Transport Malta was justified to limit the berthing of a water sports vessel to one bay, since the safety requirements dictated this. This was held in a decision delivered by the Administrative Review Tribunal presided by Magistrate Dr Simone Grech in Adam Debrincat -v- Awtorita’ dwar it-Trasport f’Malta.
Debrincat appealed from a decision taken by Transport Malta (TM) allowing him to berth his water sports vessel and operate only in Ħondoq ir-Rummien. He argued that it was not commercially viable to operate only in one swimming zone and therefore, his licence was useless. He argued that this is discriminatory because other similar operators do not have this limitation.
TM replied to this appeal and stated that one of the conditions for the certificate is that the vessel would be on a mooring. Furthermore, the public cannot use this vessel is it is not on its mooring and that according to the insurance policy it must be used within 70 meters from the coast. This is why such a vessel should have its own mooring. TM had informed Debrincat that the mooring must be protected from the elements. The TM held that no mooring will be given if it is placed in a busy shipping area. It has to be secluded and approved by the Environment Resources Authority. In fact Debrincat had been shown a number of zones, but Environment Resources Authority (ERA) did not approve these and it only approved the one at Ħondoq ir-Rummien. Therefore, TM’s hands were tied and could only approve the places where ERA approved.
The Tribunal had analysed the evidence produced and started with the testimony of Debrincat himself. He explained that he invested heavily in the vessel he purchased from the USA. TM had insisted that it required a CE certification, but commercial boats do not carry one. He explained the TN allowed other similar and larger boats to use their anchor. One can see similar boats at Blue Lagoon.
They would jump onto a slide and end up in the sea. Before purchasing his boat, he had checked with the TM and was told that it would be classified as a commercial vessel.
Such vessels may make use of their anchor or mooring anywhere. In fact he has another three vessels with the same certificates and they do not have the same restrictions. He explained to the Tribunal that if he is allowed to go to the Blue Lagoon, he will make use of the anchorage area and not the fairway.
Two TM enforcement officers testified and told the Tribunal that they are stationed at Comino in summer and that they prepare the mooring for commercial vessels. They are tightly tied up in order for them not to move when patrons are making use of the slides.
Captain Mario Grech, Debrincat’s consultant, held that the vessel may be anchored, or else make use of the mooring, both being safe. However, they should only be used when the sea is calm, or else in a sheltered bay.
An ERA official testified that ERA did not issue any permits in Comino, and it is the authority which issues such permits, since Comino is part of Natura 2000.
The Tribunal then discussed the legal principle of administrative discretion. This was explained in Adriana Gatt Terribile -v- Kunsill Lokali, Ghajnsielem, decided on 15 April 2008, where the Magistrates Court in Gozo held such administrative discretion has to be exercised within the limits of he law. In another judgement, Lawrence Borg noe -v- Gvernatur tal-Bank Centrali ta’ Malta, decided on 1 March 2004, the Court held for administrative discretion is used, then the Court had to be convined that no other authority interfered in the decision process.
The Tribunal held that according to the manufacturers, on instructions of the amusement platform, clients cannot be on board when it is underway. Even the insurance policy echoed this. The TM insisted that when this vessel is in use, it must be sheltered. In addition to this, ERA gave permission only for Ħondoq ir-Rummien.
However, from the records of the case, it seems that Debrincat had accepted these conditions in May and June 2017, when he said in an email that his vessel will be “attached in the mooring and the stern will be attached to the shore”.
TM took its decision on the basis of safety and on the fact that there was a flowing dialogue between the parties in this case.
The Tribunal moved to reject the appeal.
Mifsud & Mifsud Advocates
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