Townsquare tower – Planning Authority should decide

In the case of Flimkien ghal Ambjent Ahjar and a group of Tigné residents against the Planning Authority, the court observed that the Planning Board was not bound to accept the case officer’s positive recommendation

On the 22nd June, 2016, Flimkien ghal Ambjent Ahjar along with a group of Tigné residents filed an application before the First Hall of the Civil Court against the Planning Authority, requesting the issue of a prohibitory injunction against the Planning Authority in order to stop the latter from determining a 2005 planning application for the replacement of the former Union Club (in Sliema) with a 38-storey tower. The proposed designs also show a number of residential and commercial outlets. Indeed, the planning application is being recommended favourably despite a number of strong objections.

In their application before the Court, the plaintiffs held inter alia that the applicant had failed to submit a social impact assessment and an urban character appraisal as required by the recently approved Floor to Area Ratio Policy.

In reply, the authority insisted that plaintiff’s request should be turned down. The authority’s lawyer explained that the Planning Board was mandated by law to determine development planning applications. The lawyer went on to state that the board may choose to overrule the conclusions contained in the case officer’s report. The authority concluded by stating that once the board delivers a decision on the planning application, the plaintiffs have other legal remedies to appeal the outcome (namely, an appeal before the Environment and Planning Review Tribunal and a subsequent appeal before the Civil Court of Appeal (Inferior Jurisdiction) on a question of law).

In its assessment, the court stated that the plaintiffs had sufficient interest in the case under examination, noting that they had formally objected to the planning application. Besides, the plaintiffs resided in the vicinity of the proposed tower. Having said that, the court stressed that a precautionary warrant is an extraordinary legal remedy intended to prevent someone in doing something which would cause prejudice and damages to the plaintiff. Plaintiff must therefore convince the court about the practical necessity of such warrant in the given circumstances. At the same time, the court must establish that the plaintiff is entitled to such right (and therefore ‘protection’) on a prima facie basis. In other words, the plaintiff must demonstrate to the court that in the absence of such warrant, his rights would be compromised irreversibly.

In this case, the court held that the plaintiffs had certainly a prima facie interest once it transpired that they resided in the vicinity of the proposed tower. Nevertheless, the court observed that the Planning Board was not bound to accept the case officer’s positive recommendation. The court highlighted that it had no remit to decide a planning application, adding that the Planning Board is indeed entrusted  to determine planning applications by law. Concluding, the court observed that plaintiff’s request failed to satisfy the proportionality test and decided that the tower planning application should be duly determined by the Planning Authority.

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