In Maltese administrative law, judicial review of Environment and Planning Review Tribunal (EPRT) decisions is confined to points of law. Indeed, Article 39 of Chapter 551 of the Laws of Malta states the following:
“The decisions of the Tribunal shall be final and no appeal shall lie therefrom (before the Court of Appeal (Inferior Jurisdiction)), 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.”
Clearly, this provision does not impose an explicit requirement for remittal of the case to the Tribunal. Yet, in cases of remittal, the permit is declared null but remains potentially revivable through a fresh decision. On the contrary, an outright annulment of the EPRT decision by the Court of Appeal terminates proceedings definitively.
In practice, the Court of Appeal has adopted varying approaches, sometimes remitting cases for fresh decision-making and, at other times, outrightly annulling planning permits that the EPRT had upheld. Thus, there is no clear line delineating when the court opts for remittal or outright annulment.
Meanwhile, comparative jurisprudence offers some perspective. In T-95/04 British Aggregates v Commission [2006] ECR II-2789, the European Court of Justice ruled that an administrative decision tainted by an irreparable legal defect should be annulled outright. Similarly, in French administrative law, the Conseil d’État has developed case law allowing for the direct annulment of administrative acts where reconsideration would serve no practical purpose (Conseil d’État, arrêt Nicolo, 1989).
Having said this, it is an established principle that “judicial review is primarily about process rather than outcome,” meaning that “the court should ensure legality without overstepping into administrative discretion” (EU Law: Text, Cases, and Materials, 2020). Advocates of the ‘separation of powers’ further argue that where an administrative decision is flawed, remittal ensures that the decision-maker, not the judiciary, retains the final say within lawful boundaries.
This means that while a rigid remittal requirement carries the risk of undermining judicial efficiency by compelling the EPRT to reassess decisions that cannot be lawfully rectified, the delicate balance between legality, judicial restraint, and administrative autonomy remains paramount in safeguarding an approach that resonates with the fundamental principles of the rule of law and the separation of powers.
One potential approach to resolving this issue is the codification of a general principle requiring courts to remit decisions unless “no lawful alternative exists.” For example, a planning permit that was renewed despite its invalidity at the time of application may fall squarely within the concept of “no lawful alternative exists.” Nevertheless, ambiguities remain. Numerous other cases may present complexities where the notion of irremediability remains open to judicial interpretation.
Rigid remittal to the EPRT may be the safest option.
