Justice on Trial

Planning tribunal falls way short of constitutional standards on independence and effective remedy

In law and procedure tribunal is neither “independent” nor “impartial”
Analytical Points
  • Law: Environment and Planning Review Tribunal Act (Chapter 551)

  • Entity: Environment and Planning Review Tribunal

  • Composed: Three members, two architects/planners and a lawyer

  • Violations: Right to a fair hearing, right to an effective remedy, prohibition of discrimination, European Convention of Human Rights; effective legal protection, Treaty on European Union.

The relatively rare suspension of works in the case of a planning permit for a block of 54 flats at Ta Zejta Valley has drawn attention to the tribunal’s regular failure to suspend works during the course of appeals more widely, as provided in law.

The appeal against flats at Ta Zejta was filed by Mr Justice Grazio Mercieca – Din L-Art Helwa then joined the case – and the tribunal suspended the works over fears that excavation works would damage the aquifer.  The development belongs to property magnate Joseph Portelli and two other business partners in Gozo.

The Environment and Planning Review Tribunal (EPRT) had its remit expanded in 2016 with the passage of a new law that regulates its setup and operation. The bulk of its work is to hear appeals against planning permits, but confidence in its effectiveness has fallen low never unseen before. Environmental NGOs lament that it does not offer a real remedy to bad or perverse decisions by the Planning Authority, and citizens who appeal overwhelmingly come out of the appeal feeling disillusioned.

The tribunal’s reputation has also suffered by regular trouncing in the Court of Appeal, which is the court that hears appeals from the tribunal’s decisions. In one judgement ten months ago, for example, the Chief Justice revoked a permit and then sharply wrote: “The tribunal cannot decide on hypothesis and neither on what the [planning] policy does not say.”  In that case, the tribunal agreed with the Planning Authority’s misrepresentation of a policy in delivering a permit. (Appeal No 24/2021; decided 9 December 2021; Mark Chetchuti.) 

Construction often completed before tribunal decides appeal

Among the elements that rankle with appellants is the tribunal’s tendency to allow construction to go ahead while the appeal is heard. The tribunal usually only suspends the execution of the permit in certain instances – examples include the development being in the countryside or in heritage conservation areas. This means that in many cases construction would have proceeded by the time the appeal is decided, something that in most appellants’ estimation makes the appeal pointless.  

Construction of block of flats completed before appeal judgement is delivered.

Suspension of execution of the permit is regulated by Article 33 of Cap 551, which specifies that a request for suspension has to be filed concurrently with the application on the merit, and the tribunal would first take a partial decision on suspension of works.    

In deciding on suspension, the law specifies two considerations:

  1. That the prejudice to the appellant from non-suspension would be proportionally greater than the prejudice suffered (presumably by the permit holder, wording of law is not clear) if the works are not suspended;
  2. Regard to whether the “development may be easily removed or reversed or that the request is frivolous of vexatious.”

Weighing these two considerations suggests that works on all developments that are not easily removed – such as buildings – ought to be disallowed from commencing during the appeal proceedings.

But most works are not suspended, and many buildings are actually constructed – or would have reached an advanced stage of construction – by the time the appeal is decided.

This then raises another legal complication: the likelihood of enforcement of judgement in the event that the tribunal, or eventually the Court of Appeal, revokes the permit.

If the permit is revoked, how would the judgement be enforced and building removed? 

This is not just an academic point: the lack of, or the difficulty of, enforcement of judgement is an extension of the violation to the right to fair hearing (Article 6 of the Convention) in the jurisprudence of the European Court of Human Rights.

Block of flats at advanced stage of construction by time appeal was decided

Neither does the appellant have any effective remedy from the tribunal’s failure to suspend the execution of the permit during appeal. This is because Article 51 of Cap 551 specifies that an appeal against the tribunal’s decisions pursuant to Article 33 – suspension or otherwise of execution of permit – can only be appealed at the Court of Appeal together with an appeal from the final decision on the (merit of the) appeal. And by that point, with construction advanced or completed, most appellants see no point in appealing against a decision not to suspend works (once the construction is completed in any case). 

As such, this is one of the elements in the tribunal’s workings – the failure to suspend works in accordance with law, the law’s failure to provide a chance to appeal from that decision when it is still pertinent to do so – that is in breach of the right to effective remedy, Article 13 of the European Convention of Human Rights and, separately, Article 19 of the EU Treaty.  

Tribunal neither independent nor impartial

The first article of the Environment and Planning Review Tribunal Act after the definitions, Article 3, specifies that the tribunal has to be “independent and impartial” in its task, which is to “review the decisions of the Planning Authority and the Environment and Resources Authority.”

Extract of Article 3 Cap 551

Yet the chairperson of the tribunal have tended to be longtime Planning Authority officials. The previous chairperson of the tribunal, Martin Saliba, was an employee of the authority and – after his stint at the tribunal – became Executive Chairperson of the Executive Council of the Planning Authority. The present chairperson, Joseph Borg, was a longtime Planning Authority official that took five years unpaid leave from the authority to serve on the tribunal. (He has now resigned from the Planning Authority after being challenged by environmental NGOs.)  

One of the points here is that after many years being involved in the formulation and interpretation of planning policies within the Planning Authority, you become imbued with the disposition or ethos of the authority. Moreover, if you are an architect who works in planning and got used to being a civil servant – hence also imbued with the ethos of a civil servant – there is probably not many places you can go, career-wise, after your stint at the tribunal other than back to the Planning Authority.

Empirical evidence suggests that this fosters a predilection or predisposition to interpret policies in the same way that the authority does – and that raises doubts about the tribunal’s ability to independently review the authority’s decisions. This does not apply in all cases – there are indeed some case where the tribunal overturned permits – but the tendencies or trends are unmistakable.   

This can also be seen in instances in which the tribunal takes decisions as though it was an extension of – and department within – the Planning Authority. In a case (Appeal No 67/21) investigated by this website earlier this year, for example, a developer who appealed against refusal of permit then requested during the appeal to have the case sent back to the Planning Authority for a fresh decision after loping off a floor from the proposed block of flats. The tribunal acceded to the request after an objector who associated himself with the case did not oppose the move. Yet the move has no legal basis in the law that regulates the tribunal and, more broadly, judicial procedure. (Article 51 of Cap 551 does empower the tribunal to refer a case back to the Planning Authority, but it has to follow a reasoned procedure initiated by the tribunal and only as far as "substance of the matter as presented in front of the Planning Authority shall not change" – in this case the tribunal simply sent the file back on summery request by the developer's (appellant) lawyer. The Planning Authority has now delivered permit, last week, and the objector told this website that he will be appealing against the permit.) 

Prime minister’s discretion over appointment and removals

The law that sets and regulates the tribunal aspires towards the judicial standards of independence and impartiality – see extract of Article 3 of the law above. On the tribunal’s website, there is also the logo of the Court of Justice, and the website is part of the network of websites of the “The Judiciary Portal.”

Yet the appointment and removal of members of the tribunal does not adhere to judicial standards of independence and impartiality. The law specifies that the three members of the tribunal are appointed for a period of five years, and then “may be reappointed for another term of five years.” The formality of appointment is vested in the President, acting on the advice of the Prime Minister. In practice this means that the prime minister has total discretion on whom to nominate, and the president simply formalizes the prime minister’s choices by administering the appointments.  

Tribunal members may also be removed by advice of the prime minister before their term is up for various reasons, including “for a just cause.” The law does not oblige the prime minister or president to publish the prime minister’s reasons under the ‘just cause’ criteria.

All of this means that the prime minister has unfettered discretion in appointment and removal of members of the tribunal.

Office of the Prime Minister

Article 10 of the Environment and Planning Review Tribunal Act, which sets up and governs the operability of the tribunal, also gives power to the prime minister to formulate regulations on procedures of the tribunal. Among these are regulations in which the prime minister gets to “establish which procedures of the Code of Organisation and Civil Procedure [COCP], if any, not mentioned in this Act, are to apply to the procedure before the Tribunal.” The COCP is the legal instrument that regulates court procedures.

Such unfettered discretion in appointment, removal, and choice of procedural law elements vested in the prime minister cannot be said to be compatible with the independence and impartiality specified in law. Neither does it reach the standards of objective impartiality fleshed out voluminously in the jurisprudence of the European Court of Human Rights and the European Court of Justice.  

Constitutional experts fear double jurisdiction and lack of independence

In three of its reports into strengthening rule of law in Malta in the past few years, the Venice Commission – officially known as the European Commission for Democracy through Law – drew attention to the problem of “double jurisdiction” inherent in the system of tribunals in Malta. 

The last time it mentioned this, it said that its earlier reports had “noted that Malta has a surprisingly high number of specialised tribunals adjudicating in specific areas”, including the Environment and Planning Review Tribunal.

The Venice Commission added: “Many of them have special appointment procedures involving the executive power. As these tribunals do not enjoy the same level of judicial independence as that of the ordinary judiciary, the Commission saw a danger of parallel jurisdiction and offered its advice on whether the establishment and jurisdiction of these tribunals raise constitutional questions. This offer remains valid.”

Last month's plenary of the Venice Commission

The nuance in the Venice Commission’s assessment is a reflection of the jurisdiction of the European Court of Human Right. That court has said that the appointments and removal of members of administrative tribunals does not necessarily have to conform with judicial standards of independence for as long as their decisions can be appealed in higher, independent courts. And in this sense the Venice Commission, while recognizing that problems exist in Malta, has been offering to look at the tribunals more profoundly, possibly on a case-by-case basis.

When it comes to the planning tribunal, the law itself says the tribunal has to be independent and impartial, and that means it has to adhere to standards that at least approach the judicial rules or standards.   

Moreover, while it is possible to appeal against its decisions in front of the Court of Appeal, Article 50 of Cap 551 specifies that appeals can only be “on points of law.” And although what constitutes ‘points of law’ can be fluid – it is subject to much legal debate and jurisprudential exposition – what is certain is that this narrows the scope of appeals to a certain extent.

Yet the Maltese government repeatedly ignored the Venice Commission on this point, and keeps ignoring repeated calls – the latest one in a resolution of the European Parliament on 20 October 2022 – to implement all the recommendations of the Venice Commission.

Is the tribunal needed?

The Venice Commission’s point on double jurisdiction raises questions on whether the tribunal is needed – and whether, more importantly, it undermines rule of law.  

There are three possible ways to challenge planning permits, and two of those existed before the tribunal was set up. Chief among the latter is the so-called judicial review – Article 469A of the Code of Organisation and Civil Procedure (Chapter 12) – allowing a challenge to a planning permit for reasons ranging from non-observance of planning policies to failure to observe procedure, as well as breaches to constitutional safeguards or other laws.

However, 469A cannot be employed if a judicial review can be had via another law and system, and as such appellants are compelled by law to appeal against planning permits in front of the planning tribunal.  

Yet another possibility is Article 402(1) of the Civil Code (Chapter 16), which deals with easements, and which has been employed by neighbours of sites given permit against policy to get such permits revoked.

So far it has only been used by neighbours, hence plaintiffs who have obvious juridical interest for being directly impacted by approved development due to proximity. A point that arose in one such case was whether someone who lived 80 metres away could be considered a neighbour who had juridical interest. Initially, the lower constituonal court (Civil Court, First Hall, constitutional jurisdiction) held that the plaintiff who lived 80 metres away could not be considered an injured party due to distance. But the Court of Appeal (superior section) overturned the lower court’s partial judgement (Court of Appeal: 502/14AE).

The lower constitutional court eventually revoked the permit in its judgement on merit (delivered on 11 October 2019) on the basis that the development permitted did not respect the height limitation in a policy document called DC15 (Case Ref: 502/2014MH). This case was brought against the permit holder, not the Planning Authority.  

Another recent judgement (Case No 1836/95GM) – delivered on 21 March 2021 in the Civil Court, First Hall, by Mr Justice Grazio Mercieca – held that regulations that limit the height of buildings in a particular area create a “reciprocal easement of altius non tollendi between the respective buildings.”

Extract from case 1836/95GM

‘Altius non tollendi’ refers to an easement or servitude that places a restraint on the height of one’s building.

The two cases mentioned above dealt with buildings heights, which demonstrates that lawsuits invoking Article 402(1) of Cap 16 have to latch onto clear-cut elements of planning policy – such as height limitations – to be successful. Such cases are less likely to be successful if they latch on policies that are subject to interpretation or discretion, although in such cases the degree of discretion exercised may be a determining factor.  

Yet the question here is whether the tribunal is needed particularly in view of the fact that 469A already offered the possibility of judicial review of planning permits. Perhaps a more crucial question is whether having the tribunal, and in the process closing off the 469A avenue, has undermined the constitutional safeguard of the right to an effective remedy, as argued in this article.  

Does the law discriminate on access to tribunal?

Article 11(e) of Cap 551 says that only those who would have objected in writing during the consultation period on applications can eventually appeal against a permit issued by the Planning Authority in that application. It also says that this limitation does not apply to “any department, agency, authority or other body corporate wholly owned by the Government.”

This may be discriminatory in terms of Protocol No 12 Article 1 or Article 14 of the European Convention of Human Rights. It may also be incompatible with Article 13 – the right to an effective remedy – because an injured party who would not have submitted written objections would have no recourse to judicial remedy (or, as it is called in EU law, no effective judicial protection).

Article 76(3) of Cap 552 – the Development Planning Act – specifies that appeals have to be made in front of the planning tribunal, and this closes off the possibility of making use of 469A mentioned above (see 469A(4) of Cap 12 for further information). 

This means that if you are an injured party in the juridical or jurisprudential sense, you would have no recourse to judicial review of a planning permit unless you would have objected or registered your interest in the short period that an application is open for representations. This representation period is open prior to processing, and ranges from two weeks to one month, depending on the type of planning application. The only way to become aware of an application is to read about the application in Government Gazette or spot the site notice affixed to the site. The Planning Authority also delivers a notice to letter boxes in the same street. 

There is something amiss about the prerequisite of having to register yourself as an objector in writing even before an application is processed – let alone approved – to be able to appeal against any eventual permit. Added to this there is the discriminatory element: government entities can appeal in any case, irrespective of whether they would have objected or registered their interest in writing or not.

Jurisprudence of the European Court for Human Rights holds that a pleading of discrimination under Article 14 of the Convention can only subsist if there is a second concurrent violation. This element raises the bar for any court action (a concurrent violation may be the right to an effective remedy, but possibly only in certain circumstances).

Yet the point of this article is not to analyse any potential court actions on specific areas covered in this article, but to explore elements of the law and workings of the tribunal that appear to fall short of constitutional standards or safeguards.

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