Issue link: https://maltatoday.uberflip.com/i/1495215
15 maltatoday | SUNDAY • 19 MARCH 2023 pact of development and the relation- ship between new and existing build- ings. The Court of Appeal has made a logical interpretation of the policies as it took into consideration all the fac- tors and policies in play. Unfortunately, there is the widespread misconception that the only policies which are applica- ble 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 devel- opers and the Planning Authority alike. This judgment gives us hope that a cor- rect analysis and interpretation will be made in other cases. Robert Musumeci, architect and senior lecturer in development planning law: EPRT was honest and professional The Environment and Planning Review Tribunal Act provides the possibility of appealing tribunal decisions exclusive- ly on a point of law before the Court of Appeal. This means that EPRT deci- sions 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 tri- bunal 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 ob- servation, the tribunal, then moved on to make reference to guidance G2 and G3 of DC15 (which guidelines provide for the retention of the dominant de- fining design considerations in a street) but decided that, from a purely plan- ning material perspective, such consid- erations 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 compro- mise 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 de- sign, the court would have had to accept that factual declaration and uphold the decision because judicial review prohib- its the reassessment of appraised facts and, or substitution of technical assess- ments. 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 pro- nouncing 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 This is a landmark court decision that virtually wipes out the speculative ap- proach to development adopted by the Planning Authority over the past 17 years. It is very positive news for those keen on prioritising quality architec- ture 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 Lo- cal Plans were issued. As has repeated- ly happened, the Kamra's considered technical positions on issues related to the built environment are invaria- bly found to be correct, albeit belated- ly. Such a seismic shift will, however, inevitably cause some significant af- tershocks 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 on- ly from qualified periti, this is it. The Kamra is still studying the full ramifica- tions of this judgment and will be hold- ing seminars about it for periti in the coming weeks. Andre Callus, Moviment Graffitti: Tribunal is a political tool The ruling makes it very clear that the building heights established in the Lo- cal Plans do not give an automatic right to developers to build up to that height. These policies only establish the maxi- mum height allowed. Other considera- tions, such as the area's context, have to be taken into account when processing and deciding on development applica- tions. Whilst the PA had refused this Santa Luċija development (which deci- sion was then overturned by the EPRT), this was an exception to the rule. The PA is approving hundreds of develop- ments that totally jar with the surround- ing contexts and justifies its decisions solely on the building heights in the Lo- cal 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 build- ing, with dozens of apartments, garages and maisonettes, in an area of two-sto- rey buildings. The court ruling also points once again to the total inadequa- cy and dysfunctionality of the planning tribunal (EPRT). Court rulings have re- peatedly quashed the conduct and de- cisions 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 com- posed of politically appointed persons. Organisations have been insisting that this Tribunal is ruled by political inter- ference 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 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 appli- cations depending on the context of the application. The court once again ruled that it is not enough to state that there is a com- mitment, but it is the person claiming that there is a commitment that needs to prove this or otherwise. Regarding the issue of policy interpre- tation, the DC 2015 is not only a policy document but also a guidance docu- ment. It is a document which acknowl- edges that there is no 'one size fits all' solution. In this sense the DC 2015 is a clear departure from the previous poli- cy regime. It is a framework composed of policies, marked in red, good practice guidance marked in orange and techni- cal 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 docu- ment 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 interpreta- tion of the law, to overturn the recom- mendation 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