Something worth recalling is that not all decisions taken by the Planning Authority are administrative acts—at least not in the sense contemplated by Article 469A of the Code of Organisation and Civil Procedure. The distinction matters. A great deal hinges on whether a decision is merely administrative, or whether it amounts to something more—namely, a policy act or a quasi-legislative measure. This distinction becomes especially crucial in the context of Planning Control (PC) applications.
Although PCs may resemble ordinary administrative files—initiated, processed, and “approved” in a procedural format—their essence is quite different. A PC application does not determine the rights of a specific applicant in a concrete case. Instead, it creates a general rule for how land within a defined area will be treated in future. This act of zoning, road alignment, or building height limitation is not the application of law to fact. It is, rather, the creation of planning policy.
Maltese courts have been firm on this point. The classification of a PC application—especially when it amends or supplements a local plan—falls outside the ejusdem generis scope of Article 469A, which covers acts such as “orders, licences, warrants, decisions or refusals” issued in response to individual requests. Indeed, planning policy does not arise from such requests. It emanates from the state’s strategic authority to plan —a prerogative that lies closer to legislation than administration – regardless of the fact that such a request is triggered by an individual.
As early as Falcon Investments Ltd vs MEPA (2013), the courts made this distinction plain. Planning instruments, particularly local plans and their derivatives, are better understood as forms of subsidiary legislation than administrative acts:
“Il-pjan lokali iktar jikkwalifika bħala liġi sussidjarja milli att amministrattiv, li wara kollox ma japplikax għall-persuna waħda imma japplika fil-konfront taċ-ċittadin in ġenerali.”
[“The local plan qualifies more as subsidiary legislation than an administrative act, which after all does not apply to one person but applies to citizens in general.”]
This position was most recently reaffirmed in Raymond Avallone et vs Prim Ministru et (23 May 2025), where the Civil Court, First Hall, presided by Mr Justice Audrey Demicoli, drew a sharp distinction between planning policy and administrative decision-making. Referring specifically to the approval of a PC application, the Court stated:
“Għalhekk, hija m’għandhiex il-ġurisdizzjoni illi tindaga jekk effettivament il-policies illi daħlu fis-seħħ bil-PC Application 0055/10 humiex raġonevoli jew le. Dan stante illi dawn tal-aħħar ma jikkostitwixxux għemil amministrattiv fl-ambitu tal-Artikolu 469A tal-Kap 12 tal-Liġijiet ta’ Malta.”
[“Therefore, the Court does not have jurisdiction to examine whether the policies adopted through PC Application 0055/10 are reasonable or not. This is because such policies do not constitute administrative acts within the meaning of Article 469A of Chapter 12 of the Laws of Malta.”]
If one were to think deeper, the minister’s involvement under Article 58 of the Development Planning Act only strengthens the legislative nature of PC procedures. What is ultimately being exercised is not a technical administrative function, but a policy judgment—an inherently political discretion concerning the future of land use planning. As such, PC applications do not fall within the type of acts subject to judicial review for being ultra vires, unreasonable, or procedurally unfair under Article 469A. To allow such review would be to confuse regulatory policy-making with administrative adjudication. Judicial review is not designed to reopen debates about the content of public policy or the wisdom of zoning. It is meant to ensure legality in decision-making, not to displace the state’s authority to plan.
Of course, this does not mean that planning policy is above the law. Where fundamental rights are concerned, or where there is a genuine question as to the validity of a policy instrument, recourse may lie under Article 116 of the Constitution, which allows for the invalidation of subsidiary legislation. But that is a constitutional mechanism, not a function of ordinary administrative review.
The point remains: PC applications are fundamentally policy instruments, not administrative decisions, hence are not reviewable under Article 469A, because they do not resolve individual claims—they chart legislative-like norms.
