This case concerned a claim of right of passage over private streets.

The facts of the case were as follows:

The plaintiffs were co-owners of a plot of land of 6,260 square metres in Xlendi, Gozo which they had acquired by virtue of a contract dated 15 May 1996. This plot was accessible from two streets over which the plaintiffs claimed that they had a right of passage to allow access to their property. The defendants allegedly had constructed a wall to block off the streets and made a flowerbed to prevent the plaintiffs from passing through such streets. The plaintiffs had also applied and obtained a warrant of prohibitory injunction in this respect.

The plaintiffs therefore requested that the Court make a declaration to the effect that the defendants had no right to obstruct such access from such streets since they had every right to make use of them to access their property and to prohibit any form of obstacles that may be constructed to prevent access from such streets.

The defendants contended that:

(1) the plaintiffs had no right of access from the disputed streets because these streets were private streets owned by themselves and the Code of Police Laws (Chapter 10 – Laws of Malta) merely lays down obligations of owners of private streets and the rights of public authorities over such streets;

(2) the right of access only derives from Article 447(1) of the Civil Code (Chapter 16 – Laws of Malta) and applies after the payment of compensation, which compensation had not been made: Article 447 holds that (1) Any owner whose tenement has no outlet to the public road, may compel the owners of the neighbouring tenements to allow him the necessary way, subject to the payment of an indemnity proportionate to the damage which such way may cause.

(2) Such right of way shall be exercised over that part where it will be least injurious to the person over whose tenement it is allowed;

(3) the public authorities did not impose any obligations in respect of Article 20(9) of the Code of Police Laws which considers the upkeep of private streets holding that every street shall be kept in a proper state of repair to the satisfaction of the Malta Transport Authority, by the person by whom such street shall have been opened;

(4) The public authorities did not expropriate these streets and therefore they remained private;

(5) According to Article 20(9)(ii) of the Code of Police Laws, the owners of any property immediately abutting on any street not belonging to the Government shall be deemed to be the persons who opened such street and the owners thereof have a right of action against third parties any for the recovery of any expenses incurred in the execution of the work;

(6) As owners they had absolute title over the streets and therefore had all ownership rights in terms of Articles 320 and 321 of the Civil Code concerning ownership and furthermore, in terms of Article 37 of the Constitution of Malta which guarantees protection from the deprivation of property without compensation.

(7) The plaintiffs could not develop their property and expect to have unlimited access from these private streets without any form of compensation being paid.

The Court considered all the claims and evidence. It held that although the streets were schemed roads and although they were given official names, no proof was provided to show that there was any procedure taken in terms of the Code of Police Laws to render such streets government property. Article 22 of the Code of Police Laws confirms that it is possible for private streets to be named.

The Court stated that on the one hand, the plaintiffs were basing their arguments on Article 20(9) et seq of the Code of Police Laws holding that whoever builds on a private street must leave such street accessible to public use.

The defendants based their case on Article 447(1) of the Civil Code which considers passage, however against compensation.

The Court made reference to the definition of ‘street’ in terms of the Code which is deemed to mean any street and include any road, alley, square, fortification or other place of public passage.

The Court considered all these issues:

– in the regulator’s plans, these streets were marked as projected roads to allow public passage and as a means of facilitating a connection with the nearby main road;

– the streets bear no signs holding that passage is allowed only by owners of the houses there;

– the streets have street names;

– the streets enjoy public services such as road lighting;

– the defendants initially had no problem with the plaintiffs making use of one of such streets and did not expect compensation either.

The Court rejected the application of both Articles 20(9) of the Code of Police Laws and Article 447 of the Civil Code and held that in its opinion, the simple transit through projected streets did not give the person who developed such streets the right to compensation neither for passage. The Court therefore ruled in favour of the plaintiffs holding that the Defendants had no right to obstruct the disputed streets from use by the public.