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MALTATODAY 3 AUGUST 2025

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8 maltatoday | SUNDAY • 3 AUGUST 2025 ANALYSIS land between the Gżira Council of Europe Garden and the Ta' Xbiex Marina. In this case, the Court of Ap- peal argued that the only way to approve the permit for the building—which partly lies on a public open space—is by re- zoning the site, something that did not happen. However, the power to rezone will now be granted to anoth- er decision-making body—the PA's Executive Council. The council will have the power to change the land use classifica- tions of areas within the devel- opment zone, including those currently not designated for development. Curtailing grounds for third- party appeals Moreover, the proposed amendments limit the grounds for third-party appeals to is- sues specifically raised during the initial public consultation phase and to another consul- tation period after the publica- tion of the case officer report. This means that for third parties to effectively challenge decisions involving discre- tionary policy deviation, they must articulate clear reasons when objecting—even about potential future discretion- ary applications—earlier on in the planning process. NGOs and ordinary citizens will have to seek legal assistance when wording their objections or risk losing the right to appeal in the future. Precedence of recent policies Another amendment which is bound to impact appeals is the proposed reordering of the authority's policy hierarchy by giving precedence to the most recently introduced policy. This is because most appeals today revolve around the inter- pretation of conflicting policies and which of these prevails. One case, which may have had a different outcome had the proposed regime been already in place was the annulment of a permit for a 31-storey hotel at Fort Cambridge. The project was approved under the Hotel Heights Policy introduced in 2014. But the permit was re- voked by the EPRT because the Planning Authority ignored the Development Brief approved in 2006, which does not allow additional levels on the existing barracks. The case is now be- ing reassessed by the Planning Authority on the basis of the EPRT's decision. But under the proposed law, the PA can now depart from older policies like Development Briefs if more recent policies apply. Although this case may not be clear-cut because in its decision the EPRT also pointed out that the Hotel Heights Policy itself includes safeguards on building heights in sensitive areas, which complement the brief, the pro- posed changes will facilitate de- velopments backed by more re- cent policies and briefs. In fact, one risk is that if approved the legal changes will trigger piece- meal policy changes meant to accommodate developments in the knowledge that the most recent regulations will prevail irrespective of development briefs and local plans. Nonetheless, this can also be a sword that cuts both ways if, under public pressure, the authority introduces policy changes accommodating pub- lic sentiment. In fact, Planning Minister Clint Camilleri has al- ready hinted that the authority could use its discretionary pow- er to safeguard rows of terraced houses to justify the proposed amendment. But this could end up creating more uncertainty in the planning process. Five-month limit for the law courts Another bone of contention is the proposal to introduce a five- month limit on the Appeals Court to make its decision. Al- though developers will not be able to start building until the permit is being appealed, if the court fails to deliver judgment within five months, the permit will no longer be deemed sus- pended. Significantly, the proposed new law states that any work carried out under such permis- sion after this five-month expi- ry and before the court's final decision "shall not be affected or invalidated by the result of such appeal". This timeframe is already largely respected by the Court of Appeal, even in highly con- troversial cases like the con- struction of ODZ pools by Joseph Portelli in Sannat and Qala, the original db project permit that was revoked be- cause of a conflict of interest in the board, the pencil develop- ment in a terraced house area in Santa Luċija, and the permit for the already-built capitainerie in Ta' Xbiex. But there have been exceptions. For example, a permit for a de- velopment proposed by Daniel Refalo in Mellieħa, consisting of a 120-unit residential com- plex and a hotel which made it possible for the development to rise to eight floors, was revoked by the Appeals Court in a case which took around 10 months to decide. The development was already completed by the time the final decision was made in May 2023. This means that under the new policy re- gime the development would still be legal. Still, one has to consider that the Appeals Court is presently not subject to time limits and the judiciary—which in most cases is already respecting the proposed timeframes—would be even more vigilant to take its decisions within the allotted << CONTINUED FROM PREVIOUS PAGE Fort Cambridge hotel: Photo montage of the Fort Cambridge hotel (second tower from the permit revoked by the planning tribunal in 2025 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 will make it harder for NGOs and citizens to challenge permits on the basis of breach of policy. Planning reform shifts goalposts

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