One of the more commented-on proposals in Bill No. 144 of 2025 is the amendment to Article 43 of the Environment and Planning Review Tribunal Act (Cap. 551), which proposes doubling the maximum fine for so-called “frivolous or vexatious” appeals from €2,500 to €5,000.
Let us look at the two versions side by side:
Current Article 43 (Cap. 551):
“The Tribunal may impose a fine of two thousand and five hundred euro (€2,500) on the appellant in such cases where it declares an appeal to be frivolous or vexatious and in such cases the Tribunal’s decision shall be final without any redress before the Court of Appeal (Inferior Jurisdiction).”
Proposed Article 43 (Bill No. 144 of 2025):
“The Tribunal may impose a fine of up to five thousand euro (€5,000) on the appellant in those cases where he declares an appeal frivolous or vexatious and in such cases, the decision of the Tribunal shall be final without any remedy before the Court of Appeal (Inferior Jurisdiction).”
I have heard claims that the new threshold could deter public participation in planning appeals — especially by civil society groups and NGOs. But such concerns, while perhaps well-meaning, are neither supported by jurisprudence nor the actual behaviour of appellants.
From all known court and Tribunal records, no recognised NGO — including Din l-Art Ħelwa, Moviment Graffitti, Flimkien għal Ambjent Aħjar, or Friends of the Earth Malta — has ever been found to have filed an appeal deemed frivolous or vexatious. These organisations act within the law, often based on planning policy, site-specific impact, or community concern. Their appeals may be contentious or even ultimately dismissed, but they are not abusive.
The Tribunal’s discretion to impose a fine under Article 43 is not new. But the law clearly limits this power to exceptional cases, and especially in cases where the appeal is brought in manifest bad faith, with no legal or factual foundation, or with intent to obstruct proceedings. This principle has been consistently affirmed in Maltese jurisprudence.
For example, in Anthony Busuttil vs Anton Camilleri et (Rik. 1189/2013, 30 June 2015), Mr Justice Joseph Zammit McKeon reviewed the criteria for declaring a legal action as frivolous or vexatious under Article 836(8)(d) of the Code of Organization and Civil Procedure. He held:
“L-abbuż mill-proċedura ġudizzjarja jitqies biss f’każijiet eċċezzjonali… fejn ikun hemm vessatorjetà li titwieled minn mala fede manifesta, jew dolo, jew negliġenza gravement kolpuża.”
[Abuse of judicial process is only recognised in exceptional cases… where vexatiousness arises from manifest bad faith, deceit, or gross negligence.]
Even when the applicant loses or exaggerates his claim — as happened in that case, where the amount sequestered greatly exceeded the final award — the Court insisted that such exaggeration, without bad faith, does not amount to procedural abuse. The mere fact that an appellant loses is not enough to attract sanction.
Another case, which is perhaps closer to the planning realm, comes to mind. JXG Ltd vs Kent Selway et (Cit. 685/2013, 21 January 2014), the Civil Court (First Hall), presided by Madam Justice Anna Felice, concerned residents who had sought a warrant of prohibitory injunction to stop roof-level development. They lost. Yet the developer’s claim that their injunction had been frivolous and malicious was rejected out of hand. The Court stated:
“Kull ċittadin għandu d-dritt li jieħu dawk l-azzjonijiet ġudizzjarji meħtieġa sabiex jipproteġi u jissalvagwardja d-drittijiet u l-interessi tiegħu mingħajr b’daqshekk ma jkun assoggett għall-kawża għad-danni.”
[Every citizen has the right to bring such legal actions as are necessary to protect and safeguard his rights and interests, without thereby being exposed to an action for damages.]
The Court then went further, describing this right as “fondamentali f’kull demokrazija” — fundamental in any democracy — and “essenzjali għar-rule of law” — essential to the rule of law. The very idea that citizens should be punished for defending their rights unless they win is contrary to democratic principles.
This should be the lens through which Article 43 — in both its current and proposed forms — is interpreted. The legal system has long upheld the principle “qui suo iure utitur non videtur damnum facere” — he who exercises a legal right does not commit harm.
That remains true whether the fine is €2,500 or €5,000.
Meanwhile, no NGO has ever been fined under this provision. And there is no evidence that any ever will be, because they do not file appeals in bad faith. Civil society participation has enriched the planning process, not sabotaged it.
One last clarification. While — as with the current Article 43 of Chapter 551 — the proposed version in Bill No. 144 expressly states that the Tribunal’s decision is “final” and “without any remedy before the Court of Appeal (Inferior Jurisdiction),” this should not be read as rendering the Tribunal’s actions legally unchallengeable. A decision that is final for the purposes of ordinary appeal should always be subject to judicial review where the Tribunal exceeds its legal powers or violates basic principles of natural justice.
For instance, if the Tribunal were to impose a fine in excess of the maximum €5,000 permitted by law, or act in breach of audi alteram partem, or base its decision on irrelevant or procedurally unfair grounds, then its decision would fall within the supervisory jurisdiction of the Civil Court under Article 469A of the Code of Organization and Civil Procedure. In this respect, the rule of law prevails: finality cannot override legality.
Perhaps Parliament may consider including a clarifying proviso in the final text of Article 43 — not to dilute the finality of decisions on merits — but to make explicit that such finality shall not prejudice a party’s right to seek judicial review where the Tribunal exceeds its jurisdiction or acts in manifest breach of justice.
