Bill 143 introduces a further development in Maltese planning law by formally recognizing planning circulars for the first time. The proposed Article 51A explicitly states:
“51A. (1) The Executive Council shall be empowered to issue circulars from time to time in order to provide guidance, instructions or clarification on the interpretation or application of any provision contained in the applicable laws or policies.
(2) The manner, form and mode of publication of such circulars shall be prescribed by regulations or as determined by the Executive Council.”
Historically, planning circulars have functioned as influential yet informal instruments in Maltese planning practice, although never previously acknowledged explicitly in legislation. Their role is not unique to Malta; the UK has long utilized similar circulars, which courts generally treat as authoritative government policy statements significantly influencing planning decisions.
Indeed, despite their informal status, Maltese courts have often recognized circulars as relevant interpretative tools when assessing the legality of planning decisions. Notably, in the case Francis Bonnici vs MEPA (Court of Appeal, 29 November 2012), a dispute arose concerning the Tribunal’s reliance on Circular PA 2/1996 in upholding a planning refusal. The Court explicitly affirmed:
“Tali ċirkolari jikkostitwixxu ‘konsiderazzjonijiet materjali’ skond id-dispozizzjonijiet tal-artikolu 69 (2) tal-Kap. 504.”
Translated:
[Such circulars constitute ‘material considerations’ according to the provisions of Article 69(2) of Chapter 504.]
Yet, in Emanuel Zammit vs MEPA (Court of Appeal, 11 December 2024), Chief Justice Mark Chetcuti explicitly distinguished circulars from formal policies or plans, emphasizing their limited interpretative role:
“Cirkolari la hi pjan u anqas policy fis-sens li jrid b’mod ċar l-artikolu 72(4) tal-Kap. 552.”
Translated:
[A circular is neither a plan nor a policy within the clear meaning required by Article 72(4) of Chapter 552.]
Similarly, in Martin Vella Pace vs MEPA (Court of Appeal, 20 January 2021), the Court stated that circulars serve purely as interpretative guidance and do not replace official policies or regulations:
“…ċirkolari hi intiża biss bħala gwida u ma tiħux post ir-regolamenti u policies.”
Translated:
[…a circular is intended only as guidance and does not replace regulations and policies.]
Conversely, in Anthony Spiteri vs MEPA (Court of Appeal, 28 January 2020), the Court gave circulars more authoritative status:
“Iċ-ċirkolari… hi direttiva jew direzzjoni ċara tal-Awtorità li għandha tiġi segwita f’applikazzjonijiet simili u mhux li tiġi injorata jew mhux segwita għal raġunijiet li ma joħorġux miċ-ċirkolari.”
Translated:
[The circular… is a clear directive or direction from the Authority that must be followed in similar applications and not ignored or disregarded for reasons not emerging from the circular itself.]
These conflicting judicial views underscore the inherent contradictions in treating circulars with substantial legal authority. For this reason, I remain skeptical about attributing significant legal weight to them. As clearly seen, circulars’ inherent flexibility could blur the boundaries of formal policymaking, fostering uncertainty.
Meanwhile, Bill 143 attempts to address these issues by explicitly recognizing circulars, but this alone does not provide clarity about their precise legal weight or authority. Perhaps the forthcoming regulations, as mentioned in Article 51A(2), should explicitly define the legal significance and role of circulars within the broader planning framework. In doing so, however, the Minister must carefully respect the overall structure and legal boundaries of the Development Planning Act itself.
