Authorities cannot reply merely on third party complains when it revokes decisions it had previous taken. This was held by the Court of Appeal, presided by Mr Justice Lawrence Mintoff on 20 October 2021 in Joseph Borg -v- Awtorita’ għat-Trasport f’Malta.
The appeal was lodged by Awtorita’ għat-Trasport f’Malta following a preliminary decision and the main decision of the Administrative Review Tribunal.
The case concerns road markings at the side of a garage, which is next door to Borg’s residence. In 2013 Transport Malta allowed that a 3.25m double-yellow line be placed on the left of the garage. In 2019 Transport Malta reconstructed the street. These lines were repainted, however, later they were removed. The consequence was that Borg could not take out vehicles nor go in the garage.
The preliminary decision of the Tribunal concerned whether the Tribunal had jurisdiction to hear this case. According to Article 5 of the Administrative Justice Act examined administrative decisions of administrative boards, as long as they do not fall under judicial review under the Code of Organisation and Civil Procedure. The Tribunal disagreed with this interpretation and held that it has a wide function of examining all administrative decisions. The Tribunal argues that there was a decision in July 2019 for the 3.25 meters to be removed from the side of the garage, which decision was implemented by the Ħaż-Żebbug Local Council. The Tribunal saw that the TM has the responsibility of look at the interests of all concerned, however, with its decision it made it impossible for Borg to make use of the garage.
The Tribunal upheld Borg’s request and held that TM should not have ordered the removal of the road markings. TM appealed the preliminary decision and the final judgement and the Court of Appeal dealt with each of the grounds of appeal. The first ground of appeal concerns whether the Tribunal was competent to decide this case. TM explained that in December 2013 it did not object to the road markings at the side of Borg’s garage. TM insists that this was a direction and not an authorisation and therefore in 2019 it did not revoke any authorisation or licence in terms of Article 40 of the Transport Malta Act. It merely changed its direction it had given.
Borg argued that the road markings were removed without being informed or consulted. The Court of Appeal agreed with the Tribunal. The Tribunal pointed out correctly that the law wanted that the Tribunal to examine administrative acts. The Tribunal is authorised to listen to complaints against decisions taken by TM in terms of Article 40(1) of the Malta Transport Authority Act. The Tribunal was correct to investigate this particular complaint.
On the merits of the case TM appealed on the ground that the Tribunal did not take into consideration of its administrative authority. Access to a garage is regulated in Clause 5.3 of guidelines. This dictates access should be comfortable for one to use. Borg’s building permit allowed a garage for private cars. TM held that the garage was never intended for the use of heavy vehicles and therefore there was no legal obligation to authorise the double yellow lines. When in 2013 TM allowed 3.25 meters on one side and 1 meter on the other this was subject to not prejudicing third party rights. On the other hand Borg held that the guidelines are irrelevant to the case, in that the real issue is that the Authority ordered the removal of the lines without any consultation.
The Court of Appeal again agreed with the legal reasoning of the Tribunal, as the Authority’s decision was subjective and depended on a complaint of a third party. This was confirmed in the testimony of a TM official. The Court held that the Tribunal’s decision was not allowing an illegal situation to carry on, because it was TM that agreed to allow 3.25m markings.
The Court then moved to reject the appeal.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
The article is available on MaltaToday.
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