In the latest twist in the case of a block of flats that had had its planning permit revoked by the court, the Planning Commission chaired by Elizabeth Ellul has lifted a fine imposed last June by the same commission, which had then sanctioned the building "as built."

The Court of Appeal – the final court in such instances – had revoked the permit in 2023 because it had more storeys than permitted in Local Plan policies. The planning permit revoked by the court was initially granted to Francesco Grima, one of Gozo’s largest developers, although the latest application was put in by an applicant named James Zammit.

The block of flats sits amid a cluster of similar developments by different developers that are now transforming what was a quiet neighbourhood of Xewkija into a dense pocket of more than 100 flats along a relatively narrow road. 

Click to enlarge

The block had been constructed by the time the court revoked the permit almost 2 years ago. Then, last June, the Planning Commission sanctioned the building “as built”. At the time, in June,  the Planning Directorate insisted that the height of the building was in line with policies – contradicting the court – and added that this had been clarified in a planning circular by the Planning Authority's Executive Council. 

The Planning Commission in its reasoning for sanctioning the building "as built" went further than the Planning Directorate. The commission argued that three planning permits granted for the same street involved blocks of flats having five floors, and that these these constituted 'commitments' – hence justification in terms of Article 72 (d) of the Development Planning Act. That article holds that planning boards have to take into account, among policies and other things, "any other material consideration, including surrounding legal commitments."

The commission mentioned three such 'commitments' – here is the extract of the minutes below.

Commission latches on three permits as 'commitments' or material considerations - click to enlarge

All these were planning permits granted after the appellants had appealed against the development in question. In other words, these permits were issued in the course of legal proceedings.

The planning tribunal had rejected the appellants' case for the same reason: the tribunal had argued that a permit granted for a building across the street constituted 'commitment' under the same law, Article 72 (d) of the planning act, and on that basis the appellants lost case.

Tribunal also justified planning permit on basis of commitment - click to enlarge

It is a reasoning that the Court of Appeal, rendering the tribunal's argument as irrelevant and invalid in law. The Court of Appeal then overturned the tribunal's decision and revoked the permit. Here is an extract of the Court of Appeal's judgement.

Court of Appeal decries justification by commitment - click to enlarge

The Court of Appeal in such cases is the highest and final court. Yet the Planning Commission then justified sanctioning the block of flats as "built" making the same argument of the tribunal - it even mentioned one of the same cases the tribunal had mentioned - which was expunged by the court.

In so doing, the Planning Commission contradicted the court and positioned itself about the highest court in such cases.

Jurisprudence of the European Court of Human Rights suggests that such action - a public authority diregarding court judgement - is a violation of the appellants fundamental right to fair hearing.


When the building in Xewkija was sanctioned last June, a fine of €27,049 was imposed as part of the sanctioning. The applicant then asked for a reconsideration, this time to get the fine lifted, arguing that the fine was excessive and unjustified because the developer had adhered to procedures and that construction was completed by the time the Court of Appeal delivered judgement.
The fine was then lifted last month by the Planning Commission chaired by Elizabeth Ellul. I am publishing an extract of the minutes of the Planning Commission on the case below.
The reasoning hinges on the fact the planning tribunal did not suspend construction during the appeal and, furthermore, that the Court of Appeal then “did not suspend execution of works prior to the revocation of the permit.”
Construction was already complete, or virtually complete, by the time the appellants went to court.
As for the planning tribunal, it had rejected the appellants' request to suspend the works by arguing that the appellants would not suffer “disproportionate prejudice” if the works were not stopped, and this is because a planning permit is issued without prejudicing third party rights, and that moreover “it cannot be excluded that the appellants have other remedies in front of the civil court in order to put forth their pretentions.”
The Court of Appeal criticized the tribunal's line of reasoning in its decision of suspension of works.
This saga shows what a travesty the system of planning and appeals in front of the planning tribunal has become.
For this reason, NGOs have for years been lobbying for a change in law so that construction works would automatically be suspended until appeals are decided.
Now, in the two now-infamous bills that the government is spinning as a "reform" of the planning system, the government accepted the need for this change but then gave it a time-limit: suspension of works would expire if the Court of Appeal did not decide on a case within five months for whatever reason. The government also went much further: the changes would amount to giving legal cover to arbitrary decisions or policy tweakings by the Planning Authority Executive Council or the Planning Commissions, and curb the court's ability to revoke planning permits. Provisions in the bill on appeals hold that the Court of Appeal can no longer revoke a planning permit; that only the tribunal can establish facts of the case; and that the court, if it finds a tribunal decision wrong on a point of law, can only send the case back to the planning tribunal for fresh consideration.

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