A court of appeal has revoked a tribunal’s decision that would have allowed an application for an 11-storey hotel in Sliema to be revisited as a hostel, declaring that the tribunal had acted beyond its powers.
Judgment was handed down upon an appeal spearheaded by Moviment Graffitti along with a number of residents and independent candidate Arnold Cassola following a decision by the Environment and Planning Review Tribunal concerning a proposed development by Michael Stivala.
The application was for the demolition of existing premises in Parisio Street and Moroni Street, Sliema to make way for the construction of three basement levels including gym, spa, games room, store and indoor pool, reception, conference room, breakfast area at groundfloor, hotel accommodation over nine floors, a restaurant at level 10 along with pool deck and recreation area at level 11.
Residents in the area objected to the development.
The tribunal partially upheld the objectors’ appeal and sent the case back to the Planning Authority to process the application afresh under a different use, namely as a hostel, along with a change in the proposed height of the new building.
The objectors lodged an appeal before the Court of Appeal in its inferior jurisdiction.
They pointed out that the tribunal had confirmed that the area was not meant for hotels.
Such a development would lead to the degradation of the area to the detriment of residents, as protected in terms of local plan policy NHH001.
Although the tribunal had acknowledged that, it then went on to state that the proposed application could be processed as a hostel rather than a hotel.
It sent the records back to the PA’s commission to consider the application along those lines.
Such a direction went beyond the developer’s own request and the tribunal had thus acted beyond its powers, the appellants argued.
The court, presided over by Chief Justice Mark Chetcuti, deemed that the appellants “were right”.
As stated in previous judgments, an application for development lies within the applicant’s discretion.
The authorities must only decide whether the proposed development is feasible from a planning perspective.
Changing the substance of an application was not something that fell within the powers of the tribunal whose role, by its very nomenclature, was to “review” decisions by the Planning Commission.
This was a basic principle and any decision that ran counter to it was ultra vires, said the court.
A proposal for development belonged solely to the applicant.
The tribunal was not a party to the process and could never substitute the applicant’s faculties. By doing so it exercised an arbitrary discretion, not granted by law.
In this particular case, the applicant himself had withdrawn the application for a class 3A accommodation.
Once the tribunal had accepted the objectors’ argument that a hotel development was not supported by local plans and policies, it should have stopped there.
There could only be one logical and legally correct outcome, following that decision, said the court, thus upholding the appeal and annulling the proposed development.
Lawyer Claire Bonello assisted the appellants.