural changes were projected at the site occupied by a petrol station, mere metres away from the public garden.

Relocation of the petrol station was considered as its owner engaged in discussions with various authorities concerned.

The owner was told that the Lands Authority would consider relocation of the service station if the necessary permit was obtained from the Planning Authority.

Years later, that permit was approved.

Gżira local council appealed that approval before the Environment and Planning Review Tribunal. But the permit was confirmed, meaning that the decision went against the council.

So with the permit in hand, the operator of the petrol station approached the Lands Authority for allocation of the public land to enable him to relocate his business.

The Tribunal observed that the case concerned solely the letter sent out by the Authority to the council, claiming back that portion of the public garden. The issue at stake was whether the authority had followed correct administrative procedures.

This matter was different to when the Authority was faced with, for instance, a request to issue a tables and chairs permit in favour of some commercial establishment.

The Tribunal said that although clause 2 of the lease agreement entitled the government to take back the land, partly or in whole, that did not mean that it could do so without informing the concessionaire in an adequate manner.

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.

However, whether the council knew was not the issue at stake.

The issue was whether the Authority should have at least granted the council an opportunity to make submissions, even if in writing, before the decision was taken.

The council at least had the right to make its voice heard, said Magistrate Galea.

Besides, such an approach would have placed the authority itself in a better position to fulfil its legal duties.

The council was also right in arguing that the authority’s decision lacked motivation.

Clause 2 of the agreement did not state that the government had no duty to give adequate reasons for any such termination of the lease.

The tribunal upheld the council’s appeal on those two grounds, thereby annulling the Authority’s decision as communicated in its letter to the local council in April.

Lawyer Claire Bonello assisted the Gzira Local Council.