Article 39 of Chapter 551 of the Laws of Malta provides as follows:

‘The decisions of the Tribunal shall be final and no appeal shall lie therefrom, except on a point of law decided by the Tribunal or on any matter relating to an alleged breach of the right of a fair hearing before the Tribunal’

The phrase “appeal on a point of law” implies a strict demarcation between legal and factual matters. However, in practice, this distinction is often blurred, with legal interpretation frequently overlapping with factual findings. This is not a mere technicality but a fundamental issue concerning the separation of powers, which dictates that courts should refrain from encroaching upon matters within the expertise of fact-finding bodies such as the Environment and Planning Review Tribunal (EPRT).

A key question, however, remains unanswered by the legislator: When does an issue constitute a point of law?

In my considered view, this distinction should be approached through the following three principles:

  • Judicial intervention is warranted when a tribunal’s decision contradicts the express wording of the law or a fundamental legal principle.

For instance, if a planning statute unequivocally prohibits development within a designated public open space, and no legal exception exists elsewhere to override this prohibition, a decision by the EPRT approving such development constitutes an error of law. In such cases, the courts are justified in intervening, as the decision contravenes the clear and unambiguous provisions of the law.

  • Courts should not interfere in matters involving all factual determinations.

Where a statute requires a factual determination such as, for example, whether a development is “necessary” to be deemed permissible, the determination thereof  is inherently subjective and dependent on technical assessments. The EPRT, as a specialized adjudicatory body, is best placed to evaluate such matters. Provided that the tribunal sets out a justification for its conclusion, regardless of point of view, judicial intervention is unwarranted—even if, as already hinted, the court would have, in theory, reached a different conclusion based on the same evidence.

  • Courts may intervene where the tribunal’s findings are unsupported by any evidence on record. 

What I am saying here is that if a finding of fact is entirely devoid of evidentiary support in the case record, judicial review is once again warranted, as such a decision amounts to a legal error. However so, this principle should not extend to cases where the tribunal has merely misinterpreted or given undue weight to particular evidence—such errors, however wrong, remain within the tribunal’s discretion. 

In a nutshell, the principle of appeal only on points of law dictates that courts should confine their review to matters of legal correctness, while factual determinations remain within the exclusive jurisdiction of the EPRT.  Perhaps, it is time for the legislator to spell this clearly in the law.