Objector alleges that Tribunal acted “ultra vires” and went “extra petitum”

In a strongly worded appeal before the Environment and Planning Tribunal, the objector maintained that the same applicant had already applied for a change of use of the garage to a gymnasium while in another instance, an application was made for the change of use of the same garage to a Class 4 shop. Both applications were, according to the objector, dismissed by the Malta Environment and Planning Authority.

In addition, the objector alleged that the current application (subject of the appeal) was “evidently aimed to reach the same aim and scope not attained when the previous development applications were dismissed”.

The objector further underlined that the plans did not comply with sanitary requirements, adding that “the total footprint as declared in the application is that of 147 metres (excluding the backyard) whilst the real size of the site in question is that of 156 square metres”. Such information was, in the objector’s view, tantamount to “misleading information” and the objector thus requested the Tribunal to revoke the permit.

For its part, the Tribunal dismissed all allegations. Nonetheless, it confirmed that the “approved plans” showed a shop having an area of 45 square metres, whilst in reality, the on-site area measured 48 square metres. In this respect, the Tribunal concluded that such a difference did not warrant revocation of the permit, since the differences were seen as “minor”. Nevertheless, the Tribunal ordered that the approved plans should be “corrected” to reflect the real situation on site.

The objector felt aggrieved by this decision and lodged an appeal before the Civil Courts of Appeal (Inferior Jurisdiction) insisting inter alia that the Tribunal had acted “ultra vires” when it ordered the “correction of the plans”. (Ultra vires means going beyond one’s legal power or authority.)

In addition, the objector held that the Tribunal was at no point requested to amend the plans, and hence went extra petitum. (Extra petitum means when the court gives one something which was not asked for.)

Court: Tribunal may request appellant to submit fresh documents and plans

In its assessment, the Court dismissed the appeal. Indeed, the Court observed that according to Schedule 5 of Chapter 504 of the Laws of Malta, “the Tribunal may request an appellant to submit fresh documents and plans, in which case the Tribunal shall give reasons for such a request provided that the substance of the matter as presented before the Authority shall not change”.

Against this background, the Court reasoned that the Tribunal had every right to request fresh documents and thus concluded that the Tribunal’s decision was legally founded.

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

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