Legitimate expectations are not set in stone

The changes in circumstances may allow a change in legitimate expectations. This was held by the Court of Appeal, presided over by the Chief Justice Mark Chetcuti on 14 June 2023 in Michael Parnis et vs L-Awtorita ta’ l-Ippjanar.

The appeal was from a Planning and Environment Review Tribunal decision. The Court quoted from the Tribunal’s decision, which refused the issuing of a development permit on a garden of a Palazzo in Ghaxaq. The Planning Authority had originally rejected the application, since the proposed development was in a schedule property and was deemed to be excessive.

The appeal before the Tribunal concentrated on two grounds of appeal. The first ground of appeal pointed out that the Planning Authority (PA) ignored an outline permit that allowed construction in that site and therefore created a legitimate expectation. The appellant held that the fact that the property is scheduled does not mean that no development can take place. The appellants also argued that the changes in the plans were intended to address concerns the PA had on the development. The Appellants also pointed out that their application was being treated differently from other developments, so much so that there are windows overlooking their property, since developments on the adjacent properties were allowed.

The PA replied to the appeal before the Tribunal stating that the outline permit was granted with a number of conditions. The PA held that although amendments were made to the plans, the proposed development was still seen as having a negative impact on the scheduled property.

Flimkien Ghal Ambjent Ahjar, and the Ghaxaq local council registered themselves as objectors and participated in the Tribunal’s proceedings.

The Tribunal in its decision discussed the grounds of appeal on whether the outline permit gave the appellant a legitimate expectation that the development permit should be issued. The Tribunal pointed out that the outline permit did not quantify the number of units permitted. The outline permit was issued in 2011 after the Appeal Board had listed a number of conditions including that the development should not be more than 30 residential units over three floors.

The Tribunal reasoned that the planning laws and process is dynamic and evolves in the interest of society. The Tribunal quoted from a Court of Appeal judgment Richard Tua vs L-Awtorità ta’ Malta on 27 November 2014.

The Court held that a development application is precisely that an application to carry out a development according to the policies applicable at the time of the application. Therefore, the applicant does not have any prior rights and the applicant is judged on the current law and policies.

Therefore, the PA was bound to take into consideration not only the outline permit, but also the fact that the property was a scheduled property and that there were a large number of objectors. The proposed development was on a garden of a Palazzo. The proposal included excavation of the garden, which was not included in the outline permit. The PA considered this as excessive and was to disturb a number of features in the garden.

As to the grounds of appeal that this application was being treated differently from other applications in the vicinity, the Appellants made reference to another permit issued for development that took place on another part of the same garden of the Palazzo. The Tribunal held that the appeal was on the rejection of the application and not on the scheduling of the property.

The scheduled property was limited to the Palazzo and the garden and not to adjacent properties. The development referred to by the Appellant was not scheduled.

The Court of Appeal in its judgment agreed with the Appellant that the outline permit allowed for a legitimate expectation. However, this was subject to what is called reserved matters that have to be taken into account when the full application was presented.

The Board of Appeal allowed for not more than 30 residential units, divided into three blocks and not higher than three floors. Care had to be taken to the pavement and the development had to be receded. The Court of Appeal pointed out that following the outline application the Palazzo and the garden were listed as a Grade 2 scheduled property. Therefore, the Court of Appeal is being asked whether the fact that the property is scheduled has any bearing on the outline application. Article 57(6) of the Development Planning Act states that the scheduling of the property should affect negatively development that has already taken place. In this particular case, there is no permit issued, but an expectation of a permit. The court turned down this ground of appeal.

The Court of Appeal agreed with the Tribunal that although the Appellants rights had to be respected, does not change the objectives of the outline application, principally the protection of the garden of the Palazzo. The PA emphasised on the features of the garden and that these should be respected in any development.

The Court of Appeal moved to reject the appeal.