Article 11 of proposed Bill No. 143 has sparked significant legal and policy debate. The clause empowers the Minister responsible for planning to regulate the validity period of development permits, including their extension or reinstatement:

“The Minister may, by regulations, establish rules governing the period of validity of development permits, including provisions for varying such periods, provided that any variation shall have the effect of extending the validity of a permit or reinstating the validity of a permit after it has expired.”

This provision has raised concerns that it could enable the revival of expired or dormant development permits without environmental reassessment, public consultation, or fresh application. However, such powers are not unprecedented. In fact, Malta already allows for similar actions under Legal Notice 263 of 2023, amended by Legal Notice 66 of 2025 (S.L. 552.33):

“Any development permit still valid on the date these regulations come into force, expiring on or before 31st December 2026, is extended by three years:
Provided that any permit expired between 1st January 2023 and 9th November 2023 inclusive, remains valid until 31st December 2026:
Provided further, permits expired between 1st January 2025 and 1st April 2025 inclusive, remain valid until 31st December 2028.”

These revival mechanisms first emerged during the COVID-19 pandemic, when supply chains froze, labour was restricted, and development activity stalled. During this period, the government resorted to subsidiary legislation to extend or revive development permits. This was done without any corresponding amendment to the main Development Planning Act, creating a legal and regulatory gap. Bill 143 now proposes to codify this ministerial power in primary law. Whether that codification is appropriate—and under what conditions—requires close scrutiny of broader public law principles.

In public law theory, the existence of wide discretionary powers is not, by itself, problematic. The central concern is how such discretion is structured, reviewed, and explained. This is a point explored by Eric Biber and J.B. Ruhl in The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State. Reflecting on modern permitting systems, they observe:

“General permits follow a model… the ‘administratively-approved-unless-administratively-prohibited’ model.”
(Biber & Ruhl, 2014, p. 140)

Their analysis suggests that the revival of development permits can fall within legitimate administrative practice—when structured in accordance with regulatory rules. From this perspective, Bill 143 is not an anomaly, but an example of how legal systems handle prolonged development cycles through general permitting frameworks.

Still, Biber and Ruhl also warn that administrative discretion must not escape accountability. The practical concern is not whether such powers exist, but how they are applied. As they explain:

“No doubt agencies abuse the permit power in specific cases… but the actual experience of permitting as practiced… is rich with evidence that the problems… are neither inevitable nor insurmountable.”
(p. 139)

In light of this, Parliament may wish to consider not just whether the Bill authorizes permit revival, but whether it includes sufficient procedural protections—such as time limits, notice obligations, or environmental reassessment triggers. These factors determine whether the exercise of power complies with legal certainty and fair administration.

Administrative law also recognizes that courts are generally deferential to discretionary powers when those powers are exercised transparently and with reasoning. As Nicolas Bagley notes in The Procedure Fetish:

“Courts often lack motivation to overcome their commitment to reason-giving, particularly when administrative actions are legally and politically acceptable.”
(Bagley, 2020)

This suggests that revival powers, even when broad, may be upheld if the Minister provides clear, public reasons and follows a published regulatory framework. Parliament must therefore ask whether Bill 143 provides the necessary basis for lawful discretion or creates a risk of opaque revival without justification.

Another issue is whether the Bill supports intelligible standards for the exercise of power. Here, Aileen McHarg’s work is instructive. In her comparative study of discretion and judicial review, she explains:

“Judicial review of discretion requires a commitment to intelligibility and coherence, not constraint for its own sake.”
(McHarg, 2017)

This frames the question in procedural—not ideological—terms. If the Minister’s discretion under Bill 143 is too open-ended, lacks publication of criteria, or contains no review mechanism, then even if the power is legal, its operation may fall short of the standards McHarg describes. 

Whether to pass Bill 143 in its current form, amend it, or reject it altogether, is ultimately a matter of legislative judgment.  

References

  • Biber, E., & Ruhl, J. B. (2014). The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State. Duke Law Journal, 64(2), 133–228.
  • Bagley, N. (2020). The Procedure Fetish. Michigan Law Review. SSRN
  • McHarg, A. (2017). Administrative Discretion, Administrative Rule-Making, and Judicial Review. Current Legal Problems, Oxford University Press. OUP