Court ruling on Article 39A A request was filed before the Civil Courts to revoke the Madliena Village permit (formerly Busietta Gardens). The request was made by neighbours of the village, who highlighted a number of irregularities in their request. The Appeals Court concluded that the aggrieved parties should have made their objections first before the competent Authorities, in this case MEPA. The Appeals court confirmed that planning permits may in actual fact be revoked by the Authority on a number of counts in virtue of Article 39 A of the Development Planning Act. Article 39 A provides that MEPA may – only in the cases of fraud or where public safety is concerned or where there is an error on the face of the record – by order revoke or modify any development permission, stating in such order its reasons for so doing. Moreover, MEPA is obliged to inform the person who will be affected by its decision of the date and time of its meeting, so that the Authority shall hear the said person’s submissions should the latter opt to attend during the public hearing. This article further provides that he Authority may not refrain from revoking or modifying a development permission on the basis of fraud, where the fraudulent information did not have a material bearing on the issuing of the development permission.
In its conclusion, the Court noted that the exercise of the legal provision of Article 39 to revoke a development permit rests solely with the MEPA (and does not fall within the remit of the Courts of Law). In other words, if a third party feels that a permit should be revoked, such party should address his request to MEPA and not to the Courts: “dan l-artikolu jaghti d-diskrezzjoni relattiva (“tista’”) lill-Awtorità u mhux lill-Qorti”
The Court concluded in this manner, despite the fact that the aggrieved party alleged that MEPA had ignored their repeated requests to investigate the case and invoke Article 39 A in view of a number of alleged planning irregularities: “F’dan il-kaz, l-atturi jargumentaw li wara li gibdu l-attenzjoni tal-Awtorità ghal certu irregolaritajiet u talbu lill-istess Awtorità tipprovdi fit-termini tal-Artikolu 39A tal-Kap 356, ma semghu xejn aktar mill-istess Awtorità. Jekk, allura, l-ilment taghhom hu li l-Awtorità injorathom, setghu jadixxu dawn il-qrati biex jitolbuhom jordnaw lill-Awtoritàtezercita d-diskrezzjoni taghha.” The Court suggested that a plea before the Courts could only be made with a view to ensure that MEPA acts upon the request made by the aggrieved party and proceed with an investigation.
Against this background, it is concluded that even though the Development Planning Act provides that MEPA is vested with the legal powers to revoke a permit in terms of Article 39A, it remains unclear whether MEPA investigates all the pending requests made to this effect. On an equally significant note, it is not known whether MEPA acts upon such requests with the same zeal. It is high time that details of such requests are made available to the public so that they may be scrutinised. Nonetheless, investigations should be made possible against payment by the party requesting such revocation, and the outcome of the investigations should subsequently be made public, since the issue under review could affect all and sundry.
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The Appeals Court concluded that the aggrieved parties should have made their objections first before the competent Authorities, in this case MEPA. The Appeals court confirmed that planning permits may in actual fact be revoked by the Authority on a number of counts in virtue of Article 39 A of the Development Planning Act. Article 39 A provides that MEPA may – only in the cases of fraud or where public safety is concerned or where there is an error on the face of the record – by order revoke or modify any development permission, stating in such order its reasons for so doing. Moreover, MEPA is obliged to inform the person who will be affected by its decision of the date and time of its meeting, so that the Authority shall hear the said person’s submissions should the latter opt to attend during the public hearing. This article further provides that he Authority may not refrain from revoking or modifying a development permission on the basis of fraud, where the fraudulent information did not have a material bearing on the issuing of the development permission.
