As expected, even the slightest hint of changes to planning laws generates strong reactions. Most of the information available to the public comes through the media, since few would willingly engage with the detailed laws and draft proposals themselves. To complicate matters further, planning law—something I am reminded of whenever I speak with colleagues—is often perceived as anything but straightforward. I find this perception somewhat surprising, given that I live and breathe it day and night.
In following the commentary that has appeared in the media, however, I have noted several instances where statements and observations were outright incorrect. I do not believe these commentators were seeking to misinform, but the end result remains the same: confusion. I do feel compelled to point out the truth about one major misconception that is circulating—the idea that courts can no longer annul environment and planning tribunal decisions. This is simply not correct.
For this reason, I am publishing in full the article which appeared in the Sunday Times of 31 August 2025:
Whether Courts can annul permits
It is no surprise that planning laws often provoke public controversy. These laws regulate not only physical development but also social expectations. Unsurprisingly, their technical and legal complexity does not lend itself well to public clarity. Without suggesting that these reforms are indispensable, they do introduce certain refinements which, whether right or wrong, ultimately fall within Parliament’s remit. My purpose here is simply to explain some core legal principles, albeit selectively, due to space constraints.
First, it is worth recalling the basic structure of the Maltese development permit process. Whether one seeks to build a rooftop washroom or develop a hotel from scratch, a planning permit is required by law. A case officer employed by the Planning Authority assesses the application and submits a recommendation (whether to issue the permit or not), which the Planning Commission (or Planning Board, in applicable cases) may accept or overrule. Importantly, any member of the public may submit objections based on planning or environmental grounds, regardless of whether they have a direct legal interest in the civil law sense. A resident of Żurrieq may therefore object to a development in Gozo. This right remains untouched by the proposed amendments. Quite frankly, it would be unwise to contemplate otherwsie.
If the Planning Commission decides to grant the permit, the objector has recourse to appeal the decision on points of fact and law before the Environment and Planning Review Tribunal (EPRT). Although this Tribunal forms part of the executive branch (not the judiciary), it is nonetheless bound by principles of good administration: inter alia the duty to hear fairly, to reason decisions, to conduct public proceedings and to allow for adverserial argument. Yet, it must be constantly remembered that the Tribunal is not a court of law.
This means that in a constitutional system governed by the rule of law, the final say can never rest with the Tribunal. In other words, while the Tribunal is tasked with assessing the factual and technical merits of development applications, its decisions must remain open to legal supervision by the judiciary.
In other words, courts cannot not have the power to annul a Tribunal decision if a legal error has occurred in reaching that decision enabling the issuance of a planning permit. Needless to say, where the Tribunal’s legal reasoning collapses, the permit it upheld or ordered necessarily falls with it. Those who, in recent days, have suggested otherwise may perhaps be unfamiliar with the established legal principle encapsulated in the Latin maxim accessorium sequitur principale—that the fate of an accessory measure follows that of its principal.
Nonetheless, courts remain bound by the principle that they cannot substitute their own administrative judgment for that of the Tribunal. Put simply, courts have no authority to issue planning permits themselves. As matters currently stand, when a court identifies a legal defect in a Tribunal decision—particularly one that results in the granting of a permit—it does, in several cases, remit the case to the Tribunal for a fresh determination, this time constrained by the legal parameters laid down in the court’s ruling. In other instances, however, the court opts not to remit the matter, leaving the applicant to submit a new planning application and requiring objectors to reorganise and re-enter the process anew. That said, there are situations where the court is fully justified in declining to remit the case—most notably where the defect arises from a lack of jurisdiction, which precludes the Tribunal from exercising any further authority over the matter.
Having said this, Bill No. 144 appears to codify an approach already taken by the courts on multiple occasions and to formalise it as a uniform rule. Clause 51 of the Bill provides:
“The Court of Appeal (Inferior Jurisdiction) shall have the power to confirm or annul the decision of the Tribunal. Where the Court annuls the decision, it shall refer the acts back to the Tribunal for a fresh decision in accordance with the legal parameters established by the Court.”
Viewed from a legal perspective, this approach avoids unnecessary procedural repetition while preserving the Tribunal’s role as the authority tasked with deciding the planning merits. Crucially, it ensures that any re-examination by the Tribunal is conducted within the confines of the court’s binding legal findings.
After all, this structure mirrors established administrative law practice under Article 469A of the Code of Organisation and Civil Procedure, where the courts may annul an administrative act but, where jurisdiction was not defective to begin with, order the public authority to reassess the matter in light of the court’s legal conclusions.
Of course, a remittal under legal parameters does not mean the Tribunal is free to reissue the same decision. Quite the opposite: the Tribunal is obliged to follow the court’s instructions. If those parameters indicate that, in law, the permit cannot be issued, the Tribunal must comply and refuse it accordingly. That way, it compels the Tribunal to internalise the court’s interpretation and, by doing so, prevents (hoepfully) repetition of similar legal errors in future similar situations.
