Less than a week before the Planning Commission’s second meeting to decide on a block of 73 flats belonging to Joseph Portelli and his partners, the Planning Authority’s chairperson has yet to respond to a reference made by the commission two weeks ago.

In the meeting of two weeks ago, the commission acted outside procedural parameters set in law in the manner it referred the case to the Planning Authority’s chairperson for interpretation of height limitations that had already been considered by the Planning Directorate, which is the authority’s technical body.

The NGO Moviment Graffitti decried the move as illegal. Senior planners who spoke to this website on condition of anonymity described it as a travesty.

The development application had been recommended for refusal, and the reference to the chairperson or Executive Council has kept the application in play.

The commission asked the chairperson to “advise on the interpretation of policy Gozo Edge 1, building heights and setback, in view that the site is no longer facing ODZ.”

The block of 73 flats has a wide frontage (the buildings in white outline are adjacent buildings) - click on the image to enlarge.

It is no longer facing the Outside Development Zone after the Planning Commission already granted two permits to the same developers, Excel Investments Limited, owned by Joseph Portelli, the Agius brothers (Ta Dirjanu), and Daniel Refalo. Those two permits are for 22 flats and 29 flats, and they are part of three applications that make up the 124 flats, including the 73 still under consideration.

Site of block of 22 flats (yellow), 29 flats (orange), 73 flats (red), new road (white).

But the Planning Diretorate had already considered all of this in its assessment of the application for 73 flats. In the Case Officer Report, the Planning Directorate wrote: “The proposed development is not in line with policy GZ-EDGE-1 of the Gozo &Comino Local Plan, policy P35 and Annex 2 of the DC15 in terms of massing and height. Permits PA 5048/20 [the 22-flat block] and PA 2035/21 [the 29-flat block] were taken into consideration during the assessment of this proposal, along with all applicable plans and policies for the site in question.”

This means the fact that the “site is no longer facing ODZ” – the justification given by the Planning Commission to refer the question to the chairperson for advice – had already been considered by the Planning Directorate.

But there is something else: the Planning Directorate, which is the Planning Authority’s technical department, made its assessment on basis of “massing and height.” Yet the Planning Commission focused solely on the height in its reference to the chairperson. It is the massing, not only height, that is the more important element in determining how a building is perceived, and its impact on urban space or landscape.

Massing is an architectural and planning term – here are two definitions of massing found in architectural sources online:  

“Massing refers to the structure in three dimensions (form), not just its outline from a single perspective (shape). Massing influences the sense of space which the building encloses, and helps to define both the interior space and the exterior shape of the building.”

The developers have bought up a strip all the way to the cliff's edge near Ta Cenc (blue shading shows where the 124 flats are sited).

“Architectural massing is the volumetric design the building takes. It is the three dimensional space in which the building occupies. In simplest terms it is the three dimensional form of the building.”

In limiting or narrowing the issue to questions over height, the Planning Commission risks reducing planning to a box-ticking exercise of height and form, ignoring the wider array of planning policies that are designed to make planning holistic and dynamic. 

One of the wider issues, for example, is the intensification of development not far from the sensitive cliff's edge. The NGO Birdlife Malta has said that this is a threat to a Special Protection Area, where there is the largest colony of Scopoli's shearwaters in Malta.  

Planning Tribunal allows construction of two blocks to go ahead

Meanwhile, the two blocks belonging to the same developers across the narrow street from the application for 73 flats are being built after the Environment and Planning Review Tribunal allowed construction to go ahead despite an appeal against the planning permit.  

The NGO Din L-Art Helwa appealed against the permits granted for these two blocks, of 22 flats and 29 flats. It also requested the tribunal to halt construction until the appeal is heard.

Yet the tribunal rejected the request to halt the works for the term of three months specified in the law until the appeal is decided. The law lays three criteria for suspension of works until appeal is heard: whether the prejudice to the appellant is disproportionate in comparison to that of the developer, whether the development could be “easily removed or reversed”, and whether the request is “frivolous or vexatious.”

Extract of clause in law that sets criteria for deciding on suspension of works during appeal

The tribunal has taken to rejecting virtually all requests for suspension of construction (not only of this development, but all others too) using the same stock argument: that the prejudice to the appellant cannot be considered disproportionate, and that the appellant can resort to other remedies in court.

Legal sources consulted by this website denounced the tribunal’s reasoning. They pointed out that a block of flats obviously cannot be easily removed or reversed if a permit is revoked; hence the disproportionate prejudice to the appellant is clear.  

NGOs have also become critical of much of the tribunal’s decisions, which they see as biased towards Planning Authority decisions. The tribunal’s decisions have emboldened developers, who proceed with construction regardless of ongoing appeals: in many cases developers finish the construction by the time the tribunal decides the appeal.

Despites ongoing appeal, one of the blocks is already half-constructed

In this case of the two blocks at Ta Sannat, one of the blocks is already half-built and foundations are being laid for the second one, and the tribunal is still at the early stages of hearing the appeals. 

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