Touchstone Properties vs Planning Authority — Gate Blocks Coastal Footpath

Court upholds refusal to sanction a gate obstructing a pre-1967 rural footpath leading to a public coastline at Blata tal-Melħ.

Court of Appeal (Inferior Jurisdiction) · Honourable Judge Mark Simiana, LL.D · 4 May 2026

Touchstone Properties Ltd, represented by Ian Galea, applied to the Planning Authority (PA/3024/21) to sanction a gate installed on private land at Blata tal-Melħ, in the limits of Baħrija, Rabat. The Authority refused the application on the grounds that the gate would obstruct a pre-1967 footpath, in breach of criterion 2 of Policy 1.2I of the Rural Policy and Design Guidance 2014, and contrary to Coastal Objective 3 and Rural Objective 2.4 of the Strategic Plan for Environment and Development (SPED). The applicant appealed to the Environment and Planning Review Tribunal, arguing that the footpath ran over private land and had never been formally designated as public. In support, the applicant produced a property acquisition contract, a sworn affidavit, and testimony from an official of the Land Authority confirming the land was privately owned. The Tribunal, however, dismissed the appeal in September 2025, finding that Policy 1.2I expressly protects traditional rural pathways 'irrespective of their type of ownership', and that the question of ownership was irrelevant to the planning policy analysis. Touchstone Properties then appealed to the Court of Appeal (Inferior Jurisdiction). Before the hearing commenced, Judge Mark Simiana disclosed that prior to his elevation to the bench he had rendered legal services to the appellant company in eviction proceedings relating to the same land. All parties confirmed they had no objection to the case proceeding before the same judge. The Ramblers' Association of Malta was also admitted as an interested third party and contested the appeal, submitting affidavits from five different organisations attesting to regular public use of the footpath as the established route to reach Blata tal-Melħ. The Court of Appeal examined whether the Tribunal had correctly applied Policy 1.2I and upheld the Tribunal's reasoning. The court noted that the explanatory paragraph 1.2.8 of the same policy explicitly clarifies that protection applies irrespective of ownership. Survey sheets from 1957 showed the footpath marked with an official Bench Mark, indicating historical public accessibility. The court also cited established Maltese case law holding that a private landowner who has permitted or tolerated public passage cannot subsequently close that passage, as a public right of way (servitù ta' tranżitu) arises. The appellant's argument based on the Victor Borg v MEPA (Appeal 7/2015) precedent was distinguished, as the Rural Policy and Design Guidance 2014 did not exist at the time of that judgment.

The Court of Appeal dismissed the appeal by Touchstone Properties Ltd. The decision of the Environment and Planning Review Tribunal dated 23 September 2025, which upheld the Planning Authority's refusal of application PA/3024/21 to sanction the gate, was confirmed. No criminal penalties or fines were imposed; the sanction for the gate installation was denied and the matter of civil rights over the land was declared outside the jurisdiction of the planning tribunals.

• Under Policy 1.2I of the Rural Policy and Design Guidance 2014, traditional rural footpaths are protected from obstruction regardless of whether the underlying land is privately or publicly owned — ownership is legally irrelevant to the planning assessment.
• Maltese planning policy (paragraph 1.2.8) explicitly states that the Authority must afford protection to traditional and/or historical country pathways 'irrespective of their type of ownership', meaning a developer cannot defeat a planning refusal simply by proving private ownership.
• Under Maltese civil law, a private landowner who has permitted or tolerated public passage over their land cannot subsequently block it: once public use is established, a right of way (servitù ta' tranżitu) arises, as confirmed in Frank Attard vs Anthony Farrugia (2005) and earlier case law.
• The Environment and Planning Review Tribunal and the planning appeals system are not the appropriate forum to resolve disputes about civil property rights; those must be pursued before the ordinary civil courts — planning tribunals focus solely on compliance with planning law and policy.
• A judge's prior professional involvement with a party before elevation to the bench does not automatically disqualify them from hearing a case: in Maltese procedure, if all parties expressly waive any objection after full disclosure, the proceedings may validly continue before the same judge.

Development Planning Act (Cap. 552); Rural Policy and Design Guidance 2014 — Policy 1.2I criterion 2; Strategic Plan for Environment and Development (SPED) — Coastal Objective 3, Rural Objective 2.4; Civil Code (Cap. 16) — servitù ta' tranżitu