Individuals cannot force government to issue property on tender

Although individuals may have property adjacent to government land, they do not have a right to insist that the land is issued on tender and transferred to them. This was held by the Administrative Review Tribunal on 22 August 2022 in Charles Fenech and Edmea Fenech -v- Awtorita tal-Artijiet. The Tribunal was presided by Magistrate Charmaine Galea.

The Fenech’s filed an appeal wherein they explained that they applied in October 2021 to purchase a plot of land in Marsascala from the lands Authority. The Appellant’s wanted the Authority to issue a tender in terms of Articles 31(a) and (b) of the Government Lands Act (Chapter 573 of the Law of Malta), since they own the adjacent land. In February 2022, the Authority wrote to the Appellants, Fenech, that “since the requested site falls within a larger tenement which is mostly within building development zone. The Lands Authority cannot therefore accede to the piecemeal sale of part of this tenement since this would negatively impact on the entire value of the whole site. This would also prejudice the Lands Authority ability to propose a re-planning scheme for the entire site.”

The fact that the lands fall within a development zone should not prejudice the application, especially because the land was already divided into plots and there is no indication that the Authority was going to sell the whole land in one go. The plot in question in on the border to the land and therefore, it would not affect the development of other plots. The appellants explained that from what the Authority explained then there is no concrete plan of what the government wants to do with the land. They were of the opinion that the Authority was wrong to refuse the application on these grounds.

The Lands Authority pointed out that the Planning Authority did not approve that the land be divided in plots and the application was shelved. The fact that in 2010 the government intended to split the land into plots, it does not mean that the intention remained the same today. The Authority continued to argue that even if the land had to be divided into plots it does not mean that the Fenechs had a right to acquire the plot in question.  They do not have the adjacent land. The Lands Authority has not decided to issue tenders on this land and it is not correct to assume that the issues will be issued. The Authority has a duty to administer public land for the best use possible in terms of Article 7 of the Lands Authority Act,.

The Tribunal analysed the evidence produced, where a manager of the Authority explained that the Disposals Committee of the Authority had discussed how best to make use of the site in question. The decision was not to adopt the decision taken in 2010 and the plans were shelved.

Fenech explained to the Tribunal that they own a property which is next to the plot they applied for. The 2006 South Malta local plan earmarked the site as a residential priority area or will area.  They further explained that if the plot they are interested in is issued on tender, this would not prejudice the Authority’s future plans. Fenech’s architect testified that the Joint Office had already divided the property in plots.

The Tribunal held in its considerations that the fact that the Fenech’s own property adjacent to the plot in question does not give them a right over the plot. Neither may they expect that the property is to be issued on tender. Also, even if the plot in question has no direct access to a public road, it is adjacent to other government property, which has access to a public road.

The Tribunal pointed out that the Authority is bound to administer government land diligently and it decides when it is the right time to sell the land. Even the plot in question is on the border of the site, it would be a waste to prejudice the rest of the site if it had to sell it off. It seems that there was a similar request on a different plot, and the Authority had rejected the request. Therefore, the Authority is being consistent with its position on this land.

The Tribunal then moved to reject the appeal.