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The Land Acquisition (Public Purposes) Ordinance (Amendment) Act (Act No. Xxi Of 2009)

ACT No. XXI of 2009

AN ACT to amend the Land Acquisition (Public Purposes) Ordinance

BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:

1. The short title of this Act is the Land Acquisition (Public Purposes) Ordinance (Amendment) Act, 2009, and this Act shall be read and construed as one with the Land Acquisition (Public Purposes) Ordinance, hereinafter referred to as "the principal Ordinance".

2. Article 2 of the principal Ordinance shall be amended as follows:

(a) immediately after the definition "dwelling house" there shall be added the following new definition:

Short title. Cap. 88.

Amendment of article 2 of the principal Ordinance.

Cap. 356.

" "historical building" means land which: (a) is scheduled in accordance
with article 46 of the Development
Planning Act; or
A 766

Cap. 445.

S.L. 445.01

Cap. 445.

(b) constitutes cultural property for the purposes of the Cultural Heritage Act other than cultural property of the type referred to in article 52 of the said Act; or
(c) is included in the list of buildings, sites and remains having a geological, archeological, antiquarian or artistic importance in the Schedule to the Protection of Antiquities Regulations; or
(d) is land which upon the advice of the Committee of Guarantee established by article 14 of the Cultural Heritage Act, given within two months after the said Committee receives a request for advice from the Minister and also after the said Committee has granted an opportunity to any person with an interest in the land to make his submissions, it is appropriate to acquire for a public purpose on the grounds that:
(i) it is of such historical or cultural significance as to render it appropriate that it be acquired for the purpose of maintaining or augmenting the cultural environment or the tourism services provided in Malta; or
importance which have contributed to the national memory or to the national historical identity;"; and

Amendment of article 3 of the principal Ordinance.

(b) in the definition "public purpose" immediately after the words "or with or to town-planning or reconstruction or" there shall be added the words "the generation of employment, the furtherance of tourism, the promotion of culture, the preservation of the national or historical identity, or the economic well being of the State or".

3. In article 3 of the principal Ordinance for the words "be required for a public purpose." there shall be substituted the following:

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"be required for a public purpose: Provided that:
(a) when land to which the said declaration refers is required for a public purpose on account of the fact that it is a historical building, the said declaration shall state the said fact; and
(b) a historical building that is privately owned and kept in a good state of maintenance and to which access to the public, whether against payment or otherwise, is granted on a regular basis by its owners or administrators for educational, cultural or touristic purposes shall not be acquired as a historical building under this Ordinance.".

4. Article 6 of the principal Ordinance shall be amended as follows:

(a) the present article shall be re-numbered as subarticle (1) thereof and in the said subarticle, for the words "No person shall require any proof of the public purpose" there shall be substituted the words "Without prejudice to the provisions of subarticle (2), no person shall require any proof of the public purpose";
(b) immediately after the subarticle (1) thereof, there shall be added the following new subarticle:

Amendment of article 6 of the principal Ordinance.

Cap. 12.

"(2) Any person who has an interest in land, in respect of which a declaration of the President as is referred to in subarticle (1) is made, may contest the public purpose of the said declaration before the Land Arbitration Board by means of an application to be filed in the registry of the said Board within twenty-one days from the publication of the said declaration and the provisions of the Code of Organization and Civil Procedure applicable to the hearing of causes before the Civil Court, First Hall, including the provisions regarding appeals from such decisions, shall, mutatis, mutandis, apply to the determination of the said application:
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Provided that the filing of an application in terms of this subarticle shall not hinder the continuance of the expropriation proceedings or the doing of anything that may be done in respect of the land as provided in this Ordinance during the time when the application is still not determined, without prejudice to the right of the applicant to seek compensation in the event that the declaration of the President is found to be without public purpose."; and
(c) immediately after subarticle (2) there shall be added the following new subarticle:

Amendment of article 18 of the principal Ordinance.

Amendment of article 22 of the principal Ordinance.

"(3) The competent authority shall by not later than four days after the publication of the declaration of the President of Malta affix as it deems appropriate and if physically possible a notice of the said declaration on the land about which that declaration was issued.".

5. In subarticle (1) of article 18 of the principal Ordinance, for the words "Land shall be deemed to be a building site" there shall be substituted the words "Land, other than a historical building, shall be deemed to be a building site".

6. Immediately after paragraph (a) of subarticle (11) of article

22 of the principal Ordinance, there shall be added the following new paragraph:
"(aa) in the case of a historical building the value thereof shall be calculated as the higher of the following:
(i) the full value of the historical building if sold on the open market subject to the condition that the use that can be made thereof shall be limited to use for educational, touristic or cultural purposes less the amount required for the historical building to be restored in accordance with internationally accepted guidelines and standards of craftsmanship and practice for the purpose of rendering it suitable for such educational, touristic or cultural use; or
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Cap. 158.

Cap. 158.

(ii) where the historical building was originally Government-owned and transferred by Government, by updating the amount for which the said historical building was acquired from the Government commencing from a basis year not earlier than 1946 according to the index of inflation published in the Schedule to the Housing (Decontrol) Ordinance from the date of the said acquisition until the date of the Declaration of the President of Malta made in terms of article 3 and adding thereto interest on the amount as updated at the rate of five per cent per annum from the date when the said historical building was transferred by the Government until the date of the said Declaration of the President of Malta, plus the value of any improvements made to the building by the owner between the said dates, depreciated according to established accountancy standards:
Provided that in calculating the compensation in accordance with this subparagraph:
1. where the historical building was originally Government-owned and transferred by Government and the said transfer took place thirty years or more before the date of the Declaration of the President of Malta in respect thereof, the amount resulting after the value of the building based on the amount for which the said historical building was acquired from the Government is updated until the date of the said Declaration by the President of Malta in accordance with the index of inflation published in the Schedule to the Housing (Decontrol) Ordinance as aforesaid shall be multiplied by fifteen;
A 770

Cap. 158.

Cap. 158.

2. where the historical building was originally Government-owned and transferred by Government and the said transfer took place less than thirty years but more than twenty years before the date of the Declaration of the President of Malta in respect thereof, the amount for which the said historical building was acquired from the Government is updated until the date of the said Declaration by the President of Malta in accordance with the index of inflation published in the Schedule to the Housing (Decontrol) Ordinance shall be multiplied by ten;
3. where the historical building was originally Government-owned and transferred by Government and the said transfer took place more than ten but less than twenty years before the date of the Declaration of the President of Malta in respect thereof, the amount for which the said historical building was acquired from the Government is updated until the date of the said Declaration by the President of Malta in accordance with the index of inflation published in the Schedule to the Housing (Decontrol) Ordinance shall be multiplied by five;
4. where the foregoing paragraphs of this proviso apply, the interest payable according to subparagraph (ii) shall only be payable on the amount as updated according to the said subparagraph and not also on the increase resulting after paragraphs 1, 2 or 3 are applied; or
A 771

Cap. 364.

(iii) where the historical building is not a building which was originally Government-owned, the amount established as the value of the building by the person who is the owner of the building at the time of publication of the Declaration of the President of Malta in a declaration in respect of the transfer causa mortis of the property filed in accordance with the Duty on Documents and Transfers Act, or according to the declaration made for succession duty purposes according to any other law which has from time to time governed or is governing succession duty, updated in accordance with the provisions of subparagraph (ii), including the proviso thereto, which shall apply mutatis mutandis:
Provided that where only an undivided portion or undivided portions of a historical building have been so declared in respect of a transfer causa mortis or in any other manner for succession duty purposes, the value of the whole building for the purposes of this subparagraph (iii) shall be based on the projection of the value declared in respect of the said portion or portions averaged out together in such a manner as to cover one hundred per cent of the value of the building increased by ten per cent;
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(iv) where the historical building, whether it originally belonged to Government or not, either has never been transferred causa mortis or after being transferred causa mortis was transferred inter vivos under an onerous title, the amount paid for such transfer by means of the most recent transfer prior to the date of publication of the Declaration of the President of Malta updated in accordance with the provisions of subparagraph (ii), including the proviso thereto, which shall apply mutatis mutandis:
Provided that where the Land Arbitration Board in proceedings filed before it in terms of this Ordinance on the compensation to be paid for the acquisition of a historical building, considers that no reasonable relationship of proportionality exists between the compensation amount resulting from the application of paragraphs (i), (ii), (iii) or (iv) and the open market price which in the opinion of the Board, after taking into consideration all relevant issues of fact and of law, that property would have fetched had it been sold voluntarily tale quale on the open market, at the time of publication of the Declaration of the President of Malta, the Board may authorise payment of a compensation amount based on the average between the computed amount in terms of paragraphs (i), (ii), (iii) or (iv) and such amount as the Board would consider to be the open market value;
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(v) notwithstanding the other provisions of this subarticle, where the value of a historical building as calculated in accordance with subparagraphs (i), (ii), (iii) or (iv) including the provisos thereof, shall result in an amount that is higher than the open market value of the said building at the time of publication of the Declaration of the President of Malta in respect thereof, the value of the historical building shall not exceed the said open market value;
(vi) in this subarticle:
"the full value of the historical building" means:
(a) if the historical building belongs in absolute ownership to the person from whom it has been expropriated, the full value of that building;
(b) if the historical building is possessed by the person from whom it has been expropriated under title of perpetual emphyteusis, the full value of such perpetual emphyteusis at the time of the Declaration of the President of Malta;
(c) if the historical building is possessed by the person from whom it has been expropriated under title of temporary emphyteusis or under any other temporary title, the full value of such title of temporary emphyteusis or of such other temporary title at the time of the Declaration of the President of Malta;
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"was originally Government-owned" means that the historical building was possessed by Government under a title of full ownership, perpetual emphyteusis or by virtue of any other temporary real right at any time from the 27th July 1925 onwards;
"transferred by Government" includes any transfer of a real right over immovable property including transfer under title of sale and emphyteusis whether in perpetuity or temporarily;
"the amount for which the said historical building was acquired from the Government" means:
(a) in case of a transfer under a title of sale, the price paid for the sale;
(b) in case of a transfer under a title of perpetual emphyteusis or under a title of temporary emphyteusis for a period exceeding ninety- eight years, the premium amount paid for the concession of that emphyteusis, if any, less one per cent for each year that passed from the time of the concession, incremented by the amount resulting after the ground rent payable annually is capitalised at a rate of five per cent;
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(c) in case of a temporary emphyteusis for a period of ninety-eight years or less or of another temporary real right for such time, the premium amount paid for the concession of such emphyteusis or for such real temporary right, if any, less one per cent for each year that passed from the time of the concession or from the time of transfer of such title, incremented by the amount resulting after the ground rent payable annually is capitalised at a rate of eight per cent;
"emphyteusis" includes sub-emphyteusis;
"interest" means simple interest.".

7. In subarticle (4) of article 23 of the principal Ordinance, immediately after the words "a Panel of Architects and Civil Engineers", there shall be added the words "for the purpose of assisting the Board in the valuation of land and in other technical matters. The said Panel of Architects and Civil Engineers shall be appointed".

8. In subarticle (3) of article 24 of the principal Ordinance, for the words "two years" there shall be substituted the words "three years".

9. Article 25 of the principal Ordinance shall be amended as follows:

(a) in subarticle (3) thereof, immediately after the words "as the Chairman may direct.", there shall be added the words "The report shall be accessible to the parties who shall be granted the opportunity to put questions in writing thereon to the members of the Panel and to comment thereon to the Board:
Provided that the parties, without prejudice to their right to bring during the evidence stage their own expert witnesses ex parte, shall not be entitled to request the appointment of additional referees.";

Amendment of article 23 of the principal Ordinance.

Amendment of article 24 of the principal Ordinance.

Amendment of article 25 of the principal Ordinance.

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(b) immediately after subarticle (3) thereof, there shall be added the following new subarticle:
"(3A) When the report referred to in subarticle (3)
consists of a valuation it shall state:
(a) the date of the valuation;
(b) the date with reference to which the property was valued;
(c) the state which it is calculated that the property was in on the date with reference to which the property was valued;
(d) the use which was being made of the property on the date with reference to which it was valued, including information as to whether the property was at the said time subject to rights of third parties such as emphyteusis, use, usufruct or lease;
(e) the comparable transactions, if any, with reference to which the property was valued.
The members of the Panel shall employ their best efforts to value the property on the basis of reference to comparable transactions.".
(c) in subarticle (4) thereof, immediately after the words "when that case is being considered by the Board" there shall be added the words "as he may deem appropriate or";
(d) subarticle (5) thereof shall be substituted by the following subarticle:
"(5) The Chairman shall decide the matter himself after giving due consideration to the reports of the two members of the Panel and any other relevant acts presented or submissions made."; and

Amendment of article 27 of the principal Ordinance.

(e) in subarticle (7) thereof, the words "on a point of law" shall be deleted.

10. In paragraph (iv) of the proviso to subarticle (1) of article

27 of the principal Ordinance, for the words "from any such works.", there shall be substituted the words "from any such works;", and immediately thereafter there shall be added the following new paragraph:
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"(v) compensation in respect of a historical building shall be assessed in accordance with article 22(11)(aa).".

11. Article 21 of the Agricultural Leases (Reletting) Act shall be amended as follows:

(a) in subarticle (2) thereof, for the words "No person shall require any proof of the public purpose", there shall be substituted the words "Without prejudice to the provisions of subarticle (2A), no person shall require any proof of the public purpose"; and
(b) immediately after subarticle (2) thereof, there shall be added the following new subarticle:

Consequential amendment to Article 21 of the Agricultural Leases (Reletting) Act. Cap. 199.

Cap. 12.

"(2A) Any person who has an interest in land in respect of which a declaration of the President of Malta as is referred to in subarticle (1) is made may contest the public purpose of the said declaration before the Land Arbitration Board by means of an application to be filed in the registry of the said Board within twenty-one days from the publication of the said declaration and the provisions of the Code of Organization and Civil Procedure applicable to the hearing of causes before the Civil Court, First Hall, including the provisions regarding appeals from such decisions, shall, mutatis, mutandis, apply to the determination of the said application:
Provided that the filing of an application in terms of this subarticle shall not hinder the eviction of any person from the land or the doing of anything that may be done in respect of the land by its owner according to law during the time when the application is still not determined, without prejudice to the right of the applicant to seek compensation in the event that the declaration of the President of Malta is found to be without public purpose.".

12. (1) The provisions of article 24(3) of the principal Ordinance as amended by this Act shall apply as from the date when the members of the Panel of Architects and Civil Engineers whose appointment is still in force on the date of coming into force of this Act were appointed so that those members of the Panel shall be deemed to have been appointed by virtue of their last appointment for a period of three years.

Transitory provisions.

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(2) The provisions of article 9 of this Act which amend article
25 of the principal Ordinance shall come into force as follows:
(a) article 25 of the principal Ordinance as amended by the provisions of paragraphs (a), (b), (c) and (d) of article 9 of this Act shall apply to all causes which on the date of the coming into force of this Act are pending before the Land Arbitration Board except for those causes which on the said date stand adjourned for final judgement;
(b) the provisions of paragraph (e) of article 9 of this Act shall come into force immediately upon the coming into force of this Act.
Passed by the House of Representatives at Sitting No. 171 of the
25th November, 2009.
LOUIS GALEA

Speaker

PAULINE ABELA

Clerk to the House of Representatives