It appears that planning legislation is due for another overhaul, although perhaps not as extensive as the changes made in 2016 with the promulgation of the Development Planning Act and the Environment and Planning Review Tribunal Act.
The Prime Minister has hinted at some significant changes that are likely to be introduced.
He reiterated the idea of planning permissions not being executed if a third-party appeal is lodged until the appeal process is concluded. This would inevitably require changes to the current parent acts. No matter what changes are implemented to expedite the process, the implications are wide ranging and unless measures are introduced to deter the losing party in an appeal, similar to how civil cases are handled, the situation can get out of hand.
But that’s not all. Another challenge lies with the application of Article 72(2) of Chapter 552, which determines whether a planning permission is granted or not. This article has been understood to mean no room for development that contradicts any individual policy, regardless of its place in the hierarchy outlined in Article 52. For instance, a local plan may permit a maximum height of four floors, while a lower-tier policy might require that the development respects the context of the surrounding area. If there is no clear commitment to respecting this context, the courts have consistently ruled that the local plan must be overruled. I have reservations about this interpretation, but ultimately, we must respect the court’s decisions. However, if the goal is to remove Article 52 (the hierarchy between policies) for the sake of legal certainty, it would likely result in even greater ambiguity. At that point, it becomes a basis for justifying a policy at a lower tier to overrule the height limits set by local plans, as is actually happening. Moreover, it is neither a solution to incorporate ‘planning formulae’ into the law where lawyers have the ultimate say. Perhaps one should refer to the concluding chapter in Selected Principles of Maltese Planning Law.
The Prime Minister also mentioned that local plans need to be revised. The main impacts of these revisions seem to stem from two lines of thought. One is the lowering of current height limits. The other consideration involves those who believe their site could become eligible for development, much like what happened during the 2006 revision. Either way, both approaches are legally sound. The choice of which planning perspective is best is however a matter for planning professionals to say. But what is certain is that people need to know whether they can rely on the height limitations in local plan maps, regardless of whether they are lowered, remain the same, or increased.
