Mr Musumeci’s contribution ‘A more consistent decision process – George Farrugia vs MEPA’ (27 December) makes for very interesting reading.
In essence, Mr Musumeci would have government improve consistency in MEPA decisions by applying the common law principle of precedent, that is, the body of precedent binds future decisions or, as he put it, “planning decision bodies are bound by prior decisions.”
I believe our legal system is based on civil law not common law, so that, by default, judicial and quasi-judicial tribunals are bound to base their judgements on laws enacted by parliament and regulations made by the executive, with precedent being limited to a supplementary function – a secondary source of law. In legal systems based on common law, precedent is a primary source of law.
Therefore, I believe that promoting precedent from its present supplementary function to a primary source of law, as Mr Musumeci proposes, would entail changing our legal system from one based on civil law to one based on common law, which may make the going a trifle turbulent.
But I will leave these aspects to the legal experts to contemplate and comment on.
Interestingly, Mr Musumeci’s proposal would place him squarely with those NGOs who were so very vociferous in their condemnation of the recent case of a development in Baħrija. I did not follow that case very closely but I seem to remember disgust being expressed at the fact that an application for the opening of a window in an existing residence situated in close proximity to this development was refused, while this development was permitted, which, if I may state the obvious, makes for an inconsistency as huge as a mountain.
The consistency Mr Musumeci would have government improve by the now famous reform would have had MEPA throw out the application for the development in Baħrija before one could bat an eyelid.
Mr Musumeci put forward this proposal while reporting about an appeals case that makes for a very interesting exercise in rhetoric – what mattered most seems to have been winning the argument, rather than reaching the right decision.
The argument that the Appeals Board first posed, and then won, goes something like this: development permission was issued for a development adjacent to the case brought before the Appeals Board. According to planning policies, that permission should never have been issued. Development permission is now requested for the present case. This, too, should never be issued. However, since in the previous case a permission that should never have been issued was issued, so in the present case a permission that should never be issued should be issued.
No one can fault the apparent consistency here. Indeed, it is so uncompromisingly consistent, that it consistently promotes breach of planning policies to the extent that if planning polices had been breached once then, in cases of identical merit (“mertu identiku”), they may be breached always!
Surprisingly, the two cases compared by the Appeals Board were not of identical merit (“mertu identiku”) at all.
Thus while the application under appeal (PA/01011/08) was submitted in 2008, the application for development on the adjacent site (PA/07633/05) was submitted in 2005. Meanwhile, August 2006 saw the promulgation of the Central Malta Local Plan which regulates development in that part of Malta where these two sites are located.
One important function of a local plan is to provide detailed area-specific and site-specific guidance for development control. This guidance was not in vigore when PA/07633/05 was submitted in 2005, but had assumed the force of law when PA/01011/08 was submitted in 2008. Yet the Appeals Board seems to have ignored this major change in the relevant circumstances, a change that demolishes the fundamental premise that the above two cases were of identical merit (“mertu identiku”). After all, they were not.
So much for precedent.
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