A decision green-lighting the construction of a waterpolo pitch and adjacent facilities along the Marsascala promenade in an area originally earmarked for a yacht marina, was revoked by a court on appeal.
A number of residents joined forces with Moviment Graffitti in a bid to reverse the decision taken by the Environment and Planning Review Tribunal paving the path for the €4.2 million government project that was to feature a waterpolo pitch, clubhouse and restaurant along Triq is-Salini.
In their application filed in July, the appellants claimed that the Tribunal’s decision was vitiated on various grounds, describing as “totally anomalous” plans for the “massive” development that would involve extensive land reclamation.
When delivering judgment the court of appeal, presided over by Chief Justice Mark Chetcuti, focused upon the crux of the issue, namely whether the Tribunal’s interpretation of relevant planning policies was correct.
When all was considered the court observed that although circumstances may have called for an element of practicality, that did not mean that the Tribunal could lawfully switch policy requisites.
The Tribunal had interpreted policy SMMS04 permitting ‘maritime related shore based facilities’ as not referring exclusively to a yacht marina, but also incorporated sports and recreational facilities.
Whilst observing that the local policy plan dated back to 2006, the Tribunal could not lend such a wide interpretation to that clear policy as to render it ineffective.
That was no solution, said the court, remarking that it was up to the legislator to handle the issues sparked by such long-term plans and any necessary updates accordingly.
Neither the Planning Authority, nor the Tribunal nor the Court itself could assume the legislator’s role.
Applicable policies and plans indicated that the area was primarily and essentially earmarked for a yacht marina, subject to necessary feasibility studies.
Unless the legislator changed those plans, the local plan for Marsascala limited any development primarily, if not exclusively, to a yacht marina.
Moreover while “maritime related shore-based facilities” were acceptable in terms of the applicable policy, the term “maritime” did not suggest “water sports.”
What the policy-maker had in mind were structures complementing the yacht marina.
The tribunal could not alter the term ‘maritime’ to ‘water-related,’ incorporating the notion of a swimming pool and then stretching the term even further to greenlight a waterpolo pitch as the primary development, relegating the yacht marina to an ancillary development if at all, depending on remaining space.
The court observed further that the policy provided for the option of incorporating the former national pitch within a holistic project so as to balance out the infrastructural expenses necessarily involved in developing a yacht marina.
Contrary to what the tribunal argued, the court saw no conflict between the local policy plan and the objective of SPED (Strategic Plan for Environment and Development), pointing out that the latter supported plans for a yacht marina whilst providing for recreational facilities that would not hamper the public’s access to the shore.
In light of those considerations, the court upheld the appeal without delving into the other grounds raised by the appellants, revoking the tribunal’s decision and the permit issued by the planning board.
Lawyer Claire Bonello assisted the appellants.