Appeals court upholds renewal of Xagħra housing permit despite archaeological objections

The Court of Appeal has dismissed an appeal against the renewal of a permit for four dwellings in Xagħra, ruling that archaeological concerns cannot be raised at the renewal stage.

The permit, first issued in 2018, now remains valid until January 2029.

The court confirmed the renewal of a development permit for four houses in Xagħra, rejecting an appeal filed by resident Carmen Bajada and the NGO Flimkien Għal Ambjent Aħjar (FAA). Judge Mark Simiana dismissed the appeal, upholding the earlier decision of the Planning Tribunal.

The permit, originally issued in 2018 for four dwellings and garages, had been extended under national planning regulations and remained valid until the end of 2026. The permit holder, James Borg, applied for renewal in August 2023, which the Planning Authority approved on the same terms. The renewed permit is now confirmed until January 2029.

The appellants had argued that recent archaeological discoveries, including human remains and a burial pit near the site, should have prompted renewed scrutiny. They cited expert assessments and monitoring reports indicating sensitive material in the vicinity.

The court, however, noted that the findings were located on an adjacent plot rather than the parcel covered by the renewed permit. It held that the necessary archaeological supervision conditions were already in place and being enforced. The ruling emphasised that objections relating to archaeological matters or evidence assessment cannot be raised at the renewal stage.

The judgment clarified that a renewal application is legally limited to three considerations: the validity of the original permit, whether the renewal request was timely, and whether any relevant planning policies have changed. The court confirmed that Maltese planning law grants the Planning Authority limited discretion when renewing an operative permit, requiring renewal on the same terms unless policy changes are identified.

The court also addressed a technical mischaracterisation by the tribunal, which had described the original permit as having the effect of res judicata. The judge clarified that development permits are administrative acts and can be reviewed or revoked. Despite this, the tribunal’s decision was upheld as legally correct.

All eight grounds of appeal were dismissed, including claims concerning the assessment of evidence, conduct of archaeological monitors, and the need for additional studies such as a Heritage Impact Assessment or Environmental Impact Assessment. The court also rejected a complaint regarding a request for a site inspection, noting it had been submitted after the close of evidence.

The permit’s renewal was confirmed, and the appellants were ordered to bear the costs of the proceedings.