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MALTATODAY 19 March 2023

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14 maltatoday | SUNDAY • 19 MARCH 2023 NEWS 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 devel- opment to three floors and a basement. But according to an annex included in the Development Control Design Pol- icy 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 rec- ommended for approval by the case of- ficer. However, the Planning Commission refused to comply with the recommen- dation by invoking an article in the Planning Act which obliges the PA to take into account "material consider- ations" including "surrounding legal commitments and environmental aes- thetic and sanitary considerations." The development was also deemed to be in breach of policies protecting ur- ban townscapes included in the Stra- tegic Plan for the Environment and Development (SPED) and also of two specific policies included in the De- velopment Control Design Policy, ap- proved in 2015, which oblige the Plan- ning Authority to consider the impact on the skyline in its decisions. But this decision was later overturned by the Environment and Review Tribu- nal (EPRT) chaired by Joseph Borg, fol- lowing 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 tribunal also ruled that the sky- line was already compromised by un- specified nearby developments which are higher than two floors. The EPRT's decision was later chal- lenged in the law courts by PN coun- cillor Liam Sciberras and Micheal Pule, who were assisted by lawyer Claire Bonello. In its sentence, the Appeals Court presided by Chief Justice Mark Chetcu- ti makes it clear that although a devel- opment may adhere to the height lim- itation established in the local plan it could still be in breach of other policies which cannot be over-ruled simply be- cause 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 sto- rey buildings. The development guidelines approved in 2015 include detailed policies which oblige developers to respect the sur- rounding context but also included an annex which translated the height limi- tation 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 Au- thority has inconsistently applied its policy, often prioritising the height lim- itation as it did when recently issuing permits for five-storey developments in the Ta' Xbiex housing estate. Will this change after the court decision? Mal- taToday asked different stakeholders about the implications of the Appeals Court judgment. Claire Bonello, lawyer and environmentalist: A judgment that fills us with hope '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 af- fect 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 im- 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. Will landmark judgment end pencil developments?

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