Tribunal upholds Graffitti Balluta Bay management appeal

The Administrative Review Tribunal has upheld Moviment Graffitti’s appeal against a Lands Authority decision not to allow the organisation to manage Balluta Bay, describing the reasons given by the Lands Authority as “legally mistaken.”

In February 2020, the NGO had filed an application with the Lands Authority, in which it asked to be entrusted with the management of Balluta Bay in a bid “to ward off the commercialisation of this public space and keep it permanently accessible and safe to bathers and the community.”

The application stated the group’s intention to retain Balluta bay as a space for “public recreational activities including citizen science, social and community activities and ecological monitoring activities.”

The group had said at the time that the application was aimed at stopping the continuous taking up of Malta’s public bays by private business interests.

But the Lands Authority had subsequently refused the application, concluding that the management of the foreshore and sea “cannot be directly allocated to a non-governmental organisation.”

Graffitti had then taken the dispute before the Administrative Review Tribunal.

In a decision handed down earlier today, Magistrate Charmaine Galea, presiding the tribunal, noted that lawyer Claire Bonello, as a representative of Graffitti had explained that the organisation had made an application over an area of the sea off Balluta Bay and a small part of the concrete platform on the foreshore with the aim of managing this zone, cleaning it, monitoring the maritime environment as well as public and community recreational activity.

Bonello also explained that after exchanging emails with the Authority, permission was refused for a reason which had no basis at law.

Graffiti coordinator Andre Callus had testified, explaining to the tribunal that the aims and objectives of the Movement were to safeguard the environment, natural and cultural heritage, to protect the health of the citizenry, as well as to ensure public access to open spaces and bays, together with the observance of the law and good governance

Callus said that Graffitti had made the application in question so that it could organise clean-up activities, underwater aquaria, monitoring of flora and fauna as well as activities for the community. Graffitti intended to procure sea bins for use in the bay and needed a specific area to be allocated in order to find sponsors for this project, he said.

Lands Authority representative Peter Mamo, a member of the committee which had analysed and rejected the application, told the tribunal that the decision was made to keep the management of the bay in government hands due to “several factors”, including established economic activity. He admitted to not having actually seen Graffitti’s proposals, but when shown them in court, said that they were not sufficiently detailed.

Carmel Camilleri, Chief Officer of the Estate Management Directorate at the Lands Authority testified that he was a member of the Disposals Committee, to which the responsibility of deciding requests for Government-owned lands worth under €40,000 had been delegated. He explained that the authority was duty bound to ensure the best use was made of Government -owned property and that in this case the committee had felt that it would not be in the best interests of the Government to grant a large area of sea to a voluntary organisation.

The Committee had sought the advice of the Board of Governors on the issue, who had agreed with the committee’s view, Camilleri said, adding that he had seen all the documentation and the management plan submitted by Graffitti.

In her decision on the case, Magistrate Galea observed that Mamo and, by extension, the defendants, had failed to identify or explain the nature of the “several factors” or the established commercial activity in the area. “What was established was only that there was an encroachment concession to a third party to operate a pontoon for the provision of services related to water sports and activities adjacent to the zone specified in the application at hand.

The magistrate noted that the reason for the refusal, as specified in the impugned decision, was that the management of the foreshore could not be directly allocated to a voluntary organisation. But this was “entirely different” from the reason given by Mamo from the witness stand, noted the court, also pointing out that it was also different from that given by Camilleri in his affidavit.

“The reasons given by the members of the Disposals Committee and the Board of Governors and that written in the decision sent to the Movement are clearly different from each other.

“This Tribunal doesn’t know if this is the fault of the unhappy wording used by the defendant Authority in its communications with the movement. But what is certain is that there is a discrepancy between that decided by the Board of Governors, that which was discussed by the Committee and that which was arrived at as a decision.”

The magistrate also went on to point out that the reasons for the refusal as given by the Authority were “legally mistaken” as it was not true that bays and coastal areas could not be allocated to a voluntary organisation.

Finally, it was noted that it had emerged from testimony that at least one member of the Committee deciding the application had not read the proposals made by Graffitti and that this shortcoming merited the application being considered afresh. The magistrate refrained from pronouncing herself on the merits of whether the Authority was justified or not in refusing Graffitti’s application, so as not to prejudice the Authority’s future decision on the matter, after having reconsidered the application.

The Authority was ordered to bear two thirds of the costs, with the remaining third to be borne by Graffitti.