Tribunal partly upholds appeal over Las Palmas outside catering area at Baħar iċ-Ċagħaq

The Administrative Review Tribunal has partly upheld an appeal filed by restaurateur John Paul Pullicino, annulling the Lands Authority’s classification of his Baħar iċ-Ċagħaq establishment as a kiosk.

However, the tribunal maintained that outdoor tables and chairs cannot be placed on the public beach.

In a decision delivered on Monday, the tribunal ruled that the authority was factually mistaken in treating the premises, known as Las Palmas, as a kiosk for the purposes of its Outdoor Catering Areas (OCA) policy. However, it confirmed that the proposed use of public foreshore justified the refusal of consent.

Pullicino had appealed a decision issued by the Lands Authority on 30 May 2025, which refused his request to grant consent to submit a development application to the Planning Authority for the placing of tables and chairs in the front and rear patios of the restaurant in Triq is-Salini, Baħar iċ-Ċagħaq.

The refusal was based on two grounds. The authority said the requested OCA lay adjacent to a property classified as a kiosk and partly on a public beach, in breach of OCA Policy P5. It also pointed to ongoing court proceedings for the recovery of rent arrears on a government-owned tenement linked to the site.

Pullicino challenged the decision before the tribunal on 16 June 2025, arguing that the authority had relied on incorrect facts and irrelevant considerations. He disputed the kiosk classification, said the area in question was not a public beach but a concreted extension of his property, and claimed he had a legitimate expectation of approval given the number of similar permits granted elsewhere. He also alleged discriminatory treatment.

The Lands Authority defended its decision, insisting that the site had been classified as a kiosk since 1973 and that Policy P5 expressly prohibits OCAs related to kiosks and on public beaches. It argued that it enjoyed wide discretion under the Lands Authority Act to administer public land in the public interest, and that the tribunal lacked jurisdiction to rule on claims of discrimination.

Presided over by Magistrate Charmaine Galea, the tribunal examined documentary evidence and heard testimony from a Lands Authority case officer and a Tourism Authority official.

The tribunal found that the premises had been licensed as a third-class restaurant in 1993 and that Pullicino’s 2013 lease described the property as an empty commercial premises, without limiting its use to a kiosk. It noted that the annual rent of €70,000 supported the interpretation of a commercial lease rather than one restricted to kiosk operations.

On that basis, the tribunal held that the authority was wrong to reject the application on the grounds that the establishment was a kiosk. It nevertheless found that the proposed placement of tables and chairs along the side of the structure would encroach on a public beach, even where the ground had been concreted.

The tribunal also observed that Pullicino had already placed tables and chairs on public land without authorisation, a situation it described as an illegal state of affairs.

Claims based on legitimate expectation and discrimination were rejected. The tribunal said it was not competent to decide constitutional grievances and reiterated that legitimate expectations cannot arise from an unlawful situation created by the applicant himself. It did not rule on the issue of rent arrears, noting that no specific grievance had been raised on that point.

In its final order, the tribunal upheld the appeal in part, annulling the Lands Authority’s decision insofar as it relied on an erroneous kiosk classification, while rejecting the remainder of the appeal. The authority is now required to re-evaluate the request on the basis that the establishment is not a kiosk, excluding areas that form part of the public beach.