Court dismisses Moviment Graffitti appeal over 'incorrect' Xagħra streetscape plans for 9 bedroom home

The Court of Appeal dismissed an application by Moviment Graffitti and resident Victor Borg to revoke a planning permit for a development in Xagħra, Gozo, despite an admission that the plans submitted to the authorities contained errors regarding the surrounding streetscape.

Permit PA 08765/20 authorised internal alterations and a second-floor extension to a residence at Triq Marija Bambina. The appellants argued that the permit holder, Louis Stellini, had submitted a false streetscape elevation. 

The disputed plan incorrectly depicted the heights of adjacent buildings, showing them with rooftop rooms that do not exist, or depicting existing rooms as larger than they truly are. The appellants argued that such plans are mandatory under DC15 guidelines and were crucial for the Planning Authority to understand how the development would fit into a block consisting exclusively of two-storey townhouses.

However, the court upheld the view of the Environment and Planning Review Tribunal (EPRT), which found that the error was not a determining factor. Under Article 80 of the Planning Act, a permit should only be revoked if the correct information would have led to a different outcome. The court noted that the tribunal had based its approval on other factors, such as local plans and previous permits already granted for taller buildings in the same street.

Beyond the architectural plans, the appellants raised concerns that the development was a commercial project masquerading as a single residence. They pointed out that the "home" included nine ensuites, two additional bathrooms, and a pool, suggesting it was intended for use as a guesthouse, boutique hotel, or Airbnb. 

By labeling it a residence, the appellants argued, the developer successfully avoided stricter policies regarding parking spaces. 

The court dismissed this argument as "hypothetical." Judge Simiana noted that the permit was legally issued for a single residence, and if the owner wished to use it for collective accommodation in the future, they would be required to obtain a separate "change of use" permit from the relevant authorities.

The site is located in a sensitive area of Gozo, within the Ġgantija Area of Archaeological Importance, and just 60 meters from the Grade 1 scheduled Ta' Kola Windmill. 

While the Superintendence of Cultural Heritage (SCH) required archaeological monitoring, the tribunal had previously determined that the development, which reached a height of 10.56 meters, was lower than the maximum 15.40 meters allowed by local policies and would not negatively impact the perception of the windmill.

The Court of Appeal concluded that the appellants failed to prove that the Planning Board had ignored "essential issues" or that the incorrect plans had materially misled the tribunal. Furthermore, it was noted that the construction works are already complete, making any request to suspend the permit "useless at this stage".

The appeal was rejected in its entirety, with legal costs ordered against Moviment Graffitti and Victor Borg.