Applications for outdoor catering areas on public open space in Malta are governed by a deliberately layered regime in which sectoral authorities play a constitutive, and not merely advisory, role. The 2016 Policy, Guidance and Standards for Outdoor Catering Areas on Public Open Spaces is central. That document does not simply set urban design or amenity criteria; it identifies specific “permitting authorities” whose clearance is a condition for a lawful approval. The policy makes clear that an applicant for tables and chairs on public land must obtain approvals from a defined list of entities, including the Planning Authority, the Malta Tourism Authority, the Government Property Department and Transport Malta. The evident rationale is to ensure that outdoor catering does not undermine other public interests – in particular traffic management, pedestrian safety and public domain administration. It is submitted that, within this framework, the clearance of each permitting authority is not a formal nicety but part of the legal test for policy compliance.
In relation to Transport Malta, the policy rationale is straightforward. The placing of tables and chairs on public land can reduce carriageway width, remove on-street parking, constrain pedestrian flows and complicate bus operations. For this reason, Transport Malta is entrusted with evaluating traffic and pedestrian safety, parking demand and network function. The guidelines thus treat its role as qualitatively different from that of ordinary consultees. While general external representations are one of several matters the Planning Authority must consider, clearance by a permitting authority such as Transport Malta forms part of the positive conditions which must be satisfied for an application to be approved. This distinction explains why a reasoned objection by Transport Malta, coupled with a refusal of clearance, is capable, in itself, of placing an outdoor catering proposal outside the four corners of the 2016 policy.
The same guideline framework also emphasises that each application is to be assessed on its individual merits. The text clarifies that the permitting authorities are to issue permits “subject to these guidelines” and that each proposal must be evaluated case by case. It goes further, stating that encroachment rights may be revised or revoked where master plans or policies for an area change. The rationale is that streets are dynamic spaces subject to evolving traffic patterns, road hierarchies and public transport needs; there is no vested right to tables and chairs merely because other establishments in a wider area enjoy such permissions. Clearly, this individualised assessment duty sits uneasily with arguments that rely heavily on alleged “identical” developments in the vicinity without demonstrating that the physical and regulatory context is genuinely comparable.
On the planning side, the commitment principle in Policy P1 of DC15 and Article 72(2) of the Development Planning Act (Cap. 552) must be read together. Policy P1 provides that, when analysing an existing context, the decision-maker is to consider three categories of commitment: legally existing development on the ground; valid planning permissions which, though unbuilt, still bind the site; and future commitments expressly provided for in local plans. Article 72(2) then spells out, in statutory form, the parameters for determination of an application: the Board must take into account plans, policies, regulations under the Act, any other substantive matter including legal commitments in the vicinity and environmental, aesthetic and sanitary considerations, as well as third-party representations and the recommendations of boards, committees and consultants. It is submitted that these provisions, read together, require regard to be had to the “committed” character of an area, but do not convert neighbouring permits into a rigid precedent that mechanically dictates the outcome of every subsequent application.
The logic is that commitments inform, but do not fetter, judgment. The decision-maker must ask whether earlier permits truly share the same context – in terms of street width, road classification, traffic volume, proximity to junctions and bus stops, and the number of parking spaces lost – or whether they are materially different. In a practical context, outdoor catering on a wide pavement or in a front garden that does not encroach on the carriageway raises very different issues to a proposal which would displace several formal on-street parking bays on a heavily trafficked two-way section of the same road. It is therefore consistent with Policy P1 and Article 72(2) to treat more distant or less constrained sites as of limited value when assessing an application on a narrower, more pressured stretch of the network, even if all lie along the same named street.
The role of the local plan provisions, including classifications such as “Local Access Road”, “Distributor Road”, “Projected Link Road” and “Strategic Bus Corridor” (as in policies NHGT03 and NHTR02), reinforces this approach. Where a local plan indicates that a particular section of road is intended to be upgraded in status, to serve as a distributor and to carry bus priority functions or a new link, the context is not neutral. Such designations signal a planning intention to safeguard or enhance the movement function of that corridor. In such locations, additional encroachments into the carriageway or the removal of multiple parking spaces may legitimately be regarded as inconsistent with the planned road function, regardless of what may have been tolerated elsewhere on less critical links.
In this light, the weight accorded to Transport Malta’s objection assumes particular significance. Transport Malta’s representative explained that each application for tables and chairs is assessed by a committee on a holistic basis, considering the specific street segment, traffic and pedestrian safety, and the need to balance traffic flow, parking and pedestrian movement. Crucially, it was confirmed that recent practice involves collective evaluation by a committee, that not every stretch has existing tables and chairs, and that the presence or absence of “commitments” in the same block is one factor among many. It is submitted that, in such a system, differences in committee composition over time do not undermine the legitimacy of the underlying assessment: what matters is whether the criteria applied (busy area, safety risks, competing demands on roadspace) remain rational and policy-related.
The argument based on alleged unequal treatment and “discrimination” must therefore be treated with care. While planning law requires consistent reasoning, it does not require identical outcomes where the context is different. Even within the same street, physical conditions can change significantly every few dozen metres. A proposal that removes three marked parking spaces on a constrained, two-way section in the presence of a side road junction and a bus stop may legitimately be seen as more problematic than a proposal that removes fewer spaces on a wider section further along, or that is located on a one-way or quieter arm. Therefore, where the authority articulates such contextual differences, reliance on other permits ceases to be a compelling equality argument and instead becomes a matter of degree and judgment.
The interaction between the 2016 outdoor catering policy and the earlier decision recognising the special role of Transport Malta in this field underlines the same point. That earlier reasoning stressed that, while representations from external consultees are one of several matters informing a planning decision, the requirement, under the 2016 guidelines, to obtain clearance from Transport Malta elevates its position for this category of development. The absence of clearance, especially in the presence of a reasoned objection, is not just one representation among many; it signifies non-compliance with a specific policy requirement. Other positive consultee opinions, however persuasive in their own sphere, cannot fill this gap where they do not form part of the designated permitting authorities.
Finally, it is submitted that the mere fact that an applicant proposes additional “safety measures” in revised plans does not oblige the transport authority to change its view once it has concluded that, in principle, the proposed encroachment is inappropriate in that location. The guidelines contemplate that applications may be refused on their merits, not that they must always be adjusted until a compromise is found. Where the primary concerns relate to the fundamental balance between through traffic, parking, bus operations and pedestrians on a stressed section of the network, secondary mitigation (bollards, markings or barriers) may not be decisive. The legal scheme allows the authority to conclude that, in certain locations, outdoor catering on public space is simply not in the wider public interest.
Taken together, these elements support a number of clear principles. Outdoor catering on public land is a privilege subject to strict, multi-agency control, not a simple extension of indoor restaurant use. Transport Malta’s clearance is a necessary condition under the 2016 guidelines, not a dispensable formality. Policy P1 on commitments and Article 72(2) require attention to nearby permits and local plan commitments, but they do not convert them into binding precedents where context differs materially. Most importantly, in areas earmarked for higher road functions and subject to evident pressure on traffic and parking, the protection of movement and safety may legitimately prevail over further encroachment, even in the presence of other catering commitments elsewhere along the waterfront.
