One of the most persistent grievances voiced by those who come into contact with the Planning Authority—whether as architects, developers, or ordinary landowners—is the sense of unequal treatment. “The one across the road got a permit, and I didn’t—how is that not discrimination? I am more than willing to go straight to Europe.” It is a sentiment heard repeatedly. The idea that two applicants, with similar proposals (or, quite) and similar sites, can receive radically different outcomes has long fed a quiet sense of injustice. And yet, planning law in Malta has rarely—if ever—acknowledged discrimination as a legal ground of complaint.
Until, that is, a few years ago, when the First Hall of the Civil Court took the unusual step of awarding damages on precisely that basis. The plaintiffs in Leonard Cutajar et vs Planning Authority had submitted multiple development applications over the years for land now occupied by the Lidl supermarket in Luqa. All their proposals were rejected. Then, following the sale of the same land, a new applicant succeeded—on the very same site, with a far more intensive use. The Court found that this amounted to discriminatory treatment and ordered the Authority to pay €331,295 in damages. It was a bold decision, legally unconventional, but grounded in a frustration long felt by many: if rules apply differently to different people, where does equality before the law stand?
At one point, the Planning Authority considered the land inappropriate for development. It refused applications for ‘modest’ uses such as a garden centre and nursery, citing objections tied to proximity to airport safety zones and the lack of appropriate road access. These were not discretionary hesitations—they were categorical rejections, presented as matters of principle. But years later, when the same land was bought by another party and a permit was sought for a LIDL supermarket, those same principles suddenly lost their force. The objections were no longer determinative. The Authority approved the development.
So are we saying that discrimination arises the moment the Authority raises objections based on a planning principle—such as airport safety or access—and those same principles are later viewed differently, or discarded altogether, in favour of a different applicant? That is precisely the essence of the First Hall’s reasoning. The injury, in the Court’s view, lay not in the denial of a permit per se, but in the Authority’s unexplained reversal of position. Once a principle has been deployed to refuse one application, it cannot be quietly set aside for another without offering a clear and reasoned justification. If it is, the Authority risks acting arbitrarily—and where arbitrariness becomes selective, it begins to look like discrimination.
This line of reasoning is highly unusual in planning law. First of all, discrimination in the constitutional sense typically refers to differential treatment based on personal characteristics such as race, sex, or political opinion. But the Court here relied on a broader understanding: that the principle of equality before the law includes the right to consistent treatment from public authorities, particularly when dealing with materially identical facts. In this broader view, inconsistency—where it is unexplained and unjustified—can itself become a constitutional wrong.
One need not agree with the doctrinal stretch to acknowledge its conceptual force. Yet, planning law does not operate in a vacuum. It is administered by public authorities bound by law to act rationally, transparently, and fairly. If an authority applies the same policies to similar applicants in different ways, it owes the public an explanation. Without one, the very legitimacy of discretionary planning collapses into suspicion. This is what the First Hall recognised, and it is what gives the judgment its enduring academic interest—even though it was ultimately overturned.
On appeal, the Court of Appeal did not address the substance of the discrimination claim. It found that the case had been filed too late. The plaintiffs had two years to bring their claim from the date on which the Lidl development permit was granted, in April 2007. Instead, they waited until August 2011, arguing that the clock should have started when the Planning Ombudsman later found there had been unequal treatment. The Court was not persuaded. It held that the plaintiffs were not legally prevented from acting earlier and that proceedings before the Ombudsman, however authoritative, do not suspend prescription under Maltese law.
That decision, while procedurally orthodox, left many uncomfortable.
There is the first legitimate question to be asked: should people who pursue institutional redress in good faith—such as by filing a complaint before the Ombudsman—be penalised for waiting for a formal outcome before taking legal action? Should such proceedings suspend or interrupt limitation periods? The present legal framework offers no such protection, but perhaps it should. At the very least, the case highlights the growing disconnect between the public’s expectations of fairness and the legal system’s treatment of time-barred claims.
On perhaps a more relevant note, despite its procedural demise, the First Hall’s reasoning deserves to be studied. It invites us to ask whether planning decisions, often treated as technical exercises in policy compliance, are immune from constitutional scrutiny. If the law guarantees equality before public authorities, does that not include the right to expect consistent application of policy? Can the planning authority rely on the same principles to block one development and then ignore those principles entirely when a more commercially powerful applicant appears?
These questions are not going away.
