One of the more controversial elements of Bill No. 143 is its proposed amendment to Article 52 of the Development Planning Act. This provision currently sets out a formal hierarchy between planning instruments: the Spatial Strategy (SPED) sits at the top, followed by Subject Plans, Local Plans, and then lower-ranking policies such as development control guidelines and design policies. The intent is to ensure that if conflict arises between plans, the higher-ranking one prevails—thus promoting legal clarity and predictability.
But Bill No. 143 seeks to overlay this structure with a proviso that could change everything. It proposes:
“Provided that notwithstanding the hierarchy set out in sub-article (1) of this article, any earlier document shall be interpreted and applied in alignment with the provisions of the most recently published document in the hierarchy, regardless of their respective position within the hierarchy.”
Opponents fear that this clause will open the floodgates to permit approvals. Is it so sure that this will happen?
The concern of those opposing this amendment is that even minor, lower-ranking policies—such as the DC15, introduced in 2015—might now override older, higher-ranking Local Plans enacted in 2006. This is to say that what had long been treated as firm development parameters, particularly in relation to height and massing, may become vulnerable to reinterpretation through the lens of newer, more restrictive criteria.
The truth, however, is that this is no abstract concern.
The Court of Appeal has already given clear signals in this direction, most notably in Charles Falzon vs Planning Authority (Appell 75/2022, decided 15 March 2023), known as the Santa Luċija case. The developer in that case proposed to replace a two-storey terraced house with a five-storey apartment block. Crucially, the Local Plan allowed for such a height—three floors plus a recessed penthouse. The Tribunal, applying the Local Plan strictly, approved the development.
However, the Planning Authority and third-party objectors appealed, citing more recent DC15 policies—particularly G2 (skyline protection) and G3 (streetscape uniformity)—to argue that the building, though numerically compliant, would disrupt the visual rhythm of the street. The Court agreed, holding that Local Plan compliance was not the end of the matter:
“Il-Qorti tosserva illi meta hemm pjan jew policy speċifika għal żona partikolari, din għandha tiġi rispettata. Però meta din il-policy qed tagħti direzzjoni ċara dwar il-height limitation, u din tiġi sodisfatta bl-iżvilupp propost, ma jfissirx li ma jistax ikun hemm policies oħra li jirrigwardaw l-iżvilupp li għandhom jiġu skartati u mhux ikkunsidrati.”
[The Court observes that when there is a plan or specific policy for a particular area, it is to be respected. However, when that policy gives clear direction on height limitation and this is satisfied by the proposed development, it does not follow that other development-related policies can be discarded or ignored.]
The Court went further, criticising the Tribunal for ignoring the contextual sensitivity demanded by Policy G3:
“L-iżvilupp jippekka fl-għoli dominanti fil-bqija tal-bini kollu fl-istess triq u mhux tipiku ta’ terraced house bil-front garden. […] Għalkemm il-policy P3 titkellem fuq id-disinn tal-iżviluppi fl-istreetscape, it-Tribunal ma setax jinjora ‘the dominant defining design consideration’ billi jqis il-valur arkitettoniku tal-binjiet.”
[The proposed development violates the dominant building height along the rest of the street and is not typical of a terraced house with front garden. Although Policy P3 addresses the design of developments within the streetscape, the Tribunal could not ignore the dominant defining design consideration merely by evaluating architectural merit.]
What Bill No. 143 does is give statutory endorsement to this evolving judicial method. It invites case officers, boards, and tribunals to interpret older policies through the prism of newer ones—even where those newer instruments occupy a lower formal rank. The hierarchy, once seen as a shield for legal certainty, may now become a more fluid framework where recency, not rank, determines relevance.
Thus, if the goal is to encourage airspace development, Bill No. 143 may be moving in the opposite direction.
