The Administrative Judge and Environmental Law Report to the Questionnaire Maltese Jurisdiction Cartagena Congress (2013)

Transcription

1 The Administrative Judge and Environmental Law Report to the Questionnaire Maltese Jurisdiction Cartagena Congress (2013) I. Sources of Maltese Environmental Law 1a) National Sources of environmental law: Sources of Maltese Environmental Law are Acts of Parliament, with the main Law being the Environment and Development Planning Act, Chapter 504 of the Laws of Malta, and subsidiary legislation promulgated both under the above-mentioned Act and other Laws which are pertinent to the protection and sustainability of the environment. 1b) Authorities competent for enacting sources of environmental law: The sources of Environmental Law which are Acts of Parliament, as is for example the Environment and Development Planning Act, are enacted by Parliament, whereas the various subsidiary legislation pertinent to the protection and sustainability of the environment currently in force, amounting to around thirty nine pieces of subsidiary legislation pertinent to the issues of water, waste and biodiversity, have been enacted for the most part by the Minister responsible for the Environment acting alone whilst in other cases they have been enacted either by the Minister responsible for the Environment in conjunction within another Minister under whose portfolio the particular issue falls and/or competent Authorities, for example the Malta Environment and Planning Authority and/or the Occupation Health and Safety Authority and/or the Malta Resources Authority, depending on the subject-matter of the specific piece of legislation. There are certain subsidiary legislation, as for example the Environment Protection Control of Transboundary Movement of Toxic and Other Substances Regulations (Subsidiary Legislation ) and the Deliberate Release into the Environment of Genetically Modified Organisms Regulations (Subsidiary Legislation ), which have been enacted by the Prime Minister acting alone, as in the case of Subsidiary Legislation , or in conjunction with the competent Authority, for example the Malta Environment and Planning Authority, as in the case of Subsidiary Legislation ) Supranational Sources concerning environmental law that judges must enforce: The supranational sources of environmental law which Maltese judges, understood in a wide sense and not limited solely to Administrative judges, must enforce are mainly EC Regulations and EC Directives pertinent to the protection and sustainability of the environment, as for example Regulation EC No. 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC, the provisions of which have been brought into effect in Malta by means of Subsidiary Legislation Plant Protection Products (Implementation) Regulations, Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the Protection of Groundwater against Pollution and Deterioration, the provisions of which have been brought into effect in Malta by means of Subsidiary Legislation Protection of Groundwater against Pollution and Deterioration Regulations, and 1

2 Directive 2003/108/EC of the European Parliament and of the Council of 8 December 2003 amending Directive 2002/96/EC on Waste Electrical and Electronic Equipment, the provisions of which have been brought into effect in Malta by means of Subsidiary Legislation Waste Management (Electrical and Electronic Equipment) Regulations. Maltese judges, in this case understood as not including Administrative judges, are also required to enforce Multilateral Environmental Agreements which have been ratified by Malta, as for example the International Plant Protection Convention the observance and enforcement of which are regulated by the Plant Quarantine Act, Chapter 433 of the Laws of Malta, international and regional conventions and protocols relating to the protection of the marine environment the observance and enforcement of which are regulated by the Marine Pollution (Prevention and Control) Act, Chapter 271 of the Laws of Malta, which at date of this report is not yet in force, and the International Convention for the Prevention of Pollution from Ships the observance and enforcement of which are regulated by the Merchant Shipping Act, Chapter 234 of the Laws of Malta, and relevant Subsidiary Legislation. The enforcement of Multilateral Environmental Agreements does not fall within the competence of the Administrative Review Tribunal or any other Tribunal having an administrative review competence but it falls within the competence of the judicial courts of the Country, in their civil or criminal jurisdiction depending on the merits of the particular type of enforcement sought to be exercised. 3) Enforcement of general principles of environmental law by the Administrative judge and contribution by said judge to developing them: In Malta as yet we do not have an Administrative Court, even though draft legislation pertinent inter alia to the establishment of an Administrative Court is currently pending before Parliament 1, but by virtue of the Administrative Justice Act, Chapter 490 of the Laws of Malta, an Administrative Review Tribunal has been set up for the purpose of reviewing administrative acts referred to it in accordance with this Act or any other law, and for the purpose of exercising any other jurisdiction conferred on the Administrative Review Tribunal by or under this or any other law, whether before or after the coming into force of this Act 2. The Administrative Review Tribunal can be presided over by a person who holds or has held the office of a judge or of a magistrate in Malta 3 and it is currently presided over by a Magistrate who still holds office. In spite of the setting up the Administrative Review Tribunal, issues pertinent to the protection and sustainability of the environment do not fall under the competence of the said Tribunal but fall under the competence of the Environment and Planning Review Tribunal set up under the Environment and Development Planning Act, Chapter 504 of the Laws of Malta 4. Offences against the environment however fall under the competence of the Courts of Criminal Jurisdiction and this in terms of various pieces of Subsidiary Legislation enacted under the Environment and Development Planning Act and other Acts which refer to issues pertinent to the environment. In so far as concerns the protection of the environment through 1 Draft Administrative Code. 2 Section 5(1) of the Administrative Justice Act, Chapter 490 of the Laws of Malta. 3 Section 8(4) of the Administrative Justice Act, Chapter 490 of the Laws of Malta. 4 Section 40 & 41 of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta. 2

3 criminal law, Parliament has recently enacted the Crimes Against the Environment Act, Chapter 522 of the Laws of Malta, which enforces a number of EC Directives in the Maltese jurisdiction. The Environment and Planning Review Tribunal, under whose competence fall matters pertaining to the protection and sustainability of the environment, including issues pertinent to water, waste and biodiversity, consists of three members, one being a person versed in environment or development planning, who shall preside, and a lawyer and an architect, each of whom shall be appointed by the President of Malta acting on the advice of the Minister responsible for the Environment. Therefore in Malta, general principles of environmental law, which are primarily enshrined in the Environment and Development Planning Act, are not enforced by an Administrative Judge but by the said Tribunal which is a quasijudicial body. This does not necessarily mean that there is no form of judicial intervention in the enforcement of general environmental principles since decisions delivered by the Environment and Planning Review Tribunal are subject to appeal on points of law before the Court of Appeal in its Inferior Jurisdiction, which Court is presided over by one Judge 5. In the light of the above it clearly results that under the Maltese jurisdiction an Administrative judge per se does not contribute towards the development of the general principles of environmental law but decisions by the Environment and Planning Review Tribunal and judgments by the Court of Appeal in its Inferior Jurisdiction have undoubtedly contributed towards the development of general principles of environmental law. 4) Environmental law considered as a human right or a fundamental right in a constitutional or conventional sense: The only provision under the Constitution of Malta which could be deemed as referring, at least in part, to the environment is the provision enshrined in Section 9 of the Constitution which provides that the State shall safeguard the landscape and the historical and artistic patrimony of the Nation. However, upon closer consideration of the Legislation specifically pertinent to the Environment it is clear that under Maltese Law environment law is not considered as a human right or a fundamental right in the constitutional or conventional sense. In fact, even though Section 3 of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta, provides that it shall be the duty of every person together with the Government to protect the environment and to assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner and Section 4 of the said Act sets out in detail the duties of the Government in order to protect the environment for the benefit of the present and future generations, Section 5 of the Act provides that the provisions of articles 3 and 4 shall not be directly enforceable in any court, but the principles therein contained are this notwithstanding fundamental to the Government of Malta and those principles shall be employed in the interpretation of the other provisions of this Act or of any other law relating to matters governed by this Act. 5 Section 41(6) of the Environment and Development Planning Act. 3

4 II. The Competence of the Administrative Judge in the Environmental Field 1 & 2) Competence regarding environmental cases: administrative judge, judiciary courts, specialized Courts? Relative competences between administrative judge, judiciary courts & specialised courts: As already explained above, environmental cases do not as a general rule fall under the competence of an Administrative Court and therefore of an administrative judge. Environmental cases which include amongst others, cases regarding environmental impact assessments, access to environmental information and prevention and remedying of environmental damage, fall under the competence of the Environment and Planning Review Tribunal, composed of three members, one being a person versed in environment or development planning, who shall preside, and a lawyer and an architect. Cases which fall under the competence of the Environment and Planning Review Tribunal also fall under the competence of the Court of Appeal in its Inferior Jurisdiction (which is presided over by one judge), since decisions delivered by the Tribunal are subject to an appeal before the said Court on points of law. The Administrative Tribunal is however competent to deal with appeals submitted by a person who feels aggrieved by a decision or directive of the Malta Resources Authority 6, whose functions are primarily directed towards the protection and sustainability of water, energy and minieral resources, and with appeals submitted by a person against whom an administrative penalty is imposed by the Malta Resources Authority 7, which administrative penalty is imposed against a person who infringes or fails to comply with: (a) any provision of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta; (ii) regulations made under the Malta Resources Authority Act; (c) any other law which the Malta Resources Authority is entitled to enforce; (d) any directive or decision given by the Authority whether under the Malta Resources Authority Act, regulations made there under or under any other law which the Authority is entitled to enforce; or (e) any condition of any authorisation granted under the Malta Resources Authority Act. The judiciary courts are competent to deal with any action filed by any person who feels aggrieved by a decision of the Director General (Technical Regulations) given within the context of Regulation EC No. 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC, the provisions of which are implemented under Maltese Law by means of Subsidiary Legislation , Plant Protection Products (Implementation) Regulations. In terms of Regulation 5 of Subsidiary Legislation any person who feels so aggrieved by a decision of the Director General (Technical Regulations) may settle any dispute, controversy or claim arising from such decision either by bringing an action before the First Hall Civil Court or by commencing arbitration proceedings in accordance with the Malta Arbitration Act and the Arbitration Rules of the Malta Arbitration Centre, as may be in force from time to time. In terms of the Marine Pollution (Prevention and Control) Act, Chapter 271 of the Laws of Malta, which Act as yet is not in force, the competent court to deal with cases regarding civil liability for pollution is the First Hall Civil Court, whereas the 6 Section 33 of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta. 7 Section 31(A) of the Malta Resources Authority Act. 4

5 competent court to deal with cases regarding criminal liability for pollution are the Courts of Criminal jurisdiction. Furthermore, environmental cases related to offences against the environment, including offences provided for under the Crimes Against the Environment Act, Chapter 522 of the Laws of Malta, fall under the competence of the Courts of Criminal Jurisdiction. 3) Competence of administrative courts: first instance and on appeal: As already pointed out above, within an administrative law context the competent tribunal at first instance is: (i) the Environment and Planning Review Tribunal in so far as concerns cases involving issues related to the environment in general (thus including issues relating to waste and biodiversity), including but not limited to environmental impact assessments, access to environmental information and prevention and remedying of environmental damage; and (ii) the Administrative Review Tribunal in so far as concerns appeals submitted by a person who feels aggrieved by a decision or directive of the Malta Resources Authority in accordance with the Malta Resources Authority Act or any regulations made there under and appeals submitted by a person against whom an administrative penalty is imposed by the Malta Resources Authority. The Court competent to deal with appeals from decisions delivered both by the Environment and Planning Review Tribunal and the Administrative Review Tribunal is the Court of Appeal in its Inferior Jurisdiction, however appeals can only be lodged on points of law. III. The Proceedings 1) Access of Justice: 1.1) Admissibility criteria of proceedings initiated by a natural person: Environment and Planning Review Tribunal: The admissibility criterion of proceedings initiated by a natural person before the Environment and Planning Review Tribunal essentially is the existence of an own interest in the matter brought before the Tribunal. Naturally, when it is the person directly against whom a particular action by the Malta Environment and Planning Authority is addressed who initiates proceedings before the Tribunal, the criterion of infringement of subjective rights could arise too. In terms of Section 41 of the Environment and Planning Development Act, Chapter 504 of the Laws of Malta, proceedings, including appeals from decisions by the Malta Environment and Planning Authority, can be initiated before the Environment and Planning Review Tribunal: By an applicant or any person who feels aggrieved by a notice issued under the provisions of Part VI of the Act which refers to the powers of the Malta Environment and Planning Authority and enforcement of control on any decision of the Malta Environment and Planning Authority on any matter of development control, including the enforcement of such control, or appeals made by any person on any decision of the Authority relating to environment protection, including environment assessments, access to environmental information and the prevention and remedying of environmental damage; 5

6 By any interested third party from a decision of the Authority on any matter of development control, provided that such an appeal may only be made by an interested third party who had submitted written comments in terms of Section 68(4) of the Environment and Planning Development Act representations concerning a development application when the application to carry out the development is published. No appeal shall however lie by an interested third party from any development control decision concerning a development which is specifically authorised in a development plan. However in terms of Article 12 of the Second Schedule of Chapter 504 of the Laws of Malta which refers to the Proceedings before the Environment and Planning and Review Tribunal and appeals therefrom, a person other than the applicant, need not prove that he has an interest in that appeal in terms of the doctrine of juridical interest which doctrine shall not apply to such proceedings, but he shall submit reasoned grounds based on environmental and, or planning considerations to justify his appeal. Administrative Review Tribunal: In so far as concerns appeals before the Administrative Review Tribunal from decisions or directives of the Malta Resources Authority in terms of Section 34 of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta, the admissibility criterion is based on a direct interest of the appellant in impugning the decision or directive appealed from. In fact Section 34(6) of Chapter 423 of the Laws of Malta provides that: the right of appeal to the Administrative Review Tribunal shall be competent to any person aggrieved by the decision: Provided that in any case, any person making an appeal to the Administrative Review Tribunal shall also require a direct interest in impugning a decision or directive appealed from. 1.2) Admissibility criteria of the proceedings initiated by legal persons and existence of presumptions of interest for prompting legal action: Environment and Planning Review Tribunal: As already stated above, in terms of Section 41(1)(a) of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta, any person who feels aggrieved by a notice issued under the provisions of Part VI of the Act which refers to the powers of the Malta Environment and Planning Authority and enforcement of control on any decision of the Malta Environment and Planning Authority on any matter of development control, including the enforcement of such control, or who feels aggreived by any decision of the Authority relating to environment protection, including environment assessments, access to environmental information and the prevention and remedying of environmental damage, can lodge an appeal before the Environment and Planning Review Tribunal. However, the proviso to the said Section of the Law provides that for the purposes of said provision the Malta Environment and Planning Authority shall not be construed as "any person". In so far as concerns the right of any interested third party to lodge an appeal before the Environment and Planning Review Tribunal from a decision of the Authority on any matter of development control in terms of Section 41(1)(c) of the Environment and Development Planning Act, subparagraph (iii) of the said provision of the law states that a local council in whose locality the development is 6

7 intended to be carried out shall always be deemed for all intents and purposes of law to be an interested third party provided that it made written submissions concerning the development application in terms of Section 68(4) of the Act and it is acting in the interests of its locality. Subparagraph (iv) of Section 41(1)(c) of the Environment and Development Planning Act further provides that the Government or any department, agency, authority or other body corporate wholly owned by the Government shall always be deemed for all intents and purposes of law to be an interested third party. However, in this case too the Malta Environment and Planning Authority shall not be construed as an interested third party. Administrative Review Tribunal: In so far as concerns appeals lodged from decisions or directives of the Malta Resources Authority in terms of Section 34 of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta, the law does not provide for any particular admissibility criteria for proceedings initiated by natural persons, not even if they are non-governmental organizations or public persons having competence in the environmental field, and neither does it provide for any presumptions regarding the existence of interest for filing legal actions. 2) The Procedure 2.1) Preliminary administrative appeal procedure: The Environment and Development Planning Act does not provide for a preliminary appeal procedure before the Tribunal but it provides for a reconsideration procedure before the Malta Environment and Planning Authority or the Environment Planning Commission, as the case may be, in various instances. For example Section 73 of the Act provides that an applicant who considers conditions imposed upon a licence or a development permission is unreasonable may, without prejudice to his right of appeal, request the Authority or the Environment Planning Commission, as the case may be, to reconsider such conditions. A request for a reconsideration must be made within thirty days from notification of the decision of the Authority or of the Commission, as the case may be, and may not be made concurrently with an appeal. A request for a reconsideration shall include a written document containing the reasons for such a request. The Authority is to inform registered interested parties where a request for reconsideration has been filed and they are to be informed of the sitting when such a request for reconsideration shall be discussed. A reconsideration however may not be demanded by a registered interested parte, even if he made written objections in accordance with Section 68(4) of the Act. Section 81(10) of the Act, which section refers to Scheduling and Conservation Orders issued by the Malta Environment and Planning Authority, provides for a reconsideration procedure from a Scheduling and Conservation Order issued by the Authority prior to the filing of an appeal before the Environment and Planning Review Tribunal from such an Order: an owner of scheduled property has a right to demand the reconsideration of any scheduling of his property. Such demand shall be entered in writing with the Authority within thirty days of notification or publication in the Gazette, whichever is the later, of the scheduling and the Authority shall decide within three months of receipt by it of the demand for reconsideration. 7

8 The Malta Resources Authority Act does not provide for a preliminary administrative appeal procedure but it provides for a procedure where a person against whom an administrative penalty is likely to be imposed is given the opportunity to make submissions in his defense within a specified period of time, which shall not be less than five days and not more than twenty days from the date of service of a judicial letter by virtue of which the penalty is imposed ) Period of time within which legal action is to be taken following the enactment of the administrative decision: Times limits within which proceedings are to be instituted before the Environment and Planning Review Tribunal in terms of the Environment and Development Planning Act and before the Administrative Review Tribunal in terms of the Malta Resources Authority Act, are set out in the Acts themselves. Environment and Planning Review Tribunal: Section 41(2) of the Environment and Development Planning Act states that unless otherwise provided under any provision of this Act, an appeal may be lodged before the Tribunal within thirty days from date of notification of the decision or oder by the Authority. Where a request for reconsideration is made under Section 74 of the Act the thirty day period within which an appeal may be lodged before the Environment and Planning Review Tribunal starts running from the date of notificiation of the decision taken in the reconsideration. Administrative Review Tribunal: Appeals from decisions or directives issued by the Malta Resources Authority in terms of the Malta Resources Authority Act, may be lodged before the Administrative Review Tribunal within twenty days from the date on which the said decision or directive have been notified inw writing to the party appealing or published in the Government Gazette whichever is the earlier, as the case may be ) Suspensive effect of appeals: Section 41(3) of the Environment and Development Planning Act provides for the suspension of the execution of a development when an appeal is lodged from a decision of the Malta Environment and Planning Authority granting a permit for development in cases of the developments listed under the Seventh Schedule of the Act, which are: (a) developments in an area which falls outside areas designated for development as defined in the Structure Plan or in any other plan; (b) development in a scheduled property grade 1 or grade 2; (c) development in a property containing archeological remains; (d) demolition within Urban Conservation Area which includes demolition of facade; or (e) development in an area protected under the provisions of the Act or any regulation made thereunder. The suspension is not automatic but may be requested by the appellant concurrently with the application for the appeal from said decision of the Authority. 8 Section 31(A)(1) of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta. 9 Section 34(7) of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta. 8

9 The Environment and Planning Review Tribunal shall through a partial decision decide whether to suspend the execution of the development, in whole or in part, as approved by the development permit subject of the appeal, under those terms, conditions and other measures it may deem fit 10. Should the Environment and Planning Review Tribunal decide in favour of the suspension of the execution of the development permit, such suspension may not be more than three months from the date of the first hearing of the Appeal before the Tribunal, and the suspension oder shall be deemed to have elapsed ipso iure after the lapse of such a period. However, Section 69(3) of the Environment and Development Planning Act provides that the Authority shall have power to grant or to refuse a licence or development permission, and in granting such licence or permission the Authority shall be entitled to impose such condition which it may deem appropriate: Provided that upon a refusal or the imposition of particular conditions, the Authority shall give specific reasons based on existing plans, policies and regulations or other material considerations for such refusal or for any particular conditions that may have been imposed: Provided further that the execution and validity of a permit in case of a development mentioned in the Seventh Schedule shall be automatically suspended and no works as approved by the said development permit may commence before the lapse of the time period established in paragraph (1) of the Second Schedule, and shall remain so suspended until the Tribunal appoints its first hearing on an appeal from such a permit, if any, under the provisions of article 41(3), and this without prejudice to the provisions of article 41(3). In terms of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta, the Malta Resources Authority may impose an administrative penalty on any person who infringes a decision or directive of the Authority or any provision of the Act or a Regulation made under the Act, and must give notice of such penalty to the person concerned and demand payment thereof by means of a judicial letter. The enforcement of decision by the Authority is not automatically suspended when an appeal is lodged therefrom before the Administrative Review Tribunal but the appellant may concurrently with his appeal request the Tribunal to suspend the effects of the said decision pending the outcome of the appeal. The Authority shall desist from issuing the judicial letter mentioned above until the request of suspension has been determined, withdrawn or otherwise dealt with. The Tribunal shall determine any requests for suspension expeditiously but before determing such a request the Tribunal shall give the Malta Resources Authority a reasonable opportunity to reply and make its submissions, within a period of not less than three working days. The Act specifically provides that no precautionary warrant or order shall be issued by any Court restraining the Authority from the exercise of any of the powers conferred upon it under this Act in relation to administrative penalties ) Other specific procedural rules in the environmental field: There are no other specific procedural rules in the environmental field. 10 Section 41(3) of the Environment and Development Planning Act, Chapter 504 of the Laws of Malta. 11 Section 31(A)(6) and (9) of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta. 9

10 3. The Powers of the Judge 3.1) Powers of the judge responsible for the investigations/during the preparation stage: Maltese Environmental Legislation does not provide for an investigative role of the Environment and Planning Review Tribunal prior to the hearing of the appeal or for a preparatory procedure also prior to the actual hearing of the appeal. The Environment and Planning Review Tribunal does have investigative powers in the sense that it can hold on-site inspections and it may require any department or agency of the Government to provide it with such information or advice which it may deem necessary for the property execution of its funcations, but such procedures can be given effect to once the actual hearing of the appeal has started. Similarly when dealing with appeals from decisions or directives of the Malta Resources Authority, the Administrative Review Tribunal too has certain investigative powers and it too can hold on-site inspections if and when necessary, but in this case too such procedures can be given effect to only during the actual hearing of the appeal. The preparatory work done prior to the hearing of the appeal in the case of both the Environment and Planning Review Tribunal and the Administrative Review Tribunal revolves round the familirization by the Tribunal with the case and going through the Appeal lodged by the appellant and the Respondent s reply thereto, and any documentation submitted by the parties. Naturally, if either of the Tribunals would require further clarification prior to the actual hearing of the appeal each one could by means of a decree given in camera, request such clarifications. 3.2) Legal Control limited to control of regularity of procedure or covers also substance of the decision? 3.3) Control of rights/control of appropriatness? 3.4) Degree of judicial review: The control exercised by the Environment and Planning Review Tribunal is not limited to the control of regularity of procedure but it also covers the substance of the decision. As a general rule the Tribunal has the power to confirm, revoke or alter the decision appealed against and give such directions as it may deem appropriate. The Tribunal may also request the appellant to submit fresh documents and plans, in which case the Tribunal shall give reasons for such a request provided that the substance of the matter as presented before the Malta Environment and Planning Authority shall not change. In cases involving fraud or where public safety is concerned or where there is an error on the face of the record, the Environment and Planning Review Tribunal may by a decision, wherein it gives reasons for such decision, revoke or modify any licence or development permission granted under the Environment and Development Planning Act, including any clearance issued by the Malta Environment and Planning Authority under an Order. The Tribunal shall inform the person who will be affected by its decision of the date and time of its meeting where the Tribunal shall also hear the said person s submissions if the latter opts to attend, and any other persons s submissions. 10

11 Proceedings to revoke or modify any licence or development permission, including any clearance issued by the Malta Environment and Planning Authority under an Order within five years from the date of issuing of the licence or development permission, including any clearance issued by the Malta Environment and Planning Authority under an Order. The control exercised by the Administrative Review Tribunal in determining appeals filed from a decision or directive of the Malta Resources Authority too is not limited to the regularity of the procedure but covers also the substance of the decision. In fact, in terms of Section 34(2) of the Malta Resources Authority Act an appeal to the Administrative Tribunal may be filed on any of the following grounds: (a) that a material error as to the facts has been made; (b) that there was a material procedural error; (c) that an error of law has been made; (d) that there was some material illegality, including unreasonableness or lack of proportionality. 3.5) Measures that the judge can decide: May the judge cancel only the decision or may he also alter the decision: Environment and Planning Review Tribunal: As already stated above the Tribunal has the power to confirm, revoke or alter the decision appealed against and give such directions as it may deem appropriate. The Tribunal may also request the appellant to submit fresh documents and plans, in which case the Tribunal shall give reasons for such a request provided that the substance of the matter as presented before the Authority shall not change Rule 5 of Proceedings before the Environment and Planning Review Tribunal and appeals therefrom Second Schedule of the Environment and Development Planning Act. Furthermore, in terms of Section 77(1) of the Environment and Development Planning Act the Tribunal may, in cases involving fraud or where public safety is concerned or where there is an error on the face of the record, by a decision revoke or modify any licence or development permission granted under the Environment and Development Planning Act, including any clearance issued by the Malta Environment and Planning Authority under an Order. It must however be noted that in terms of Section 75 of the Environment and Development Planning Act, where an appeal is lodged by an applicant or by an interested third party from any decision of the Malta Environment and Planning Authority referring to: (i) an application in respect of development which appears to the Minister responsible for the Environment to be of a strategic significance; (ii) applications in respect of development which appears to the Minister to affect matters of national security or national interests; (iii) applications in respect of development which appears to the Minister likely to affect the interests of other governments; (iv) applications in respect of development which is subject to an environmental impact assessment and which in his opinion is of national interest; or (v) applications in respect of which the applicant is a department of the Government or a body corporate estalbished by law, the Secretary of the Tribunal shall inform the Minister of such an appeal within fifteen days from its receipt. In such case the Minister may, within fifteen days from the date when he has received such information, either instruct the Tribunal to proceed with the determination of the appeal or decide to refer the application to the Cabinet of Minister. If within the said period of time the Minister does not refer the matter to the Cabinet of 11

12 Ministers it shall be deemed for all purposes and effects of Law that he has opted to refer the said appeal for its decision. Where the Minister decides to refer to the Cabinet of Ministers an application called in by him, he shall request the Tribunal to draw up its recommendation on that application after having heard the parties and the Tribunal shall send its recommendation on that particular application to the Minister who shall refer it to the Cabinet of Ministers. Such recommendation shall be avaiable to the public. Administrative Review Tribunal: In terms of Section 34(4) of the Malta Resources Authority Act, in determining an appeal the Administrative Review Tribunal shall take into account the merits of the appeal, and may in whole or in part, confirm annul or vary the decision appealed from, giving in writing the reasons for its decision and shall cause such decision to be made public and communicated to the parties to the appeal. Does the judge have a power of sanction? Can he use it on his own initiative or only of requested by one of the other parties? Environment and Planning Review Tribunal: In terms of Rule 14 of Proceedings before the Environment and Planning Review Tribunal and appeals therefrom Second Schedule of the Environment and Development Planning Act, the Tribunal may impose a find of 2,500 in such cases were it declares proceedings initiated before it as frivolous or vexatious and in such cases the Tribunal s decision shall be final without any redress before the Court of Appeal. Administrative Review Tribunal: The Administrative Review Tribunal however does not have any powers of sanction, neither by virtue of the Malta Resources Authority Act, Chapter 423 of the Laws of Malta nor by virtue of the Administrative Justice Act, Chapter 490 of the Laws of Malta. Can the judge award damages? How does he calculate the quantum of the damages? Neither the Environment and Planning Review Tribunal nor the Administrative Review Tribunal can award damages in their decisions. May the judge order restoration? Is it an obligation for him to order it or is it only a possiblity? What form can the restoration take? Neither the Environment and Planning Review Tribunal nor the Administrative Review Tribunal can order restoration in their decisions. Section 77 of the Environment and Development Planning Act which refers to the revocation or modification of any licence or development permission granted under the Act, including any clearance issued by the Authority under an Order, by the Tribunal in cases of fraud or where public safety is concerned or where there is an error on the face of the record, does provide for instances of compensation but it 12

13 does not seem that this compensation may be ordered by the Tribunal in its decision. Claims for compensation may be directed against the Malta Environment and Planning Authority and if the Authority does not accept the claim, then the Claimant could possibly inititate proceedings against the Authority before the judiciary courts. IV. The Enforcement of the Court Decision 1) Specific mechanisms for the execution of judicial decisions: The Environment and Development Planning Act does not provide for specific mechanisms for the execution of decisions by the Environment and Planning Review Tribunal. The Act imposes an obligation on the Malta Environment and Planning Authority to compy with the decision of the Tribunal within one month from the Tribunal s decision but is completely silent as to what procedure can be followed, if any, should the Authority default in its obligation. The Malta Resources Authority Act, Chapter 423 of the Laws of Malta, is completely silent on this particular matter in so far as concerns decisions given by the Administrative Review Tribunal regarding appeals from decisions or directives issued by the Malta Resources Authority. The Administrative Justice Act, Chapter 490 of the Laws of Malta, does not provide anything as to the procedure which could be adopted for the enforcement of decisions by the Administrative Review Tribunal. A person in whose favour a decision by either of the Tribunals is given could possibly seek to enforce the said decision in terms of the general principles arising from the Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta. 2) Courses of legal action available against such decision: The decisions delivered by the Environment and Planning Review Tribunal and by the Administrative Review Tribunal may be appealed from before the Court of Appeal in its Inferior Jurisdiction solely on points of law. 13