Joseph Mizzi, a lawyer who specializes in property law among others, including planning law, provided a legal opinion on the legality of policy tweakings carried out last year. These changes were made in an attempt to shift the policy goalposts after the Court of Appeal revoked planning permits for several high-profile buildings over the issue of limitations in height and number of floors.
Mizzi is currently representing four environmental NGOs in appeals against developments near Ggantija Temples, and separately representing the Chamber of Architects as it defends itself against an appeal filed by architects whose warrant was suspended after the collapse of a building in Santa Venera 5 years ago left a woman crushed to death in her home. Mizzi also does constitutional cases.
Quotes from Mizzi’s legal opinion were published in an investigative article. His entire legal opinion is being published below as this serves to give a unified overview of law and policy.
“One of the most significant ways the Maltese government appears to be circumventing established planning rules is the way it treats height limitations – arguably the most contentious issue in Malta’s planning and development framework.
Traditionally, Local Plans set height limits in terms of the number of floors, not metres. This was a deliberate choice to give communities and regulators a clear visual and spatial sense of permissible development. However, since the publication of DC15 (Development Control Design Policy, Guidance and Standards 2015), the Planning Authority (PA) began interpreting these floor limits through height measurements in metres. The Authority applied DC15’s Annex 2 height bands, which allow for a range of metres based on local zoning, and then granted permits to as many floors as could physically fit within those heights, assuming a minimum internal floor height of 2.6 metres.
As a result, areas previously limited to three floors (plus a recessed floor) were, in practice, seeing permits approved for five floors. Arguably, this reinterpretation marked a silent but profound departure from what the Local Plans permitted.
This strategy has come under growing legal pressure. In the case decided by the Court of Appeal on the 12th July 2023 presided by the Chief Justice, with case number 20/2023, the Court stated that the number of floors should not exceed the number specified in the Local Plans except in exceptional cases. Moreover, the Court has repeatedly reaffirmed that Local Plans hold superior legal authority. In recent rulings, including Appeal 40/2022 and Appeal 51/2023, the Court struck down permits where the Planning Authority relied on DC15 or related subsidiary policies to justify developments that conflicted with the Local Plan. These decisions were grounded in the legal hierarchy established by Article 52 of Chapter 552, which makes clear that Local Plans prevail over other policy documents.
In 2024, the Planning Authority formalised the reinterpretation it had adopted since the publication of DC15 in 2015 through two coordinated actions: an amendment to Policy P35 of DC15 and the publication of an updated interpretation document along with Circular 2/24. Although Annex 2 of DC15 had already provided height limits in metres, these new measures explicitly direct case officers to interpret the number of floors permitted in Local Plans as corresponding to those metric thresholds. This effectively redefines what a “floor” means, allowing four or five storeys to be approved where only three might have previously been allowed, provided the overall height remains within DC15 limits. In doing so, the Planning Authority embedded into policy what had previously been applied as a workaround, without formally amending the Local Plans themselves.
Although this new interpretation has not yet been tested in court, the logic of recent rulings strongly suggests that courts would be unlikely to accept it. In prior cases, such as Appeal numbers 40/2022, 51/2023 and 20/2023, the Court of Appeal made it clear that Local Plans take precedence over other policies in terms of Article 52 of Chapter 552. It revoked permits where the Planning Authority used DC15 or related policies to justify developments that conflicted with the Local Plan.
These precedents indicate that any permit granted under the new interpretation - if it allows more floors than the maps in the Local Plan specify - may still be found to breach planning law if challenged.
Does this change anything legally?
No, not fundamentally. These policy changes do not amend the Local Plans themselves, and therefore do not override them legally. Under Article 52 of the Development Planning Act, Local Plans retain superior legal force. Policies like DC15 - even when updated - remain subordinate and cannot expand development rights beyond what the Local Plans expressly allow.
The newly adopted interpretation is a policy manoeuvre, not a legislative change. It appears designed to provide the Planning Authority with a legal fig leaf - a justification to continue approving developments that potentially exceed the floor limits set out in the Local Plans.
Concluding Remarks
The 2024 shift in how height limitations are interpreted reflects a broader tension between policy and law in Malta’s planning system. By formally directing case officers to apply DC15’s metric height thresholds as a proxy for the number of floors allowed in Local Plans, the government did not introduce a new interpretation, but codified a practice that had already been applied in planning decisions for years.
Rather than amending the Local Plans through the proper legal process, the government has sought to reframe them through interpretation - a move that introduces legal and procedural uncertainty not only for residents, but also for developers and investors who rely on predictable and enforceable planning rules. However, as established above, this policy manoeuvre does not change the legal standing of Local Plans, which continue to take precedence under Article 52 of the Development Planning Act. The consequence is a widening gap between what is done in practice and what the law prescribes – a situation that creates legal uncertainty for all stakeholders.”
This article was supported by S-Info and funded by the European Union. Views and opinions expressed are however those of the author only and do not necessarily reflect those of the European Union or the European Education and Culture Executive Agency (EACEA). Neither the European Union nor EACEA can be held responsible for them.
