Of legitimate expectations in planning law

A planning application contemplating an ‘extended supermarket’ together with an increase in the parking floor area was initially dismissed by the Planning Commission after the Board found that the proposal was in breach of various planning policies. The application in question refers to the LIDL supermarket which is located outside the development zone of Ghaxaq and which has direct access from Triq il-Barrani.

In its decision, the Commission made the following observations:

The proposed car parking area fell outside the limits to development and in an area outlined as an ‘Area of Agricultural Value’ in the South Malta Local Plan;

The proposed development ran counter to the provisions of Policy SMAG 01 which seek to protect and support the agricultural industry by encouraging activities in the countryside which are essential to the needs of agriculture;

The proposed parking area ran counter to Thematic Objectives 1 & 1.10 and to Rural Objectives 3 & 4 of the Strategic Plan for Environment and Development in terms of land-use in that the proposal was not considered legitimate or necessary within the rural area;

Due to the fact that the new parking area was unacceptable in principle, the proposed supermarket extension would reduce the present parking spaces, hence in conflict with Thematic Objective 10.6 of the Strategic Plan for Environment and Development Policy (the SPED).

Nevertheless, the applicant took the matter further, demanding the Environment and Planning Review Tribunal to reverse the Authority’s decision and order it to issue the permit.

The principal argument in the applicant’s defence was that the area in question was already ‘committed’ as a parking area for heavy vehicles. Moreover, the applicant (now appellant) argued that the Planning Commission had, during the first public hearing, noted that proposal could be justified since the area in question was covered by a planning permit, thus constituting a legal commitment in terms of law. Nevertheless, to the applicant’s surprise, the Commission decided to reject his application in the subsequent hearing, despite having already expressed itself in favour of the proposal during the previous hearing. Moreover, applicant made specific reference to the PAMA supermarket which was approved despite located outside the development zone.

In reply, the Planning Authority stood firm, insisting that that the Commission’s observations during the first sitting were made ‘without prejudice’ to the eventual decision. The case officer argued that ‘the Planning Commission can independently regulate its own hearing and take any decision it deems applicable at its final hearing’. As to the quoted precedent, the case officer underlined that the PAMA supermarket was not located in an ‘agricultural area’.

In its assessment, the Tribunal concurred with the arguments brought forward by appellant. The Tribunal was satisfied that once the Commission had expressed itself in favour of the development, it was not in a position to ‘change tack’ in a subsequent hearing. On this basis, the Tribunal gave judgment by accepting appellant’s appeal.

Dr Robert Musumeci is an advocate and a perit

[email protected]