The Court of Appeal’s decision in The Ramblers’ Association of Malta vs. Mepa may stimulate the local debate on the remedies at law in environmental matters.
The international debate has been going on for quite some time, and the concept of environmental justice is gaining prominence in environmental law and policy debates.
One facet of this debate revolves around how laws and regulations are implemented and enforced.
In this particular case, the NGO used a specific environmental legislation to seek a judicial remedy before the courts in relation to a development permit. The court was requested to decide whether a development permit had expired and whether any development after the permit’s alleged expiry could be considered legitimate.
The defendants argued that the NGO could not start the proceedings and that the civil courts did not have the necessary jurisdiction to address this matter.
The First Hall of the Civil Court agreed with the defendants and dismissed the case. The Court of Appeal decided otherwise.
Environmental law is much wider, in context and application, than any other law regulating specific matters which may affect the environment
Referring to the 2006 Public Participation in Plans and Programmes Regulations that transposed a number of EU regulations and a 2014 amendment on the same matter, the Appeals Court decided that the NGO’s claim could be entertained.
The court applied the principle of the direct effect of directives to entrench these rights and concluded that the rights of an eNGO to seek judicial redress could be applicable and enforced even before this matter was transposed into Maltese law, albeit limitedly against a public authority (in this case Mepa).
Interpreting the provisions of these legislative instruments, the court concluded that the NGO fulfilled the criteria of judicial interest and had the right to request a judicial scrutiny of any action or omission by the Planning Authority.
Having established the NGO’s right, the court held that this right is not without limitations.
In this case, the court was requested to investigate and declare whether a specific permit had lapsed, with the ensuing consequences.
The court made it clear that it was affording this remedy limitedly on the basis of the specific requests made by the NGO and because, at the time when the case was instituted, the NGO did not have any other ordinary remedy available.
This important decision is certainly another clear pointer that environmental law is much wider, in context and application, than any other law regulating specific matters which may affect the environment.
In this particular case, the matter under scrutiny was the term of validity of a development permit.
Yet the same reasoning could likewise apply to other legal challenges affecting the environment, such as air quality, land contamination, water pollution, waste management and the nature conservation.
The decision also confirms a very basic principle: that these sectoral components must be regulated within a much wider legal context and not limitedly by reference to the specific legislation.
Environmental law may be useful in resolving tensions among the various sectoral laws and the differing objectives.
It also affirms the automatic legal standing that NGOs have in matters involving the environment and the protection afforded to such standing by the EU directives and local legislation.
The court said that the law is very clear when it refers to such entities as automatically fulfilling the necessary criteria to prove judicial interest.
Needless to say, such a right, as vested in the NGOs, must still be exercised with adequate caution by those same NGOs, which must avoid frivolous judicial actions.
This landmark decision by the Court of Appeal provides a clear avenue to be availed of in circumstances where the injustice is not just in what the law says but also in how it is implemented and enforced.
Ian Stafrace is a lawyer with a particular interest in planning and environmental matters.