Għar il-Friefet appeal tests PA’s use of height rules

The Planning Authority approved the permit for a five-storey apartment block overlooking the protected Għar il-Friefet in Birżebbuġa.

But a court appeal filed by residents will test whether the authority can rely on internal guidance to approve taller buildings than those designated by local plans.

Residents living in a terraced house directly above the cave, represented by lawyer Claire Bonello, are challenging the approval of a residential development on a site between St Jude, Triq Herakles and Triq De Redin in Birżebbuġa. The development is within the buffer zone of a protected cave.

Għar il-Friefet is a protected limestone cave, parts of which lie directly beneath modern residential buildings. Its 2,200-cubic-metre karstic system was first scientifically documented in 2003. Closed to the public, the cave is an important roost for a regionally significant bat colony and is protected for its geological and ecological value.

Residents argue the project breaches the height limits in the Marsaxlokk Bay Local Plan and undermines protections afforded to one of the locality’s most sensitive geological features.

The development, approved under permit PA2177/22, consists of a five-storey apartment block replacing an existing two storey terraced house. The development does not involve below ground excavations and was only approved on the basis of a geological report excluding dangers to the cave. 

But the appellants argue it exceeds the area’s three-floor limit and conflicts with Policy MQ08, which specifically safeguards Għar il-Friefet, as well as Strategic Plan for the Environment and Development (SPED) objectives requiring the protection of Malta’s geological and environmental heritage.

Although the project places garages at ground-floor level rather than in an excavated basement, the appellants argue the overall scale of the building—made possible through what they describe as a “gratuitous mistake” in the interpretation of height limitations—poses a risk to the site’s environmental and heritage value. 

Height policies

At the heart of the dispute is the Planning Authority’s interpretation of the site’s permitted height. The residents argue the authority incorrectly treated the site as being “schemed for a semi-basement”, even though no such designation exists in the Marsaxlokk Bay Local Plan. They say this allowed the authority to approve a building reaching 17.5 metres—effectively five levels—on a site where the local plan permits only three floors.

The appellants also contend the proposal breaches Policy P2, which requires buildings on sloping streets to step down with the terrain. Instead, they argue the project will create prominent blank party walls that are out of character with a neighbourhood largely made up of two-storey homes.

The appeal also maintains that the local plan is unequivocal in restricting development in this part of Birżebbuġa to three floors and contains no provision allowing additional height through semi-basements or similar interpretations.

The Environment and Planning Review Tribunal (EPRT) had upheld the permit, ruling that Planning Authority Circular 2/24 could be used to interpret the 1995 local plan, which regulates development in terms of storeys rather than metres.

On that basis, the EPRT accepted that the three-storey limit could translate into a maximum height of 17.5 metres. The tribunal also found that the surrounding area already contains several taller buildings, justifying a more intensive form of development. It dismissed concerns over exposed party walls, arguing these would eventually be concealed if neighbouring sites were redeveloped.

However, residents argue this reasoning is legally flawed. They maintain that Article 52 of the Development Planning Act establishes that statutory local plans take precedence over planning circulars where the two conflict.

Planning saga

The application was initially recommended for refusal because it was considered to conflict with SPED policies protecting Malta’s geological and natural heritage.

However, the EPRT referred the application back to the PA before the case officer’s report stage so the authority could consider a ground investigation report submitted during the appeal and allow the applicant to file additional studies on the cave’s protection.

Following submission of the report and a method statement, both the Superintendence of Cultural Heritage and the Environment and Resources Authority dropped their objection to the proposal and issued their clearance. 

The project’s architect insists that no excavation works will be undertaken, and that the proposed new building will be designed with cantilevered corners at all levels, thereby eliminating any direct structural loading on the underlying cave system. 

In its submissions to the Court of Appeal, the Planning Authority argues that the permit was lawfully issued and that Circular 2/24 merely formalises a long-standing interpretation of older local plans that regulate development by storeys rather than metric heights. The authority also argues the area is already characterised by four- and five-level buildings and that the proposal is consistent with SPED’s objective of making efficient use of urban land.