The DB application for the redevelopment of the ITS in Paceville entails the construction of a 5-star hotel (386 rooms), residences, commercial office space, a shopping mall, and restaurants as well as the provision of basement and surface parking facilities.
Following this, the objectors pursued legal action in court, challenging the tribunal’s decision on various grounds. The appellants argued, among other things, that the traffic impact studies relied on inaccurate assumptions, pointing out that the approval was granted without considering the potential impact and feasibility of a tunnel project running concurrently with the proposed development. Additionally, they expressed concerns about commercial activities beneath a designated road, stating that this aspect of the proposal was problematic. Furthermore, the objectors raised objections related to the aesthetics of the area, asserting that the approved development’s envelope and volume would negatively affect the visual appeal of the surroundings. Lastly, they argued that the definitions of permitted floor area in the hotel policy contradicted those found in the local plan, suggesting that the latter should have taken precedence according to law.
Nevertheless, on May 31, 2023, the Appeals Court upheld the Tribunal’s decision, confirming the permit once again. Essentially, the court presided by the Chief Justice determined that each issue raised by the appellants was considered a matter of fact rather than a point of law, thus falling outside the court’s jurisdiction for review.
Clearly, the objectors seem to have remained determined. Indeed, the objectors have taken advantage of their three-month opportunity to initiate a retrial. This retrial will necessitate the Planning Authority and applicants to once again engage in legal proceedings and address the concerns raised by the objectors in court.
It appears that the objectors are basing their case on the application of an incorrect legal provision. In legal terminology, the key operative article in this context is Article 811(e) of Chapter 12. If it can be substantiated that there was a wrong application of the law in the case, this could lead to the overturning of the Court of Appeal’s decision, thereby creating a state of uncertainty regarding the permit’s validity and status.
Indeed, in Maltese law, a retrial occurs under specific circumstances, and one of the grounds for a retrial is precisely ‘a wrong application of the law’, as specified in Article 811(e).
However, this ground is not straightforward, and it’s challenging for the party alleging it to succeed in obtaining a retrial. The reason is that the wrongly applied law needs to be identified with precision. A different interpretation of the law, even if wrong, is not enough for this action to succeed.
My book “Selected Principles of Maltese Planning Law” sheds light on the rarity of retrials in local planning cases, with only one successful case on record.
However, despite this rarity, the outcome of the DB case remains uncertain. One point in favour of the applicant is that the Chief Justice maintained a consistent and focused approach in his judgment, not straying into using legal statutes to justify his decision. This stance indeed makes it challenging to identify a wrong application of the law because, on the surface, there is no clear legal statute under discussion that could be targeted for attack or criticism.
