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

I assent.

G EORGE A BELA

(L.S.)

President

1st December, 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

The short title of this Act is the Land Acquisition (Public Short title.

Purposes) Ordinance (Amendment) Act, 2009, and this Act shall be

read and construed as one with the Land Acquisition (Public Cap. 88.

Purposes) Ordinance, hereinafter referred to as "the principal

Ordinance".

Article 2 of the principal Ordinance shall be amended as Amendment of

article 2 of the

follows

principal

Ordinance.

(a) immediately after the definition "dwelling house"

there shall be added the following new definition

" "historical building" means land which

(a)

is scheduled in accordance

with article 46 of the Development

Planning Act; or

(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

(ii)

is closely connected

to events of major historical

importance which have contributed

to the national memory or to the

national historical identity;"; and

(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".

In article 3 of the principal Ordinance for the words "be

required for a public purpose." there shall be substituted the

following

"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.".

Article 6 of the principal Ordinance shall be amended as Amendment of

article 6 of the

principal

Ordinance.

(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

"(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

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

"(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.".

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".

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

(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;

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

(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;

(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;

(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;

"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;

(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.".

In subarticle (4) of article 23 of the principal Ordinance, Amendment of

immediately after the words "a Panel of Architects and Civil article

principal

Engineers", there shall be added the words "for the purpose of Ordinance.

assisting the Board in the valuation of land and in other technical

matters. The said Panel of Architects and Civil Engineers shall be

appointed".

In subarticle (3) of article 24 of the principal Ordinance, Amendment of

for the words "two years" there shall be substituted the words "three article

principal

years".

Ordinance.

Article 25 of the principal Ordinance shall be amended as Amendment of

article 25 of the

follows

principal

Ordinance.

(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.";

(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

(e)

in subarticle (7) thereof, the words "on a point of

law" shall be deleted.

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

"(v) compensation in respect of a historical building shall

be assessed in accordance with article 22(11)(aa).".

Article 21 of the Agricultural Leases (Reletting) Act shall Consequential

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

"(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.".

(1) The provisions of article 24(3) of the principal Transitory

Ordinance as amended by this Act shall apply as from the date when provisions.

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.

(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.

L OUIS G ALEA

Speaker

P AULINE A BELA

Clerk to the House of Representatives