The Environment and Planning Review Tribunal’s decision in Rev. Fr. Joseph Saliba bħala Provincjal u Rev. Fr. Charles Mallia f’isem il-Kunvent tal-Karmelitani Balluta vs Awtorità tal-Ippjanar u John Cilia (Appell 489/19DMP, PA3672/19, 29 April 2025) is interesting as it confirms a foundational principle of Maltese planning law: ownership matters. Despite the increasing proceduralisation of planning applications, the Tribunal made clear that questions of title cannot be ignored or dismissed as mere civil matters when they strike at the validity of the applicant’s locus standi under the law.
In this case, the permit-holder had obtained an Outline Development Permit for the construction of a multi-level car park beneath a site in Triq Ċensu Tabone, San Ġiljan. He relied on a lease agreement to satisfy the requirements of Article 71(4) of the Development Planning Act, which allows a non-owner to apply for a permit if duly authorised by the owner. However, the Carmelite Province, represented by its Provincial and the prior of the Balluta convent, formally and repeatedly objected, arguing that the lease had lapsed and was no longer valid—an objection made clear through a protest ġudizzjarju and a mandat ta’ inibizzjoni issued well before the permit was approved.
The Tribunal engaged directly with this ownership challenge. It found that despite the applicant’s reliance on a lease, there had been timely and unambiguous objections from the rightful owners. Indeed, the record showed that the Planning Authority had been explicitly notified on the 4th of May 2019 that the lease was no longer in effect, and that no consent was being granted. As the Tribunal observed: “l-istess permit holder kien informa lill-Awtorita’ li kien hemm ftehim mas-Sid … iżda dan il-ftehim kien qed jiġi attakkat.” (“The same permit-holder had informed the Authority that there was an agreement with the owner … but this agreement was already being challenged.”)
The Tribunal was not persuaded by the Authority’s submission that the issue was of a purely civil nature. It held that, while title disputes may indeed fall within the jurisdiction of the civil courts, once it is clear that the Authority has been alerted to a credible legal objection by the owner, it cannot simply rely on the existence of a lease and claim procedural compliance. Rather, “l-appellanti terzi sostnew li l-Bord tal-Ippjanar ma setax japprova l-iżvilupp in kwistjoni stante l-assenza tal-kunsens tas-Sid.” (“The third-party appellants argued that the Planning Board could not have approved the proposed development in the absence of the owner’s consent.”)
The Tribunal cited with approval the 2015 decision in Franco Debono vs MEPA, in which the Court of Appeal (Inferior Jurisdiction) held that where an applicant admits not being the sole owner, and where another co-owner objects to the application, the Tribunal is bound to verify compliance with Article 68(3). As that judgment made clear: “Ma hemmx il-permess tal-koproprjetarju li l-istess applikant ex admissis jirrikonoxxi … Dan ma sarx mit-Tribunal u għal din ir-raġuni biss, l-appell jistħoqqlu jiġi milqugħ.” (“There is no consent from the co-owner whom the applicant himself admits exists … This omission alone suffices for the appeal to be upheld.”)
The Tribunal noted that even the lease itself provided that it would lapse if the permit were not granted, which had in fact already occurred in a previous application. Yet the applicant failed to place any counter-evidence on record to refute the owners’ position. Instead, the Tribunal remarked on how the permit-holder not only knew that his claim of authority was being legally challenged, but that he had been notified of this fact before filing the application. Despite this, he represented to the Authority that he had a valid agreement with the owner. This, the Tribunal held, was legally unsustainable.
Ultimately, the Tribunal ruled that Article 71(4) of the Development Planning Act had not been satisfied. The notification requirement does not override the absence of consent. The legal basis for the application was therefore lacking from the outset. The Tribunal concluded emphatically: “nonostante dan il-ftehim … kien hemm dikjarazzjoni ċara permezz tal-oġġezzjoni tal-appellanti li huma ma kienux qed jagħtu l-kunsens tagħhom għal tali applikazzjoni.” (“Notwithstanding the agreement, there was a clear declaration through the appellants’ objection that they were not granting their consent for such an application.”)
The decision underscores a truth often overlooked in modern planning disputes: public law procedures (in this case, planning law) do not override private law foundations.
