SAMMUT AND VISA INVESTMENTS LIMITED v. MALTA
Inadmissible
Josep Casadevall
1. The first applicant, Mr John Sammut, is a Maltese national, who was born in 1948 and lives in Sliema (Malta). He is the director of the second applicant, Visa Investments Limited, a limited liability company located in Sliema. The applicants were represented before the Court by Mr I. Refalo and Mrs T. Cachia, both lawyers practising in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The second applicant is the owner of a real estate in Sliema. In his capacity as company director the first applicant was given authority to obtain from the administration, the authorisations needed for carrying out building work. 4. On 6 December 1990 the Planning Area Permits Board (the “PAPB”) issued a permit in which it authorised the first applicant “to demolish the existing buildings and to re-erect ground floor and mezzanine shopping arcades with overlying flats and garages at basement level ... Height of building should not exceed eight floors plus underlying basement”. 5. According to the applicants this permit and the plans attached approved one basement car park, a ground floor and mezzanine shopping arcade, and seven levels of flats. According to the Government this permit and the plans attached approved “one basement car park, a ground floor and mezzanine shopping arcade, and six levels of flats”. The Government noted that in the approved plans the seventh level was deleted by shading it in yellow. The parties appear to have become aware of these diverging views only during the proceedings before this Court. 6. This permit was valid for two years, and the work as the first applicant believed it to have been authorised was carried out within that period. 7. On 28 July 1992 a new permit was issued, since an application had been made for a further permit connected to the same development but from a different side of the site (Fawwara Lane). In so far as relevant, the first applicant was authorised “to demolish the existing building and to re-erect three basement/garages for private cars, plus ground floor shopping arcades (double height) ... with overlying flats (six floors) including washrooms ...”. 8. The applicants and the Government agreed that the two permit applications in 1990 and 1992 were substantially identical, except for the development on Fawwara Lane, which was not at issue. Both applications were for a development of a ground floor of a height of two normal floors and seven upper floors of normal height, therefore a total height of nine normal floors. 9. In respect of the permit issued on 28 July 1992, the Government confirmed the wording quoted above and added that in one of the drawings constituting the plans, the seventh floor had been erroneously reinserted while the applicants submitted that the ambiguous deletion of part of the mezzanine floor had been eliminated, but that the sixth floor had been deleted. 10. The applicants alleged that they had developed the site according to the permits and according to the plans approved by the PAPB. The Government contested this on the basis of their exposition of the facts. 11. A few days later, on 14 August 1992, the PAPB issued of its own motion another permit in the name of the first applicant to remedy the situation created by the permit of 28 July 1992. In so far as relevant, this permit of 14 August 1992 authorised the first applicant to develop the site in question in a different manner in particular “to demolish existing building and to re-erect basement garages for private cars, plus three floors shopping arcade (including a ground floor of double height) ... with overlying flats (five floors) and washrooms”. It was also stated that the plans which had been issued with the permit of 28 July 1992 were being replaced. 12. According to the Government, the issue of the permit of 14 August 1992 was meant to correct an oversight which had occurred during the drafting of the permit of 28 July 1992. On that occasion the PAPB had deleted one of the floors, marked as a mezzanine floor, from the plans submitted by the applicants. However, because of a clerical error, this deletion was not reflected in the permit of 28 July 1992. The applicants submitted that it was not possible for them to know whether the authorisation to build a mezzanine floor was due, as the Government stated, to an “oversight”. They later stated that according to them the authorisation to construct apartments on the sixth floor and to build a mezzanine floor had been revoked. 13. The change in the building specifications was not notified to the applicants, who were not informed that the PAPB was reconsidering the permits already issued to them. However, the permit of 14 August 1992 was sent to the applicants’ architect, who on 18 August 1992 requested the Chairman of the PAPB to reconsider the permit in issue. 14. On 29 October 1993 the Malta Environment and Planning Authority (the “MEPA”) replied that the Development Control Commission (the “DCC”) had decided that the permit of 14 August 1992 should stand as issued. 15. The applicants submitted that it was unclear to them and to their architect that the request of 18 August 1992 was being considered by the DCC, which never invited them to present oral or written submissions. 16. On 28 January 1994, when over a year had passed since the DCC’s decision of 1993 holding that the permit of 18 August 1992 should stand as issued, the MEPA issued an enforcement notice (no. 62/94). It observed that the “seventh” floor and the washrooms on the top floor were not covered by a development permit. The applicants were ordered to demolish those parts of the development already completed which were not authorised by the permit of 14 August 1992. 17. In February 1994 the first applicant appealed against this notice before the Planning Appeals Board, which rejected his claim in a decision of 30 June 1995. The Board held that the only valid building permit was that issued on 14 August 1992 and that the plans submitted by the applicants and the permits previously granted on the basis of these plans were not in conformity with the law. 18. The first applicant referred his case to the Court of Appeal. He argued that the original permit had never been validly revoked. However, on 3 June 1996 this appeal was adjourned sine die at the first applicant’s request by reason of the fact that a constitutional claim, having a bearing on the proceedings before the Court of Appeal, had been filed before the Civil Court (First Hall). According to the information provided by the Government in October 2004, at that date the proceedings before the Court of Appeal had not been reactivated. 19. In the meantime, on 3 April 1996, the MEPA had issued against the applicants another enforcement notice (no. 556/96), in relation to an illegal development of the facade of the building, which the applicants did not appeal. 20. The applicants asserted that on the basis of the permits of 6 December 1990 and of 28 July 1992 they had undertaken several obligations vis-à-vis third parties, including leases and sales, and had provided funding for the planned construction work. Due to the partial revocation of these permits, the applicants were unable to honour their obligations, thus suffering a significant financial loss. 21. On 3 June 1996 the first applicant lodged a constitutional complaint with the Civil Court (First Hall). He alleged that the revocation of the permit of 28 July 1992 by means of the issuing of the new permit of 14 August 1992 had violated his right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1. He also requested that the permit of 14 August 1992 be declared null and void. He further alleged that he had been denied a fair hearing since the PAPB had failed to notify him of the changes in the permit and he had had no opportunity to make any submissions before the DCC’s decision. 22. In a judgment of 12 December 1996 the Civil Court rejected the complaint on procedural grounds. It observed that the first applicant had brought his claim against the MEPA; however, this body was not a successor of the PAPB which had issued the permit of 14 August 1992. 23. The first applicant appealed to the Constitutional Court. 24. In a judgment of 30 April 1998 the Constitutional Court observed that the aim of constitutional proceedings was to afford the highest judicial protection against a violation of fundamental rights, with the least formality and the maximum efficiency. Citizens were not obliged to indicate with certainty those responsible for the violation. Therefore, nothing prevented the Civil Court from precisely identifying those who were responsible for the violation alleged and from authorising the first applicant to bring an action against them. The Constitutional Court therefore sent the file back to the Civil Court, ordering that the case be continued according to law. 25. In a judgment of 4 October 2000 the Civil Court refused to exercise its constitutional jurisdiction on the ground that the first applicant had used and was using ordinary remedies in order to protect his fundamental rights. The Civil Court observed that the first applicant had requested the MEPA to reconsider his case. There was still a possibility that this request would be accepted and an appeal was available to the first applicant in case of refusal. Moreover, the first applicant had appealed to the Planning Appeals Board and the Court of Appeal. 26. On 12 October 2000 the first applicant appealed to the Constitutional Court. 27. In a judgment of 27 February 2003 the Constitutional Court rejected the first applicant’s appeal and confirmed the Civil Court’s judgment. It observed that in the interests of the administration of justice, the constitutional courts should not be burdened with cases which might be dealt with by other courts or for which there were other remedies available under the domestic legislation. The first applicant’s claim was that by reason of the issuing of the permit of 14 August 1992 he was obliged to change what he had already developed or had planned to develop according to the previous permits. Therefore, a request for reconsideration of the case and the possibility of being granted a new permit were effective remedies available to the first applicant at the time of the introduction of his constitutional claim before the Civil Court. In respect of his complaint regarding a fair hearing, it held that his complaint was against the DCC and not the PAPB; thus, the remedy he was seeking before the Constitutional Court was different from that sought before the Court of Appeal, and therefore the applicant was still making use of ordinary remedies and the Court could not exercise its constitutional jurisdiction. 28. Meanwhile, on 1 April 1996, the first applicant had submitted a “full development application” to the MEPA, requesting the retention of the mezzanine floor and to be authorised to change the top floor from washrooms to penthouses. This request was refused on 14 August 1998. 29. In a letter of 21 August 1998 the first applicant asked for a reconsideration of his request. His claim was upheld and on 21 July 2001 a new building permit was issued. 30. Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided: “The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.” 31. The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (the “PAPB”). However, this body was abolished by the 1992 Development Planning Act (which entered into force on 1 January 1993), and a new autonomous public authority with the power to issue building permits, the Malta Environment and Planning Authority (the “MEPA”), was set up. According to the Constitutional Court (see judgment of 30 April 1998 in the case of John Sammut v. Planning Authority) the MEPA “enjoyed original powers even in relation to a development which occurred before the coming into force of Act I of 1992, and not continuing powers as a successor of the PAPB”. 32. Section 37 §§ (1) and (3) of the Development Planning Act provide: “(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration. ... (3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority’s or the Commission’s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.” 33. The relevant sections of the Maltese Civil Code read as follows: Section 1030 “Any person who makes use, within the proper limits, of a right competent to him, shall not be liable for any damage which may result therefrom. Section 1031 Every person, however, shall be liable for the damage which occurs through his fault. Section 1032 (1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias. (2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree. Section 1033 Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”