In a landmark judgment, the Environment and Planning Review Tribunal decided to curb development in areas where villa areas and residential areas intersect, holding that building heights of residential areas across the road from villa areas cannot exceed a height that is greatly disproportionate to the height of the opposite villa area, thereby confirming the need to cater for a gradual transition when considering potential development in residential areas.  

The case started in November 2021, in an appeal before the Environment and Planning Review Tribunal filed by the Lija Local Council together with another registered objector against the Planning Authority, which in September 2021 had approved the development of a block of apartments of over five floors in an area characterised almost entirely by two-storey buildings. 

The case concerned a site situated in a quiet residential zone in Triq Daniel Sammut, Lija sitting opposite to a row of detached villas and bungalows. A permit had been issued by the Planning Commission, allowing the demolition of the second floor, to instead develop a block of apartments over five floors and a semi basement, in an area surrounded by terraced and villa developments, where the predominant height of surrounding dwellings was limited to two storeys. If approved, the new development would have disrupted the area’s design harmony and created an irremediable precedent. This would have also gone contrary to current and applicable planning policies and would have injured the existing amenities of the area, as it would increase residential density. 

Lawyers Matthew Cutajar and Dr Eve Borg Costanzi from BCGL Advocates appeared for the appellants, who appealed this decision based on the fact that the Planning Commission failed to have appropriate regard to material considerations – in this case the existing streetscape on either side of the plot, and especially on the opposite side of the street. Furthermore, the appellants argued that the decision breached several planning policies, including policy P6 of DC15, apart from the fact that the Planning Commission failed to consider the copious objections filed in response to the application by the Lija Local Council, residents, and NGOs such as Din l-Art Ħelwa and Flimkien għal Ambjent Aħjar. 

However, the EPRT went on to approve the development, claiming that the streetscape was already prejudiced, and that the area did not have particular architectural value that required protection. Significantly however, the EPRT also stated that policy P6 of DC15 – which requires the implementation of a Transition Design Solution in certain situations – should not apply in this case, as it was intended for sites immediately contiguous to villa zones, and not buildings which are opposite (on the other side of the street) to such villa areas. Policy P6 of DC15 states that in case of individual area typologies, such as villa areas, it may be sensible to transition between such existing developments and higher existing or committed developments.

The EPRT’s decision was then appealed in May 2023, leading to its reversal by the Court of Appeal, which sent the case back to the EPRT on the basis that the tribunal had interpreted the building height policies incorrectly, as development must to be taken in consideration to the whole context, even that on the other side of the road. The fact that two zones, a residential area and a residential priority area (or villa area), are divided by a road does not exclude the fact that a development must be taken in consideration to the full context, the Court said. Finally, the court held that the SPED document ought not to prevail over the local plans, but rather, all policies must be read in conjunction to one another to form development criteria that protect the interests of that zone, the Court of Appeal said. Accordingly, the Court of Appeal sent the application back before the EPRT for the latter to decide afresh on the basis of these new considerations.

The case was finally concluded on Thursday 3rd October, 2024 with the EPRT deciding to limit the development to three storeys plus one receded storey, rather than five floors plus a semi basement, as originally proposed.

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