Revoking Mepa permits

In a recent contribution in The Times, Robert Musumeci raised some interesting points regarding article 39a of the Development Planning Act that gives the Malta Environment and Planning Authority the right to revoke permits in particular circumstances, including 'when there is an error on the face of the record that offends the law'.

Mepa's decision to apply article 39a in the case of the Mistra open air disco permit remains questionable on two counts: one, because in the circumstances, the claim that there was an error on the face of the record that offends the law remains dubious; two, because since the applicant had requested to withdraw the permit, Mepa should have abstained from entering into the merits of the 'error' allegation.

Mepa has now set a very dangerous precedent, although this does not preclude future legal wrangles on what constitutes 'an error on the face of the record that offends the law'.

This should mean a procedural mistake which goes against the spirit of the law - and not that the law was badly interpreted; in which case it would mean that every approved permit could be re-examined.

Article 39a was introduced in the law late in the day - September 2001 - and it is interesting to see what the law previously provided for the revocation of permits. As the law was approved originally, way back in 1991-92, there was a provision that in revoking a permit, Mepa was obliged to pay damages to an applicant whose permit was revoked.

These were limited to actual damages that the applicant had suffered, and excluded conjectural damages such as those pertaining to theoretical depreciation of the property or to loss of potential profit from the development.

The law did not preclude Mepa from revoking any permit, but left the authority the freedom to apply this power judiciously. Even though, as far as I know, Mepa never revoked any permit when this clause was applicable, someone felt that this could lead to abuse of power and decided to remove the relevant clause; hence practically 'guaranteeing' that a Mepa permit cannot be revoked, whatever the circumstances!

Article 39a was enacted in an effort to find a compromise between the previous two extremes. Mepa has used this power only a few times, including two controversial cases: the Ramla l-Ħamra and the Mistra developments.

This gives rise to the suspicion that Mepa is exploiting Article 39a by using it as an unorthodox method to revise decisions following public pressure.

This flies in the face of the real purpose of Article 39a.

In both cases, the permits were revoked within a relatively short time after being issued and before any development had been carried out.

In another case of very minor import and in which I am professionally involved, Mepa is threatening to apply Article 39a, again because of "an alleged error on the face of the record that offends the law".

However, in this case the authority is threatening to revoke a permit after its validity period had elapsed and after the development authorised by the permit was carried out.

The question therefore arises as to whether Article 39a empowers Mepa to revoke a permit when its validity has elapsed. Article 39a does not indicate any prescriptive period during which it can be applied, but logic indicates that with the expiry of the period during which a permit is valid, its revocation does not make sense.

It is akin to the medieval custom of unearthing corpses and formally accusing them of crimes for which they would then be 'executed', even though such procedures were simply a useless pretence.

But then, what about development carried out on the strength of an elapsed permit that is subsequently revoked? Does Article 39a give Mepa the right to revoke a permit any time after the development has been carried out? The effects of such an interpretation cannot but give rise to a legal mess of the first order; more so as this interpretation impinges negatively on the Constitutional right for the enjoyment of property. Simply put, this implies that no person can be sure that everything is in order when buying a property built with a valid Mepa permit and compliance certificate as it will remain forever subject to the permit being revoked retroactively.

Imagine someone building a block of apartments according to a valid permit and after he sells the flats to different owners, Mepa decides there are enough grounds to revoke the relevant permit. What would be the status of these flats? Will they be akin to the position of children born of marriages that are subsequently declared null and void? Will the authority then proceed to issue an enforcement order and subsequently take action to tear down the development?

Other questions abound. One can lodge an appeal to the Planning Appeals Board against a Mepa decision to revoke a permit.

But can article 39a be used to revoke a permit that was issued as a result of an Appeals Board decision?

Clearly Mepa is treading on very thin ice.

micfal@maltanet.net