Bahrija gate: new appeal could set precedent to block public access

Test case could set precedent for other gates blocking access to coastline, as landowners argue private land gives them every right to block public access

Bahrija landowners Touchstone Ltd have filed a second appeal against the Planning Authority’s refusal to block public access to their land, this time on the basis of a policy which secures public access to footpaths which existed prior to 1967.

The company, which owns the land in question, filed an appeal against a planning enforcement asking them to remove the illegally erected gate, which has been blocking public access to a passageway leading from Baħrija to the Blata tal-Melħ since April 2021.

The PA cannot take any action against the gate until a decision is taken on the two appeals.

The case is being viewed as a major test case for rambling rights. If the EPRT (appeals tribunal) decides in favour of the owners, it could set a precedent for other gates blocking access to old coastal footpaths located on land claimed by private owners along the Maltese coast.

The company, through their architect and lawyer Robert Musumeci, has already appealed against an enforcement order issued after the PA refusal to regularise the gate, asking the owners to remove the gate. In this appeal Musumeci argued that the landowners did not even require a permit to erect a gate on their private land.

In their second appeal, this time against the PA’s decision not to sanction the gate, Musumeci argues that the PA’s policy securing access to pre-1967 footpaths only applies to public land, and cannot be enforced to stop owners from blocking access to their land.

In the appeal Musumeci acknowledges that the gate was installed “to stop the public from entering private property.” He also argues that good planning requires that the public knows which land is private and which land is public.

In its refusal, the PA referred to the Rural Policy which regulates ODZ developments, that specifically states that “traditional and historical country paths should be safeguarded irrespective of their type of ownership” and that “proposals which cause damage to or destruction, closure, removal, obstruction or hindrance of public country pathways should not be permitted.”

Musumeci, a planning consultant to government when this policy was drafted, argues that the policy specifically refers to “public country path-ways” and not to those located on private land.

To substantiate his argument, he cites a previous decision by the tribunal, based on a previous court decision, through which Ta’ Cenc owner Victor Borg erected a gate blocking access to the coastline.

Musumeci argues that the only way through which the government can secure access to the coastline is by expropriating the land in question and turning it public. Moreover, Musumeci also argues that in this coast the public can access the coastline from other pathways.

The gate has been installed by Touchstone Ltd, a company owned by the Baħrija landowners Eliza Limited, which had acquired the land claimed by the feudal title of the Barony of Baħria. In 2005, the company attempted to evict farmers after buying a 1,500-tumolo parcel from Salvatore Consoli-Palermo-Navarra, whose heirs sold the land for some €2.5 million.

The Ramblers Association recently denounced the “unjust” sanctioning system, through which illegal developments even in ODZ and other protected areas can be regularised after the authorities are faced with a fait accompli. The Ramblers Association contends that the system rewards those “who operate illegally” without “facing any consequences” while penalising the public.