Bill 144 – Re-establishing the Environment and Planning Review Tribunal – An Overview
Bill 144 has been tabled to replace the current Environment and Planning Review Tribunal Act with a new 2025 framework. It seeks to reinforce the Tribunal’s independence, set clear rules for appointments and appeals and introduce stricter deadlines.
Along with Bill 143 proposing amendments to the Development Planning Act, Government tabled Bill 144 with a purpose to re-establish the Environment and Planning Review Tribunal and introduce the Environment and Planning Review Tribunal Act, 2025. In fact, if this Bill comes into force, the current Environment and Planning Review Tribunal Act may be repealed, although pending proceedings will continue to be governed under the provisions of the current Act.
The Bill proposes that the Tribunal is to be re-established as an independent and impartial adjudicator, providing for security of tenure of its adjudicators, with clearly defined criteria for the appointment and removal of its members, and guarantees of institutional autonomy in accordance with constitutional and European standards of administrative justice.
Nevertheless, the new Bill also proposes a curtailment in the number of days in which an aggrieved party can file an appeal and imposes a time limit on the number of months in which the Maltese courts are expected to determine an appeal following a decision of the Tribunal. One other proposal which also generated a certain level of interest is that pertaining to the suspension of works till an application has been determined by the courts.
The following is a general overview of the contents of the Bill currently subject to public consultation.
1. Format of the Tribunal
Each panel making up the tribunal will be made up of 3 persons, with two of its members being required to have a strong knowledge in development planning and environmental matters, while the other member shall be an advocate who has practised the profession of advocate for at least four (4) years.
2. Procedure of the Tribunal
The Bill proposes that the Tribunal has the discretion to regulate its own procedure in the absence of specific rules on any matter.
The Tribunal may also take all such measures and issue all such orders as it deems appropriate to ensure the proper conduct of the sittings of the Tribunal and the delivery of its decisions by electronic or other viable means of communication. It may also allow the filing of documents in proceedings before it to take place by electronic means in such format as it deems appropriate.
Of importance is the fact that the Tribunal shall have the power to hear and determine appeals on both matters of fact and points of law. Moreover, it is also being proposed that actual determinations made by the Tribunal shall be final and not subject to review by any court, subject to some exceptions. Nevertheless, the legal correctness of decisions based on those facts, as established by the Tribunal, shall be subject to judicial review.
The Tribunal is still bound by certain rules of administrative behaviour, and is expected to:
- abide with rules of recusal reserved for members of the judiciary;
- treat parties equally throughout proceedings;
- clearly indicate the reasons which are decisive for the outcome of the appeal;
- observe all written procedural requirements, the absence of which could result in prejudice to any party concerned;
- ensure that the legal instruments identified as the basis for the decision are valid and in force at the time when the Planning Authority gives its decision, provided that in cases where a planning application, regularisation application or development order have not been favourably decided by the Planning Authority, the legal instruments identified as the basis for the decision shall be valid and in force at the time when the Tribunal gives its decision;
- ensure that the decision is based on the facts established by it;
- subject to the provisions of any other law, ensure that the Planning Authority makes available to the parties to the proceedings all documents and information relevant to the appeal, in order that they can effectively submit contrary arguments;
- ensure that the decision is limited to matters included in the contested decision and in the appeal.
3. Jurisdiction of the Tribunal
The Tribunal has jurisdiction over the following circumstances outlined by the proposed Bill:
(a) where an applicant is aggrieved by a decision of the Planning Authority in relation to a planning application;
(b) where an applicant is aggrieved by a decision concerning a request for regularisation or a development notification order request or any other administrative act not specifically mentioned in this Act but in respect of which the applicant has submitted a request;
(c) where an interested third party or external consultant is aggrieved by a decision of the Planning Authority in relation to a planning application;
(d) where the person requesting modification or revocation of a development permission, or the holder of the development permission, is aggrieved by the decision taken in that regard;
(e) where a person who has been served with a notice issued under the provisions of the Development Planning Act or the owner of the property subject to the notice, even if the notice was not addressed to him, feels aggrieved by such notice;
(f) where any person, without the need to prove an interest in bringing proceedings or to demonstrate prior participation in the proceedings, feels aggrieved by a decision relating to scheduling or conservation orders;
(g) where any person feels aggrieved by a decision from which such person has a right of appeal under any regulation made under this Act, and under the Development Planning Act;
(h) where all persons having a sufficient interest in feeling aggrieved by the substantive or procedural legality of any decision, act or omission with regard to an environmental impact assessment (EIA) or integrated pollution prevention and control (IPPC) permit.
4. Appeal Terms
An applicant has twenty (20) days to file an appeal from a Planning Authority decision on planning applications, regularisation requests, requests for a development notification order or any other administrative act not specifically mentioned in this Act, specifically from the date of publication of the decision on the website of the Department of Information.
In the case of Planning Authority decisions on the modification or revocation of a planning permission, an appeal shall be filed before the Tribunal within twenty (20) days from the date of the public hearing during which the decision was taken.
In the case of a notice relating to enforcement pursuant to the Development Planning Act, an appeal shall be lodged before the Tribunal within fifteen (15) days from the service of such notice.
An appeal from a Planning Authority decision regarding the removal of the scheduling of buildings or the issuing of conservation and confinement orders, shall also be filed before the Tribunal within twenty (20) days from the date of publication of the decision on the website of the Department of Information.
5. Third-Party Appeal
An interested third-party or external consultant may file an appeal from a decision on a planning application and the related development permission shall be deemed to be suspended until the expiry of the period of twenty-one (21) days from the date on which the Tribunal gives its decision, and if an appeal is filed by an interested party or an external consultant on a point of law before the Court of Appeal (Inferior Jurisdiction) following the decision of the Tribunal as outlined in the new Bill.
6. Appeals Relating to Decisions of the Environment and Resources Authority
An appeal may also be filed from a decision of the Environment and Resources Authority from a decision on environmental assessments, access to environmental information and the prevention and remedying of environmental damage. Such appeal may only be filed on the grounds of a material error made on the facts, material procedural error, error of law, or on material illegalities, lack of reasonableness, ineffective or insufficient consideration of negative effects, or lack of proportionality. In this case, such appeal does not suspend proceedings unless approval leads to an irreversible action which could harm the environment. In such cases there is no need to prove one’s interest in the matter.
7. Appeal from decisions of the Tribunal relating to decisions taken by the Planning Authority
The appellant and the Planning Authority, as parties to an appeal before the Tribunal, as well as interested third parties and external consultants, who would have notified their intention, shall have the right to appeal decisions of the Tribunal before the Court of Appeal in its Inferior jurisdiction. Such appeal may be brought forward on a point of law only. In fact, when bringing forward such an appeal, an appellant shall specify, on pain of nullity, the principle of law allegedly infringed and explain how the Tribunal, based on facts determined by him not amenable to judicial review, wrongly applied that principle.
The Bill proposes that where an interested third party or an external consultant files an appeal before the Court of Appeal (Inferior Jurisdiction) against a decision on a planning application in which the granting of a permit has been confirmed by, or issued on the order of the Tribunal, such permission shall remain suspended until the decision of the Tribunal becomes final.
The Bill also proposes that if the Court fails to deliver a final decision within five (5) months from the date of filing of the application for appeal, the permit shall no longer be deemed to be suspended, subject to observance of such requirements as may or would have been imposed by the Planning Authority. Moreover, any work carried out under such permission after the expiration of the said period of five (5) months and before the final decision shall not be affected or invalidated by the result of such appeal. This proviso shall not apply where the application subject to appeal is one involving a request for sanctioning.
The Bill is currently subject to a public consultation running until the 7th of September, which consultation may lead to changes to the contents of Bill 144.
Bill 144 would reshape planning and environmental appeals in Malta by aiming for greater efficiency and accountability. Some measures may be welcomed while others could prove more challenging in practice. At AE Legal we can guide you through these proposed changes and help you prepare for their impact.
How Can AE Help
Keeping up with changes in planning law can be challenging. At AE Legal, we provide practical, up-to-date guidance. Whether you need advice on the proposed amendments or support in reviewing your current policies, our team is here to help. Contact us today for a consultation.
