Landmark court ruling quashes automatic right to build five floors

A court sentence revoking a permit for a five-storey block in Santa Lucija is expected to have a major impact on other pencil developments in similar areas across Malta and Gozo. 

This is because similar permits issued simply on the basis of the height limitation established for the area in the local plans may now be legally challenged if these defy the character of the surrounding area.

The is because the area is characterised by two storey terraced houses built in a home ownership scheme.

In this case the permit in question was originally turned down by the Planning Authority, but later issued by the Environment and Review Tribunal following an appeal by applicant Charles Falzon.

In turning down the permit, the Authority had prioritised the site context "characterised mainly by terraced houses development with a predominant height of two floors" facing the ODZ.

The Authority had based its decision on an article in the planning act which states that in its decisions the Authority should also take in to account “material considerations” including “surrounding legal commitments and environmental aesthetic and sanitary considerations.”

A court sentence revoking a permit for a five-storey block in Santa Lucija is expected to have a major impact on other pencil developments in similar areas across Malta and Gozo

Moreover, the proposed development was also in breach of provisions of development guidelines issued in 2015, which requires that the impact of development on the skyline should be taken into consideration in the assessment of development applications.

Moreover, whenever a uniform design prevails and it may be established that a number of important streetscape parameters exist, the emphasis will be on respecting such parameters.

But this decision was later over turned by the EPRT chaired by Joseph Borg which concluded that these provisions were not applicable because other permits for buildings higher than two storeys, have been already issued in the surrounding area. 

The EPRT’s decision was later challenged in the law courts by PN councillor Liam Sciberras and Micheal Pule, who were assisted by lawyer Claire Bonello.

In its sentence the court presided by judge Mark Chetcuti makes it clear that the ‘height limitation’ in the local plan is “a requisite limiting the maximum height” in a particular area but does not on its own determine what kind of development is suitable in any particular area.  The sentence makes it clear that although a development may adhere to the height limitation in the local plan it could still be in breach of other policies which cannot be over ruled simply because the height limitation is respected.

The court also noted that the EPRT had failed to provide examples of other permits for buildings higher than two floors in the area noting that photos of the site confirm that the building in question forms part of a row of two storey buildings.

In its decision the law court did not consider the argument raised by the appellants that the development was also in breach of the Strategic Plan for the Environment and Development (SPED) policies protecting townscapes because it had already concluded that it was in breach of other policies in development guidelines.  

The development guidelines approved in 2015 include detailed policies which oblige developers to respect the surrounding context but also included an annex which translated the height limitation in local plans in to a metric height, in a way that five storey developments could be allowed in areas characterised by a three-floor limitation. 

Over the past years the Planning Authority has inconsistently applied the guidelines, sometimes prioritising the height limitation and sometimes other policies protecting the context. 

The court sentence is expected to give the Planning Authority legal certainty when it gives priority to policies protecting the streetscape over the height limitation established in local plans.  In this sense the sentence makes it clear that height limitations do not give developers an automatic right to build but have to be seen in the context of other policies.