Maltese courts have consistently affirmed that the EPRT must diligently consider all relevant legal arguments and applicable planning policies presented by the parties involved. In turn, proper adherence to these policies is fundamental to maintaining the tribunal’s credibility and legitimacy. By contrast, misapplication or neglect of these policies constitutes a significant legal breach.
For example, in the landmark case John Cordina vs L-Awtorità tal-Ippjanar (Appell Nru. 14/2018), the appellant argued before the Court of Appeal that the tribunal had incorrectly applied the Rural Policy and Design Guidance 2014, particularly policy 6.2C. His argument was that the EPRT had erroneously justified approving a development by combining two separate and distinct planning applications located in different areas with different factual circumstances. The Court agreed with appellant in that the EPRT had breached the policy identified by appellant.
Yet, this judgment (and many like rulings) also raises a broader consideration: What is the tribunal’s obligation if it identifies a relevant policy that has not been raised by the parties?
In my view, the EPRT indeed has an independent obligation to proactively identify and apply such relevant policies. Yet, I equally hold that if the tribunal intends to apply a policy not explicitly raised by the parties, it must first inform them explicitly, providing adequate opportunity for response or further submissions. This requirement is essential for ensuring procedural fairness and maintaining transparency and equity within tribunal proceedings.
To my recollection, however, such proactive notification by the EPRT has not yet occurred.
After all, when considering Article 31 [Chapter 551] situations, the Court is very quick to remind us that the Tribunal commits an error of law when it orders substantial changes to the proposal and directs the issuance of the permit without giving the parties the opportunity to adapt, present evidence, and make submissions. I would think that the same raison d’etre applies where the Tribunal decides to come forward with a policy of its own.
