Over the last few months, the courts have reversed a number of planning decisions in a way that showed up their flawed reasoning.

According to the president of the Chamber of Architects Andre Pizzuto, the Planning Authority is failing to apply planning laws correctly or is applying unreasonable interpretations to them.

And this was one of several reasons for a series of judgments overturning decisions by the Planning Authority and the Environment and Planning Review Tribunal.

Others include the PA’s procedural shortcomings and the tribunal’s “occasional failure to provide a fair and balanced forum for an appeal”.

Pizzuto also attributed the judgments to the “stamina, determination and resilience” of objectors who want to protect their built environment and are willing to dedicate their time and money to pursue an appeal all the way to the final stages in the Court of Appeal.

He referred to the permit granted to Foreign Minister Ian Borg for a pool in ODZ land in Rabat, saying this was the result of the PA’s “ill-advised use of policy documents approved by the executive council to supersede the local plans approved by parliament”.

He said the chamber was organising a seminar at the end of May “to understand what is happening”.

“Clearly, the correct application of the law is going to change the way we have been practising in the last 30 years,” he said.

Saved: the Gżira garden

The court interceded in favour of retaining public land last month when it confirmed a decision by the review tribunal annulling a previous decision by the Lands Authority to take back part of a public garden for the relocation of a petrol station.

Mayor Conrad Borg Manché and the Gżira local council, which has administered the Yacht Marina Garden for 22 years, argued that the garden was the only green lung in an increasingly commercialised locality where development continued unchecked.

The Lands Authority had not explained its decision to the public. Mr Justice Lawrence Mintoff ruled that every public authority must aim to fulfil the principles of natural justice and reasoned decisions, so as to ensure correctness and transparency in public administration.

Revoked: Mellieħa hotel… but it’s already been built

One of the latest court rulings against a decision by the PA or its appeals board concerned a hotel in Mellieħa which, during the course of the court appeal, was built and completed.

Chief Justice Mark Chetcuti revoked part of a planning permit that allowed for an eight-storey hotel to be built as part of a massive mixed-use development. The developers are linked to construction magnate Joseph Portelli.

The permit was approved despite having been recommended for refusal for breaching the area’s height limitation policy and running counter to the local plan.

The project, by Portelli’s business partner Mark Agius, on behalf of Shopwise Developments M Limited, includes 121 residential units on a previously vacant 3,600-square metre plot behind Valyou supermarket.

The court concluded that the local plan excluded the possibility of developing a hotel on the site unless there were “overriding reasons”, of which there were none.

It remains to be seen what will now happen to the built hotel.

Illegal: Ian Borg’s swimming pool

The Court of Appeal in March ruled that a decision to allow Foreign Minister Ian Borg to build a swimming pool at his countryside villa outside Rabat was illegal.

Chief Justice Mark Chetcuti ruled that the permit granted by the Planning Authority to Borg and his wife was unjustified.

He also chastised the Environment and Planning Review Tribunal, which serves as the planning appeals board, for its incorrect interpretation of planning rules when it had dismissed an appeal against that permit.

The court declared that the PA permit was null and “without effect”. 

It was the second time a court had decided against the PA and Borg’s bid for a pool. In 2019, another court revoked the decision taken by the tribunal to confirm an earlier permit granted to the minister by the PA.

In that judgment, the court said the PA had considered the wrong policy because such a development – a swimming pool in a rural settlement – was not permitted.

It is unclear how the PA is going to deal with the illegality now that the pool has been built.

Quashed: the Mistra permit

An appeal court judge last week sent plans for a massive residential development on the site of Xemxija’s former Mistra Village back to the planning review tribunal to consider whether the project was still compatible with current planning laws and policies.

The tribunal had renewed a permit issued in 2014 for the construction of four blocks on the site which would include commercial activities, parking basements, public open spaces, landscaped gardens and a communal pool.

In court, the appellants argued that in its 2019 decision, the tribunal had failed to consider all laws, plans and policies, amid environmental concerns over the project.

Chief Justice Chetcuti noted that one of the requisites for renewal of the permit was proof that the development was “committed” – that it was still in line with laws, plans and policies applicable at the time of the latest renewal.

The law imposed another requirement: verification that the development had reached such a stage that subsequent laws and policies could not be considered without prejudicing the development works already carried out.

That was the “logical and reasonable” meaning of “commitment” in terms of law, but the tribunal had not considered that element in detail, the judge ruled.

Rejected: a pencil development

Also in March, the court handed down what many consider to be a landmark ruling against pencil developments. It revoked a planning permit for a five-storey block to be built in a  Santa Luċija street characterised by two-storey terraced houses.

The Planning Authority had originally turned down the application but the review overturned that decision on appeal and the permit was issued.

The PA had based its refusal on legislation which states that in taking decisions, the PA should take into account “material considerations” which include things like legal commitments and environmental aesthetics.

Chief Justice Chetcuti ruled that the tribunal was mistaken to have concluded there were already permits in the same Home Ownership Scheme for heights of over two storeys.

The tribunal was also “mistaken and contradictory” in saying guidance policies did not apply. The tribunal itself had described the streetscape to be characterised by two-storey buildings and then judged it to have no architectural value, the court observed.

Just because the Local Plan’s height limitation permitted buildings of a certain height to be applied for, it did not mean the permit ought to be granted. Any new building had to respect the context of the buildings it was located in, the judge said.

The tribunal’s decision also went against policy because it failed to take into account the representations of third parties, of the Superintendence of Cultural Heritage and of the Strategic Plan for the Environment and Development – the planning authority’s rulebook.

Illegal: Sea Malta building demolition

The First Hall of the Civil Court, presided over by Mr Justice Christian Falzon Scerri, last November ruled that the Planning Authority had illegally allowed the former Sea Malta building in Marsa – a fine example of modernist architecture – to be demolished.

In the damning judgment which lambasted the PA and its former boss Johann Buttigieg, the court said the authority had disregarded the law by relying on an Enemalta architect rather than appointing one of its own.

Enemalta had sought to demolish the building through an application for a Development (Removal of Danger) Order to the Planning Authority. However, Enemalta’s architect did not state that the building was in imminent danger of collapse.

The PA deserved to be “strongly rebuked” if it considered itself to be “above the law”, the judge declared, annulling the demolition order issued by the PA five years earlier.

Demolition works started in November 2017 and most of the building was taken down. Only the façade has been retained.

The 1948 building was used as a warehouse and recreational facility for the British Navy, Army and Air Force Institutes (NAAFI).

The Chamber of Architects and a number of NGOs stepped in to save the architectural gem which also happened to be within a protected zone designated as an “area of high landscape value of the harbour fortifications”.