According to Article 39 of Chapter 551 of the Laws of Malta, when Environment and Planning Review Tribunal (EPRT) decisions are reviewed by the courts, they should avoid re-examining the EPRT’s assessment of facts and how such facts ‘fit’ within the policy. In other words, courts will usually not overturn decisions based on factual considerations or ambiguous policy wording unless there is a clear misapplication of explicit written provisions. While some believe this principle automatically benefits developers, who supposedly benefit from “excessive discretion” by the Planning Authority and the Tribunal, that is not always the case.
The Court of Appeal judgment delivered on 12 July 2023 in the names Dorianne Mifsud, Rebecca Busuttil, Sarah Kennard, Din l-Art Ħelwa, FAA u Hal Balzan Local Council vs L-Awtorità tal-Ippjanar u l-kjamat in kawza CF Developers Ltd (Attn. Mr Clifton Cassar) (Ap21/23) is a clear example. In that case, the tribunal’s decision to exclude basement or semi-basement levels from the permitted floors was upheld because the local plan refers only to “floors”, without explicitly recognizing basements as part of the building height. As such, Policy P38—which provides broader development entitlements—did not override or replace the height calculations laid out in Annex 2 of DC2015, thus supporting the narrower reading.
Contrary to popular belief, when courts choose not to replace a tribunal’s conclusions—because the relevant policy allows for interpretation and the tribunal’s reasoning does not fundamentally conflict with the text—the result can actually favour objectors who, in this case, sought fewer floors. The lesson here is that judicial deference does not invariably work to the advantage of developers.
