Our planning law is marred by flaws and injustices. One of the most blatant examples of this is the arbitrary approach applied to the suspension of developments being appealed.

If a development application is approved by the Planning Authority, and an objector wishes to appeal that decision, works may possibly commence whilst the appeal is still underway. This is because under Malta’s planning law, when an appeal is being heard by the Environment and Planning Review Tribunal [EPRT], the approved permit being contested is not automatically suspended once the appeal is filed. Instead, an appellant will also have to make a separate request for a suspension of the works related to that permit. The tribunal will then decide whether or not to uphold the requested suspension.

Under the EPRT Act, the tribunal should uphold a request for a suspension if the works related to the permit may not be easily removed or reversed. A suspension will also be upheld in cases when failure to do so will create a ‘disproportionate’ prejudice when compared with allowing works to commence. On the other hand, the suspension will be refused if it is considered to be frivolous and vexatious.

The tribunal’s decision to refuse a request for a suspension cannot be immediately appealed. Appellants will have to wait until the entire case is itself heard and decided upon. This can take up to a year and six months (during which works could have already commenced). Eventually, if the appeal of the permit itself is also dismissed, the appellants can then, finally, challenge both these decisions in court.

This aspect of our planning law can render the whole exercise of appealing an approved development completely futile, since it is possible that by the time a decision has been reached, what you were contesting would have already been implemented.

It is an extremely unjust and disheartening reality, particularly in cases where appellants are opposing a development on grounds of historical preservation or environmental protection. It is a reality now playing out in the case concerning Trafalgar House in Sliema.

In June 2017, a developer applied to convert the distinct 19th century corner townhouse into a ‘boutique hotel’. The development would include the construction of two new floors over and above the property, as well as a 4-storey extension in its rear garden. In addition, the extent of the garden fronting Triq San Piju V and Triq il-Karmnu would be developed into a 4-storey apartment block with 3 floors of underground parking.

Seven months after the application was filed, the Planning Authority granted heritage protection to Trafalgar House and its extensive garden, as a Grade 2 scheduled property due to its evident historical and architectural significance. The scheduled status of the property would impact the type and extent of development permitted within the site. The developer subsequently applied for its descheduling.

The PA’s Heritage Planning Unit [HPU] assessed the request for the descheduling of the property. It concluded that although the extent of the garden fronting Triq San Piju V and Triq il-Karmnu may possibly not be of great heritage value, the main garden towards the rear of the property formed ‘an integral part of Trafalgar House’. The HPU recommended the refusal of its descheduling. Despite this, the Planning Authority’s Executive Council descheduled the entire garden.

The proposed development, that would engulf a great extent of the garden and dwarf Trafalgar House, was approved by the Planning Commission in July 2019.

Residents were outraged. An appeal was filed against both the descheduling of the garden as well as the development itself.

A request for a suspension of the permit was also filed. Residents argued that the excavation of the garden would form part of the initial phase of works. Once excavated, the garden could not be salvaged, rendering the works irreversible. Furthermore, the appellants would be suffering a disproportionate prejudice if works were allowed to commence, since the garden they were trying to protect would be wiped out whilst their appeal was still underway, rendering the whole process of appealing the development application futile.

Despite it being a justified call for a suspension of works, the request was denied. In its decision, the tribunal, quite bizarrely, justified its refusal of the suspension by arguing that since works were restricted to the developer’s site, the appellants would suffer no damages. This was completely beside the point. The tribunal made no mention of the critical issue of irreversibility of works and completely failed to consider the appellants’ arguments concerning loss of heritage.

This decision has left the appellants pursuing an appeal which they fear may become obsolete by the time a decision is given. It is a maddening and unjust situation enabled through blatant flaws in our planning system.