The constitutional remedies available to an aggrieved person in the development planning process : an appraisal

Abstract

Old houses and bungalows are constantly making way for apartment blocks. No free space, no building is spared from relentless construction. Demolitions, excavations and buildings are significanlly increasing with the need for third parties to seek remedies to the nuisances and problems. As new laws enabling more development are enacted, the rights of third parties become even more pronounced. Although remedies at law exist, they are rarely exploited. Most of the cases are about real material damages one's property suffers during development. Nevertheless, damage is inflicted in several ways: from reducing enjoyment of one's property to health problems that can arise through development. There may also be inconveniences which neighbours and the public in general have to put up with. This thesis analyses the extraordinary remedies which are available to a person who feels aggrieved by a decision of the Malta Environment and Planning Authority. By extraordinary remedies, I intend the constitutional remedies which can be granted by the Civil Court, First Hall, Constitutional Court and the European Court of Human Rights. The Introduction deals with the various laws which provide for these remedies whether ordinary or extraordinary. This is followed by chapters one and two which investigate the right to property under Article 1 of Protocol 1 of the European Convention of Human Rights and article 37 of the Constitution of Malta respectively. This study is achieved by considering various judgments given by the European Court of Human Rights and the Maltese Constitutional Court. When studying the right to property other fundamental rights and freedoms come into play as well. So an analysis of how the right to property relates with other rights is examined. The last chapter of this thesis is based on Comparative law, that is, how Maltese legislation fairs when compared with laws of other jurisdictions. This raises the question of whether the situation in Malta mainly where it concerns the extraordinary remedies available, is effective in protecting the right to property of the persons involved.