On a sleepy summer Friday afternoon, the government tabled two Bills in Parliament that seek to introduce wholesale - and highly contentious - reforms to Malta's planning system, particularly in the appeals sector.

Bills 143 and 144 have dominated the headlines over the past week, and have been condemned by everyone ranging from members of the public, activists - who have described the reform as a "developers wish-list", and the Nationalist Party - which has demanded the government withdraw them from Parliament's agenda.

Only the Malta Developers Association has come out in favour of the reform.

Among the reforms is one which caters to the Court of Appeal - a frequent avenue used by environmentalists to carry on their fight against certain planning permits which are granted.

At face value, those same environmentalists are arguing that the powers of the Court of Appeal have been curtailed - if not almost removed.  Prime Minister Robert Abela has said that it's a "misinterpretation" to suggest that.

So which is true? 

Has the Court of Appeal ever stepped into the planning sphere in the past?

There are plenty of times that the Court of Appeal has stepped into the planning sphere, and plenty of times that the Court of Appeal - which is headed by Chief Justice Mark Chetcuti himself - blasted the Planning Authority and/or EPRT for how it interprets and applies certain properties.

High-profile examples include the Court annulling a permit granted to sanction illegal excavation and to build swimming pools next to a controversial Qala development belonging to Gozitan tycoon Joseph Portelli, and a similar annulment of a permit granted to now Foreign Affairs Minister Ian Borg so he could build a swimming pool.

In the first case, the court found that the Planning Authority had selectively quoted policies to justify its approval, while in the second case, the court found that planning policies were clear in that there was no leeway that would allow such a swimming pool to be built.

More recently, the same Court of Appeal annulled a Planning Authority permit that allowed Transport Malta to build a "capitanerie" along the Gzira and Ta' Xbiex promenade on the grounds of a conflict of interest.

Back in 2023, the Court of Appeal also set a significant legal precedent as it revoked a planning permit which would have seen a five-storey development rise amidst a street made up of two-storey houses - a so-called 'pencil development.'

The PA had originally turned down the application, but that was overturned by the EPRT after the developer appealed the decision.  However, the matter was taken to court by two PN local councillors and Chief Justice Chetcuti found in his ruling that the EPRT had been "mistaken and contradictory" in its statements on the case.

There have been plenty of other instances of Court revocations of permits - and such instances where even the Court itself is simply ignored.

For instance, the Court in 2023 annulled an application for an apartment complex in Xewkija because it had violated planning regulations.  The developer - Francesco Grima - simply separated a new application to regularise the building (which had largely already been built) into three applications, and the Planning Commission re-issued the permits.

The same thing happened with a couple of penthouses and pools in a Joseph Portelli development in Sannat - the court revoked the permits, but the Planning Authority simply then re-issued them.   

What does the new law say?

Under the new law, the public may still appeal a decision through the Court of Appeal - so that right in and of itself is not being taken away.  It's what comes after an appeal is filed, though, that has many people concerned.

Most significantly under the new law, the Court of Appeal will not have the power to directly revoke a planning permit.  It can either confirm the EPRT's decision or annul it and refer the case back to the same EPRT for a fresh decision to be taken in accordance with the legal parameters that the court establishes.

Robert Abela told journalists this week that it was a "misinterpretation" to suggest that the Court of Appeal cannot rescind planning permits - but he did not explain exactly how it was a 'misinterpretation.'

The pertinent part of the law - Article 46 of proposed Bill 144 - states as follows:

"The Court of Appeal (Inferior Jurisdiction) shall have the power to confirm or annul the decision of the Tribunal. Where the Court of Appeal (Inferior Jurisdiction) annuls the Tribunal's decision, it shall refer back the acts of the proceedings to the Tribunal for a fresh decision, in accordance with the legal parameters established by the Court."

"Where the Court of Appeal (Inferior Jurisdiction) annuls a decision of the Tribunal and refers back the acts of the proceedings for a fresh decision, the Tribunal shall re-examine the appeal and deliver a fresh decision within the legal parameters established by the Court."

The same procedure is adopted in Article 51 which handles appeals from decisions of the EPRT relating to cases involving the Environment and Resources Authority.

What are the possible implications?

Considering what the law says, there is no misinterpretation: it's a fact that the Court of Appeal cannot directly revoke a planning permit.  It can annul the original decision, sure, but its place as the highest decision-making body in the land has been replaced by the EPRT, because the final decision will always be in the hands of the EPRT.

The law does refer to the notion that if a case is sent back to the EPRT, it must decide based on "the legal parameters established by the Court."

This seems to imply that the Court of Appeal may still dictate something of a legal precedent.  The landmark permit revocation for a pencil development is one such example of when the Court of Appeal established a legal precedent.

Introducing the point in law that the EPRT must follow the legal parameters established by the Court may, perhaps, encourage it - or even force it - to carry out less of the creative policy interpretations that environmentalists, activists, and residents have gotten so sick of having to face.

This is something, though, that some will argue should - in any rule of law-fearing country at least - have already been happening.  Yet there have been occasions, some as explained earlier in this article, when the Planning Authority has simply ignored court rulings that have revoked permits.

With the final say being in the hands of the Courts, people felt that they had a trustworthy redress that they could lean onto if they have been wronged. 

With the final say now proposed to be in the hands of an EPRT which would be made up of people hand-picked by the Prime Minister to hold a near-enough unprecedentedly long 10-year term, it is no surprise that this part of the law has not been well-received at all.