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The Land Acquisitions (Public Purposes) Ordinance (Amendment) Act, 2009 (Bill No. 33)

A BILL

entitled

AN ACT to amend the Land Acquisition (Public Purposes) Ordinance, Cap 88.

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 and commencement

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
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Cap. 445.

S.L. 445.01

(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 a building which in the opinion of the Minister, after having consulted the Minister responsible for tourism and the Minister responsible for cultural heritage, is of such historical or cultural significance as to render it desirable to acquire the building for the public purpose of maintaining or augmenting the cultural environment in Malta or the tourism services provided in Malta; or
(e) is in the opinion of the Minister, after having consulted the Minister responsible for cultural heritage, so closely connected to events of major historical importance which have significantly contributed to the national memory or to the development of the national historical identity as to render it desirable to acquire the building for the public purpose of preserving the national memory or 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 sub- article (1) thereof and in the said sub-article, 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 sub-article (2), no person shall require any proof of the public purpose"; and
(b) immediately after the sub-article (1) thereof, there shall be added the following new sub-article:

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 sub-article (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 days from the publication of the said declaration and the provisions of the Code of Organisation 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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Amendment of article 18 of the principal Ordinance.

Amendment of article 22 of the principal Ordinance.

Provided that the filing of an application in terms of this sub-article 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.".

5. In sub-article (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 sub-article (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 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 acquired from 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 sub-paragraph:
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 price paid to Government in respect of the transfer 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 fifteen;
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Cap. 158.

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 resulting after the value of the building 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;

Cap. 158.

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 resulting after the value of the building 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 sub-paragraph (ii) shall only be payable on the amount as updated according to the said sub- paragraph; or
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Cap. 364.

(iii) where the historical building was not 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, updated in accordance with the provisions of sub-paragraph (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, the value of the whole building for the purposes of this sub-paragraph (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.
Notwithstanding the other provisions of this paragraph, where the value of a historical building as calculated in accordance with sub- paragraphs (i), (ii) or (iii) 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.".

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

Amendment of article 23 of the principal Ordinance.

Amendment of article 24 of the principal Ordinance.

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Amendment of article 25 of the principal Ordinance.

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

(a) in sub-article (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 thereon to the members of the Panel and to comment thereon to the Board.";
(b) immediately after sub-article (3) thereof, there shall be added the following new sub-article:
"(3A) When the report referred to in sub-article (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 sub-article (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) sub-article (5) thereof shall be substituted by the following sub-article:
"(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
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(e) in sub-article (7) thereof, the words "on a point of law" shall be deleted.

10. In paragraph (iv) of the proviso to sub-article (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:
"(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 sub-article (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 sub-article (2A), no person shall require any proof of the public purpose"; and
(b) immediately after sub-article (2) thereof, there shall be added the following new sub-article:

Amendment of article 27 of the principal Ordinance.

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 sub-article (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 days from the publication of the said declaration and the provisions of the Code of Organisation 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 sub-article 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.".

Objects and Reasons

The objects and reasons of this Bill are the amendment of the Ordinance for the purpose of providing a specific mechanism for the acquisition into public ownership of historical buildings for the purpose of safeguarding and preserving the historical and the cultural identity of Malta and the implementation of other amendments to the Ordinance, inter alia for the purpose of complying with judgements of the Constitutional Court.