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Minister’s opinion on Ta’ Ċenċ carries no weight

The Court held that planning decisions are taken by the Planning Authority regardless of any opinion which the minister may choose to express

robert_musumeci
Robert Musumeci
8 July 2016, 7:31am
Way back in 2006, the owners of Ta’ Ċenċ Hotel were informed by way of a letter over the signature of the chairman of the Malta Environment and Planning Authority that the minister responsible for Rural Affairs and the Environment at the time had ‘felt it appropriate to clarify that any future development was to be limited to what is already existing in the area’.

In other words, the minister made it clear that no further development should be entertained close to Mġarr ix-Xini. This communication reached the owners while a planning application for extending the hotel was still pending. The minister’s statements were made following concerns raised by NGOs in the media. 

Following receipt of the communication, the hotel owners made an appeal to the Planning Appeals Board through their lawyer. In their submissions, it was maintained that the chairman’s letter was tantamount to a decision by the Planning Authority ‘in the sense that there may be no further development in the lower part of the plateau.’ The lawyer alleged that his clients were nonetheless deprived of a fair hearing before the Planning Authority.

It was explained that the contents of the letter had to be taken in the context of a pending application and his clients’ rights and interest were thus ‘seriously prejudiced’. The lawyer went on to highlight that ‘the Board was constrained at law to take a decision only after the applicant was given due opportunity to make submissions and in the context of a public hearing.’

In this case, it transpired that applicants were informed of a decision without his clients being given an opportunity to make their case. Moreover, it was pointed out that this course of action is conducive to ‘a gross breach of the applicant’s rights to a fair hearing which can only be remedied by the decision being quashed.’ Concluding, it was  submitted that ‘the decision was also wrong as to law and fact, as the plans and guidelines applicable to the area clearly do not exclude the possibility of further development in this area as the minister alleged’.

In its assessment, the Tribunal maintained that an appeal against a decision can be made before the Tribunal on condition that such decision is published in the press. The Tribunal noted that the contents of the letter were never made public and the recipients were therefore not entitled to appeal. In reaction, appellants appealed the decision before the Court of Appeal (Inferior Jurisdiction), reiterating that they were deprived of a fair hearing.

The Court of Appeal confirmed that the minister had indeed communicated with the authority, stating his interpretation with regard to a policy pertaining to a pending planning application. Having said that, the Court held that planning decisions are taken by the Planning Authority regardless of any opinion which the minister may choose to express. Against this background, the Court rejected the appeal.

robert@rmperiti.com

Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a Law Degree

robert_musumeci
Dr Robert Musumeci is a warranted advocate and a perit. He also holds a Masters Degree in ...
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