This is the first of two articles about a wave of five-storey blocks in Gozo and the legal battles they have caused. In the second article, Gozitan mayors express disquiet about the new developments spreading across the island. 

The constitutional court has rejected the government’s arguments against a constitutional challenge to the workings of Planning Authority boards in a landmark judgement.

In the lawsuit, veteran Gozitan lawyer Alfred Grech argues that architects sitting on PA boards are inherently biased towards development and that they grant development permits without giving sufficient heed to objectors.

He holds that this impinges on provisions of the Maltese Constitution and European Convention of Human Rights.

His challenge was triggered by the PA’s approval of a five-storey block of 15 flats located a mere 50 metres behind the church in San Lawrenz.

The permit was issued to Mark Agius and the block marketed by J. Portelli Projects, which belongs to Gozitan property magnate Joseph Portelli.

Grech also argues that planning policy is lopsided in res-pect to different sides of the street because one side is within an Urban Conservation Area, limiting buildings to two storeys, and the other side – where the block has now arisen in shell form – is designated a Design Priority Area, which is less restrictive.

This, he holds, is discriminatory in terms of the ECHR and creates an “aesthetic and architectural imbalance”.

The attorney general argued that Grech had “ordinary remedies” in the form of an ongoing case against the permit in front of the Environment and Planning Review Tribunal that could be escalated to the Court of Appeal. It was, therefore, premature for the constitutional court to simultaneously consider human rights breaches.

Mr Justice Mark Chetcuti, who is due to be appointed chief justice tomorrow, dismissed these arguments in a partial judgment delivered recently. This means the case will now continue in front of another judge.

Architects have a greater personal interest in interpreting policies and rules in favour of development than otherwise

The court’s rejection of the attorney general’s pleadings makes this judgment a first.

It stands out amid the tendency of Maltese constitutional courts – which has been denounced by justice grandee Giovanni Bonello in his book Misunderstanding the Constitution – to dismiss cases on the basis of non-exhaustion of “ordinary remedies”.

Grech lives across the street from the block of flats, where works are now taking place in the interior.

If he eventually wins the case, the court’s options range from ordering the demolition of the building to awarding Grech compensation.    

The main line of attack in his lawsuit is the lack of fair hearing: PA boards are quasi-judicial organs yet their processes and composition create a bias in favour of approval of development applications.

This is because, among others, the PA boards are composed of architects who also work in private practice or work with firms that are involved in development.

“They [the architects] have a greater personal interest in interpreting policies and rules in favour of development than otherwise,” Grech argues.

The architects on the planning commission have “an interest in issuing permits to developers such as Agius and Portelli without control because they are persons who will indirectly benefit from rampant development”.

Grech also takes the line that the block creates a ghetto of sorts in a street where other houses are one or two storeys high – and that this degrades the value of his property.

In comments to Times of Malta, he spoke of “the right to legitimate expectations, which arises from Article 7 – certainty of law. This is an important point. You cannot have goalposts change when you make an outlay or investment”.

He explained that he had bought his house with the expectation that he would live in a street of two-storey houses and tranquil environment in the centre of quaint San Lawrenz.

But now the block of flats and resultant higher population density signifies a fundamental change in the urban habitat and a degradation of his investment.

“The PA has to become more sensitive towards the lives of citizens and the environment, rather than the developer,” Grech told Times of Malta.

“This is not just my problem. There are other cases.”

The five-storey block has been a sore point in the small community of San Lawrenz from the outset. A petition organised by Grech before the PA gave its approval garnered 86 signatures. He says that virtually all people in the street had signed it.

“They appreciate the fact that the building is degrading the environment in which they live,” Grech said.