New planning rules would have allowed Portelli's Qala pools, Musumeci admits

A court would not have declared swimming pools built on ODZ land in Qala illegal had much-contested plans to overhaul planning rules been in place, Robert Musumeci has acknowledged.

The pools were built by megadeveloper Joseph Portelli as part of a large apartment complex and were declared illegal in a court judgment handed down in March 2024.

Musumeci, an architect and lawyer who helped draft the wording of legal amendments to planning laws, was asked on Il-Każin whether the court judgment would have been the same had the reform been in place.

“In this case, with the reform [as law], no, it would not have the same outcome,” Musumeci acknowledged.

Activists who are opposing the planning reform proposals have repeatedly argued that the proposed legal changes would grant the PA outsized powers to ignore its own rules and policies to approve developments.

In the Qala case, Portelli excavated land for the pools without the necessary permits, later saying he did so because he expected the PA to eventually grant him permission.

That permission duly arrived, with the PA’s planning commission and its appeals tribunal both ruling in his favour. 

Planners justified the decision by stating that the applicable ODZ policy did not explicitly prohibit the development of pools.

Objectors took the case to the law courts, and a court of appeal ruled that planning regulators had been wrong.

“Precedence must be given to the site-specific policy, not to a generic policy, even if it came into force later,” the court said. “On this basis alone, the [Planning] Tribunal should have refused the application.”

It went on to state: “While a lot more can be said about other objections raised [in the case] given that the development does not conform to the relevant policy for the site’s local plan, there is no need to go into further detail.”

Despite the court ruling, the pools remain in place to this day.

The court’s reasoning would not have applied had provisions included in Bill 143 – one of two reform bills tabled in parliament last July – been part of the law.

One particular provision in Bill 143 proposes effectively doing away with the existing hierarchy of planning laws and policies, stating that policies should be interpreted and applied in line with the most recently published document, irrespective of their position within the hierarchy of laws and policies.

The Kamra tal-Periti has described the proviso as “illogical”, saying it “makes no logical sense to override a hierarchically superior planning document with a lower-ranked one simply because it is more recent.”

Speaking about the Qala decision, Musumeci said the court had, in that particular case, concluded that the development was legitimate but not necessary – two provisions required by the Strategic Plan for the Environment and Development (SPED).

Under current laws, the SPED is the top-ranked document in the hierarchy of planning laws.

The Santa Luċija example

While activists say that the Bill 143 provision would empower the PA to bypass the hierarchy of planning laws to approve developments like the Qala swimming pools, defenders of the reform plans say the provision could be applied in the opposite manner.

Musumeci, who helped draft the Bill, made such an argument during his interview on Il-Każin. He cited another controversial application which ended up before the law courts: one concerning a pencil development in Santa Luċija.

In that case, the developer sought to turn a terraced house into a 4+1 apartment block. Planners noted that the area’s local plan allows for such developments and approved the project.

Objectors took the case to court, which ruled in their favour, finding that height limitations in local plans were maximum limits that had to be interpreted in light of the existing streetscape and other factors.  

Musumeci said the Bill 143 provision would allow planners to do just that, giving them the power to interpret applications like the Santa Luċija one less rigidly.

Instead of sticking to the local plan, they would have been able to apply more recent provisions from the DC15 policy document to refuse the application, he said.

While the government has said it is working to redraft Bill 143 in light of criticism, activists say it should be withdrawn altogether.

They intend to march in Valletta on Monday afternoon as they add pressure to drop the reform plan altogether.

In his interview, Musumeci said he believed protesters were objecting with good intentions and said he had no issue with them. 

He acknowledged that he had helped draft other key pieces of planning and construction legislation, but argued that he saw no conflict of interest in drafting laws and policies for the PA while also filing planning applications on behalf of his private clients. 

"I give advice, then it is up to legislators to decide whether or not to implement that advice," he said. 

Musumeci also responded to questions about whether the proposed reforms would allow changes to building height limitations in certain areas without parliamentary scrutiny. 

He also insisted that a provision in a second reform bill, Bill 144, that would require courts that overturn tribunal decisions to send those cases back to the tribunal for reconsideration would add legal certainty.

Critics have argued that the provision will take away the court's ability to revoke permits altogether. But Musumeci said the plan was to create consistency and therefore add legal certainty to the process. 

Watch the full interview in the video above.