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Partial annulment of a local plan

Malta, First Hall of the Civil Courts, 17 June 2013 (ref Falcon Investments Ltd vg. MEPA et, Citaz Nru 1198/2011) decided by the Hon. Mr Justice Anthony Ellul.

Plaintiff's site was marked in the 2006 Local Plan for San Gwann, as limited to two floors plus semi-basement, whereas other properties in the area were marked out as three floors. Furthermore, the existing building on the site in question, covered by the relevant planning permits, is of three floors. Plaintiffs submitted that this is unreasonable, and amounts to unjust discrimination in terms of article 13 of the European Convention on Human Rights. It was also claimed that this amounted to expropriation of property without compensation, thus running counter to the European Convention on Human Rights, Protocol One, article 1.

During the course of proceedings, an officer of the MEPA gave evidence to the effect that there are no records to shed light on why the height limitation on that particular building was reduced from three floors to two. It also emerged from the same evidence, that the draft published local plan did not indicate that the height limitation was to be reduced; therefore the plaintiffs had no opportunity to object to the reduction.

The Court accepted that the plaintiffs had no opportunity to contest this reduction in height limitation. It further stated:

'Certament li l-Qrati tal-Gustizzja ghandhom gurisdizzjoni li jistharrgu jekk fit-thejjija tal-pjan lokali l-Awtorita segwitx il-procedura kontemplata mil-ligi. Dan irrispettivament jekk l-ezercizzju jsir taht l-Artikolu 469A(b)(ii) tal-Kap. 12 (il-Qorti ghandha dubju serju kemm pjan lokali jaqa' fid-definizzjoni ta' eghmil amministrattiv) jew a bazi ta' principji ohra tal-ligi. Il-Kamra tad-Deputati bl-Att dwar l-Ippjanar (Kap 356) ta lill-Awtorita l-poter li taghmel pjanijiet sussidjarji ghall-Pjan ta' Struttura. Pero' l-legislatur ried li tigi segwita procedura partikolari qabel jigu addottati dawn il-pjanijiet... gialadarba l-pjanijiet sussidjarji jolqtu c-cittadin ghandu jinghata vuci u l-Awtorita' ghandha dmir li tisma' x'ghandu jghid. Fejn l-Awtorita' u l-Gvern ma jsegwux dak li jkun ipprovda ghalih il-legislatur allura jkunu qeghdin jagixxu ultra vires cjoe' lil hinn mill-poteri moghtija lilhom u kontra l-intenzjoni tal-legislatur... '

(Translation 'Certainly the Courts of Justice have jurisdiction to review whether, in the preparation of a local plan, the Authority followed the procedure laid down in the Law. The Courts have this power irrespective of whether or not it is acting under article 469A(b)(ii) of Chapter 12 (the Court has serious doubts about whether the preparation of a local plan can be considered as an administrative act) or on the basis of other principles of law. The House of Representatives, by means of the Law on Planning (Chapter 356 of the Laws of Malta) gave the Authority power to draw up plans subsidiary to the Structure Plan. However the law maker required that a particular procedure is followed before adopting these plans... once the subsidiary plans affect the citizen, the same citizen must be granted a voice and the authority has the duty to listen to what the citizen has to say. Where the Authority and the Government do not follow what is laid down by the law maker, they are acting ultra vires that is beyond the powers given to them and against the intentions of the law maker... ')

On the basis of the above, the Court declared null that part of the Local Plan stating that the particular building was limited to two floors plus semi-basement. It went on to specifically state that through this annulment the plaintiff was placed in the position it was in before this limitation was imposed i.e. the site in question was once again subject to a three storey development.

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