The Court of Appeals has revoked a planning permit for a swimming pool to be built in the protected Marsalforn valley, citing incorrect policy interpretation by the planning tribunal. 

Filed in 2021 by Mark Agius, construction magnate Joseph Portelli’s frequent business partner, the application sought to construct a swimming pool at the back of a block of apartments Xagħra - which had been approved in a separate application. 

Despite the pool application twice being recommended for refusal, the PA approved the permit and the planning tribunal confirmed the decision after NGOs filed an appeal. 

Moviment Graffiti, Din l-Art Ħelwa, Għawdix, Wirt Għawdex, Flimkien għal Ambjent Aħjar (FAA) and the Xagħra council took the matter to court, arguing that the granting of such a permit went against established planning policies and that the project would be detrimental and out of character of the Gozitan landscape. 

In his decision, Chief Justice Mark Chetcuti said that the development should have been decided under the policy GZ-EDGE-2, which says that a swimming pool should not be permitted in sites outside of the development zone unless it is proposed in an already existing and permitted garden. 

While the 1967 aerial photographs had shown a rubble boundary wall on the site, that did not effectively prove that the site had been an established garden, he said, with records only showing that the swimming pool had been proposed in part of a courtyard approved in the permit for the apartment block. 

“The issue remains that proof must be provided that there was an established existing garden and that the development is taking place within or in part of this garden, which should be evident from aerial photos from 1967,” the judgement said. 

“Consequently, every finding, consideration, and conclusion made by the Tribunal was legally incorrect and should have led to the rejection of the application, as it goes against the specific policy that regulates development.”