Issue link: https://maltatoday.uberflip.com/i/1505544
maltatoday | SUNDAY • 13 AUGUST 2023 11 LAW CLASSIFIEDS IT is the Board of Governors which adopts policies on public land and not the Chief Execu- tive. This was held in Manuel Xerri v Awtorita tal-Artijiet decided by the Tribunal for Administrative Review on 3 August 2023. The Tribunal was presided by Magistrate Char- maine Galea Manwel Xerri felt aggrieved by a decision made by the Lands authority on 3 February 2023. The Authority in ques- tion rejected the applicant's application on the basis that the applicant requested an en- croachment concession for the placing of a kiosk on a specific site. 'The proposal cannot be acceded to since the placing of a kiosk is considered to be an activity of a commercial nature. The awarding of any type of ti- tle against payment of a specif- ic site for this type of use, with- out competition runs counter to the spirit of Section 31 of the Government Lands Act.' Mr Xerri appealed the deci- sion seeking to render it null and void. Xerri provided the tribunal with six points of ap- peal, amongst which that he met all the criteria listed in Ar- ticle 31(H), specifically that the land is for a temporary and spe- cific purpose as will be shown during these procedures. He also argued that he had a le- gitimate expectation that his permit would be accepted like it has been done prior through- out Malta and Gozo. Thus, the authority did not follow princi- ples of natural justice. He also held that the Authority did not quote and substantiate its de- cision according to the law or policies of the Authority. The Lands Authority replied to this appeal where it was claimed that there is legitimate expectation because these per- mits have not been given for the previous two years. The Tribunal analysed the evidence. The case officer of the Authority testified that the Chief Executive of the Author- ity gave direction on the per- mits of encroachments on cer- tain sites which were included in a masterplan. Those kiosks which were given encroach- ment permits before this di- rection was given and these permits were extended. The Chief Executive of the Authori- ty testified that he introduced a new policy on giving encroach- ments to kiosks and wanted an element of competition on how the permits were grant- ed. There was need of planning and new kiosks were granted after a call. The Tribunal decided to re- verse the decision taken by the Authority and declare it null and void because it felt that the appealed decision was flawed from two aspects, namely, the reason given for the rejection of today's application is legal- ly wrong and also because the basis of the same decision is a direction that came from the Chief Executive and not from the Board of Governors. With reference to the claimant's re- quest to order the respondent Authority to accept his appli- cation, the Tribunal points out that its competence is limited to reviewing administrative de- cisions. The Tribunal pointed out that the decision not to extend Xer- ri's permit was due to the Chief Executive of the Authority by giving a direction not to grant permits if these did not fall within zones which included plans that allowed kiosks. The Tribunal held that the law does not mention that a competi- tive process should take place when giving encroachments. The Tribunal acknowledged the Authority's right to draw up policies. This is listed in Ar- ticle 7(2)(c) of the Government Lands Act, which always the Authority to administer gov- ernment property in the best way possible. This does not mean that the Authority should go beyond the law. The policies must be in conformity with the law. The Authority is free to fix a price for encroachments and therefore, can maximise the lands potential. The Tribunal disagreed with the Authority's Chief Executive who stated that once an encroachment is given it is difficult to revoke it. The Tribunal said that this is an enforcement issue and the Authority has the power to en- force. The Tribunal dealt with the issue whether the Chief Execu- tive may design a policy himself or whether it must be carried out by the Board of Governors. Article 14(1) of the Govern- ment Lands Act lists the pow- ers of the Board. According to Article 15(3), the Chief Execu- tive is responsible for the im- plementation of the objectives of the Authority as established by the Board. Therefore, the Chief Executive does not have the power to draft policies, but this is in the hands of the Board. Lands Authority must keep within the law when giving encroachment permits LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET SHOP TO LEASE - Class 4 B 60 sqm corner shop to lease in San Gwann. Key money €49,888 and €40 a day rental. 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