Malta Chamber of Commerce welcomes planning appeals reform, but suggests shortened timeframes

The Malta Chamber of Commerce, Enterprise and Industry has welcomed the Government’s proposed planning appeals reform, but has made a number of recommendations which include shortening the timeframe for determination of an appeal.

The proposed reform would see planning applications suspended once an appeal is filed.

Publishing its feedback on the proposed reform, the Malta Chamber noted that the proposed framework requires the Environment and Planning Review Tribunal to hold its first sitting within 30 days of an appeal being filed and to deliver its final decision within six months. “At Court stage, the Court of Appeal would be required to deliver its judgment within four months, subject to one reasoned extension.”

While stating that the introduction of statutory timeframes is positive, the Malta Chamber considers the proposed periods to be “quite lengthy” in the context of a permit which remains suspended throughout the proceedings.

As such, it is recommending that the period for determination by the tribunal be reduced from six months to four months, and that the standard period for determination by the Court of Appeal be reduced from four months to two months.

“Shorter statutory periods would address possible delaying tactics from either party and encourage all parties to ensure that their respective case, evidence and submissions are properly prepared from the outset,” the Malta Chamber said.

On another point, the Chamber noted that the proposed legislation provides that failure by the tribunal or the court to deliver a decision within the prescribed period does not terminate, interrupt or reduce the effect of the suspension.

With regards to appeals in front of the tribunal which surpass the timeframe in the proposed legislation, “the principal consequence is that the matter is referred to the Chairperson responsible for the panel, who may issue directions or order that the appeal be assigned to another panel.” On this latter point, the Chamber is asking form clarifications, that where this happens proceedings must continue from the stage already reached and the applicable statutory timeframe must not restart.

It argues that the statutory timeframes “should not be described as merely aspirational,” but it also said that the suspension should not lapse automatically upon the expiry of the relevant period, as automatic expiry could also give rise to abuse.

Instead, the Chamber has a different recommendation, which it said is a more proportionate approach. This would involve providing the permit holder with a right to request an urgent review where the tribunal or court fails to determine the proceedings within the prescribed period, requiring a reasoned explanation for the delay, a binding revised timetable and the prioritisation of the case.

Preliminary procedural deficiencies

On another point, it said that under the Government’s proposal there is an “absence of a clearly defined and expedited process through which preliminary procedural deficiencies can be addressed while a permit remains automatically suspended.”

As such, the Chamber is recommending that the proposed law require the tribunal to undertake a review within 10 working days from an appeal being filed, which would look into admissibility, standing, compliance with statutory requirements and any manifestly frivolous, vexatious or abusive appeal.

It also referred to the effectiveness of the appeals reform, noting that the proposed automatic suspension mechanism should not be undermined by the operation of separate permits, licences or authorisations issued by other competent authorities which are in connection with the same development.

“Where a development permit is suspended pending the final determination of an appeal, works which are ancillary to, preparatory to, or functionally dependent upon the implementation of that development should not be permitted to proceed solely on the basis of a separate regulatory authorisation where such works could result in irreversible physical or environmental effects,” the Chamber said.

The need for 'comprehensive rewriting' of planning policies

In terms of overall wider planning reform, the Malta Chamber stressed the need for a comprehensive rewriting and consolidation of the wider planning policy framework.

It said that such a rewriting should be supported by explanatory notes, tracked changes, cumulative impact assessments and accessible summaries for stakeholders. “Only through such a fundamental overhaul can Malta’s planning system provide the clarity, consistency and confidence that businesses, communities and decision-makers require.”

“That said, The Malta Chamber does not consider that the present appeals reform should necessarily be postponed until the wider planning reform is completed. The deficiencies presently affecting the effectiveness of planning appeals warrant immediate attention,” it said, but added that the reform should be situated within a clear and published roadmap for the comprehensive reform of Malta’s planning system.

“The truth is that a number of appeals arise due to the inconsistency and lack of clarity that exists today in respect of policies and decisions,” it added.