Firm ordered to maintain roads in Mellieha estate

The Court of Appeal yesterday upheld a judgment of the First Hall of the Civil Court whereby a private company was ordered to maintain roads within Santa Marija Estate, Mellieha.

The judgment was delivered in a writ filed by Mellieha local council, the mayor, the Santa Marija Estate Committee and 98 residents of Santa Marija Estate against Central Mediterranean Development Corporation Limited (Cenmed).

Plaintiffs had declared that the estate was the private property of Cenmed and that this company had, in a number of contracts, bound itself to construct roads that gave access to plots and to provide sewage and water and electricity systems in the roads.

The company was also bound to maintain the roads within the estate at its own expense.

However, plaintiffs declared that the company was not honouring its obligations and it requested the court to condemn defendant company to carry out such works.

At the request of Cenmed, the Director of Roads was called into the suit, as defendant company pleaded that the government had changed the designation of the roads within the estate to public roads. It was therefore the government's responsibility to maintain the roads.

The First Court had ruled in plaintiffs' favour and had declared that Cenmed was responsible for the maintenance of the roads in question, except for a few roads the responsibility for which had been transferred by the company to the government and eventually to the local council.

Cenmed lodged an appeal from this judgment to the Court of Appeal composed of Chief Justice Vincent Degaetano, Mr Justice Anton Depasquale and Mr Justice Albert J. Magri.

The company claimed that the first court had dismissed all its preliminary pleas and it requested the Court of Appeal to declare that the local council of Mellieha had no juridical interest in the case and that neither had the residents of the estate. The appellate court was also requested to overturn that part of the judgment delivered in first instance which had ruled that the Santa Marija Estate had an interest in the case.

Finally the Court of Appeal was asked to declare that Cenmed was not bound to maintain the roads.

The Court of Appeal noted that in 1963 Cenmed had acquired the land on which the estate was constructed from the Cathedral Chapter on temporary emphyteusis.

The deed of acquisition specified that the roads to be constructed on the land were to be laid and maintained by and at the expense of the company which, however, was entitled to transfer such obligations in whole or in part to third parties.

Cenmed had transferred a number of plots within the estate to individuals for the construction of villas.

The company had also started to build roads and to provide water, electricity and sewage systems.

As Cenmed claimed that the estate was private property it had erected a barrier where the estate met the principal road of Mellieha so as to prohibit access to the estate by persons who did not own property there.

After some time the barrier was removed as it had impeded access to the beaches below the estate.

In 1988 the company and the government had agreed that the government would take over six roads within the estate that had been constructed by Cenmed.

From that date, the six roads were the responsibility of the government which had then, in turn, transferred responsibility for the said six roads to the local council of the locality.

Cenmed, said the court, was therefore released of its obligation to maintain these six roads. However, other roads that were constructed within the estate had never been transferred to the government.

The residents of the estate had complained of the condition of these roads and were insisting upon a judicial declaration to the effect that Cenmed was to honour its contractual obligations.

Cenmed was claiming that as the government had removed the barrier, then all the roads were now the responsibility of the government.

Furthermore, the company claimed that it had transferred its obligations concerning the roads to the various persons who had bought land within the estate.

The Court of Appeal declared in its judgment that there was no doubt that the action filed by plaintiffs was a collective action and that all plaintiffs had the same juridical interest, namely the construction and maintenance of the roads within the estate.

However, not all of the 98 persons indicated as living at Santa Marija Estate in fact owned property there and the Court of Appeal ordered that 14 of the plaintiffs were to be removed from the suit.

When referring to the local council the court ruled that it was true that no contractual relationship existed between the council and Cenmed, however the court found that the council had a juridical interest in the case as it had to provide for the collection and removal of all refuse from the estate (even though the roads were private) and to maintain cleanliness.

To provide these services the council had an interest to ensure that these roads were up to standard.

The Court of Appeal then examined Cenmed's plea that the Santa Marija Estate Committee ought not to have been included in the writ as a plaintiff.

The local council of the locality was entitled, said the court, to appoint committees to assist it in its functions.

However, the committees did not have separate legal personality from the council and could therefore not have been a plaintiff in the suit.

When examining the merits of the suit the Court of Appeal noted that six of the roads within the estate had already been made the responsibility of the government and then of the local council.

With regard to the remaining roads the court pointed out that the responsibility for the maintenance of private roads was not transferred to the public authorities in virtue of the fact that these roads were accessible to the public.

A specific procedure for the transfer had to be followed, involving correspondence and an agreement. Until such agreement was reached, then the road remained the responsibility of the project developer.

It was clear that the government had only assumed responsibility for six roads and not for the remaining roads.

The court added that Cenmed had not produced any evidence to show that it had transferred its contractual obligations to third parties.

In conclusion the Court of Appeal confirmed the first judgment but ordered that the Santa Marija Estate Committee and the 14 residents be removed from the suit.

The court declared that Cenmed was responsible for the maintenance of the roads within the estate, save for the six roads, the responsibility for which had been transferred to the local council.