Article 72 of Chapter 552 is the natural place to begin, because the answer is found less in theory than in the actual wording chosen by the Maltese legislator. The provision does not say that plans and policies are the only matters to be considered. It does not say that material considerations are merely decorative. Nor does it say that material considerations can never outweigh policy. What it says is this:
“72. (1) The Planning Board shall have the power to grant or to refuse a development permission. Any development permission approved shall be without prejudice to third party rights and shall not in any manner constitute or be construed as a guarantee in favour of the applicant as to the title to the property. Moreover in the granting of a development permission, the Planning Board shall be entitled to impose such conditions which it may deem appropriate:
Provided that the Planning Board shall give specific reasons for any refusal or for any particular conditions that may have been imposed.
(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.”
The decisive phrase is “shall have regard to”. Article 72 does not say “shall apply policies and ignore everything else”. It places plans, policies, regulations, material considerations, public representations and consultee recommendations within the statutory field of assessment. That does not mean that all these matters always carry equal weight. It does mean, however, that one cannot honestly read Article 72 as saying that material considerations are legally incapable of outweighing policy. There is simply nothing in the way Article 72 is drafted which says “no”.
This is the proper answer to the central question. Can material considerations beat policy? On the wording of Article 72, yes, they can — but not casually, not secretly, and not for irrelevant reasons. They may outweigh, qualify, contextualise, or justify a departure from policy where they are genuinely planning-related, sufficiently connected to the site or proposal, and sufficiently weighty to justify the result. What they cannot do is abolish policy, contradict an express legal prohibition, or convert arbitrary preference into lawful planning judgment.
This is where the United Kingdom offers useful inspiration, not binding authority. In English planning law, the practical distinction is often explained through two provisions: section 70(2) of the Town and Country Planning Act 1990 opens the basket of matters which must be considered, while section 38(6) of the Planning and Compulsory Purchase Act 2004 gives priority to the development plan unless material considerations indicate otherwise. The useful formula is that one provision tells the decision-maker what to look at, while the other tells the decision-maker the priority of the plan-led starting point. The English position is quite clear: decisions are to be taken in accordance with the development plan unless material considerations indicate otherwise, and material considerations may justify not following development plan policy.
Malta has not adopted that exact English statutory formula. Article 72 is differently drafted. If anything, its language is wider, because it repeatedly uses the same phrase — “shall have regard to” — for plans, policies, regulations, material considerations, representations and recommendations. The practical formula should therefore be this.
First, identify the relevant plans, policies and regulations.
Secondly, ask what they actually say: do they impose a clear prohibition, create a presumption, allow exceptions, or require a contextual assessment?
Thirdly, identify the alleged material consideration.
Fourthly, ask whether it is truly material in planning terms.
Fifthly, weigh it against the policy position.
Sixthly, give reasons showing why the policy is being followed, qualified, or departed from. This last step is crucial: A material consideration does not “beat” policy by being mentioned. It beats policy only by being reasoned into the planning balance.
Let us give some concrete examples to all this.
For example, surrounding legal commitments may justify a different approach to height, massing or land-use impact where the surrounding area has already acquired a lawful planning character. Environmental considerations may justify refusal despite apparent policy compliance, or approval despite a policy objection where the proposal produces a better environmental result than the existing situation. Aesthetic considerations may support a contextual solution where a rigid reading of policy would produce an inferior townscape outcome. Sanitary considerations may also shift the balance where ventilation, light, drainage, public health, or internal amenity call for a more practical solution.
The same applies to representations. Article 72 expressly includes representations made in response to publication and recommendations made by boards, committees and consultees. But a representation is not material merely because it is loud, emotional, repeated, or politically convenient. It must raise a planning issue. “This will create unacceptable overlooking” may be material. “This will worsen traffic safety” may be material. “This conflicts with the character of the street” may be material. “I dislike the applicant”, “my property may be worth less”, or “people in the area are angry” is not enough.
The UK situation is again useful by analogy. The scope of material considerations is very wide, but planning is concerned with land use in the public interest, not purely private interests such as the effect on neighbouring property value or private rights to light. It also draws the important distinction between materiality and weight: whether something is legally material may ultimately be for the courts, but the weight to be given to it is normally for the decision-maker, subject to reasonableness.
That distinction should be central in Malta too. Article 72 gives the Planning Board a wide pen, but not a blank cheque. The Board may decide that a consideration is relevant. It may give it considerable weight. It may even allow it to prevail over policy in a suitable case. But the Board must remain within planning law. The consideration must relate to land-use planning, the development proposal, the site, the surrounding context, the public interest, or the consequences of granting or refusing permission.
At the same time, one must avoid the opposite mistake. Policies are not iron cages. They are planning instruments written in general terms and then applied to particular facts. Many policies themselves contain evaluative language: compatibility, context, visual impact, amenity, unacceptable harm, surrounding commitments, design quality, proportionality. Where a policy requires judgment, material considerations are not external intruders. They are part of the very exercise by which the policy is applied.
The real abuse begins when “material consideration” becomes a label for something which is not material at all. Personal dislike, political pressure, commercial jealousy, private bargaining, popularity contests, vague fear, administrative convenience, or a wish to favour one applicant over another are not material planning considerations. They are irrelevant considerations dressed in planning clothes. Worse still, if they are used to override policy, the defect is no longer merely poor judgment; it becomes an abuse of discretion.
So the answer is not that material considerations can never beat policy. That answer is too crude and is not found in Article 72. The better answer is that material considerations may beat policy where the law, facts and reasons justify that result. They may not beat policy merely because the decision-maker prefers a different outcome. Article 72 keeps policy important, but it does not make policy untouchable. It keeps discretion alive, but it does not make discretion lawless.
