The Xagħra judgment (Court of Appeal, Inferior Jurisdiction, 15 October 2025, App. 9/2025) clarifies an increasingly common scenario: after a first appeal decision, may third parties later file a fresh appeal to re-argue earlier issues when the Authority re-issues a second permit on the same site? The answer is no.
What res judicata seals at the first appellate round cannot be revived in a later round, even if fresh applications are filed and the Authority re-issues a permit; only the specific, ordered amendments, and the Authority’s fidelity to those orders, remain open. The facts illustrate the point crisply. Permit PA 3510/20 (demolition and twelve units in Xagħra) had already been before the Tribunal in Appeal 15/23. On 25 January 2024, the Tribunal partially upheld that first appeal, cancelling the notification and directing the applicant to resubmit limited basement drawings and, if on-site parking could not then be achieved, to accept a UIF contribution.
The Tribunal’s operative order reads: “Fl-isfond ta’ dan kollu t-Tribunal qed jilqa limitatament dan l-appell, jħassar innotifika tal-permess u jordna lill-applikant sabiex fi żmien tletin (30) ġurnata… jiġu emendati l-pjanti tal-livell sotterran sabiex l-iżvilupp f’dan il-livell jiġi limitat esklussivament ghal fond ta’ tletin (30) metru skont il-provvedimenti tal-policy P27… [u] il-permess ikun suġġett għal UIF f’każ illi r-rekwiżti ta’ parkeġġ kollha ma jkunx akkomodati fil-livell sotterran.” [Translation: The Tribunal limitedly upheld the appeal, cancelled the notification and ordered the applicant, within thirty days, to amend the basement-level drawings so that development at that level is limited exclusively to thirty metres in depth under policy P27, and ordered a UIF contribution if parking standards could not then be met on site.]
Following those orders, amended drawings were presented and an amended permit was issued and notified on 7 March 2024 (published 13 March 2024).
Once more, third parties then filed a second appeal with fourteen grievances, many of which reiterated or reframed policy and townscape complaints that either had been or could have been argued at the first round. The Tribunal took a firm preliminary view that the second-stage process is not a back door for re-litigation: “Dan għaliex… id-dritt t’appell tal-appellanti huwa limitat għall-emendi li saru skont l-ordnijiet elenkati fid-deċiżjoni tal-appell preċedenti, dan stante li tali proċess m’huwiex intiz għal skrutinju mill-ġdid tal-każ sabiex jitqajjmu kwistjonijiet li ġa ġew deċiżi, jew saħansitra li ma’ kienux ġew imqajjma fl-appell oriġinali.” [Translation: The appellants’ right is limited to the amendments made pursuant to the earlier appellate orders, since this process is not intended for a fresh scrutiny of the case to raise matters already decided, or matters not raised in the original appeal.]
The Tribunal therefore confined the merits to two implementation complaints—excavation and parking feasibility tied to the 30-metre depth, and the visibility of the reservoir on Section X–X. To this end, the Tribunal found the allegation of encroaching excavation unproven once the specific folios were compared, stressing that the amendment concerned depth, not wall alignment. It likewise dismissed the reservoir complaint after checking Section X–X on the approved set:
Ultimately, the Court of Appeal endorsed the Tribunal’s approach in terms that admit of little ambiguity. It held that the absence of an appeal from the first appellate decision meant the earlier approval had become res judicata, and that the second appeal could only test conformity with the ordered amendments: “La darba ma sar ebda appell mid-deċiżjoni tat-Tribunal fl-appell preċedenti 15/23, dak kollu li ġie approvat bl-imsemmi permess sar ġudikat. Id-dritt tal-appellanti hu limitat biss għal emendi li saru skont l-ordnijiet mogħtija fid-deċiżjoni tat-Tribunal biex jiġi deċiż jekk l-emendi humiex konformi mad-deċiżjoni… Aggravji ġodda fuq kwistjonijiet ġa deċiżi ma jistgħux jitqajmu f’dan l-istadju.” [Translation: Once no appeal was filed from the Tribunal’s decision in appeal 15/23, everything approved by that permit became res judicata. The appellants’ right is limited only to the amendments made pursuant to the Tribunal’s orders, so that it may be decided whether those amendments conform to that decision; new grievances on issues already decided cannot be raised at this stage.]
Doctrinally, the judgment is an application of this principle: After a first appellate decision stands unappealed, third parties cannot revive the same issues by appealing a later, second permit on the same site. The only legally open questions are those created by the ordered amendments and the Authority’s subsequent compliance. Drafting at the second stage must therefore point to a concrete non-conformity between the new drawings and the earlier Tribunal orders.
