Judicial interpretation of Maltese development planning law : eliciting the added value

Abstract

This dissertation is about the development of new ideas and proposition of solutions in order to bridge the numerous legal lacunae encountered in the course of the decisionmaking process surrounding planning applications, whether such decisions are taken before the Planning Authority, the Environment and Planning Review Tribunal or the Court of Appeal. The author points out that the entire process, already complicated as is, is made even more so when there are problems with ambiguous drafting, badly interconnected definitions, incomplete provisions and inconsistent scope of application. Each time there is a legal quandary, the Maltese courts are the final arbiter who has the final word on what ought to have been done in the given circumstances. Even though the court contributed its fair share to solve many of the arising issues, several fundamental questions remain. This is because the court’s reasoning is occasionally flawed or too broad in scope. Occasionally, the judgments are inconsistent with previous ones whereas the court’s arguments, at times, simply do not hold water. This study aims to respond to what the court thus far has been unable to answer. To achieve this, the road that led to Section 72 of the current Development Planning Act, dealing with development permissions, will be discussed first. This will be complemented by an assessment of how the court went about determining whether planning applications should be decided in line with policies in force at the onset of the application process or those in vigore at the time of the decision, notwithstanding the applicant being put in a position he could not previously envisage. The extent to which a developer already in possession of a planning permission can claim to have a vested right should he decide to carry out a new development is also covered. Finally, it shall be seen whether the said Section 72 in view of which decision makers ought to no longer ‘apply’ plans and policies but simply ‘have regard’ of the same, had any bearing on the court’s thinking. The role of the current EPRT and what led to its current status shall then be assessed with a view to understanding the context within which ‘a point of law’ could be reviewed by the Court of Appeal (Inferior Jurisdiction). This will be supplemented by an assessment of concrete situations wherein the Court held itself competent to hear an appeal from Tribunal decisions. Armed with this information, the study moves on to provide a meaningful definition of ‘a point of law’.position he could not previously envisage. The extent to which a developer already in possession of a planning permission can claim to have a vested right should he decide to carry out a new development is also covered. Finally, it shall be seen whether the said Section 72 in view of which decision makers ought to no longer ‘apply’ plans and policies but simply ‘have regard’ of the same, had any bearing on the court’s thinking. The role of the current EPRT and what led to its current status shall then be assessed with a view to understanding the context within which ‘a point of law’ could be reviewed by the Court of Appeal (Inferior Jurisdiction). This will be supplemented by an assessment of concrete situations wherein the Court held itself competent to hear an appeal from Tribunal decisions. Armed with this information, the study moves on to provide a meaningful definition of ‘a point of law’.