Should planning policies be applied strictly, or can decision-makers legitimately depart from them where context demands? The truth of the matter is that courts and tribunals have long recognised that policies may allow for discretion. The recent Court of Appeal decision in Moira Kuijt v Planning Authority (App. No. 35/2024, 27 November 2024) comes to mind.

In Kuijt, the appellant was an objector who filed an appeal, contesting a permit (PA2162/21) which approved the demolition of an existing structure and the construction of two semi-detached bungalows in Iklin. The objections were twofold: first, that the permit violated Policy P28 of the DC15 guidelines which restricts the zone to detached bungalows, excluding semi-detached types. Second, the development exceeded the maximum permitted height of 4.75 metres under Policy P35.

Still, the Tribunal dismissed these objections. It accepted the zoning conflict but justified the outcome based on contextual commitments, noting that both adjacent sites had already been developed as semi-detached units. It concluded:

“ladarba ż-żona immedjata fuq kull naħa tas-sit diġà ma jsegwix il-policy P28 għal dak li hu ‘detached’ flok ‘semi-detached’,… l-estent tal-‘commitment’ li sab it-Tribunal hu ġustifikabbli fiċ-ċirkostanzi.”
Translation: Since the immediate area already does not follow Policy P28 and contains semi-detached dwellings, the Tribunal found the commitment sufficient to justify the departure.

On height, the Tribunal acknowledged a breach of the 4.75 metre justifiying alignment with the surrounding streetscape:

“…għalkemm huwa minnu illi partijiet mill-għoli… ogħla minn 4.75 metri, il-proposta taħseb sabiex l-għoli jkun l-istess tal-binjiet adjaċenti.”
Translation: Although the proposed development exceeds the standard height, it aligns with the height of neighbouring buildings.

Kujit went to court, insisting that the Tribunal’s decision went against the wording of the policy, underlining  that ‘context’ cannot take precedence over the letter of the policy.  Yet, the Court not only upheld the Tribunal’s findings but provided a detailed endorsement of how the Tribunal exercised discretion. Its reasoning rested on two core arguments:

(1) On the Expiry and Execution of Earlier Permits

The appellant argued that PA5038/10 had expired and was not properly implemented. However, the Court found this irrelevant: the material physical development, including the built semi-detached units, was a valid existing commitment. This commitment, together with the later permit PA5209/10 (granted to the appellant herself), legitimated the Tribunal’s contextual reading.

“…PA5038/10 li minnu gawdiet l-appellata bil-ħruġ tal-permess PA5209/10… fejn is-sit seta’ jakkomoda tlett residenzi semi-detached…”

(2) On Proportionality and Visual Integration

The Tribunal noted that the development’s height was not arbitrary but designed to match surrounding buildings, thus avoiding visual disruption. The Court accepted this as a planning-consistent justification, not an exception based on preference:

“il-proposta taħseb sabiex l-għoli jkun l-istess tal-binjiet adjaċenti…”

While the Tribunal’s approach in Kuijt is not without precedent, it still highlights a critical tension in planning law: the space between flexibility and arbitrariness. It is true that planning policies are inherently forward-looking and contextual, but they also establish standards that anchor legitimacy.

How can we draw a line?

The question of where to draw the line in allowing departures from planning policy is central to maintaining the integrity of administrative decision-making. It must be emphasised that a tribunal’s discretion to depart from policy is not absolute. When such discretion is exercised irrationally, disproportionately, or without adequate justification, it crosses into the realm of legal unreasonableness. This principle is encapsulated in the well-established Wednesbury doctrine, which permits judicial intervention where a decision is “so unreasonable that no reasonable authority could ever have come to it” (Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223). As Okpaluba (2015) rightly argues, “rationality and reasonableness remain essential safeguards to ensure legality even when decision-makers rely on broad discretionary powers.” Similarly, Jhaveri (2018) affirms that reasonableness remains a crucial judicial check, particularly in planning contexts where decisions often require balancing competing interests and site-specific constraints. Breyer (1986) further underscores that “departures from past practice must be justified by reference to the broader rationality of the system,” rather than administrative expedience or convenience.

If planning systems are to accommodate discretionary flexibility—as endorsed by the Court of Appeal in the Kuijt case—such flexibility must operate within boundaries that remain subject to judicial oversight, particularly through the lens of Wednesbury reasonableness.

[This blog was written prior to the parliamentary discussion of the forthcoming bill on planning law reform (Bill No. 143), which inter alia contains this disposition:

Article 72 of the principal Act shall be amended as follows:

(i) in paragraph (b) thereof the word “policies:”shall be substituted by the word “policies.” and the proviso thereof shall be deleted;

(ii) in paragraph (d) thereof 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”;

(iii) in paragraph (f) thereof the word “of applications.” shall be substituted by the words “of applications:” and immediately thereafter there shall be added the following new proviso:

(6)”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’.]

References

  • Moira Kuijt v Planning Authority (CA Inf) 27 November 2024, App. No. 35/2024
  • Breyer, Stephen. “Judicial Review of Questions of Law and Policy.” Administrative Law Review (1986).
  • Jhaveri, Swati. “The Survival of Reasonableness Review: Confirming the Boundaries.” Federal Law Review 46(1), 2018. 
  • Okpaluba, Chris. “Judicial Review of Executive Power: Legality, Rationality and Reasonableness (2).” South African Public Law, 2015.