Planning permits can be revoked if in breach of policy

The office of the Ombudsman is arguing that planning permits can be revoked if found to be in breach of policies, in an opinion that sharply contrasts with the one held by the Malta Environment and Planning Authority's own ombudsman, Joe Falzon.

According to the MEPA auditor, Falzon deemed a permit in Rabat issued by MEPA 10 days before the general election to have been in breach of policies, but concluded that the permit could not be revoked. "No redress can be offered as there are no grounds for the withdrawal of the permit in terms of the provisions of the Environment and Planning Act," the auditor said in a report on the Rabat development.

When contacted by MaltaToday, Falzon admitted that this is simply his interpretation of the law. "It may not be the correct interpretation and only the Law Courts can determine this."

But Falzon himself pointed out that the Ombudsman had a different opinion on the matter and that he already had expressed this view in a similar case.

Replying on behalf of the Ombudsman, a senior investigating officer, Dr Ivan Mifsud, said that a planning permit can be withdrawn if "an error on the face of a record" is committed by MEPA in its assessment of a permit.

The law states that a permit can be withdrawn through article 77 of the Environment Development and Planning Act, if it results that the permit was issued fraudulently or erroneously ('error on the face of the record'). Mifsud refers to a particular case where the Ombudsman drew the attention of MEPA to the fact that while 'fraud' is restricted to acts committed by the applicant, 'error' is not so restricted; therefore if the 'error' was committed by MEPA, there is still basis for withdrawal of the permit under article 77.

"Obviously, article 77 limits the circumstances under which a permit may be withdrawn by MEPA. However, provided that article 77 is not given an unduly restrictive interpretation, the Ombudsman is of the opinion that the grounds for withdrawal introduced by the lawmaker are not only fair in themselves, but also serve to strike an acceptable balance between the rights of interested parties and the need to ensure legal certainty for the developer/property owner."

On his part, Joe Falzon also referred to the same case when talking to MaltaToday.

MEPA had approved a permit on the basis of a technical report submitted by the applicant, which had no real relevance to the case.

In that particular case, Falzon expressed the view that the permit had been approved contrary to policy but it could not be withdrawn. But the Ombudsman disagreed, arguing that since irrelevant information was a consideration in the approval of the permit, the permit could still be revoked.

Falzon also admits receiving comments that when a permit is approved contrary to policy, this would constitute an error in the face of the record and hence the permit may be withdrawn or amended.