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NEWS 7 maltatoday | WEDNESDAY • 01 SEPTEMBER 2021 Plans for Xemxija marina foresee berthing for 168 boats JAMES DEBONO PLANS for the development of a 31,000sq.m marina in Xemxija have been presented by Harbour Management, a company owned by Pierre Balzan, who currently also manages the Mġarr marina in Gozo. The planning application pro- poses mooring facilities for 168 boats and 18 jet-skis. Of these, 101 of the boats berthed in the area will be over 13m long, in- cluding seven with a length of over 24m, and 19 which will be 18-24m long. The planning application was presented last March but details of the application were only pub- lished on the Planning Authori- ty's public information system in the past days. The application refers to a con- cession granted by Transport Malta to Harbour Management and includes a rendition of the new marina. But the concession invoked in the application was later revoked by the Public Contracts Review Board, in a decision taken on 8 July following a protest by the operators of the Beachaven es- tablishment. But this has not stopped the PA from processing the appli- cation, which is still in the ini- tial screening stage. In a report sent on 29 July, the Environment and Resources Authority failed to outrightly object to the pro- posed marina, which will change the dynamics of the bay. But it warned that the proposed in- terventions will extend into the marine environment within a Natura 2000 site, which will be impacted by the laying of con- crete sinkers and a heavy chain along the seabed. In view of this ERA called for a benthic survey of the marine en- vironment, to identify and map the sealed habitats, and locate the presence of protected or oth- erwise sensitive species, which can potentially be affected by the marina. The report specifically refers to the presence of the protected Posidonia sea grasses in the area. Plans to establish a yacht ma- rina in Xemxija were originally announced in 2004. A Request for Proposals was issued in 2009, following permits sought from the Planning Authority. The then maritime authority, now forming part of Transport Malta, awarded the tender to Harbour Management Ltd. But the concession was can- celled in 2011, with Harbour Management later contesting the decision in court. Court proceedings dragged for years, until Harbour Management and Transport Malta reached an out-of-court settlement in No- vember 2020, which once again granted the concession to Har- bour Management. In March, Transport Malta issued a directive for Xemxija Bay to be cleared of all boats so works could start on the marina. Subsequently the owners of Beachaven challenged Transport Malta's decision, arguing the move was illegal as the conces- sion had been cancelled. They said that according to public procurement rules, there should have been a fresh call for tenders. The PA is also assessing an application to turn Malta's most unsightly developments approved in the 1990s on the Xemxija coast – the Kaħlija Court – into a hotel. The ap- plication, submitted by Johann Said, foresees the change-of-use from residential dwelling to a hotel, together with an 84sq.m canopy and an outside catering area. Xemxija marina will cover an area of four large football grounds and would impact on protected sea grasses Contracts board must hear Marsamxett ferry objector MATTHEW AGIUS THE Court of Appeal has over- turned a decision by the Public Contracts Review Board, which had declared that the objection to an extension of a public con- cession for ferry services with- out a call for tender, had been time-barred. The case revolved around the extension of a contract given to Marsamxetto Steamferry Ser- vice, a joint venture between the Zammit Tabona and Bianchi Groups, for the provision of scheduled maritime ferry ser- vices for the Grand Harbour and the port of Marsamxett. This contract was originally made out for eight years, lapsing in 2020. However during that fi- nal year the concession was ex- tended for another three years. The complainant objected to this and sent a letter to the PCRB requesting that the extension to the concession be declared inef- fective at law. The PCRB dismissed the objec- tion as null, due to it being filed too late. It upheld a preliminary plea by the contracting authori- ty which said a request for revi- sion had to be made within six months of contract being signed – in this case 27 March 2020. Supreme Travel filed an appeal from the PCRB decision, argu- ing that it only found out about the extension on 3 December, 2020 when the minister respon- sible had answered a parliamen- tary question about the con- tract. At that point the original contract had been extended by three years. The company argued that the six-month cut-off period had to be taken as starting not from the time of the signing of the con- tract, but of when it was made public. In a decision handed down by Chief Justice Mark Chetcuti, together with judges Joseph R. Micallef and Tonio Mallia, the Court of Appeal said that the appellant was right. "It is true that the law imposes a six-month time limit for con- testations which begins from the date of the contract, but, if the interested economic operators are not aware of this date which would not have been made pub- lic, it is difficult to say that the time limit is counted from the date of a contract which is kept hidden!" One of the principles of ad- ministrative law was that when the law provided a remedy, the remedy had to be real, effective and usable, said the court. In this case, when the original concession reached its end, the appellant company had noticed that Marsamxetto Steamferry Services had continued to of- fer the service and so had made contact with the Transport Au- thority to obtain more informa- tion. However the requests for in- formation were never answered. Towards the end of 2020, it heard that the defendants had been granted an extension, but it was only on 3 December 2020, after a parliamentary question, that this had been publicly con- firmed by the Minister respon- sible. The court disagreed with the Transport Authority's argument that the court's hands were tied, as the law was clear on when the six months began. Instead, it said, the court must decide ac- cording to justice and that the time limit should be taken as starting from when interested parties could have been aware of it. In this case, there was no pub- lication of a notice in the official journal of the European Un- ion, said the court. As a result, the time limit should be taken as counting from December 3, 2020 – the date in which the granting of the contract was made public. The plaintiff's objection was therefore taken as being valid. For these reasons, the court re- voked the decision of the Board of Revision of public contracts and sent the case back before the Board to investigate the merits of the appeal made by Supreme Travel.

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