A retrial needs the wrong law, not a wrong reading of it

The Court of Appeal (Inferior Jurisdiction) held on 21 January 2026 that a planning judgment cannot be retried just because the losing party says the court misread the law or reweighed the facts. Mr Justice Lawrence Mintoff rejected an application to retry a judgment of 11 December 2024 that had revoked a development permit. He held that none of the four grounds invoked under article 811 of the Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta) was made out.

The facts

On 30 August 2022 the Planning Authority granted a permit to demolish a house and build four residential units with parking at ground and basement level. Two neighbours objected. In C.M. vs L-Awtorita` Tal-Ippjanar, they argued that the street was made up of low terraced houses and had no apartment blocks.

The Environment and Planning Review Tribunal dismissed their appeal on 30 April 2024. On 11 December 2024 the Court of Appeal, presided differently, revoked the permit. It held that the tribunal had discarded policies G2 and G3 of the Development Control Design Policy, Guidance and Standards 2015, which ask new buildings to respect the dominant design features of the street.

The permit holder, who had been joined in the case, applied for a retrial (ritrattazzjoni, the extraordinary remedy that reopens a final judgment) on 10 March 2025. He relied on article 811(e), (f), (g) and (h). The Planning Authority left the matter to the court and asked not to be made to pay costs.

What the court held

The permit holder argued that the assessment of a streetscape is a question of fact. He submitted that articles 39 and 50(1) of the Environment and Planning Review Tribunal Act (Chapter 551 of the Laws of Malta) limit appeals from the tribunal to points of law. By studying photographs and reaching its own view of the street, he argued, the court had ignored those articles.

The court held that article 811(e) allows a retrial only where the court applied one provision of law in place of another. It adopted the test that the Court of Appeal set on 3 June 1994: "Biex ikun hemm lok għal ritrattazzjoni fuq dan il-motiv, irid jintwera li l-Qorti, fis-sentenza impunjata, applikat il-liġi ħażina għall-każ, u mhux li applikat il-liġi t-tajba b’mod ħażin." (For a retrial on this ground, it must be shown that the court applied the wrong law to the case, not that it applied the right law wrongly.)

The court found that the judgment of 11 December 2024 had treated the tribunal's discarding of policies G2 and G3 as an error of law. That was a point of law the Court of Appeal could decide under articles 39 and 50(1). The court saw no reason to disturb it, and found that no law had been applied in place of another.

Under article 811(f) and (g), a retrial lies where a judgment decides something not asked for, or gives more than was asked. The neighbours had asked the court to set aside the tribunal's decision and revoke the permit. The court held that the judgment gave exactly that and nothing more.

Article 811(h) covers a judgment contrary to an earlier judgment between the same parties on the same subject that has become final. The permit holder argued that the tribunal's decision had become final because the appeal rested on facts. The court called that premise wrong. It held that, on his reading, every tribunal decision would be final and no appeal would ever lie.

The court rejected all the requests and ordered the permit holder to pay the costs of the retrial proceedings.

Why it matters

A party who loses a planning appeal cannot use article 811(e) to reargue that the Court of Appeal crossed from law into fact. That objection belongs in the appeal itself.

The judgment also shows how the courts draw the line in planning appeals. Weighing a policy against the facts is for the tribunal, but discarding a relevant policy altogether is an error of law that the Court of Appeal can correct.

Where it sits

Retrial under article 811 is an extraordinary remedy. Its grounds are exhaustive and read narrowly, a point the neighbours drew from a judgment of the Court of Appeal (Superior Jurisdiction) of 14 October 2014. Appeals from the Environment and Planning Review Tribunal lie on points of law only, under articles 39 and 50(1) of Chapter 551.

For the test under article 811(e), the court relied on the Court of Appeal of 3 June 1994, and on the judgments of 17 February 2003, 27 March 2003, 2 June 2003 and 10 October 2003 that it quotes. The judgment under attack had relied on the rule iura novit curia (the court knows the law) to hold that the tribunal must apply relevant policies even if no party names them. For that rule it drew on a Court of Appeal judgment of 21 May 2024.

Source

Court of Appeal (Inferior Jurisdiction), 27/2024/1, 21 January 2026: 27/2024/1