The Court of Appeals’ annulment of permits issued by the Planning Authority and its revocation of decisions made by the Environment and Planning Review Tribunal (EPRT) show that the two entities have not applied the law correctly, two architects said.
Just this year the court revoked three major permits: Foreign Minister Ian Borg’s pool was declared illegal for a second time, the five-storey Pencil Development in Santa Lucija was stopped and the permit for the five-star hotel at Saqqajja Hill was revoked.
In light of these judgments, The Malta Independent on Sunday contacted the president of the Kamra Tal-Periti (Chamber of Architects and Civil Engineers) architect Andre Pizzuto and ADPD chairperson Carmel Cacopardo, who is also an architect by profession, asking why a high number of cases are going before the Court of Appeal.
“The PA has not been applying the law correctly,” Pizzuto replied.
“When it takes a decision there are a number of things by law it is required to consider and it is not (doing so), which is why it has been losing the cases. It is not assessing the planning applications in the best possible manner.”
Pizzuto said that these cases do not surprise him, as this has been something that the Kamra Tal-Periti has been saying for quite some time now.
He added that these cases seem more frequent now as objectors are pursuing appeals right to the end. “They’re not giving up, which is something we maybe didn't see before.”
Giving a slightly different response, Cacopardo said: “The issue is not that the court is changing the decisions of the PA, it is changing the decisions of the tribunal… This means that the tribunal is incorrectly interpreting planning law. The tribunal is giving too many incorrect interpretations of the law.”
Cacopardo noted that it is normal that some decisions taken by the PA are incorrect, but the tribunal should be there as the first safety feature against incorrect decisions. However, what is worrying is that a large number of cases are going before the court.
“Fortunately, the court is going into detail and giving a number of decisions, some of which are very tough.”
Cacopardo also said how he has previously criticised the types of persons who are appointed. “Too many of them are former planning officers who tend to continue applying the planning philosophy as they apply it when considering applications. We need somebody who is considering the decisions at a distance and that is not happening.”
Earlier this week, Andre Callus from Moviment Graffitti told The Malta Independent that the tribunal has been “misapplying the law” for not suspending construction developments when an appeal has been filed against the permit.
“The tribunal is a farce. This tribunal is not a tribunal at all, these are just people appointed by the government on the basis of other interests and they do not decide in an independent way,” Callus said.
Minister Borg’s pool, according to Callus, is a prime example of what he is saying – that the tribunal cannot be unbiased in these decisions considering it is made up of “people appointed by the government”. It had to be the court which ultimately decided against Borg’s pool.
The PA was also contacted for its views.
In response, it said: “Court of Appeal decisions are taken in relation to decisions taken by the EPRT and not decisions taken by the Planning Authority. There are many cases in which the court decides in favour of the Planning Authority’s decision – a case in point is the Santa Lucija.”
Ian Borg swimming pool – local plans take precedence over policy
The Court of Appeals declared the permit to build a swimming pool in Foreign Minister Ian Borg’s countryside villa illegal for the second time last March. The court had ruled against the permit in a similar decision in 2019.
Borg and his wife Rachelle Borg Dingli had requested a permit to build a pool and ancillary facilities at their home in the hamlet of Santa Katerina in Rabat.
The court ruled that the PA should not have granted a permit for this and it lambasted the EPRT for incorrectly interpreting planning rules when it had dismissed an earlier appeal against the permit.
“What the court stated is that it is not permissible for the Planning Authority to overrule the Local Plans, which were approved by Parliament, with policy documents,” Pizzuto said.
The court dismissed the EPRT’s argument about “conflicted” provisions between local plans and specific planning policies. Local plans take precedence over policy guidance, the judge said.
The court, therefore, declared the planning permit for the pool and its ancillary facilities as being null and “without effect”.
The main issue that arises with Borg’s pool is that the pool was already constructed in 2021 after an appeal with the EPRT had been filed. It is possible that we are moving away from these kind of scenarios, as recently Prime Minister Robert Abela hinted that there may be a reform that would prevent developments to continue whenever an appeal has been filed.
A similar case, which is scheduled to be heard in court on Wednesday, is the Mistra Village project.
Although a court appeal is still pending, photos and videos were sent to the Times of Malta showing excavators and bulldozers carrying out excavation work.
Santa Lucija Pencil development – context must be taken into consideration
A court ruling last March stopped the development of a five-storey pencil development apartment in front of Outside Development Zone land in Santa Lucia.
In March 2020, the owner of a house in Triq il-Gibjun filed a PA application to demolish his house and build four apartments and a penthouse instead.
Although the case officer recommended the project for approval, saying it conformed to the height limitations of the area and relevant policies, the PA refused the permit. The proposed development would have been on a road which was full of two-storey terraced houses, opposite ODZ land.
However, this decision was overturned by the EPRT at the end of 2022, after the applicant filed an appeal. The EPRT said that the local plans allowed the height of buildings to exceed two storeys.
The applicant’s neighbour, Michael Pule, appealed the tribunal’s decision before the Court of Appeal which noted that according to the planning policy, “dominant design considerations of adjacent buildings should be identified and integrated into the new development”.
Pizzuto explained that the court recognised that the context of the built environment should have also been taken into consideration, and not just the local plan.
The president of Din l-Art Helwa Alex Torpiano told Times of Malta, that this was the first time a court struck down a permit given on the basis that the local plan allowed it. This sent the message that there was no such thing as a legitimate expectation to be granted a permit.
In an interview in 2020, PA executive chairperson Martin Saliba had told The Malta Independent on Sunday that he does not believe that the PA has the right to deny pencil developments, despite them being eye-sores.
“As an example, there would be a row of plots and the owner of one decides to build five floors, which the relevant plans and laws allow for. The other buildings would currently, however, be two floors. That creates a pencil development that, when looking at it, is an eye-sore.” He did not believe that the PA has a legal basis to stop such development if plans and policies allow it. He said that even the courts gave the PA indications that if the applicant has a right to build it then the applicant cannot be stopped.
Saqqajja Hill hotel – local plans misinterpreted
The Court of Appeal also revoked the permit for a five-star hotel in February, as it was not in line with the local plan for the locality.
The proposed hotel was to be built instead of the Tattingers discotheque on Saqqajja Hill, Rabat on the outskirts of Mdina.
The former discotheque was going to be demolished and replaced by a five-storey hotel, despite strong objections from NGOs, residents and the Mdina Council. The Environment Resources Authority and the Superintendence of Culture Heritage had also expressed concerns when the application was being discussed – even though the developers had reduced the number of rooms from 110 to 81.
The PA had approved the permit in 2021 but said that archaeological and geological studies needed to be carried out before excavation works took place. This case was then referred to the EPRT which said that the permit should be revoked as these studies should have taken place before the permit was granted – rather than being made conditional on their outcome.
However, Din l-Art Ħelwa, the Archaeological Society of Malta and Moviment Graffitti were not appeased by this decision and went to the Court of Appeal, arguing that the area’s local plan allowed extensions to operating hotels under certain conditions, but new hotels were not envisaged.
The court agreed that since the local plan did not allow for new hotels in the said area, the law must be upheld and the permit was revoked.