When the “Flexibility Policy” Meets Its Limits: Lessons from Spiteri Gonzi

The case of Spiteri Gonzi et vs L-Awtorità tal-Ippjanar (Court of Appeal, Inferior Jurisdiction, 13 February 2026) arose from a fairly typical planning dispute, but it brings out an important point: the Flexibility Policy is far less “flexible” than many assume.

The application concerned a premises in Sliema which was already partly used as a Class 4B shop and partly as an office. The proposal was to merge these uses and operate a convenience shop with a small take-away element. The difficulty was clear from the outset: a take-away use was not permitted under the applicable Local Plan policy (NHHO01), which governs residential areas.

The case, therefore, turned entirely on whether the Flexibility Policy could justify that departure.

From the Tribunal’s point of view, the answer was yes—and its reasoning is important to understand, because it reflects how the policy is often applied in practice.

First, the Tribunal accepted that the take-away element was limited. It placed emphasis on the fact that there was no cooking on site, that the preparation area was very small (around 5–6 square metres), and that the activity would essentially be ancillary to the main convenience shop. In its view, this reduced the intensity of the use.

Second, the Tribunal focused heavily on context. It noted that although the site was technically within a residential area, it was located along the Sliema seafront, an area already characterised by a high level of commercial and tourist activity at ground floor level. It referred to a number of existing permits within roughly a 100-metre radius, including uses of Class 4C and 4D, some of which were more intensive than the proposal. This, in the Tribunal’s view, meant that the area was already “committed” in planning terms.

Third, the Tribunal considered impact. It took the view that the proposal would not significantly increase traffic or parking demand. It relied on the small scale of the take-away element and the fact that the site already operated partly as a commercial use. It also noted that the additional parking requirement was minimal.

On that basis, the Tribunal concluded that the proposal was acceptable within its context and that the Flexibility Policy could be used to justify the departure from the Local Plan.

The Court of Appeal disagreed—not so much with the idea that the policy could apply, but with how it had been applied.

The Court held that the exercise carried out by the Tribunal was not legally sufficient. In particular, it found that the Tribunal had not properly assessed cumulative impact, and had not demonstrated, in a structured way, that the proposal satisfied all the requirements of the Flexibility Policy. It also made it clear that the burden lay on the applicant to show that those requirements were met.

On this, the Court is on firm ground. It is entirely consistent with general planning principles that a policy allowing departure from the Local Plan must be applied carefully. This also reflects UK authority. In Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759, it was made clear that planning decisions must remain grounded in policy, even though weight and judgment are involved. The Maltese Court’s insistence that the Flexibility Policy cannot override the Local Plan without proper justification is therefore well supported.

However, the Court’s approach becomes more debatable in how strict it is about the way this exercise must be carried out.

Take reasoning. The Court effectively requires a clear and structured analysis of all relevant factors—traffic, parking, compatibility, cumulative effects—before the Flexibility Policy can be used. That is understandable. But it may be said that the Court comes close to requiring a level of formal structure that is not always necessary.

In UK law, the position is slightly more relaxed. In South Bucks District Council v Porter (No 2) [2004] UKHL 33, the House of Lords held that planning decisions must give reasons that are clear and understandable, but they do not need to be overly detailed or deal with every point exhaustively. Decisions should be read fairly and as a whole.

From that perspective, one might question whether the Tribunal’s reasoning—though perhaps not perfectly structured—was entirely deficient, especially given that it did engage with context, scale, and impact.

The more difficult issue, however, is cumulative impact.

The Court rightly states that cumulative impact must be assessed by looking at the combined effect of existing developments together with the proposed one. That is a sound principle. But the way it is applied suggests that if an area is already under pressure, this may prevent further development altogether—even where the proposal is modest.

This is where the reasoning becomes less convincing.

Planning systems are inherently incremental. Areas evolve over time. UK case law recognises that these are matters of planning judgment. In Samuel Smith Old Brewery v North Yorkshire CC [2020] UKSC 3, the Supreme Court emphasised that questions of impact and acceptability are for the decision-maker, not the court, provided that the correct legal approach is followed.

Similarly, in Barwood Strategic Land II LLP v East Staffordshire BC [2017] EWCA Civ 893, the Court of Appeal confirmed that assessing planning effects is a matter of evaluative judgment.

Seen in this light, one may argue that the Tribunal did, in substance, carry out that evaluative exercise. It considered the surrounding uses, compared intensities, and assessed the likely impact of the proposal. The Court’s criticism appears to be directed more at the way the exercise was expressed than at its actual substance.

There is therefore a subtle tension. The Court is rightly insisting on discipline and proper application of the policy. But if taken too far, this approach risks turning the Flexibility Policy into something very difficult to use in practice, especially in areas where it is most needed—namely, areas already undergoing change.

For applicants, the lesson is clear.

Do not assume that existing commercial activity in the area will carry your case. You must explain why your proposal is acceptable, not just why it is similar to what is already there.

Do not rely on general statements. If traffic, parking, or impact are relevant, address them properly.

Most importantly, treat the Flexibility Policy as a structured test. You must show, clearly and convincingly, that your proposal satisfies its requirements.

At the same time, where appropriate, there remains room to argue that planning is not a mechanical exercise. Context matters. Judgment matters. And flexibility, if it is to have real meaning, must allow for a balanced assessment of both structure and reality.