Developer seeks to remove public footpath after court revokes ODZ pool permit

Mark Agius, a business partner of Joseph Portelli, has also presented an application to sanction one of the two illegal pools in Sannat

Aerial view of public footpath in 2018
Aerial view of public footpath in 2018

A developer is seeking to overturn a court judgment by applying to eliminate a public footpath that separates a new block of flats from an ODZ pool area.

The pool’s approval had been revoked by the courts because it was not part of the property’s boundary, as it was separated by the public pathway.

Developer Mark Agius, a business partner of construction mogul Joseph Portelli, has submitted two separate applications in recent weeks. The first seeks to regularise an illegal 215sq.m ODZ pool along Triq it-Tempju tal-Imramma in Sannat. The second is a zoning application to eliminate part of a pedestrian footpath separating the pool area from the apartments.

In 2021, the Planning Authority (PA) approved 29 flats within the development zone and an adjacent 215sq.m pool area in the ODZ, despite strong objections from the Environment and Resources Authority (ERA).

The ERA had insisted that the development be limited to the development zone. The approval was based on the rural policy, which allows owners to develop a 75sq.m pool area, increasing by 5sq.m for every additional dwelling. However, according to the policy, ODZ pools can only be approved within the curtilage of the property they serve.

The PA also approved another application by Agius for the construction of 22 flats and a 177sq.m ODZ pool area on an adjacent site. However, no application has yet been filed to sanction this pool.

Both decisions were upheld by the Environment and Planning Review Tribunal (EPRT).

But in a landmark ruling in 2024, Chief Justice Mark Chetcuti found that the PA and the EPRT had misapplied policies when approving the 215sq.m pool area which is separated from the apartment block by the public path way.

Chetcuti had also revoked the permit for a penthouse level on the adjacent development but last year Agius had also presented an application to sanction this irregularity, through one of his employees.

The court had concluded that while the EPRT justified the pool approval by citing a policy allowing pools “within the curtilage of a legally established development,” the proposed development could not be considered “legally established” as it had not yet been approved or built. Furthermore, the pool was not “within the curtilage” of the development as it was separated by a public passage, with an underground private tunnel linking them.

Agius has now sought to bypass this legal obstacle by presenting a zoning application aimed at removing the public passage separating the pool area and the apartment block. If approved, the application would reclassify the pedestrian footpath as “private open space.”

The footpath which passes along the pool area approved in 2021 is visible on the 1968 survey maps and is connected to other passageways leading to the cliffs.