MEPA Watch | Sunday, 28 June 2009

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Robert Musumeci finds it hard to accept how certain laymen accuse the DCC Board of flaunting the law when all it does is abide by the legal principles expressed by our local Courts

Fact review
This week was characterized by various media reports where fingers were pointed at the various DCC board members claiming that they should be held personally responsible for bad judgment each and every time a negative recommendation has been overturned on the basis of planning principles emanating from established case law quoted by architects in the process leading to a decision.

Robert Musumeci’s observations
It is only fair that my observations should not be limited to a personal opinion or agenda. Observations in this regard should be made on legal principles expressed by our local courts in order to secure credibility, clarify the current position and substantiate my belief.
In the case J. Formosa Gauci on behalf of Trident Development Limited vs L-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar Appell (Civili Numru. 4/2008), the Civil Court expressed itself in very clear terms. The learned Judge underlined that decision bodies are legally bound to take full regard of commitment established by other permits: in fact the said Court justified the Appeals Board for overturning a decision which was based on site commitment: “Din il-Qorti thoss li jidher car li bhala fatt li hemm commitment fl-istess area ta’ diversi zviluppi, koperti bil-permess, ukoll bhal jew simili, u anke ta’ entita’ ikbar minn dak propost mill-istess appellant, u allura a bazi tal-istess il-Bord (ta’ l- Appell ta’ l- Ippjanat) hareg l-istess permess ta’ zvilupp a bazi ta’ commitment. B’hekk il-Bord ddecieda li fid-dawl li l-istess zona hija hekk kommessa, tali -permess jista’ jinhareg u din hija l- posizzjoni legali korretta.”
In the case Dr Graham Busuttil vs L-Awtorità ta’ Malta dwar l-Ambjent u l-Ippjanar, the same Court highlighted that decision bodies cannot ignore any of the submissions made by architects, not least any case precedent quoted by architects in their defense, carrying similar planning objectives and principles. It held that “il-Planning Appeals Board relattiv ma jistax jinjora s-sottomissjonijiet u pretensjonijiet vantati u jinjorahom minghajr ma jigu trattati kif rikjest.”
In the case Adrian Stivala kontra l-Kummissjoni Ghall-Kontroll ta’ l-Izvilupp (PAB 9/00 SMS.PA 2378/99), the Planning Appeals Board insisted that precedents quoted by architects acting on behalf of applicants should have a bearing in the final decision. It enunciated that “Il- Bord irid dejjem jimxi fuq principji ta’ gustizzja naturali u ta’ ekwita’ - u l-principju ta’ ceribus paribus mhi xejn hlief xempju attwali ta’ dawn ir-regoli primarji. Fl-istess linja ta’ bini fejn hemm is-sit tal-appellant hemm diversi binjiet li huma tal-gholi (u anki aktar) mitlub mill-appellant. Naturalment dan ifisser li l-Bord irid japplika r-regola ta’ cerimus paribus. “
The same legal reasoning was adopted in the case Salvu Mallia kontra il-Kummissjoni ghall-Kontroll ta’ l-Izvilupp (PAB 221/97 SMS.PA 4213/96): “Ir-regola ta’ ceribus paribus maghduda mal-commitment qawwi li hemm favur l-applikazzjoni odjerna ma thalli ebda triq lill-Bord hlief li japplika f’dan l-appell dak li gie applikat mill-Kummissjoni stess fid-diversi binjiet.”
The list of planning decisions carrying the same rationale is endless and I could go on and on forever quoting. To conclude, I mention the decision in the names Joseph Debono kontra L-Kummissjoni ghal Kontrol tal-Izvilupp, the Planning Appeals Board (PAB 111/98 SMS.PA 7783/9) which comforts my view to the current system, that planning principles which have already been applied in past decisions must be carried forward in future planning applications: “Ir-regoli ma jistghux jigu interpretati ghal applikant mod u ghal applikant iehor mod iehor: dak li jinghata lill-applikant irid jinghata lil kull applikant iehor.”
The same principle was further embraced in the case Dione Bartolo kontra L-Kummissjoni ghal Kontrol tal-Izvilupp (PAB 633/98 SMS PA 0131/98) where the Appeals Board stated the following in no uncertain terms: “Dak li thalla jsir fil-kaz ta’ wiehed ghandu jithalla jsir fil-kaz ta’ kulhadd.”
It therefore follows that those who continue to allege that the DCC Board is abusing its power when it bases its decision on established planning rationale contained in similar planning decisions are only expressing a personal opinion, which in reality finds no comfort in our local system. A judgement, once final and delivered, constitutes the law since judgements are presumed to be just and based on the law – unless of course such judgements are overruled at an appeals stage or declared null by some Constitutional Court. This signifies that these judgments are there to be quoted and hence used as reference to strengthen one’s arguments. They are guidelines to our legal beagles.
This is done daily in our local courts by the defence and the prosecution in criminal cases, concurrently by the plaintiff and the defendant in civil cases when one wants to score a goal. If one were to read our court decisions one will immediately notice that this is what actually is done by our same judiciary on a daily basis. The law of precedent in Malta is not binding like the UK’s, but is certainly given great importance.
Therefore the DCC Boards are certainly doing their job well when they approve applications and issue permits on the grounds that other similar permits where issued on the same pretext. Their reasoning is strengthened by a number of court judgements which actually insist on sentencing policy as a guidelines for John Citizen. Using a different yardstick for the same case would result in bad judgement and preferential treatment when everybody is equal before the law. Hard to accept how certain laymen accuse some of flaunting the law, when all they do is abide by the same law!

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