At its core, the recent decision in Michael Agius vs Planning Authority (Appell 368/23JB, RG540/23, decided 13 May 2025) is about pigeon lofts — and the place, if any, they can occupy within residential neighbourhoods. It is a case that touches on deeply contested questions: whether long-standing use can give rise to vested rights; whether the absence of bye-laws in a given locality implies toleration; whether a mitigation proposal amounts to an admission of nuisance; and whether private leisure structures qualify as an “injury to amenity” under Sub-Regulation 4(5)(a) of S.L. 552.26.
This blog does not attempt to resolve those questions. It is not an argument about the legality of guvi tal-ħamiem in Żabbar, nor a critique of how the Tribunal weighed competing policy concerns. Those matters are important — but they lie beyond the present scope of this blog.
What merits immediate attention, however, is the Tribunal’s approach to proof. More precisely, the case stands out for the Tribunal’s explicit acceptance of unauthenticated photographs and video footage as determinative evidence in a planning dispute centred on nuisance and amenity.
The objector, a resident neighbouring the site, submitted an array of images and footage. These depicted pigeons flying over internal yards, droppings on cars and property, and other visual impressions of inconvenience. No affidavit was submitted to authenticate when or by whom the images were taken. The applicant objected, arguing that the material was procedurally inadmissible and unsupported by sworn confirmation. He even cited classical principles of civil evidence — onus probandi incumbit ei qui dicit — to contend that the burden fell squarely on the Authority or objector to prove the alleged nuisance.
But the Tribunal took a different view:
“Dawn il-provi sottomessi mit-terza persuna nteressata, minkejja li m’humiex ġuramentati, fuq bażi ta’ probabilità juru b’mod ċar l-inkonvenjent u l-impatti negattivi kkaġunati mill-ħamiem miżmuma fuq is-sit odjern…”
[Transaltion: “These proofs submitted by the third party, although not sworn, on a balance of probability clearly show the nuisance and negative impacts caused by the pigeons kept on the site in question…”]
This marks an important procedural moment. In effect, the Tribunal recognised that non-sworn photographic evidence can suffice, provided that, in its view, the images are plausible, contextually coherent, and not contradicted by more formal counterproof. It also relied on the fact that some of the same visuals were similar to or consistent with evidence submitted by the applicant himself — a detail which helped to bridge the evidentiary gap.
This threshold — a sort of “administrative plausibility” test — is not foreign to planning appeals. Unlike criminal or civil courts, the EPRT is not bound by the strict rules of evidence. It operates within a more flexible, inquisitorial framework. But even within that context, this judgment is notable for how strongly it privileges visual impact over formal authentication.
Practitioners would do well to take note. In cases where physical or environmental impact is in issue, images — even if unaffirmed — may now carry evidentiary weight. This may advantage third-party objectors, who are often laypersons without legal counsel, and whose submissions consist largely of photos, videos, or anecdotal material. By contrast, it places applicants in the awkward position of having to disprove visually compelling allegations without enjoying the benefit of adversarial testing, cross-examination, or statutory clarity.
None of this settles the question of whether pigeon lofts are inherently incompatible with residential living. The law on that point remains open to further challenge and policy clarification. But this case should give pause to anyone assuming that evidentiary weight depends on legal formality. In practice, it may depend far more on visual force — and on what the Tribunal is willing to see.
Indeed, the Agius decision may be read as part of a broader trend in the Tribunal’s evidentiary approach. One might reasonably infer that the bar of admissibility is being lowered, at least when it comes to what objectors must show in order to substantiate nuisance or amenity claims. The fact that photographic and video material — not taken under oath, not subject to expert validation, and lacking provenance — was treated as probative, if not dispositive, reflects an evolving standard.
This blog does not take a position on whether that shift is correct or desirable. It may be a practical response to the realities of environmental enforcement, or it may risk eroding procedural fairness. Either way, it is a development that deserves its own study. If evidentiary standards are indeed drifting toward impressionistic thresholds, then future applicants and objectors alike will need to recalibrate what “proof” means before the EPRT.
