The question whether “evidential onus” to justify a development proposal is placed upon an applicant in planning law cannot be answered without first clarifying what is meant by onus in a doctrinal sense. In classical common law theory, as developed in classical administrative and evidentiary jurisprudence, a distinction is drawn between the legal burden of proof and the evidential burden. The former concerns the ultimate obligation to establish a fact in litigation whereas the latter concerns the responsibility to produce sufficient material to justify or rebut a presumption.
In planning law, which is administrative and discretionary rather than adversarial, the strict civil-law burden of proof does not ordinarily arise. The famous Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 comes to mind in which it was established that policy may structure discretion in a manner that effectively allocates evidential responsibility to the applicant where compliance must be “demonstrated”. Indeed, the United Kingdom’s discretionary planning model has developed what may be described as structured discretion: although the decision-maker retains the statutory function, policy may impose thresholds or rebuttable presumptions that require applicants positively to justify their proposals.
It is against this doctrinal background that the Maltese system, particularly in the context of development Outside Development Zones (ODZ), may be examined. The Rural Policy and Design Guidance 2014 (RPDG) offers a particularly clear illustration of how “structured discretion” operates within Maltese planning law. At the outset, the RPDG document makes explicit that it does not displace the Authority’s decisional function. It provides:
“This policy is to be used by the deciding board as a basis of its decisions.” (p.1)
This statement confirms that the Planning Authority retains ultimate discretion. The policy guides: it does not adjudicate. There is therefore no formal civil-law burden of proof imposed upon the applicant in the judicial sense. However, this is only the starting point.
When one turns to the operative provisions of the RPDG, a more nuanced structure emerges. In numerous instances, the policy does not merely list criteria; it requires that certain matters be demonstrated or sufficiently proven to the satisfaction of the Authority. It is in these instances that an evidential onus arises.
Consider, for example, the treatment of agro-tourism accommodation under Policy 4.4. The policy provides:
“The proposal shall demonstrate to the satisfaction of the Authority how the provision of services… can be carried out, without adverse environmental impacts.” (p.32)
The doctrinal significance of this formulation lies in its directionality. The Authority is not required to establish that environmental harm will occur. Rather, the applicant must demonstrate that harm will not occur. The evidential initiative lies with the applicant. Failure to discharge this requirement lawfully entitles the Authority to refuse permission. In this context, it is entirely appropriate to speak of a policy-imposed evidential onus.
A similar structure appears in relation to development within sensitive or scheduled locations. Policy 2.6 concerning greenhouses states that certain scheduled locations:
“are in principle considered inappropriate locations, unless it can be duly demonstrated through the necessary assessment that the development does not compromise the site scheduling characteristics.” (pp.16–17)
Here the policy establishes a presumption of inappropriateness. The default position is negative. The applicant may overcome this presumption only by means of demonstration through assessment. This mirrors the logic of rebuttable presumptions in common law: once a presumption is established, the evidential burden shifts to the party seeking to displace it. Although the Maltese planning context is administrative rather than judicial, the structural analogy is unmistakable. The Authority does not bear the burden of proving compromise; the applicant must prove the absence of compromise.
The strongest expression of evidential allocation appears in Policy 6.2C concerning redevelopment of existing buildings ODZ. The policy requires that:
“the applicant can sufficiently prove that the building/s is covered by development permission… or that it is/are/was a pre-1978 building/s.” (p.41)
The use of the term “sufficiently prove” is doctrinally decisive. Legality of the structure is treated as a threshold matter. The Authority is not tasked with investigating legality in the absence of evidence; the applicant must establish it. If proof is not forthcoming, the application fails at the outset. This is not mere evaluative discretion but a clear evidential precondition.
Yet it would be erroneous to conclude that the entire RPDG operates by reversing the evidential structure. Many policies are framed in permissive language: “Permission may be granted… provided that the following criteria are satisfied.” Such formulations appear in relation to swimming pools ODZ (Policy 6.4), agricultural stores (Policy 2.5A), and farm retail outlets (Policy 4.2). For example, Policy 6.4 provides:
“Permission may be granted for the construction of a swimming pool outside development zone, provided that all of the following criteria are satisfied…” (p.43)
Here, the Authority retains a broader evaluative role. The applicant must comply with criteria, but there is no presumption of refusal that must be rebutted, nor an explicit requirement to “prove” absence of harm beyond ordinary compliance. The structure is conditional rather than adversarial. The Authority assesses; it does not await rebuttal of a presumption.
The distinction, therefore, is doctrinally grounded in the nature of the policy language. Where policy establishes a negative presumption (“in principle inappropriate”), or requires demonstration or proof to the satisfaction of the Authority, an evidential onus lies upon the applicant. Where policy merely enumerates criteria under a permissive “may be granted” formulation, the Authority’s discretion remains broader and less structurally inverted.
The Maltese ODZ framework thus exemplifies structured discretion in a manner comparable to the UK model. It does not impose a civil-law burden of proof upon applicants. However, through demonstrative and rebuttal requirements, it frequently places upon them the evidential responsibility to justify development in environmentally sensitive contexts. The RPDG shows how policy can discipline discretion without transforming planning into litigation.
In conclusion, the language of “onus” in Maltese planning law must be used with precision. There is no formal juridical burden of proof. Yet, in those instances where policy requires applicants to demonstrate compliance, prove legality, or rebut a presumption of inappropriateness, an evidential onus undoubtedly arises. The Rural Policy and Design Guidance 2014 provides a clear and structured illustration of this doctrinal phenomenon.
