Consistency has to be rooted in good decisions
This column has once again been under fire. In a letter entitled ‘Precedence in permits’, which was published in this newspaper last Sunday (3 January), we were told that a prior permit is not a valid benchmark. Although the esteemed reader is entitled to her valued opinion, it is pertinent to refer to the legal principles expressed by our local Courts in order to clarify this position.
In the case J. Formosa Gauci on behalf of Trident Development Limited vs L-Awtorita’ 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-Awtorita’ 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.”
The same legal reasoning was adopted in the case Salvu Mallia vs 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 thus I could go on and on forever quoting. To conclude, I mention the decision in the names Joseph Debono vs L-Kummissjoni ghal Kontrol tal-Izvilupp, the Planning Appeals Board (PAB 111/98 SMS.PA 7783/96 ) 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 vs 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.”
Perhaps it bears pointing out that none of the abovementioned permits involves the “unethical practice of architects on MEPA Boards judging applications submitted by themselves or their colleagues or their immediate family members”, as alleged last week. None of these permits has been revoked (due to submitting incorrect information). Consequently, it follows that there is nothing to suggest that these decisions cannot be considered as “good decisions”! This signifies that these decisions constitute a valid benchmark and should serve as a guiding platform to ensure consistency.
After all, it was our esteemed reader herself who in last Sunday’s contribution reiterated that “consistency has to be based on cases decided on correct information!”
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Although the esteemed reader is entitled to her valued opinion, it is pertinent to refer to the legal principles expressed by our local Courts in order to clarify this position. 
