Issue link: https://maltatoday.uberflip.com/i/1538131
THE government has tabled two bills in parliament to reform the planning process from application stage all the way to appeals stage. Bill 144 contains amendments to change the appeals system by intro- ducing mandatory deadlines for de- cisions and halting works during pro- cedures. Bill 143 overhauls the entire planning system by giving greater dis- cretionary powers to decision-making boards. The two may appear distinct but the changes proposed in Bill 143—impact- ing the wider planning process—will inevitably alter the nature and scope of appeals heard by the Environment and Planning Review Tribunal (EPRT) and the judiciary. Why is this? Well, today, appeals presented by common citizens and NGOs are based on specific policies, which they claim would have been breached in the planning process. But a proposal to give the Planning Board more discretionary powers to ignore policy—this will no longer be consid- ered an "error of law"—will make it harder for NGOs and citizens to chal- lenge permits on the basis of breach of policy. How power to deviate from policy may derail appeals A look back at cases that were suc- cessfully challenged shows that a number of permits for hotels in Sliema and St Julian's were revoked by the EPRT on the basis of a local plan policy which does not allow hotels in designated residential areas. One recent case involved the con- struction of a hotel on additional storeys added to Sirdar House in St Julian's proposed by the Zammit Tabona family. Another involved the construction of a hotel proposed by Michael Stivala in Parisio Street, Sliema. In these cases, decision-making boards had already invoked flexibility based on the surrounding context, by citing the proximity of other hotels in the surroundings. The proposed amendments would strengthen the board's discretion in such cases. By giving board members greater flexibility to deviate from pol- icies, objectors will have a harder task opposing similar developments. It is true that the discretionary power to "deviate" from policy is conditional on the Planning Board's decision be- ing justified by "spatial, architectural, or contextual considerations", sup- ported by site-specific evidence, and articulating clear planning reasoning. But while presently appeals rely on demonstrating a contravention of an existing policy, under the proposed law, appellants will have to challenge the adequacy, reasonableness, and le- gal correctness of the board's justifica- tion for exercising its discretion. Limits on judicial review and finality of EPRT decisions Moreover, it will be more difficult to further challenge the EPRT's verdict in court in those cases where it de- cides that the deviations from policy by PA boards are justified. This is because the proposed law states that the EPRT's factual deter- minations are final. This means that if the EPRT finds that the "site-specific evidence" cited by the Planning Board to justify a deviation was correct, that factual finding cannot be re-litigated at a higher judicial level. In fact, under the proposed poli- cy regime, the decision to appeal the EPRT's decision in court will have to be strictly based on points of law. This implies that the Appeals Court will primarily assess whether the EPRT, in its review of the PA's discretionary decision, correctly applied legal prin- ciples. As things stand today, the Appeals Court decisions are also based on an analysis of how different planning pol- icies are applied as demonstrated in the revocation of a permit for Trans- port Malta's already-built Capitainerie restaurant on public 7 maltatoday | SUNDAY • 3 AUGUST 2025 ANALYSIS CONTINUES ON NEXT PAGE >> From courts to boards? How planning reform could nip appeals in the bud The proposed planning reform will halt works on projects while appeals are underway, avoiding absurd cases where developments are completed before their permits are revoked. But will it also shift the goalposts to nip appeals in the bud? James Debono looks back at past decisions to find out.