Individuals whose property is expropriated by the government may now institute proceedings before the Land Arbitration Board seeking a review of whether the expropriation is being carried out for a public interest.

Introducing the Land Acquisitions (Public Purposes) Ordinance (Amendment) Bill in second reading, Parliamentary Secretary Jason Azzopardi said this would provide more transparency, accountability and consistency in the acquisition of property by the government.

The Bill also provides for a right of appeal on both points of law and fact and makes the architects' valuation available to the parties in proceedings before the Board, giving them the opportunity to comment and cross-examine the architects.

The concepts of national memory and national historical identity have been introduced in the Bill. The taking of that private property which has a historical value and which would be in the public interest to be held by the Government is regulated.

The Bill details the rights of the government to take private property and the procedure that such deprivation must follow. It further regulates the liquidation of compensation, while introducing judicial review procedures of the public interest invoked by the government.

Dr Azzopardi noted that the government must not take more property than that which is required for the implementation of the project.

The Land Acquisition (Public Purposes) Ordinance provides for three methods of acquisition: acquisition by outright purchase, possession and use or public domain. The Bill provides only for acquisition by absolute purchase and also refers to the acquisition of historical buildings.

It amends the present procedure for the liquidation of compensation. At present, when the two architects assisting the chairman of the Land Arbitration Board, a magistrate, determine the valuation of immovable property unanimously, the magistrate is bound by that valuation. This will no longer be the case.

Dr Azzopardi said this amendment is related to the current lack of security of tenure of the assisting architects. Consequently, even though the architects provide a unanimous valuation, the magistrate still retains discretion as to the liquidation of compensation.

Furthermore, the Bill also establishes five elements which are to be strictly considered in the liquidation of compensation and where any of these elements is not duly considered, the individual may appeal.

The lack of security of tenure of the assisting architects is also addressed and architects will now be appointed for a three-year term. Currently architects may be appointed for a maximum period of two years.

As the law stands, appeals from the decisions of the Land Arbitration Board may only be presented on points of law. This will be changed and now, both the Commissioner of Lands and the individual are given the right to appeal not only on points of law but also on points of fact.

Transparency is also being implemented by the right being given to the parties to cross examine the assisting architects in relation to their valuation report. For this purpose, not later than the last sitting before the delivery of the Board's judgment, the parties must be given a copy of the architects' report so that they may present comments and even cross-examine the architects in this regard.

Dr Azzopardi stated that although no court has so far declared that Article 6 of the Ordinance violates human rights, the Constitutional Court has, on two occasions - in the case of Emmanuela Vella and that of Vincent Borg - declared that a similar provision in the Agricultural Leases (Reletting) Act deprives the individual from the right to access to court.

The government has sought to address this issue also in the Ordinance.

In implementing the right to seek judicial review of the public interest invoked by the government, under both the Ordinance and the Agricultural Leases (Reletting) Act, the Bill gives the individual the right to institute proceedings to this effect before the Land Arbitration Board.

These proceedings must be instituted by the individual within 21 days from publication of the declaration in the Government Gazette.

Despite the institution of judicial review proceedings, the government may still proceed with the implementation of the project or the aim for which the expropriation was made and this even while the action for judicial review is pending before the Board. However, if the Board concludes that the government had not satisfied the requirement of public purpose, the individual may seek compensation from the government.

Another change concerned the necessary requisites which architects had to follow in their report. This included the obligation of comparable transactions when putting a value to property.

Other amendments concerned the government's obligation to protect the national and cultural heritage. This included not only cultural but also social and economic sites and buildings. There were buildings of historical value which were leased for animal husbandry.

The bill was defining what constituted historical buildings. This included cultural property and buildings, sites or remains of geological, archaeological, antiquarian or artistic importance. The Bill introduced the concept of national memory and national historical identity.

He said there was full agreement with the opposition which had extended its cooperation and no vote was to be taken.

The parliamentary secretary explained how the value of a historical building was to be calculated. This included that the full value of a building on the open market was conditioned by its use for educational, touristic or cultural purposes less the amount required for the historical building to be restored.

Other calculations were considered where the historical building was originally government owned and transferred to others.

The third calculation referred to non-government historical buildings where value in respect of a transfer causa mortis, the value declared was to be averaged in such a manner as to cover 100 per cent of the value of the building by 10 per cent.

Dr Azzopardi said that as a result of suggestions made by the Opposition, the government was to move an amendment which concerned the right of the Land Arbitration Board to authorise that a reasonable amount of proportionality to the value on the open market be also added.

Within four days of the issue of the President's declaration, the Commissioner of Lands was obliged to affix a notice to the façade of the historical property so as to inform the owner of the government's intention to expropriate that property.

Opposition spokesman Charles Mangion said the Bill indicated a drastic change from the original draft. Reservations and concerns that had been expressed by the opposition have been smoothed out and the Bill was being approved unanimously.

The Bill gave national heritage the recognition it deserved, yet it was unfortunate that the government did not allocate sufficient financial resources to care for historical places.

The concerns of the opposition in relation to the original draft was not in relation to the protection of national heritage but was primarily related to the wide discretion given to the minister in defining what was of historical or national memory or national identity value. The extent of ministerial discretion had been the subject of a number of discussions held in Parliament including the Lotteries and Gaming (Amendment) Act, when the opposition objected to the wide discretion given to the minister.

The regulatory scope of the extra budgetary units which have been created was to do away with absolute ministerial discretion and thereby provide a balanced determination established by those technical experts nominated on such units.

It is expected that such persons provide objective advice on the issues at hand without political prejudice. Moreover structures for this purpose already exist within the cultural heritage sector.

Dr Mangion noted that the government accepted this objection and the necessary amendments were made to the original draft. Although the Minister still retained some measure of residual discretion yet the final decision and the criteria to be considered in establishing whether property is of cultural heritage value will be determined by the established authorities who are to give reasons for their conclusions.

Another objection raised by the opposition related to the method of liquidation of compensation. Dr Mangion noted that a number of properties which were expropriated years ago were still awaiting compensation.

The Bill introduced objective criteria on which compensation may be liquidated. So as to ensure that fair compensation was given to the individual, the Chairman of the Land Arbitration Board retains the discretion to liquidate that amount which is proportionate and seeks to represent a marriage between the different valuations presented to him by the parties.

Speaking on the administrative aspect of the Bill, Dr Mangion said that at present there were two entities which catered for the cultural heritage: Mepa and Heritage Malta. The two authorities established under different legislation applied the same regulations but at times arrived at different conclusions.

Dr Mangion called for one authority which integrated the regulations of these two institutions.

There was often an overlap in their work where historical buildings were concerned. This cost money to the country when one had to consider that in the first eight months of the year, the extra budgetary units were given €113 million to administer. The new authority had to have the proper administrative tools to operate efficiently and exercise control.

Other authorities had to cater for consumer protection. It was important that regulatory authorities be audited. Their annual reports had to be presented to the House to justify the expenditure of public finances to decrease squandering of public money.

One could no longer speak of small government. One had to speak of accountability with everyone carrying his or her responsibility. The government had a regulatory function and proper structures and therefore had to see whether aims and objectives were reached. This was not a case of political ideology but one of accountability which was needed to ensure that public money was well spent.

Dr Owen Bonnici (PL) said the Bill gave more rights to citizens who were now in a better position to challenge government on property rights. He spoke of discussions between government and opposition which led to curtailing ministerial discretion through the amendments agreed upon.

He spoke on Fort St Angelo's pitiful state and the structural problems present in the Citadel in Gozo. He referred also to recent reports which claimed that Valletta's status as a World Heritage Site was under threat.

The Superintendence of the Cultural Heritage lacked the necessary resources to function properly.

Dr Bonnici remained in possession. The House meets again tomorrow.

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