Regularisation cannot legitimise structures that disturb neighbours, court rules

The Court of Appeal has upheld a decision blocking the regularisation of a rooftop pigeon loft in a Żabbar maisonette, ruling that the structure amounts to an injury to amenity and therefore does not qualify for regularisation.

The case arose from an application filed by Michael Agius, seeking to regularise a two-storey maisonette, including a spiral staircase in the backyard and what was labelled as a store at roof level. During processing, the Planning Authority determined that the roof structure was in fact a pigeon loft, confirmed through updated plans and photographs.

While the authority raised no concerns about the rest of the maisonette, it refused regularisation of the loft. It argued that pigeon-keeping on a rooftop in a strictly residential area created noise, nuisance and sanitary impacts that conflicted with the planning concept of amenity. Under Regulation 4(5)(a), development cannot be regularised if, in the authority’s view, it causes an injury to amenity.

Agius appealed to the Environment and Planning Review Tribunal, which in a decision issued on 13 May upheld the appeal only in part. The tribunal ordered that the regularisation permit would be issued if Agius submitted photographic proof of the loft’s removal within three months. If not, the authority’s refusal would stand. Although the applicant later filed revised plans showing the loft removed, he did not provide the required photographs of its actual dismantling.

Before the Court of Appeal, Agius challenged the tribunal’s assessment of evidence, including its reliance on photographs from a third party. The court found that the tribunal had relied primarily on photographs submitted by Agius himself, which clearly depicted the pigeon loft and pigeons in flight. It added that both the authority and tribunal were required by law to consider objections from neighbours, even if some other neighbours raised no complaint.

The court observed that amenity protections apply irrespective of individual neighbour tolerance, noting that the planning system must consider the comfort and reasonable enjoyment of both current and future residents. It held that the Tribunal’s conclusion, that a pigeon loft in this setting constituted an injury to amenity, was a finding of fact and therefore not open to challenge at appeal.

The Planning Authority had also raised a procedural objection, arguing that Agius’s appeal was null because he asked the court to issue the permit itself. The court dismissed this, holding that while it lacks power to issue permits, this did not render the appeal invalid.

The appeal was ultimately rejected, confirming that the regularisation permit could not be issued.

Following the ruling, the Planning Authority issued a statement welcoming the judgment. It said the decision confirms that “not all development can be regularised, and structures that cause a serious injury to amenity cannot be approved.” It stressed that the regularisation system is intended to address minor breaches, not to legitimise activities that disturb neighbours or the wider community.

The authority said the court had underlined that amenity includes “the comfort, safety, health and reasonable enjoyment of nearby residents,” and that the test does not depend solely on whether current neighbours object. The judgement, it added, reinforces the authority’s obligation to refuse regularisation where development creates noise, odour, sanitary impacts or other discomfort, especially in tightly built residential areas.

The authority stated it remains committed to applying the regularisation regulations “with transparency and consistency in the public interest”.

The judgement was delivered on 14 November by Judge Mark Simiana.