The Current wording of Article 72(2) is as follows:

“(2) In its determination upon an application for development permission, the Planning Board shall have regard to:
(a) plans;
(b) policies:
Provided that subsidiary plans and policies shall not be applied retroactively so as to adversely affect vested rights arising from a valid development permission, or a valid police or trading licence issued prior to 1994;
(c) regulations made under this Act:
Provided that the Planning Board shall only refer to plans, policies or regulations that have been finalised and approved by the Minister or the House of Representatives, as the case may be, and published;
(d) any other material consideration, including surrounding legal commitments, environmental, aesthetic and sanitary considerations, which the Planning Board may deem relevant;
(e) representations made in response to the publication of the development proposal; and
(f) representations and recommendations made by boards, committees and consultees in response to notifications of applications.”

Meanwhile, Bill No. 143 is contemplating the following amendments:

  1. Paragraph (b) – the word “policies:” shall be substituted by the word “policies.” and the proviso thereto shall be deleted.
  2. Paragraph (d) – the words “surrounding legal commitments, environmental, aesthetic and sanitary considerations, which the Planning Board may deem relevant” shall be substituted by the words “spatial, architectural, or contextual considerations”.
  3. Paragraph (f) – the words “of applications.” shall be substituted by the words “of applications:” and immediately thereafter there shall be added the following new proviso:

“Provided that where the plans, policies and regulations impose fixed or prescriptive conditions, the Planning Board may justify a departure under paragraph (d) based on spatial, architectural, or contextual considerations. Such justification shall not constitute an error of law solely because the policy does not expressly provide for discretion, provided the decision explicitly references site-specific evidence and clearly articulates planning reasoning.”

Moreover, another sub-article 72(2A) is being proposed by Bill No. 143 which reads:

“(2a) Any of the following shall constitute a vested right which shall not be extinguished by article 72(2):
(a) a valid development permission which has been lawfully implemented; or
(b) a use which is currently ongoing and has not been interrupted for more than five (5) years since the possession of a police or trading licence that was valid on the last day it was legally required; or
(c) any development which does not require a permit in terms of article 70(2); or
(d) any use or activity deemed ex lege lawful under this Act or any other law.”

Article 72(2) of the Development Planning Act currently obliges the Planning Board, when determining an application for development permission, to consider a closed list of matters: approved plans, approved policies, approved regulations, other material considerations (including legal commitments and environmental, aesthetic, and sanitary concerns), public representations, and recommendations from boards and consultees. Paragraph (b) presently contains a proviso safeguarding vested rights, preventing the retroactive application of subsidiary plans or policies to undermine valid development permissions or pre-1994 police or trading licences.

Bill No. 143 introduces three significant textual changes. The first is the removal of the vested rights proviso from paragraph (b) and its relocation, in expanded form, to a new Article 72(2A). This new sub-article defines with precision four categories of rights insulated from extinguishment: (i) a valid development permission that has been lawfully implemented; (ii) an ongoing use not interrupted for more than five years since the last licence that was legally required; (iii) development exempt from permission under Article 70(2); and (iv) uses or activities deemed lawful ex lege. The shift from a brief proviso to a self-standing provision makes the safeguard more prominent, codifies its scope in exhaustive terms, and extends protection beyond the two situations covered under the current law.

Of particular significance is the formulation “since the possession of a police or trading licence that was valid on the last day it was legally required.” This addition directly addresses a practical lacuna in the current regime: for many non-catering commercial establishments — such as carpentry workshops, hair salons, and similar trades — licensing ceased to be required after the 2016 reforms. Under the existing proviso, which speaks only of a “valid licence,” these uses fall into a grey area once their former licences were terminated by law. The new wording ensures that such uses, if lawfully established when licensing was still required and not interrupted for more than five years, retain vested right protection notwithstanding the subsequent abolition of the licensing requirement.

Secondly, paragraph (d) may be seen to have been narrowed in scope. At present, its wording—referring to “surrounding legal commitments, environmental, aesthetic and sanitary considerations”—operates as a catch-all for a wide range of material considerations, applied with considerable looseness and often without clear boundaries. The revised text replaces this open-ended formula with the more precise “spatial, architectural, or contextual considerations,” thereby shifting the focus to tangible, site-specific attributes relating to the physical form, design integration, and contextual fit of a proposal. Meanwhile, environmental considerations, which under the current formulation risked being handled in a diffuse and inconsistent manner, are already comprehensively regulated under the Environment Protection Act (Cap. 549) and its subsidiary legislation, including the Environmental Impact Assessment Regulations (S.L. 549.46), the Prevention and Remedying of Environmental Damage Regulations (S.L. 549.97), the Water Policy Framework Regulations (S.L. 549.100), and the Flora, Fauna and Natural Habitats Protection Regulations (S.L. 549.44). Under these instruments, the Environment and Resources Authority is a statutory consultee in relevant development applications. Sanitary matters, likewise, fall squarely within specialised regimes such as the Public Health Act (Cap. 465) and the Development Planning (Health and Sanitary) Regulations, designated as S.L. 552.22. By also removing the reference to “commitments,” the amendment closes the door on the widespread practice of importing unrelated or remotely connected developments as a precedent for policy departure. In effect, the provision is restructured to ensure that planning decisions are grounded in a disciplined, transparent, and contextually relevant assessment, while environmental and sanitary issues are channelled through the statutory processes designed specifically for their regulation.

Thirdly, paragraph (f) is amended to introduce a proviso permitting the Planning Board to depart from fixed or prescriptive policy conditions where such departure is justified on spatial, architectural, or contextual grounds, provided that the decision expressly cites site-specific evidence and articulates its planning reasoning with clarity. The amendment further clarifies that such a departure will not, in itself, amount to an “error of law” merely because the relevant policy contains no express discretion clause. This does not create a new legal power; rather, it is a statutory restatement of the proper limits of judicial review. The courts, of course, retain their supervisory jurisdiction to quash a decision on a planning application where it is either inconsistent with the established meaning of the policy or, though nominally consistent and departing from strict adherence to every detail of its text, is nonetheless unsupported by demonstrable spatial, architectural, or contextual considerations, or by site-specific evidence and cogent reasoning.

Taken together, these reforms do not dismantle the plan-led principle but recalibrate it. This mirrors developments in mature planning systems such as the United Kingdom, where the statutory presumption in favour of the development plan is balanced by clear gateways for justified departures (see City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447; South Buckinghamshire DC v Porter (No 2) [2004] UKHL 33).

On the local front, the proposed approach aligns with judicial reasoning in the Kujit case. This case concerned the demolition of the existing building and the construction of two semi-detached bungalows, each with a basement and a common pool, at Triq in-Namur, Iklin. The application also sought to sanction works on the existing basement carried out after the prior permit had expired. The third-party appellant objected on two main grounds: first, that the site lies in a “bungalow area” and the permission breached DC15 Policy P28 (detached bungalows), and secondly, that Policy P35 required the Authority’s Land Survey Unit (LSU) to establish the “existing site levels,” which (it was said) had not occurred. The Tribunal undertook a detailed site history, noting earlier permits over the plot and flanking sites (PB5289/79, PA/5038/10, PA/5209/10) and concluding that the immediate streetscape on both sides already comprised semi-detached forms of comparable volume and height. It considered Policies P28 and P40 (bungalows), together with DC15 guidance (G3) and P35 (roofscape integration), and treated the proposal as a contextual “gap-filler” that would maintain the prevailing built form rather than undermine it.

On further appeal, the Court of Appeal dismissed the objector’s grievances and affirmed the Tribunal’s reasoning. The  Court accepted that, textually, P28 designates detached bungalows and that the proposal did not match the strict form of the policy; yet it held that an exception was justified on the basis of the immediate context and the site’s permit history, because both flanks already carried semi-detached development and the proposal would keep to their volume and height:

“F’dan il-każ din il-Qorti ma tistax ma taqbilx mal-konsiderazzjonijiet tat-Tribunal… ladarba ż-żona immedjata fuq kull naħa tas-sit ġa ma jsegwix il-policy P28… u l-iżvilupp ser iżomm mal-volum u għoli ta’ dawn l-iżviluppi, l-extent tal-commitment li sab it-Tribunal hu ġustifikabbli fiċ-ċirkostanzi.”

Translation: [In this case, the Court cannot but agree with the Tribunal’s considerations… since the immediate area on both sides of the site already does not follow Policy P28… and the development will keep to the volume and height of those developments, the extent of the commitment found by the Tribunal is justifiable in the circumstances.]

Crucially, the Court’s acceptance of an exception was not free-wheeling. It insisted that contextual reasoning be tethered to policy text and site-specific evidence.

Kuijt is, in substance, the judicial template for the Bill’s proposed proviso to Article 72(2)(f). The Court affirms that the development plan remains the starting point (P28), departures are exceptional and the decision-maker must adduce site-specific evidence (immediate flanks; volumes; heights; roofscape) and explain its reasoning.

In other words, as things currently stand with the current law, contextual considerations can prevail over a prescriptive policy position where justified, but this is not—and must not become—the norm. The Court’s approach, therefore, mirrors the Bill’s formula that a departure from “fixed or prescriptive conditions” may be justified on “spatial, architectural, or contextual” grounds, is not an error of law merely because the policy lacks an express discretion clause, and must be supported by explicit, site-specific evidence and clear planning reasons. Kuijt shows that Maltese courts already reward this disciplined mode of reasoning; the Bill would codify it and make the pathway explicit in statute.

The proposed modifications would also address certain recent Tribunal practices which, in effect, have stretched the statutory framework beyond its intended bounds, rather than, as some have speculated, being designed to accommodate particular applicants.

In Aquicoil Ltd v Planning Authority, the Tribunal approved additional floors in a Sliema Urban Conservation Area (UCA) based largely on the surrounding building heights. Under the amended Article 72(2)(f), reliance on height alone—without an integrated demonstration of spatial relationship, architectural fit, and contextual harmony with the immediate streetscape—would fall short of the statutory test.

In Din l-Art Ħelwa v Planning Authority & Karkanja Ltd, isolated outliers were treated as “commitments” sufficient to override clear policy limits. The closed list of vested rights in Article 72(2A) would foreclose this approach entirely: unless the circumstance falls within one of the four statutory categories, such outliers could not justify a departure. Persisting in such reasoning despite clear statutory exclusion could, depending on the facts, be characterised as irrational in the Wednesbury sense.

Similarly, in Moviment Graffiti et al v Planning Authority & Mark Agius, speculative claims regarding a historic garden, coupled with reliance on a single comparable development, were treated as adequate grounds for approval. Under the amended framework, such conjectural assertions would fail to meet the “site-specific evidence” requirement. A decision-maker who persisted in granting approval on such speculative and minimal grounds might, in an extreme case, be held to have acted so unreasonably that no reasonable authority could have reached the same conclusion.

These examples demonstrate that the Bill is not designed to retrospectively target or overturn specific Tribunal decisions. Rather, it elevates the evidentiary and reasoning thresholds for policy departures while preserving established public law safeguards—including the possibility that, even absent a pure error of law, a decision may be quashed for irrationality in the Wednesbury sense, where the justification is so flawed or disproportionate that it falls outside the bounds of lawful decision-making. In essence, the Bill removes the looser “commitments” language which, at times, has untethered decisions from the immediate built form, and—as in Kuijt—keeps “context” tightly local and objectively measurable, thereby reducing the temptation to stretch “context” or “commitment” in ways that erode legal certainty. Kuijt treats context as a means of fitting development into the street, not as a licence to nullify policy; the Bill codifies that approach.

From a comparative perspective, the academic literature in the UK has long examined the tension between plan certainty and the flexibility required to ensure relevance. MacGregor and Ross (1995) famously described the development plan as “the servant, not the master” of planning judgment, warning that excessive rigidity risks rendering plans self-defeating and disconnected from real-world conditions. Airey and Doughty (2020) caution that static land-use controls can “freeze” urban form, impeding regeneration and adaptation to evolving social and economic needs. Tewdwr-Jones (1999) identifies “emerging ideological conflicts” in British planning, emphasising the necessity of discretion for large-scale regeneration where plans are out of date. Nadin and Stead (2014) similarly frame modern spatial planning as an adaptive process, integrating plan guidance with the flexibility needed to address unforeseen circumstances.

Other scholars emphasise governance implications.

Allmendinger and Haughton (2013) analyse the growth of “soft spaces” and “fuzzy boundaries” in spatial planning, illustrating how strategic objectives often require cross-boundary flexibility that rigid adherence to plans would obstruct. Booth (1999) contrasts the discretionary nature of planning with the fixed rigidity of zoning systems, concluding that bounded discretion is essential for capturing public value and managing complexity. Gielen and Tasan-Kok (2010) focus on economic considerations, arguing that planning flexibility can facilitate negotiation and value capture for public benefit. Grant (1992) positions planning law as both an instrument of spatial organisation and a vehicle for public policy, warning against over-legalisation that could undermine adaptive governance.

Similarly, Shaw and Lord (2009) trace the shift from traditional land-use planning to integrated spatial planning in the UK, highlighting the increased emphasis on responsiveness and policy integration. Tewdwr-Jones and Williams (2005) extend this analysis to the European context, observing that alignment with EU objectives often requires a more flexible interpretative stance at national level.

Bill No. 143 fits squarely within this body of thought.

The narrowing of paragraph (d) addresses the problem of “policy drift” identified in the literature, whereby vague statutory language is stretched to cover circumstances beyond its intended reach. Meanwhile, the structured discretion introduced in paragraph (f) reflects the academic consensus that flexibility must be transparent, evidence-based, and legally bounded.

By defining vested rights in an exhaustive statutory list, narrowing “material considerations” to tangible, site-specific factors, and codifying a structured discretion that demands explicit evidence and reasoning, the amendments address the excesses of recent Tribunal practice and align Maltese planning law with comparative best practice. The Kuijt judgment stands as a judicial exemplar of disciplined, text-rooted flexibility, and the Bill effectively codifies its logic.

Bill No. 143 is therefore best understood not as a dilution of the plan-led system but as its renewal.

 

 

 

  • Airey, J., & Doughty, C. (2020). Rethinking the Planning System for the 21st Century. Policy Exchange.
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  • Booth, P. (1999). Discretion in Planning versus Zoning. Routledge.
  • Gielen, D., & Tasan-Kok, T. (2010). “Flexibility in planning and the consequences for public-value capturing.” European Planning Studies.
  • Grant, M. (1992). “Planning law and the British land use planning system: an overview.” Town Planning Review.
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  • Shaw, D., & Lord, A. (2009). “From land-use to spatial planning.” Town Planning Review.
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