Expropriation – Public purpose and public use
Cases upholding a property right violation are certainly not novel in Malta. For many years, a great deal of applicants have instituted human rights proceedings before the First Hall and the Constitutional Court, with some even taking their cases before the European Court of Human Rights. In most cases, the complainants obtained moral damages for the violation sustained. However, in a recent judgment Scerri Camilla et v Lands Authority, the plaintiffs managed to obtain moral damages before the Land Arbitration Board, without having to institute proceedings before the courts of constitutional jurisdiction.
Expropriation and the right to property – requisitioning of land which remains unutilised by the government, despite the declared public purpose, deemed in violation of right to property
Essentially, the right to property, as secured in Article 37 of the Constitution and Article 1 of Protocol No. 1 to the European Convention, guarantees individuals the right to the peaceful enjoyment of their possessions. However, as have been made clear time and time again by the Maltese Courts and the European Court, this right is not absolute and the State may intervene and deprive individuals of their property in a number of scenarios, particularly by means of expropriation measures. These measures are allowed provided that they are done according to law, that they offer the owner of the expropriated land adequate compensation and that they are carried out for a public purpose. Measures that fail to meet any of these three requirements run counter to human rights law and entitle land owners to seek redress before the courts. Owners of expropriated land not used for public purposes could resort to the First Hall of the Civil Court, which orders the State to return the land to the owners and to compensate them for the material and moral damages suffered.
Landowners seeks redress under the government lands act
The plaintiffs owned a portion of agricultural land which had been expropriated way back in 1955, by virtue of a declaration for expropriation under the provisions of the Land Acquisition (Public Purposes) Ordinance, which granted the government the power to expropriate land for a public purpose, provided that the owner was adequately compensated. By virtue of said law, the government took possession of the land, however it never up to this day acquired the title nor paid any compensation for its occupation. Moreover, neither did the government make any use of the said land, despite having taken it over on the premise that it was required for a public purpose.
In this case, instead of proceeding before the First Hall, the plaintiffs instituted an action before the Land Arbitration Board, on the basis of article 63 of the Government Lands Act. This article allows an owner of land subjected to a presidential declaration, issued before the coming into force of this Act, and that has not yet been acquired by the government, to have that declaration quashed, provided that the owner proves that the land was not used for public purposes for a period of ten years from when the declaration was issued. If the government fails to provide a valid reason for non-use or to show that there is still a public interest in the acquisition of the land, the Board is bound to order that the land be restored to the owner. Apart from asking for the return of the property, the owner may also demand material and moral damages for all the years the land has been possessed by the government.
Originally, the plaintiffs asked the Board to quash the declaration and to award damages. In the course of the proceedings, the government decided to release the property such that the plaintiffs limited their claim to damages, and later to moral damages only. The Lands Authority contested this claim, pleading that the owners were not entitled to these damages since the action contemplated in the law allowed the Board to award compensation only in those instances where the declaration was revoked by the Board itself. It also argued that the plaintiffs had failed to prove that they had suffered any hardship, entitling them to moral damages in the first place.
Remedy awarded by the land arbitration board
The Board found in favour of the plaintiffs since they had been successful in proving that the land had not been acquired by the government nor used for public purposes. It rejected the defendant’s first plea that it could not award compensation, deciding that the claim for damages was not dependent on the Board revoking the declaration itself, rather on the actual deprivation of the land sustained. Reference was made to the parliamentary debates behind the Government Lands Act, and the Board held that the purpose behind article 63 was to grant owners in a similar situation to the plaintiffs the possibility to obtain redress for a property right breach without having to institute constitutional proceedings. It was therefore held that compensation was due purely for the fact that the expropriation was incomplete and unnecessarily deprived the owners of their land.
The Authority’s second plea that the owners had failed to prove hardship was also rejected and the Board decided that the fact that the land had not been acquired by the government nor used for a public purpose, automatically entitled the plaintiffs to moral damages. While the plaintiffs claimed a total sum of €70,000 (based on a nominal €3 for each day the violation occurred X 65 years), the court awarded €48,750 (annual sum of €750 X 65 years) after considering a number of points, in particular:
- The extent, location and potential of the land;
- The number of years the land had been subjected to a declaration;
- The number of years the plaintiffs had been deprived from enjoying their land;
- The fact that the plaintiffs had, on multiple occasions, demanded that the land be returned to them;
- The fact that the land had only been returned to them during the last stage of the judicial proceedings;
- The fact that it was only in 2015 that the owners started corresponding with the Lands Commissioner to have their land released to them;
- The fact that it was only in 2019 that the Lands Authority inquired with the entity that had requested eviction to determine if there remained a public interest behind the declaration for eviction;
- The fact that the land had not been used by the government; and
- The time it took for the Authority to revoke the declaration after receiving an official correspondence from the Works and Infrastructure Department indicating that the declaration was to be revoked.
Refinement of remedies available to landowners
The introduction of this remedy is particularly interesting since it provides owners who meet the requirements laid down in article 63 the possibility to seek redress before the Land Arbitration Board, without having to resort to the First Hall. It is clear that owners whose cases fall within the ambit of article 63 may proceed before the Board instead of instituting a constitutional action, since the First Hall may choose to decline to hear a case if it is satisfied that an ordinary effective remedy could have been availed of.
This judgement appears to be the first where the Board has awarded moral damages under article 63. While no reference was made to constitutional judgments, the Board seems to have adopted a similar approach to the courts of constitutional jurisdiction with respect to these damages, as it did not feel the need to consider whether the plaintiffs suffered any hardship, but considered these damages as a form of token compensation, due for the mere fact that a property right violation had occurred.
However, it should be noted that while the Board seems to be able to award a similar remedy to that awarded by the courts of constitutional jurisdiction, the remedy before the Board is limited by prescriptive periods as laid down in article 63, and in the case of co-owned land, the action can only be brought forward by all owners.