Article 39 A (1) of the Development Planning Act (Chapter 356 of the Laws of Malta) stipulates the following:

“The Authority may, only in cases of fraud or where public safety is concerned or where there is an error on the face of the record, by order revoke or modify any development permission granted under this Act, stating in such order its reasons for so doing; and, prior to deciding to revoke or modify a development permission in terms of this subarticle, the Authority shall inform the person who will be affected by its decision of the date and time of its meeting where the Authority shall also hear the said person’s submissions if the latter opts to attend.”

This meaty article is intended to cater for those situations where it appears to the deciding bodies within MEPA that a permit that has been issued should, in fact, not have been so issued. It is necessary however, in order to fully understand the import of this article, to examine it within the context of the responsibilities not only of the applicant but also of the architect.

As a rule the whole application-to-MEPA-process is handled by an architect of the applicant’s choice. This normally involves the simple task of approaching the architect, outlining the intended project and then the actual filing of the relative application. It is in the latter stage that the issue of responsibility for the applications then falls, to my mind, fair and square within the remit of the applicant’s architect (without absolving the applicant who knows if something is wrong).

Fraud, as defined in the Development Planning Act is: “the submission to the Authority of any information, declaration or plan on the basis of which the Authority has approved a development permission, where such information, declaration or plan is false, misleading or incorrect, irrespective of whether such deceit is the result of a wilful or negligent act”.

The application for a development permit involves the filing of all sorts of plans. These plans are intended to make the application clear to the deciding body. As such they must be exact. Exact in the true sense of the word. This must mean that the plans submitted are to be correct in their totality. It also means that the architect’s responsibility is, in a sense, total. He is entrusted with ensuring that the plans he submits and signs to are correct.

This must also be interpreted within the further context of the myriad declarations made by the architect as to the present position of the property and its intended use. Needless to say this applies all the more in those situations where MEPA relies totally on the architect’s declarations. I am more than sure that this is what normally happens in the case of most applications. However, sometimes, mistakes are made. There are many architects who feel that in these kinds of situations it is the applicant who is, finally, responsible. The proper reading of this article should also be considered in the light of the Civil Code provisions.

Within this context the position of the Architect vis-a-vis his client has been defined by the courts as being of the nature of mandate. Bezzina Perit Alexander et. vs Mizzi Joseph Noe. – Civil Court, First Hall, decided on 3 October 2003, indicated that an architect is hired to render a service because his skill and supervision are necessary for the good execution of the works. Thus, the applicable provisions are those governing the law of mandate. “Mandate or procurement is a contract whereby a person gives to another the power to do something for him” – Article 1856(1) Civil Code

These provisions refer of course to a time when the Planning Authority did not exist or was even imagined since some of them date back, believe it or not, to Roman Law – how’s that for longevity! But they have to be examined with today’s situations in mind.

What is expected of the architect in today’s day and age? The architect is today not only the designer of the relative structures, he is also the individual who is empowered by the applicant to ensure that his application goes through. In this regard the architect has a responsibility, or at least that is my opinion, to ensure that even when interpreting the applicable policies to the application in hand, any plans that are submitted are fully in conformity with such policies. Thus, for example, if the applicable height for a locality is of three floors plus semi-basement, the architect should not apply for anything higher.

This is probably the crux of the matter. When any such application reaches MEPA’s front door, the processing of the application should end there and then. To argue otherwise could be interpreted as trying to induce the deciding body into error. Needless to say I know as much as the next man that this might create problems in the short term but in the long term I am sure that many of the perceived torts of MEPA will end. How often do we have to view applications to sanction illegal buildings? Is it not high time that the impetus with regard to illegal constructions wherever they may be, be towards their elimination and not their sanctioning?

But where lies the architect in all this? Is the architect not responsible, albeit marginally on the basis of advice given? When an illegal property is built, is it so hard to imagine that this property was built with the assistance of an architect? Let us cite a simple example.

A permit is issued for a property to have three floors with two bedrooms on each floor and the attendant kitchen-dining room and bathroom. Three years after the building is finished an application is made to sanction the changes made in the building of the property which was built in a manner completely different from the original plans.

Or worse, what if a further floor is planned and applied for and the plans showing the property as built do not tally with what there is on site? This is major fraud or error (error only if the architect did not go on site prior to the filing of the plans).

Needless to say the applicant is as guilty, if not more, than the architect.

Of course nothing I have stated in this short article is intended in any way to highlight any form of misdemeanour on the part of architects practising their profession in Malta. My only intention is to discuss the potential responsibility of the architect with regard to permit application irregularities.

As an aside, and to conclude, is it not high time that sanctioning fines be of the prohibitive sort and not simple slaps on the hand?

Simon Micallef Stafrace

Valletta