Tribunal upholds public right of way in Baħrija landmark ruling

The Environment and Planning Review Tribunal has delivered a landmark ruling with far-reaching implications for public access to the countryside.

The tribunal rejected Touchstone Limited’s appeal against the Planning Authority’s decision to refuse the sanctioning of a gate blocking a historic countryside footpath. The footpath leads to the Blata tal-Melħ coastline in Baħrija.

The tribunal decision confirms that long-established public pathways must remain open even when they cross private land, marking a significant victory for the Ramblers Association. The organisation has fought tooth and nail against the installation of this gate and others in the Maltese countryside.

Public access trumps private ownership

Touchstone Limited, owned by a group of Baħrija landowners, argued that the footpath runs on private property and that closing it with a gate did not contravene planning policy. The company’s appeal, submitted through architect Robert Musumeci, claimed that pre-1967 pathways on private land are not automatically considered “public country pathways” under Policy 1.2I of the 2014 Rural Development Guidelines.

Touchstone also argued that they did not need a planning permit to construct the  gate arguing that this fell within categories that do not require a permit. Musumeci emphasised that the planning application to sanction the gate was intended to obtain a formal declaration from the Planning Authority on the status of the gate and was not an admission of illegality.

The tribunal, however, rejected these arguments, emphasising that the public right of passage takes precedence even when a path crosses private land. It noted that the footpath has been in regular use for decades, with survey sheets from 1957 marking the route. It also  forms part of a network of rural pathways protected as public recreational resources. The tribunal also referenced historical and contemporary evidence confirming the path’s longstanding use, including publications such as Harrison Lewis’s A Guide to the Remote Paths and Lanes of Ancient Malta (1974) and Jonathan Henwood and Emmet McMahon’s The Malta Coastal Walk (2013), which identifies the passage as a key walking route to Blata tal-Melħ.

Ramblers’ victorious battle

The tribunal also considered an affidavit submitted by Ramblers Association President Ingram Bondin, which detailed how the gate obstructs public access along a substantial stretch of coastline from Baħrija, specifically affecting the Blata tal-Melħ. This is a coastal recreation area frequented by walkers and the general public.

He explained that the passage has historically been the most direct and accessible route to the site, with no practical alternative paths for the general public. Bondin included photographs documenting the blocked area, copies of 1968 survey sheets showing the footpath marked with dotted lines and identified as a footpath, and evidence from multiple walks organised by the Ramblers Association, including one in July 2007 attended by then Prime Minister Lawrence Gonzi.

Aerial photographs from 2004 and 2016, along with illustrations from guidebooks published by the Malta Tourism Authority, further confirmed the route’s long-standing public use.

The tribunal also referred to established case law, including Frank Attard vs Anthony Farrugia et al, which confirms that a landowner who permits public use of a private route cannot later block it, effectively creating a servitude of passage. The tribunal agreed with the Planning Authority that sanctioning the gate would obstruct a pre-1967 footpath, contravening rural policies designed to protect public access, safeguard areas of high landscape value, and maintain coastal objectives. It emphasised that ownership of the land is irrelevant when considering public access under Policy 1.2I, which applies “irrespective of their type of ownership.”

Touchstone had suggested that alternative routes, such as walking along the coast from Ras ir-Raheb or Miġra il-Ferħa are available for the public. But the Ramblers Association argued that these alternatives are impractical for the general public. The alternative route from Ras ir-Raheb requires crossing a steep section of rock known as il-Ħalq, while the route from Miġra l-Ferħa involves walking around 6km to reach the Blata tal-Melħ and back, making the blocked footpath the most direct and practical option for the general public.

The Ramblers Association was assisted by lawyer Joe Ellis throughout the case.

The gate saga

The gate, installed in April 2021, has been at the centre of a protracted dispute.

The Planning Authority issued an enforcement order demanding the removal of the gate. A year later the PA refused the landowners’ request to regularise the gate.

The PA’s planning commission refused the request, saying the gate was in breach of the rural policy, which secures public access to any footpath, which already existed before 1967.  This decision was confirmed in the Tribunal’s landmark decision.

But an appeal filed by Ian Galea one of the directors of Touchstone Limited  against the planning enforcement issued in 2021 is still pending. This could further delay the removal of the gate in question.

The gate has been installed by Touchstone Ltd, a company owned by the same Baħrija landowners who back in 2005 had tried to evict a number of farmers from  a 1,500-tumolo land parcel they had bought from the Barony of Bahria.