The right to appeal is an intrinsic part of the Maltese juridical fabric, be it from a decision by the public administration, by a tribunal, or by a court. This is also the case of a permit issued or refused during a Planning Authority application process.

We citizens have the right to object against an application for whatever reason but, normally, one objects to an application based upon sound planning policies and the entire framework which should govern the permitting process. 

The appeal from a decision of the Planning Authority is made before an appeals board known as the EPRT (Environment and Planning Review Tribunal). From the EPRT there is a limited right of a second appeal before the Court of Appeal.

In its first hearing, the EPRT considers the request of the objector to suspend the commencement of the construction of the project for which a permit was granted and which is being appealed. The suspension is requested for the duration of the appeals’ process. If a suspension is granted, the appeal must be heard within a very short time frame in order to not unduly burden the applicant or permit holder.

It is, in fact, up to the EPRT, to grant or refuse a suspension. Its decision should be based upon reasonable grounds. To date, most requests for a suspension are refused, on the pretext that the applicant is taking a risk in proceeding in any case.

However, is there any real risk? How many cases have occurred in which a permit is revoked and, therefore, the building which was allowed to be built was then demolished?

In fact, the opposite is very much the case. The objector undergoes the difficult and expensive process of objecting at both planning and appeals’ stage, only to be faced with a monster building in his or her backyard even if he wins the appeal.

A case in point is that of the objector Frank Zammit, published in the Times of Malta on April 12, 2023. Zammit has been fighting at both the appeal’s tribunal and, following that, at the Court of Appeal for the past three years. The building has now been rendered illegal but will it be demolished?

The law treats the builder as king and the ordinary citizen as a fly in the ointment- Joanna Spiteri Staines

The lack of an effective suspension is, in fact, leading to an erosion of the basic rights of an objector since, in practical terms, rarely is a building ever demolished in Malta or Gozo, even if the permit is revoked by the appeals board or, possibly, by the court.

The lack of suspension effectively means that the right of appeal is being nullified.

This, in itself, makes a mockery out of the very basic rights of us citizens, our basic right to appeal a permit against overdevelopment, in most cases, literally in our backyard.

In cases before the courts, it is a general rule of law that an appeal suspends the effects of the decision of a tribunal or court of first instance until the final decision is pronounced. This applies even in cases where small sums of money are involved. The onus is upon the winning party to apply to the court to enforce the first judgment pending the appeal. Enforcement is granted only in exceptional cases.

However, in the case of appeals before the EPRT – where the very lifestyle of an objector and the environment may have been irremediably prejudiced – the opposite principle applies. In most cases, the developer cynically carries on building during the appeals process so that when the EPRT delivers a final decision the damage has already been done and, in practice, cannot be reversed.

Not only is the EPRT typically prejudiced in favour of the developer but the law itself discriminates against the objector, treating the builder as king and the ordinary citizen as a fly in the ointment.

Prime Minister Robert Abela referred exactly to this legislative anomaly in his speech on May Day and calls for discussions to address this. The authorities must urgently address the need for suspension in the light of the reality of what happens.

If we really want to prioritise our environment, we need to strengthen the very regulations and the norm of the interpretation of such regulations to protect the environment and to protect those who fight against over development.

Joanna Spiteri Staines is a council member of Din l-Art Ħelwa and also an architect specialising in conservation and rehabilitation of historic buildings and sites.