A law empowering the Planning Authority to fine landowners for illegalities carried out by their tenants without allowing them to defend themselves has been declared unconstitutional. 

The court also ruled that while the PA was empowered to issue fines for breaches of enforcement notices, it must provide applicants with a way of challenging its decisions in court. 

Lawyers who argued the case believe the ruling could prove to be a landmark one with major implications on the way the PA levies administrative penalties. 

The issue came to the fore in a breach of rights claim filed by the Gozo Diocese and Our Lady of Loreto Parish of Għajnsielem, as the owners of a plot of land in J.F De Chambray Street which they had leased to the local football club back in July 2012. 

The land was meant to be used by Għajnsielem FC for matches and training. 

When the club fell behind on rental payments, Victor Gusman, the Diocese Administrator, filed proceedings before the Rent Regulation Board.

That case was decided in October 2021 and the club was ordered to pay €15,000 in unpaid rent. 

Meanwhile, another legal issue stemmed between the parties. 

The club had started building “rooms, a bar, a bocci pitch, awning and stone walls,” on the land, which was classified as ODZ. It started that project without obtaining any development permits and without the diocese’s administrator knowing about it. 

The parish priest later testified that he had been invited to bless the bocci pitch and had accepted on the insistence of some individuals close to the football club committee and only “pro bonum pacis” (for the good of peace).

The landowners said they only got to know about the works when slapped with a stop and enforcement notice by the Planning Authority in August 2020.  They were given 16 days notice to demolish all the structures and put the site back in its former state. 

Failure to do so would signify a daily fine of €10 which could go up to a maximum daily fine of €50 unless action was taken within one year. 

The diocese and parish filed an appeal before the Environment and Planning Review Tribunal arguing that such an administrative system breached their fundamental right to a fair hearing. 

The tribunal suspended the proceedings since the matter fell beyond its competence and the applicants took their grievances before the First Hall, Civil Court in its constitutional jurisdiction. 

Pending those proceedings, the illegal structures were removed, the fine was settled by Għajnsielem FC and the church administrator also withdrew the appeal before the EPRT. 

The Planning Authority withdrew the enforcement notice. 

However, the court still had to delve into the merits in order to determine responsibility for court expenses. And in doing so the court, presided over by Mr Justice Mark Simiana had to address the applicant’s two claims. 

The diocese’s lawyers argued that the fine stemmed from a criminal charge and thus should be imposed by a court or tribunal, not a public authority. 

The judge confirmed that the failure to obey enforcement notices was “expressly classified as a criminal offence under domestic law.”

Criminal offences must be determined by a court or tribunal and the Planning Authority was clearly not one in terms of the Constitution, he noted. 

“The legislator cannot do away with the need to charge a person over an alleged breach of criminal law by setting up an alternative ‘administrative’ system resulting in penalties against that person without the need of that charge being determined by a court,” said Mr Justice Simiana. 

An administrative body that levies fines must also provide a system to allow applicants to challenge those decisions in court, the judge said. 

The diocese also argued that its rights were breached because the PA was empowered to issue fines even if the owner had nothing to do with the illegal development, had no control over it and irrespective of whether it was done with his consent or not. 

The court observed that the presumption of responsibility by the owner was in itself not unfair or illegitimate. 

But the fact that the Development Planning Act dd not provide the owner with any way of rebutting that presumption was deemed “objectionable.”

The owner was “forced to shoulder the consequences of third-party actions without any opportunity of exculpating himself,” observed the court, thus declaring the existing legal system in breach of the right to fair hearing. 

Given that the PA’s appeals body, the EPRT, did not delve into issues of responsibility, the appellant had no chance of defending himself in such circumstances by proving that he was not responsible for the illegal development on his land. 

The court thus declared that the relative provisions under the Development Planning Act were unconstitutional and attributed court expenses to the State Advocate as respondent.

The court also ordered a copy of the final judgment to be delivered to the Speaker in Parliament. 

Lawyers Carmelo Galea and Daniel Calleja assisted the applicant.