Will landmark judgment end pencil developments?

Chief Justice Mark Chetcuti revoked a permit for a five-storey block in an area in Santa Lucija characterized by two-storey terraced houses built in the 1980s. James Debono caught up with different stakeholders to understand the impact of such a landmark decision on other pencil developments in other areas with a uniform skyline.

The site in Santa Lucija that where a proposed five-storey development was going to rise above the surrounding rows of two-storey houses
The site in Santa Lucija that where a proposed five-storey development was going to rise above the surrounding rows of two-storey houses

Over the past two decades, hundreds of permits for pencil developments that jut over the skyline of their surroundings have been approved.

This was done on the assumption that the height limitation in the local plan gives developers an automatic right to build up to the maximum allowed for the area.

But last Tuesday, a Court of Appeal presided by Chief Justice Mark Chetcuti revoked a permit in Santa Lucija, which was approved by the Environment and Planning Review Tribunal on the basis that the developer had a right to build according to the height limitation set out in the local plans.

In this case the local plan limits development to three floors and a basement. But according to an annex included in the Development Control Design Policy of 2015 this height limitation was translated to a height of 16.3m, which allowed developers to fit five floors. It was for this reason, the permit was recommended for approval by the case officer.

However, the Planning Commission refused to comply with the recommendation by invoking an article in the Planning Act which obliges the PA to take into account “material considerations” including “surrounding legal commitments and environmental aesthetic and sanitary considerations.”

The development was also deemed to be in breach of policies protecting urban townscapes included in the Strategic Plan for the Environment and Development (SPED) and also of two specific policies included in the Development Control Design Policy, approved in 2015, which oblige the Planning Authority to consider the impact on the skyline in its decisions.

But this decision was later overturned by the Environment and Review Tribunal (EPRT) chaired by Joseph Borg, following an appeal by applicant Charles Falzon.

The Tribunal argued that “while it is true that the site forms part of a Home Ownership Scheme dating to the 1980s (characterised by a uniform height and style), this was already a state of fact when the local plans were approved”.  Therefore, according to the EPRT “if the intention was to limit development in the area to two floors, the local plan would have limited development in this area to two floors.” The Tribunal then concluded that the applicant “should not be denied of the rights given to him by the local plan”.

The court ruling could have an impact on other pencil developments in areas where uniform streetscapes still exist
The court ruling could have an impact on other pencil developments in areas where uniform streetscapes still exist

The tribunal also ruled that the skyline was already compromised by unspecified nearby developments which are higher than two floors.

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 Appeals Court presided by Chief Justice Mark Chetcuti makes it clear that although a development may adhere to the height limitation established 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.

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 into 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 its policy, often prioritising the height limitation as it did when recently issuing permits for five-storey developments in the Ta’ Xbiex housing estate.  Will this change after the court decision?  MaltaToday asked different stakeholders about the implications of the Appeals Court judgment.

Claire Bonello, lawyer and environmentalist: A judgment that fills us with hope

Claire Bonello
Claire Bonello

‘The permit stuck out like a sore thumb and ruined the uniformity of the streetscape and the skyline’.  The Court of Appeal reiterated what it had stated in previous judgments that the Local Plan is not the only parameter of what constitutes acceptable development. There are other policies which may affect the height, volume and appearance of development. In this case the Policy Guidelines G2 and G3 of DC 2015 were applicable. These relate to the visual impact of development and the relationship between new and existing buildings. The Court of Appeal has made a logical interpretation of the policies as it took into consideration all the factors and policies in play. Unfortunately, there is the widespread misconception that the only policies which are applicable are those relating to height. This is not the case. There are reams of policies relating to the visual impact, aesthetics, ecological value and amenity of the area which are very often ignored by developers and the Planning Authority alike. This judgment gives us hope that a correct analysis and interpretation will be made in other cases.

Robert Musumeci, architect and senior lecturer in development planning law: EPRT was honest and professional

Robert Musumeci
Robert Musumeci

The Environment and Planning Review Tribunal Act provides the possibility of appealing tribunal decisions exclusively on a point of law before the Court of Appeal. This means that EPRT decisions are susceptible to judicial review in the course of which the courts cannot substitute the facts as appraised by the tribunal but they can detect a breach of law. When the latter happens, the tribunal decision is annulled as happened in the Santa Lucija case. In this case, the court saw that the tribunal explicitly observed that the street had dominant defining design characteristics due to the way it was built. Following this observation, the tribunal, then moved on to make reference to guidance G2 and G3 of DC15 (which guidelines provide for the retention of the dominant defining design considerations in a street) but decided that, from a purely planning material perspective, such considerations could be safely ignored. This is where the legal quandary lies. The law does not allow for the non-observance of G2 and G3. Impliedly, the Court would have reasoned otherwise had the Tribunal concluded that that there were no such dominant defining street features because, in the opposite sense, the absence thereof does not compromise the provisions of G2 and G3. Were the tribunal to conclude (for whatever reason) that the untouched skyline does not give rise to a dominant defining design, the court would have had to accept that factual declaration and uphold the decision because judicial review prohibits the reassessment of appraised facts and, or substitution of technical assessments. The irony of the whole matter is that the tribunal’s efforts to be over cautious and give a professional and honest on-site appraisal prior to pronouncing itself rendered the judgment null because the court could engage in that discussion.

Andre Pizzuto, president Kamra tal-Periti: Seismic shift with impact on valuations

Andre Pizzuto
Andre Pizzuto

This is a landmark court decision that virtually wipes out the speculative approach to development adopted by the Planning Authority over the past 17 years. It is very positive news for those keen on prioritising quality architecture and urban design, and sound town planning. The Kamra tal-Periti had been challenging this type of planning and development for as long as the Local Plans were issued. As has repeatedly happened, the Kamra’s considered technical positions on issues related to the built environment are invariably found to be correct, albeit belatedly. Such a seismic shift will, however, inevitably cause some significant aftershocks to the real estate industry in general which may have a significant impact on property valuations and the exposure of banks. Anyone who has any concerns about the impact this decision will have on their financial position are advised to consult a perit specialised in property valuations. If there ever was a time to seek property valuations only from qualified periti, this is it. The Kamra is still studying the full ramifications of this judgment and will be holding seminars about it for periti in the coming weeks.

Andre Callus, Moviment Graffitti: Tribunal is a political tool

Andre Callus
Andre Callus

The ruling makes it very clear that the building heights established in the Local Plans do not give an automatic right to developers to build up to that height. These policies only establish the maximum height allowed. Other considerations, such as the area’s context, have to be taken into account when processing and deciding on development applications. Whilst the PA had refused this Santa Luċija development (which decision was then overturned by the EPRT), this was an exception to the rule. The PA is approving hundreds of developments that totally jar with the surrounding contexts and justifies its decisions solely on the building heights in the Local Plans and Annex 2 of DC15, without any consideration of the surroundings. One of the PA’s next major tests in this regard is another application in Santa Luċjia - the development proposed by Anton Camilleri for a five-storey building, with dozens of apartments, garages and maisonettes, in an area of two-storey buildings. The court ruling also points once again to the total inadequacy and dysfunctionality of the planning tribunal (EPRT). Court rulings have repeatedly quashed the conduct and decisions of this supposedly independent tribunal (as has been in the case of the Court ruling revoking Ian Borg’s ODZ pool permit), but which is in fact composed of politically appointed persons. Organisations have been insisting that this Tribunal is ruled by political interference and business interests and is purposely stifling the people’s quest to fight environmental injustice.

Michael Stivala, Malta Developers Association president: Court decision vindicates validity of existing policy

Michael Stivala
Michael Stivala

What the court has stated is nothing new. In fact, the Planning Authority, in various instances, has quoted the same article both to approve and refuse applications depending on the context of the application.

The court once again ruled that it is not enough to state that there is a commitment, but it is the person claiming that there is a commitment that needs to prove this or otherwise.

Regarding the issue of policy interpretation, the DC 2015 is not only a policy document but also a guidance document. It is a document which acknowledges that there is no ‘one size fits all’ solution. In this sense the DC 2015 is a clear departure from the previous policy regime. It is a framework composed of policies, marked in red, good practice guidance marked in orange and technical standards marked in yellow. When considering the contextual design and the urban form, the policies marked in red cannot be breached. In fact, anyone considering the DC 2015 as a policy document with all policies, guidance notes and standards having the same weighting shows that they have not understood this very important document which was debated at length and to which there is an agreement by all parties.

In this case, the Court of Appeal agreed with the Commission in its interpretation of the law, to overturn the recommendation of the case officer and added several reasons for refusal to guide the applicant further should he re-apply for a development permit.

The Santa Lucija saga

2006 Local plan sets height limitation of three floors and basement for this area in Santa Lucija presently characterised by two storey houses

2015 New policy converts three-storey height limitation to 16.3m

2019 Charles Falzon applies to build five-storey block within the height limitation of 16.3m

Sep 2020 Case officer recommends approval of application

Nov 2020 Planning Commission refuses permit on policy grounds that protect skylines and areas with uniform design

Dec 2020 Developer appeals decision

Oct 2022 Environment and Planning Review Tribunal overturns PA decision, says developer had right to build according to height set in local plans

Mar 2023 Court of Appeal revokes permit confirming original PA decision