Legal features emanating from the jurisprudential activity of the Court of Appeal in matters relating to development planning

Abstract

At the beginning of the 1990's control over development planning in the Maltese Islands was completely within the powers of the Maltese Government. Over the years the matter of development planning had taken a political perspective sometimes even leading to abuse. Concern obviously arose since such a situation was becoming a serious threat to the Maltese environment. The Maltese legislator realised that something had to be done in an attempt to create a balance between the power to grant development permissions, the right to obtain a development permission and the protection of the environment within the Maltese Islands. Consequently in 1992 the Development Planning Act was enacted by which the Planning Authority was created and to which absolute power of control over development was transferred. However the problems which existed could not be solved by simply transferring the development planning powers from one entity to another, so much so that limits were envisaged over such extensive powers. These limits were sought to be obtained through the creation of the Planning Appeals Board with competence to hear appeals from decisions of the Planning Authority and through the Court of Appeal where a right to appeal on a point of law decided by the Board to the Court of Appeal could be exercised. This thesis deals primarily with the judgements delivered by the Court of Appeal in the context of development planning since the enactment of the Development Planning Act 1992 with the aim of providing guidance as to the jurisprudential teachings of the said Court in such matters. To date the Court of Appeal has delivered over one hundred judgements and various other appeals are still pending before the same Court. The analysis of the judgements deliver by the Court of Appeal is aimed at assessing whether the right balance had been obtained through the system as envisaged in 1992 especially after considering that since that year the Planning Authority has become very powerful to such an extent that thousands of requests for the issue of a development permission have already been processed and decided by the same Authority and more than three thousand applications, to date, are pending awaiting a decision by the same Authority. Also, in this analysis, a factor which cannot be ignored is the extensive power granted to the Planning Authority with regard to enforcement in the field of development planning, including the right to order the demolition of illegal development, sometimes even leading to serious conflicts between the citizens concerned interested in such development and the Planning Authority.