Mepa's article 39A

The Mepa board has unanimously decided to revoke the Mistra permit on the pretext that the permit was allegedly issued without the Development Control Commission giving adequate consideration to the provisions laid out in the EU Habitats Directive. Mepa's decision was made by virtue of article 39A of the Development Planning Act, which stipulates that the Authority may revoke a permit on three distinct occasions: in the case of fraud, where public safety is concerned and when there is an error on the face of a record which offends the law.

Fraud implies a declaration or submission containing false or misleading information intended to render an application request acceptable in terms of planning regulations and policies. In this case, the responsibility is fully vested with the architect in charge of the application. Public safety has also been singled out by the Development Planning Act as a reason which may lead to the revocation of a permit. To date, there is no case law where a permit has been revoked for public safety reasons. However, the law contemplates that if it results that the applicant has sustained loss or damage that is directly attributable to the revocation or modification, the Authority is obliged by law to pay that person the equivalent compensation in respect of that expenditure!

The Mistra Valley permit was not revoked for any of the above reasons. Mepa based its decision on the pretext that there was an error of the face of a record which offends the law. Error of the face of a record that offends the law simply means that there is a procedural mistake that goes against the spirit of the law not that the law was badly interpreted because, were this the case, it would mean that each application could be re-examined if the board thinks that the decision made by them was incorrect.

The spirit of this proviso certainly does not mean that there should be a safety valve for the Mepa to rethink its rulings. By extension, one may argue that all planning permits decided before the respective Local Plans were approved, and which exceed the height limitations of the then Temporary Provision Schemes, may be subject to article 39A and revoked on the basis of an error on the face of the record which offends the law!

Fortunately enough this will not happen because it is well acknowledged that planning decisions should remain subject to human discretion and judicious assessment, even if the applicant (or site owner) has public or political connotations.

It is equally questionable whether Mepa should have proceeded with its intentions to revoke the permit once the applicant requested to withdraw the application. Yet, Mepa proceeded to deliver final judgment notwithstanding the note of withdrawal, stating that there was an error on the face of the record which offends the law. Once a judge or magistrate is faced with a note presented by a plaintiff to a suit indicating his intention to withdraw his application, the court ipso iure does not carry on hearing the case and immediately abstains from taking further cognisance of the application. Why did Mepa not follow suit?

It is only fair that, once an exercise of discretion is ascertained in its application to a particular person, the argument that person should be able to rely upon is equally strong as in the case of a decision about rights. A citizen should be entitled to assume that such a judgment will not be overturned by a second decision given by the same authority simply having different members sitting on it, even if the latter is equally lawful. This should be the starting point. If not, we may be setting a dangerous precedent for an endless list of planning decisions.

Mr Musumeci, an architect by profession, is the Nationalist mayor of Siġġiewi.

rmperiti@onvol.net