Landowner denied right to enjoy his property

The planning authority was ordered to pay €15,000 by way of compensation after a court ruled that the scheduling of land at Fekruna, in St Paul’s Bay, violated the landowner’s right to enjoyment of his property.

Mr Justice Gino Camilleri delivered the judgment following a constitutional application filed by Joseph Fenech against the Malta Environment and Planning Authority. The Attorney General was later called into the suit but was found not to be responsible for any human right breaches.

Mr Fenech told the court he owned plots of land in Fekruna and that, in 1991, the land had been indicated as a villa site. However, in 1996, the planning authority had scheduled the land, thus rendering it unusable for development purposes. Mr Fenech claimed that the scheduling had been carried out in order to benefit third parties who had property in the vicinity.

In his application, Mr Fenech claimed that the scheduling was tantamount to an expropriation of his property and that he had been discriminated against.

Mr Justice Camilleri pointed out that the court was not being asked by Mr Fenech to examine whether the scheduling order had been carried out for a valid purpose and in accordance with law. The court had been requested to establish whether the scheduling was in violation of Mr Fenech’s fundamental human rights. Consequently, the First Hall of the Civil Court had the jurisdiction to hear and decide the case.

The court added that the right to enjoyment of property was protected by the Constitution and by the European Convention of Human Rights. But this right was not an absolute one because an owner could be deprived of his property in the public interest.

The planning authority was undoubtedly authorised at law to schedule land for a number of reasons and to issue preservation orders. It further resulted that the regulator had conducted a detailed study on the coastal cliffs and this had led to the scheduling of Mr Fenech’s land.

However, the court had to see whether the scheduling of Mr Fenech’s property for a public purpose was placing an inordinate burden on the owner.

From the evidence produced, it resulted that the land had been purchased in order for development to take place. When the purchase took place, the land was included in the Temporary Provision Scheme, which allowed for development. Mr Fenech had therefore reason to believe that he would be allowed to build on the land. The planning authority had further declared its willingness to consider Mr Fenech’s development application. Once the land was scheduled, however, it could not be put to any use, not even agricultural, as the land was on a slope.

Mr Justice Camilleri concluded that Mr Fenech was bearing an individual and excessive burden and that the balance between the general interest and his interest had not been struck. This was tantamount to a violation of Mr Fenech’s right to enjoyment of his property and the court awarded him compensation of €15,000.

The court, however, found no grounds to conclude that Mr Fenech had been discriminated against.