Under Maltese law, when courts review decisions made by the Environment and Planning Review Tribunal (EPRT), they must limit their examination to determining whether the Tribunal’s decision is lawful (Article 39 of Chapter 551 of the Laws of Malta). Supposedly, this means they look at legality and procedural propriety, without re-checking the facts found by the Tribunal or replacing those facts with new ones.
However, the concept of “legality” can extend to situations where a Tribunal’s decision is “so unreasonable that no reasonable authority could ever have come to it.” This principle, known as Wednesbury unreasonableness (derives from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), allows the court to set aside a Tribunal’s decision if it believes it is that irrational. In such cases however, the court would be expected to clearly state that the decision is “Wednesbury unreasonable”.
Yet, in practice, we sometimes see EPRT decisions revoked on the basis that the Tribunal “misapplied policy,” thereby creating the impression that the court is re-interpreting technical or factual issues without framing such intervention in terms of unreasonableness as the crucial basis for illegality. For example, in Michael Cini et vs L-Awtorità tal-Ippjanar u l-kjamat in kawża Martin Agius (Ap 27/24), the court questioned the Tribunal’s view that the streetscape was “committed,” while the court thought otherwise. In that judgment, the Tribunal allowed more storeys, yet the court remarked:
“Minn eżami tar-ritratti esebiti jidher ċar li t-triq fejn ser iseħħ l-iżvilupp propost hi waħda twila li fiha binjiet, jiġifieri terraced houses, għalkemm b’disinn differenti, imma kollha b’uniformità ta’ għoli ta’ żewġ sulari, it-tul kollu tagħha.”
(Translation: “From an examination of the submitted photographs, it is clear that the proposed development is on a long street with buildings—namely terraced houses. Although their design varies, they all share a uniform height of two floors along its entire length.”)
Observing such statements, one might feel the court is engaging in the Tribunal’s technical domain—specifically, evaluating planning and design details. This would clearly be in conflict with the aforementioned Article 39.
If the court genuinely believed the Tribunal’s conclusion was irrational or illogical, it could have explicitly invoked Wednesbury unreasonableness to show that the decision was so flawed it warranted being struck down. While I am not suggesting the EPRT’s decision in this case was necessarily “unreasonable”, a clear reliance on that principle would have avoided giving the impression that the court was simply disputing the Tribunal’s factual assessments on matters such as building height, existing commitments, or DC15 guidelines.
This judgment is only one example; there have been others, and it seems likely that these cases may continue to rise.
