Building roads and town planning in the public interest (Malta, Constitutional Court)

30 July 2010, Valletta (Ref: App. Civ. 696/1999/1). The Constitutional Court confirmed a judgement of the First Hall of the Civil Court in its consitutional jurisdiction, that the expropriation of farmland to build a road, amounted to a 'public interest'.

Plaintiffs claimed to be full-time farmers, earning their living from the very same land which the Government was expropriating. They claimed that the land was being expropriated to accomodate the needs of a private company which wanted to build 75 apartments and 170 garages on its own land, but had no access to this land. This private compay turned to the government and requested the expropriation, after attempts to buy the land from the private owners failed.

During the course of proceedings, the Director of the Roads Department confirmed that expropriation of land for this purpose i.e. to provide access to other property, is actually done. When the parties fail to reach an agreement privately, the developer may request the expropriation of the land; the developer will fork out the funds for compensation while the Government assumes ownership of the expropriated land.

The Constitutional Court quoted, amongst other cases, the ECHR ruling James and others v. the UK in which the Strasbourg Court ruled that '...a deprivation of property effected for no reason other than to confer a private benefit on a private party cannot be 'in the public interest'. In the present case, the Constitutional Court held that the opening of a road was an exercise in town planning, which was clearly in the public interest. The fact that a third party (the builders of the planned 75 apartments and 170 garages) was going to benefit from the expropriation did not alter the fact that the Government was opening a public road, in the general and public interest:

 'The expropriation in question was not carried out to accomodate the interests of a private third party, even if this was going to obtain advantage from it, but the intention was and still is the general interest of the public at large. One can argue that whenever a road or square is opened, the owners of land abutting onto these, will benefit, but it is obviously in the public interest that the Government carries out town planning. Thus, the deprivation that the plaintiffs are going to suffer is covered by the proviso to article 1 of the First Protocol of the European Convention, because the expropriation of the property is being carried out 'in the public interest', which intentions subsists to this day. The development that the Government wants to carry out in the area, even with the help of private interests. is 'in pursuance of legitimate social, economic or other policies', because the creation of an area of housing for the public in general, with adequate roads, is certainly in the general interest.' (translation of para 3, p. 22 of judgement).

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