Objector claims that 2006 Local Plans were promulgated in an ‘abusive’ manner

planning permit for the construction of basement and semi-basement garages, domestic stores as well as overlying maisonettes, apartments and penthouses was issued in Triq Patri Tumas Xerri in Bahrija, in consequence to which, a registered neighbouring objector lodged a third party appeal, insisting that the permit should be revoked.

Appellant insisted inter alia that the proposal amounted to over development and further argued that the draft Local Plan (which was issued in 2001) had highlighted that the site in question was to remain a “Public Open Space”. Indeed, the objector made reference to the relative excerpts of the draft Plan which expressly provided that the site in question was to be “allocated as a public open space and developments which compromise the enjoyment of the sites by the general public would not be permitted.”

The initial draft version also provided that “priority should be qiven to landscapinq schemes and play areas”, adding that “excavation of the site for the construction of basements was not to be permitted unless it is demonstrated to the satisfaction of the Planning Authority that these works and the use of the space below ground will not adversely affect the use of the site for recreation by the general public.”

Notwithstanding, the eventual Local Plan document which was approved by the minister in the year 2006 omitted the said provisions and introduced a policy to the effect that the MEPA would “favourably consider the development of a mix of dwelling units” on the specific condition that a comprehensive development application incorporating a “holistic design” covering the whole site is submitted while construction is limited to a maximum 40% site area coverage and a height of three floors with a basement. More so, the final plan provided that a public open space facing the church be retained.

The objector insisted that these changes were carried out without any prior public consultation, adding that such behaviour went contrary to the law. In order to support his arguments, the objector made reference to a recent Court judgment in the names of Falcon Investments Ltd vs MEPA, wherein the Court of Appeal held that any material changes to subsidiary plans carried out without prior public consultation amount to abusive conduct on the part of the executive.

Tribunal says that the Authority acted intra vires

In its assessment, the Environment and Planning Tribunal observed nonetheless that the Authority acted intra vires (that is, within its legal authority), since the proposal was after all in conformity with the design criteria set out in the approved Local Plan. The Tribunal refrained from entering into the merits as to whether the minister had acted unlawfully as claimed by the objector and dismissed objector’s requests. 

Robert Musumeci is an architect. He also holds a Masters degree in Conservation and a degree in law.

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