According to Article 39 of Chapter 551 of the Laws of Malta, judicial review in planning law is primarily concerned with ensuring legal compliance, not with revisiting the factual determinations made by the EPRT. In other words, courts should interpret the law, not re-assess the facts that the Tribunal members have already evaluated. However, a recent judgment in Michael Cini u Prof. Michael A. Borg vs L-Awtorita’ tal-Ippjanar (App. 27/24) raises a critical question: when does judicial review cross the line from legal scrutiny into factual determination? This case presents a dilemma about the court’s role in reviewing factual matters and whether its intervention was justified under the principle of reasonableness.
As I said, judicial review is supposed to focus on the application of the law rather than engaging in fact-finding, which is typically the domain of expert tribunals. In this case, the court intervened by declaring that it was “obvious” from photographs that the development involved two floors. While, at first glance, this might seem the logical thing to do, it raises a serious issue: should the court be re-evaluating the facts after the tribunal has already assessed them? When does judicial review go beyond ensuring legal compliance and begin to question facts that experts have already evaluated?
The Wednesbury test, therefore, comes to mind, though no reference to same was made in the judgment. According to this test, a decision is unreasonable if it is “so unreasonable that no reasonable authority could have made it.” Indeed, the Wednesbury test sets quite a high bar, requiring that the decision be manifestly absurd before judicial intervention is justified. Conversely, if the tribunal’s factual conclusions were not so manifestly absurd, the court’s involvement may have been unwarranted.
All this being said, in the case of Appell Nru. 27/2024, there is no explicit reference as to whether the test for unreasonableness was relied upon by the court and if that is the case, what threshold was used. This leaves some uncertainty.
What I am saying is that if an EPRT decision is deemed unreasonable, the court must clearly specify the threshold it is applying to justify its intervention.
