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Recent Development Planning case law

What follows is a resume’ of judgements deliverd by the Hon. Mr Justice Mark Chetcuti, in early May 2013.

Until some months   ago, appeals from decisions of the Environment & Planning Review Tribunal (EPRT) were decided by (the late) Mr Justice Raymond C Pace. This being practically the first batch of judgements delivered by Mr Justice Chetcuti, I thought it would be interesting to see how he would approach certain issues.

 

Anonymous third party appeals to be disregarded

Peter Bugeja v. MEPA  (Appell Civili Numru. 196/2012)

The Court of Appeal observed that an error of fact could amount to a point of law (from which one could appeal to the Court of Appeal) only when this fact is either ignored, or wrongly applied, is the main determining factor on which the decision of the EPRT hinges. This particular case concerned the ordering by the EPRT, to MEPA to approve a permit for a chance of use from a garage to a fish shop. The EPRT observed that there were no third party objections to this proposal, whereas in reality there were such objections. The Court of Appeal observed that these objections were all of an anonymous nature, and therefore the EPRT was correct to disregard them: when the author does not identify himself, the motives behind the letters remain unknown, and therefore the letter should not be given consideration and weight.

 

 

 

Applicability of laws, policies, briefs etc

Joseph Tanti v MEPA  (Appell Civili Numru. 2/2012)

An application for development permission was decided in the light of the Qawra Development Brief. Appellant submitted that he lodged his application for development permission before the Brief in question came into force. The Court of Appeal confirmed that the Development Brief came into force after the application for development permission was lodged. This notwithstanding, the Court of Appeal held that according to established jurisprudence, the Board applied laws and policies in force at the time that it was taking its decision on the application.

 

Charles Ellul v MEPA (Appell Civili Nru 79/2011)

Appellant submitted that he was prejudiced by the fact that his appeal took 2 ½ yrs to be decided, in which time the laws changed to his detriment. The Crt of Appeal dismissed this plea, in the process confirming that the appeal had to be decided based on the laws, plans etc at the time that the appeal is being decided, irrespective of whether or not they favour the appellant.

 

 

 

Claimed breach of FHR

Lawrence Fino v. MEPA (Appell Civili 126/2012)

Court of Appeal upheld a claim that the EPRT applied a policy exclusively, to the extent that it did not consider certain pleas raised by the appellant, the consideration of which could have led it to a different conclusion.

 

Appellant claimed a breach of human rights, but the Court of Appeal deemed that it was not the correct forum to handle such matters:

 

‘Ghalkemmhudmir ta’ kulhadd li jittiehdu in

konsiderazzjoni d-drittijiettal-bniedemperodaniridisirfilparametrital-ligijiet li qedjiguapplikati u f’dawnilproceduridik hi l-unikakonsiderazzjoni li tista’ ssirghaldan l-aggravju. Jekk appellant jivvantaksur tad-drittijiet, iridjiehu l-passiopportunifis-sedeappozita li tisma’ dawn il-lanjanzi.’

 

Joseph Genovese v. MEPA (Appell Civili 47/2012)

Application for reference to the Constitutional Court on the basis that appellant’s right to enjoyment of property is being breached, was considered as satisfying article 46(3) of the Constitution, in the sense that although the EPRT was not a Court, the request for referral to the Constitutional Court was not made before the EPRT, but before the Court of Appeal. However, the Court went on to deny the request because it was considered to be frivolous and vexatious. The Crt of Appeal described ‘frivolous’ as something ‘superficial’ and vexatious as something intended to merely prolong proceedings:

 

‘Bi frivola l-ligi qed taghti x’tifhem li t-talba hi fiergha, bla ebda siwi jew serjeta jew li hi superficjali. B’vessatorja l-ligi qed tifhem illi t-talba tkun saret bi skop li ddejjaq jew ittawwal bla bzonn il-proceduri a skapitu tal partijiet l-ohra fil-vertenza u tal-gustizzja in generali.’

 

 

 

Court of Appeal will not review the chosen interpretation of a policy by the EPRT

Etienne Dalli v. MEPA (Appell Civili Numru 141/2012)

Appeal from the interpretation of a policy by the EPRT. The Court of Appeal stated that this is the EPRT’s remit and it will not review the interpretation chosen by the EPRT unless it amounts to a manifestly unjust decision; in this regard the Court of Appeal quoted from Joseph Mifsud v DCC (Court of Appeal 30.05.1999).

 

 

 

Different treatment of similar applications is not an acceptable ground of appeal

Karmenu Farrugia v. MEPA (Appell Civili 14/2012)

Appellant claimed discrimination, in the sense that the EPRT decided his case differently from another one. The Court of Appeal deemed this to not amount to an appeal from a point of law decided by the Tribunal, citing  Joseph Bezzina vs

Kummissjonighall-Kontrolltal-Izvilupp, deciza fil-11 ta’

Gunju 2001:

 

‘Huwa evidenti li dana l-aggravju basiku ta’ l-appellant ma

jista’ qatt jinkwadra ruhu fil-parametri strettissimi mposti

mil-ligi fil-frazi “punti ta’ ligi decizi mill-Bord”…’

 

Appellant also claimed that the EPRT based its ruling on mistaken facts. The Court of Appeal stated as follows:

 

‘L-appellant jilmenta illi t-Tribunal ibbaza d-decizjoni tieghu fuq fatti zbaljati. Dan l-aggravju jimmeritah konsiderazzjoni jekk id-decizjoni tat-Tribunal kienet mibnija esklussivament jew almenu principalment fuq dawn lallegati

Fatti zbaljati u kienu determinanti ghad-decizjoni

Tieghu ghax jekk dan jirrizulta li hu l-kaz allura l-bazi legalili fuqha tkun issawret id-decizjoni hu ’unsound’ minhabba kostatazzjoni ta’ fatti zbaljati li waslu ghad-decizjoniu kwindi ghandha tigi mwarrba.’

 

Mark A Farrugia v. MEPA (Appell Civili 134/2012)

Appellant inter alia pleaded that his application should have been treated like another identical one had been. The Court of Appeal observed that appellant was claiming that in determining an application, a precedent had been set. It observed that the Doctrine of Precedent was not observed by the Courts in Malta, and the Tribunal had to keep well in mind the difference between the effect of precedent on the one hand, and a claim for equal treatment on the other hand. The Court further observed that permits do not set a precedent, and every application had to be decided on its own merits, and in accordance with the laws, polices, applicable at the time.

 

 

 

Disagreement with the conclusion of the EPRT on a particular plea is not a ground for appeal to the Crt of Appeal

Dr Simon Mercieca v. MEPA (Appell Civili Numru. 123/2012)

One of the grounds of appeal involved commitment and equal treatment. The Court distinguished between a scenario where the EPRT disregarded a plea of commitment, and another scenario where the EPRT considered the plea and concluded that there was no commitment in the particular case. While the former could give rise to a right of appeal to the Courts, because it is a point of law and therefore the decision of the EPRT on this matter has to be well motivated,  the latter scenario did not give rise to a right of appeal to the Courts. The Court of Appeal concluded that in the case before it, the EPRT had considered all the elements and concluded that there was no commitment. The Court of Appeal concluded that there was no basis on which to review the EPRT’s ruling.

 

Lorraine Micallef v. MEPA (Appell Civil Numru 153/2012)

The Court of Appeal refused to consider the appeal because it was satisfactorily dealt with by the EPRT.

 

 

 

Doctrine of commitment

Anthony Attard v. MEPA (Appell Civili Numru 143/2012)

The Court of Appeal handed down what one may consider to be an important judgement, where commitment is concerned:

 

·         Commitment and equality are relevant considerations;

·         These ‘relevant considerations’ are however subordinate to the duty of the Autority and of the EPRT, to first and foremost apply and not just ‘consider’ plans and policies in the process of determining an application.

·         ‘Other considerations’ may only be taken into account outside the parameters of the plans and policies where the same law, plan or policy allows exceptions, or where the law, plan or policy permits the use of discretion in the interpretation or generally in regard to the application where these provide guidance or help.

·         This is the interpretation to be given to the law insofar as applications which are still pending, or decided after the provisions of Cap. 504 came into force;

·         The Court of Appeal further observed that it is aware of the existence of other court judgements which subordinated plans and policies in the sense that the latter had to be interpreted in such a way as that they had to give consideration to existing commitment on site. The Court stated its disagreement with these judgements, since the law was clear in this regard.

·         The Court further observed that the application went against plans and policies. In spite of the realities on site, the local plan as it exists today imposes certain criteria which have to be applied and observed ad unguem(to perfection).

·         The Court further observed that the EPRT did consider the issue of Commitment, but dismissed it according to the correct interpretation of art. 69 of Cap.504, applying and abiding by the local plan for the area in question. The Court ruled that there was no justification (eg gross error in the interpretation given by the EPRT) for it to review the interpretation and application of plans and policies adopted by the EPRT in the case befor it.

 

Roderick Cutajar v MEPA (Appell Civili Nru 44/2012)

The Court once again had to decide a plea concerning the doctrine of commitment. The Court of Appeal confirmed that the Authority and the Tribunal are obliged in terms of art. 69(1) to apply plans and policies, even though the Authority and the Tribunal via art. 41 (13) may even give weight to relevant considerations.

 

 

 

EPRT not giving due consideration to submissions

Grezzju Axiaq v MEPA  (Appell Civili Numru. 13/2012)

This was an appeal from a refusal of an application to sanction cold stores and freezers in Zabbar. Appellant submitted that the EPRT did not give due consideration to his submissions on commitment. The Court of Appeal emphasised that it does not consider questions of fact; it considered the value, appreciation and weighting of proof submitted before the EPRT, by same the EPRT, to be a question of fact (in the absence of gross, manifest errors rendering a decision annullable). Issues involving ‘commitment’ and ‘equal treatment’ were based on facts, which it was up to the EPRT to consider. Once the EPRT does consider these matters, there is no appeal simply because one does not agree with the conclusion of the EPRT.  Appellant submitted that the EPRT did not decide on the matters of commitment and equal treatment, but the Court of Appeal observed that, the EPRT requested the appellant to prove certain statements, something he did not do, and therefore the EPRT did not consider the matters further, on the basis of lack of evidence. The Court of Appeal held that under the circumstances, since the appellant did not furnish the necessary proof to back the submissions he made before the EPRT, he could not expect the EPRT to rule on the questions of commitment and equal treatment.

 

John Cassar v. MEPA (Appell Civili Numru 162/2012)

EPRT did not consider all the points raised by the appellant. This amounts to a valid ground of appeal as stated in Grace Borg v MEPA (22.10.2009). Reference was also made to Michael Gatt v. MEPA (Appeal 19.11.2001), on which occasion the Court held that the Board of Appeal cannot rest its decision on one legal principle which does not of its very nature exclude all other considerations, while ignoring other legal matters which are just as easily applicable, brought before it for its consideration. When it does so it fails to act in a legally coherent and correct manner.

 

Ray Aquilina v. MEPA (Appell Civili Numru 142/2012)

Once again the doctrine of commitment was brought up. However, the Court of Appeal referred to scenarios where a plea is decided on, as opposed to scenarios where a plea is cast aside without being considered, effectively being ignored. The Court explained that where a plea is decided, it will not review it unless there is a case of manifest unjustness or of a clear error being committed by the Court of Appeal. In the second scenario (where a plea is not considered), the right to a fair hearing includes the right to be heard in all that is essential to the matter being debated, and the right to be given satisfaction as to why one’s appeal is being dismissed. The Court further observed that this does not mean that every aggravation must be addressed on pain of nullity, but that nullity arises where only one issue is considered and decided upon, ignoring other issues which are of equal importance and which merit equal consideration, and the consideration of which could lead the EPRT to a different conclusion.

 

Lawrence Fino v. MEPA (Appell Civili 126/2012)

Court of Appeal upheld a claim that the EPRT applied a policy exclusively, to the extent that it did not consider certain pleas raised by the appellant, the consideration of which could have led it to a different conclusion.

 

Appellant claimed a breach of human rights, but the Court of Appeal deemed that it was not the correct forum to handle such matters:

 

‘Ghalkemm hu dmir ta’ kulhadd li jittiehdu in

konsiderazzjoni d-drittijiet tal-bniedem pero dan irid isir fil parametri tal-ligijiet li qed jigu applikati u f’dawn il proceduri dik hi l-unika konsiderazzjoni li tista’ ssir ghal dan l-aggravju. Jekk appellant jivvanta ksur tad-drittijiet, irid jiehu l-passi opportuni fis-sede appozita li tisma’ dawn il-lanjanzi.’

 

 

 

EPRT ruling unclear and insufficiently motivated

Salvino Borg et v. MEPA et (Appell Civili Numru. 102/2012)

The decision of the EPRT was annulled by the Court of Appeal because it was not clear and not motivated.

 

Doris Grech v MEPA (Appell Civili 22/2012)

The PAB had dismissed a number of pleas on the basis that they were of a civil nature. The Court of Appeal overturned this ruling because it felt that the Board had dismissed the pleas in too light a manner, thus rendering the decision ‘unsound’ from a legal perspective.

 

Joseph Cascun v. MEPA (Appell Civili Nru 24/2012)

Appeals tribunal rulings have to be motivated. The Court referred to Michael Gatt v. MEPA (19.11.11) :

 

‘Allura biex issir gustizzja mal-partijiet, dik it-tezi kellha tigi nvestigata sewwa u l-kwistjoni dibattuta bejn il-partijiet kellha tigi epura ta u deciza b’motivazzjoni debitament studjata biex taghti sodisfazzjon anke lill-parti telliefa, u

Mhux tigi dik it- tezi semplicement skartata b’zewg kelmiet. Naturalment il-Qorti tifhem li l-Bord huwa, bhal din il-Qorti, mghobbi b’numru kbir ta’ kawzi li wiehed ikun irid jaqtaghhom fi zmien ragonevoli. Pero’, il-process tal-gustizzja

huwa fin u delikat, li rarament ikollu success

meta wiehed jaghzel li jimxi fit-triq il-qasira biex jasal malajr. Min hu mghobbi bir-responsabilita’ tal-gudizzju ma jistax jiehu “short cut” fejn il-gustizzja ma tkunx tippermettilu li jaghmel dan...’

 

The Court of Appeal found the EPRT judgement lacking in this regard, and overturned it on the basis of the first plea, without even considering the second plea.

 

 

Salvino Borg et v MEPA (Appell Civili Nru 103/1012)

EPRT ruling lacked clarity to the point that the right to a fair hearing could be compromised. Therefore, the ruling was annulled.

 

Ray Fenech v. MEPA (Appell Civili Nru 43/2011)

EPRT confirmed a MEPA decision which was not at all clear. The Crt of Appeal did not accept this and overturned the EPRT’s ruling.

 

Andrew Camilleri v MEPA (Appell Civili Numru 161/2012)

On the question of failure to give consideration to pleas raised by the appellant, the Court of Appeal made a distinction between pleas which are considered and cast aside, and those which either are not considered or are considered so superficially that they were practically not considered at all. On commitment, the Court of Appeal remarked that this is a relevant consideration for the purposes of 69(2), which is subordinate to 69(1). The Appeal was upheld on the basis that the EPRT failed to give legal reasons to justify its ruling.

 

 

 

Lodging more than one (identical) application

Michael Farrugia v. MEPA (AppellCiviliNru 53/2012). Also Appell Civili Nru 56/2012.

Right of registered third parties to appeal, reconfirmed.

 

The issue concerned the developer, who lodged two applications with MEPA concerning the same plot, from which the third party lodged two objections. Eventually two appeals were heard by the EPRT. The Court of Appeal deemed this to be a highly undesirable situation, but held that the most practical solution was to annul the second decision and only consider the first one to be valid.

 

 

 

Miscellaneous

Ian Magro v. MEPA (Appell Civili Nru 122/2012)

Nothing of particular importance.

 

Carmelo Vella v. MEPA (Appell Civili Nru 121/2012)

Nothing of particular importance.

 

Jimmy Vella v. MEPA (Appell Civili Nru 67/2012)

Nothing of particular importance.

 

Frank Vella Bardon v. MEPA (Appell Civili Nru 67/2011)

Nothing of particular importance.

 

Christian Micallef v. MEPA (Appell Civili Nru 36/2012)

Nothing of particular importance.

 

Mario Borg v. MEPA (Appell Civili Nru 15/2012)

Nothing of particular importance.

 

Oliver Zammit v. MEPA (Appell Civili 11/2012)

Appeal lodged out of time.

 

George Catania v. MEPA (Appell Civili 18/2012)

Nothing of particular importance

 

 

 

Non-observance of time limits laid down in the law

Joseph C Grech v. MEPA (Appell Civili Nru 23/2011)

Appellant was seeking the annulment of a Scheduling Order, on the basis that the reconsideration of this order was not concluded within three months as the law requires. The PAB, and the CoA agreed, held that the fact that a few months lapsed from the three months stipulated in Cap 504 art 46(8), does not lead to nullity. Nullity must emerge from the law, and there is no way, as the law stands, that this three month period can be regarded as a ‘terminu ta’ dekadenza’.

 

 

 

Retrial

Leonard Cassar v. MEPA (Appell Civili Nru 52/2001/1)

Application for retrial, denied by the crt.

 

Joseph Gauci v. MEPA (Appell Civili Nru 9/2012/1)

Application for retrial upheld. The bottom line was that an appeal to the PAB was lodged out of time: the time limit observed was that established in Cap 504, which in fact dealt with appeals from the EPRT; appeals from the PAB were regulated by the old law cap 356. The wrong law was applied. The appeal was out of time as a consequence. This contention was an acceptable basis for retrial under COCP art 811.

 

 

 

Rikuza (challenge) of EPRT members

Carmel Vella noe v. MEPA (Appell Civili 17/2012)

The Crt of Appeal went into the issue of rikuza(challenge). It held that the fact that a member of the EPRT had been on the panel which decided another case was not a basis for objecting to him sitting on this panel, in terms of art. 734 COCP.

 

 

 

Submitting to planning policies does not amount to a breach of one’s right to property

Austin sive Agostino Xuereb v. MEPA (Appell Civili Numru 147/2012)

Appellant claimed that his vested right to property was infringed by the EPRT. The Court disagreed deeming that the fact that the developer had to apply for a development in accordance with policies in vigore did not amount to such a breach.

 

 

 

Third party  rights

Michael Farrugia v. MEPA (Appell Civili Nru 53/2012). Also Appell Civili Nru 56/2012.

Right of registered third parties to appeal, reconfirmed.

 

The issue concerned the developer, who lodged two applications with MEPA concerning the same plot, from which the third party lodged two objections. Eventually two appeals were heard by the EPRT. The Court of Appeal deemed this to be a highly undesirable situation, but held that the most practical solution was to annul the second decision and only consider the first one to be valid.

 

 

 

 

 

 

 

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