A court ruling that stopped a two-storey Santa Luċija house from being redeveloped into a five-floor apartment block despite the local plans allowing for the height, is “expected to shape future development applications”, according to Chamber of Architects president Andre Pizzuto.

The judgment wiped away the wrong assumption that an applicant had a “development right” to build the maximum storeys allowed in the local plans, said the architect. 

Alex Torpiano, the Dean of the University of Malta’s Faculty for the Built Environment, also described the court decision as one that would have “fundamental repercussions”.

“This is a landmark decision, and the planning board cannot ignore it,” said Torpiano.

Last week, the Court of Appeal overturned a decision to allow a terraced house, in a row of 20 terraced houses in Triq il-Ġibjun, to be demolished and turned into four apartments and a penthouse.

The court, presided by Chief Justice Mark Chetcuti, ruled that just because the local plan’s height limitation permitted buildings of the height applied for, it did not mean that the permit ought to be granted.

Any new building had to respect the context of the buildings it was located in.

According to Pizzuto and Torpiano this landmark judgment is set to send ripples through the development world.

They agreed that the court took the position that the Chamber of Architects as well as NGOs have long been advocating for: height limitations set in local plans were exactly that – limitations. It did not mean that any permit for a building for the maximum-allowed height had to be granted.

The pencil development would have changed the character of the street.

Other considerations – like the streetscape and aesthetics – had to be factored in.

“The court applied a part of the guidelines very few people are aware of… there is no such thing as a right to develop... Planning is not there to support the concept of development right and the judgment confirmed it. We are expecting this to shape all planning developments moving forward as this is going to be a case that everybody cites,” said Pizzuto.

He added that the ruling is also set to unsettle the industry in that “it is no longer enough to look at the local plans to determine the value of land” since not any development within a set height limitation is guaranteed to be accepted. 

An important judgment 

Back in March 2020, the owner of a house in Triq Il-Gibjun applied to demolish the house and build four apartments and a penthouse as the height limitation in the area was set at 16.2 metres, according to the local plan.

The case officer had recommended the project for approval, saying it conformed to the height limitations of the area and relevant policies.

But the permit was refused after the planning board noted there were overriding reasons – the site was located in a comprehensive development within the house ownership scheme characterised by two-storey terraced houses in an area of low density facing an ODZ.

The applicant took the case to the Environment and Planning Review Tribunal that, at the end of 2022, overturned the board’s decision on grounds that the local plans allowed for a height that went over two storeys.

The applicant’s next door neighbour Michael Pule and minority local councillor Liam Sciberras appealed the decision before the Court of Appeal presided by Chief Justice Mark Chetcuti.

Michael Pule fought for years to save his street. Photo: Matthew Mirabelli

After reviewing the case, the judge noted that according to planning policy, “dominant design considerations of adjacent buildings should be identified and integrated into the new development”.

It was clear that the entire road, opposite ODZ land, was made of two-storey terraced houses and the proposed development would be of a dominant height.

Chetcuti said that the height limitation set in the local plan limited the maximum height but did not go into whether the development was appropriate in the context.

Torpiano said this was the first time a court struck down a permit given on this basis: that the local plan allowed it. This sent out the message that there was no such thing as a legitimate expectation to be granted a permit. 

The battle continues

Torpiano, president of environmental NGO Din l-Art Ħelwa, added that the judge also sent out the message that the planning guidelines were not being interpreted correctly.

In most cases the focus was put on the height limitation, but other parts of the guidelines that requested the context to be considered were being ignored.

This, he said, reinforced the position of Din l-Art Ħelwa and the Coalition for Gozo (Din l-Art Ħelwa Għawdex, Għawdix and Wirt Għawdex) who filed a legal challeng against the Planning Authority.

In the challenge, that is still pending in court, they are contending that the relevant policy which allows for more floors than permitted in the local plans is illegal and should be struck down.

Building development in Malta is governed by a set of planning policies. Among the major policies are the local plans which were approved by Parliament in 2006 and stipulate the permitted number of floors allowed in every street.

In 2015 the Planning Authority issued a document called Development Control Design Policy, Guidance and Standards 2015 (DC 15). One of the policies along with Annex 2, permits development to exceed the number of floors set out in the local plans.

The PA set the maximum height in metres and the number of floors permitted in a street was no longer the number of floors set out in the local plans, but the height in metres divided by the minimum height allowed for a floor in sanitary legislation.