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Property Law

Judicial review procedure cannot substitute the natural process of complaints

By November 1, 2019September 10th, 2023No Comments

The Court faced with a judicial review lawsuit is not competent to hear it if the plaintiff has other remedies at his disposal.  

This was decided on 22 October 2019 in Mary Doris Caruana et vs Planning Authority, Victor Baldacchino et by Mr Justice Grazio Mercieca.

The Plaintiffs held in their sworn application that they have inherited property in Mqabba.  

When they were preparing the causa mortis, their architect had noticed that Victor Baldacchino and other owners of the surrounding properties had filed a Planning Control application before the Planning Authority.  

The application is intended to ask the PA to define what is allowed if these properties are developed. After enquiring with the PA, the plaintiffs noticed that this application would prejudice their property.  

The defendants maximised the full potential where the potential of their property was limited.  

They tried to amend the application; however, this was not allowed and the PA approved the original application.  

This means that the plaintiffs were being discriminated and therefore asked the Court to revoke the PA’s decision and condemn the defendants to pay damages.

Both the PA and the other defendants held that the Court is not competent to hear this case.  

The PA further pleaded that the plaintiffs had other remedies in terms of the Development Planning Act.

The Court held that it was first to decide whether it was competent to hear the case. Art 469(A) of the Code of Organisation and Civil Procedure stipulates that a judicial review is not applicable when another law allows a contestation or remedy of an administrative act is available.

According to Article 54 of the Development Planning Act, the Executive Council may revoke or modify the decisions concerning controlled planning Mr. Justice Mercieca pointed out that the plaintiffs who were heirs failed to file an objection to the application and to the decision delivered by the Executive Council of MEPA irrespective of the fact that they did not register themselves as a third party objector.  

The plaintiffs complained that the PA was not forthcoming with information, but also held that they did not notice that the application notice was placed at the property.

The First Hall of the Civil Court held that in a previous judgement Garden of Eden Garage Limited vs Awtorita’ Għat-Trasport f’Malta had held that the Court in judicial review cases shall interpret sub-article (4) restrictively in that it has no jurisdiction where there are other remedies. 

These other remedies must be effective.  

This was echoed in Dr Philip Galea et vs Tigne’ Development Co. Ltd. et. held if there is no alternative remedy, then the judicial review is applicable, but if it is shown that the plaintiffs failed to use these alternative remedies, the Court cannot look into the case.

The Court then moved to uphold the pleas of lack of competence, since the plaintiffs did not utilise alternative remedies.

Malcolm Mifsud


Mifsud & Mifsud Advocates 

This article may also be accessed on MaltaToday

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