The fact that the government puts asphalt on a private road, does not convert the road into public property. This was held in Richard Buhagiar et -v- Kummissarju ta’ l-Artijiet decided on 27 March 2020, by the Court of Appeal presided by the Chief Justice Joseph Azzopardi and Justices Joseph R Micallef and Tonio Mallia.
The plaintiffs filed an action wherein in their application, they explained that they owned three properties in Mosta. Their entrance is from a lane, which is owned by third parties. In 1981 they had entered into a contract with the Commissioner of Lands in which the government bound itself to purchase the lane and render it into for public use. The lane was acquired by the government by means of a Government Notice.
In 1991 the government issued a declaration stating that the lane is no longer to be used for public purposes. The plaintiffs learned that the government was to build a wall and therefore, they would lose the use of this lane. In fact, they filed for warrant of prohibitory injunction in 1992. They asked the court to declare that the lane is used for public use and the 1991 declaration was null and void. The Commissioner of Lands rebutted the action by stating, that the 1981 contract also held that the government was not bound to finalise the acquisition of the lane and the land was not expropriated. The First Court in its judgment on 29 October 2014 turned down the plaintiffs’ claims.
The First Court had first analysed the evidence produced. After the 1991 Presidential declaration that the lane was not needed for public use, the government passed asphalt over the lane. The history of this cases goes back to 1976, where the Plaintiff, Buhagiar, asked the Works Department asked that a road be opened. The lane was already planned and this was reflected in the 1981 agreement and later in the Presidential declaration paving the way for expropriation. The government did a number of works on the lane, including the removal of a wall, trees and a gate, installed an electricity pole and laid asphalt.
The Court appointed experts pointed out that according to MEPA plans, this lane is earmarked to serve as a road. They held that since there is no expropriation, then the property remains privately owned. In these cases, it is the owners who must form a road in front of their properties and have to contribute to the infrastructure of the road. The experts held that irrespective of whether there is an expropriation of the land, the lane is still deemed as a public road.
As a consequence, nobody can build a wall in the lane, because it is deemed to be built in a public road. The Plaintiff filed an appeal from this judgement and asked the Court of Appeal to uphold its claims. The Court of Appeal in its judgement pointed out that the 1981 contract with the Commissioner of Lands held that the Plaintiffs had “to carry out at their exclusive expense the complete construction of the street”.
Furthermore, the same contract read: “Nothing herein contained shall be considered to compel the Government to complete the acquisition of the plots of land above mentioned.” However, the Plaintiffs argued that this the government did carry out works in the lane, then this is tantamount that the road is public. The Court of Appeal disagreed with this and agreed with the first Court’s conclusions. It reasoned that the land on which there was the lane, was not transferred to the government.
It quoted from a previous judgement Sciberras -v- Micallef decided on 2 February 1949, which held that the fact that a road which has asphalt is not automatically transferred to the Government. This principle was also repeated in a recent judgment of 10 July 2019 in Mosim Limited -v- Kummissarju tal-Artijiet.
In another judgement Sammut -v- Micallef of 21 March 1958, the Court then held that a private road does not become public merely because is used by the public or else if the Government did some works on it. It is for these reasons that the Court of Appeal turned down the appeal.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
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