In the recent decision Mario Attard vs Awtorità tal-Ippjanar (App. 67/2024), the Court of Appeal (Inferior Jurisdiction) had occasion to revisit the delicate balance between procedural fairness and the autonomous reasoning powers of the Environment and Planning Review Tribunal. At the heart of the case was the appellant’s contention that the Tribunal had violated the principle of doppio esame—the right to a full and fair re-evaluation—by introducing lines of policy reasoning that were not explicitly raised by the Planning Authority and by disregarding material elements that the appellant had placed before it.
The complaint centred not merely on evidentiary weight but on legal method: had the Tribunal overstepped its remit by engaging in what amounted to fresh policy reasoning? And did such reasoning compromise the appellant’s right not to be surprised by the grounds of the decision?
The Court’s reply was unambiguous in form, but ambiguous in implication. It held that “ma hemm ebda ksur tad-doppio esame” because the Tribunal had considered the submissions of both parties, examined the plans, and formed its conclusions based on material within the record. The Court emphasised that these were “konsiderazzjonijiet ta’ fatt u ta’ natura teknika” which the Tribunal had a right to evaluate. Yet it did not directly confront whether the Tribunal may independently introduce new policy interpretations beyond those relied upon by the Authority.
This omission is crucial. While the Court defended the Tribunal’s evaluative discretion and reaffirmed its fact-finding role, it skirted the deeper constitutional question: may a quasi-judicial body tasked with reviewing administrative decisions expand the grounds of refusal through its own interpretation of policy provisions not invoked by the Authority? Or does doing so breach the appellant’s right to be heard on those points?
In Attard, the Tribunal interpreted aerial imagery and land use history to conclude that the proposed gate would formalise an illegal passageway, contrary to Policy 1.2I. The Authority’s original refusal had cited the policy, but not in the expanded interpretive terms deployed by the Tribunal. Similarly, the Tribunal referenced policy breaches in adjacent applications (e.g. PA 3987/23) to reinforce its conclusion—connections which had not featured in the original refusal notice.
The Court declined to treat this as a procedural overreach. By doing so, it arguably affirmed—albeit silently—that the Tribunal possesses wide latitude not only to review the Authority’s decision, but also to amplify or develop its own reading of applicable policies, even where the precise interpretive path had not been pleaded. For practitioners, this raises a pressing procedural caution: the Tribunal may act not merely as reviewer but as an independent policy arbiter.
Whether this represents a legitimate extension of the doppio esame principle or an erosion of audi alteram partem remains open to critique. What is clear is that the judgment allows the Tribunal to draw its own evaluative conclusions—even about the meaning and application of planning policies—so long as they are not disconnected from the facts and record presented. The line is not when a new argument is introduced, but when it introduces surprise—an elusive threshold that remains, for now, judicially undefined.
