CF Developers Ltd has suffered another setback in its plans to redevelop the former Dolphin Complex in Balzan, with the Court of Appeal throwing out the developers' arguments for the approval of the Park Lane mixed-use structure on the edge of the village's Urban Conservation Area.
The appeal was a last-ditch effort to overturn a decision handed down by the Planning Tribunal, which had revoked the permit initially approved by the Planning Authority.
CF Developer Ltd is a subsidiary of CF Estates, a company which includes major developer Joseph Portelli as the largest shareholder, owning 30 per cent of the company. The remaining 70 per cent is equally split between Clifton Cassar, Duncan Micallef, Francis Agius and Stephen Falzon.
(L-R) Joseph Portelli, Stephen Falzon, Clifton Cassar, Duncan Micallef, Frank Agius. Image: CF Estates
Clifton Cassar represented the company in both the planning and legal processes involved.
The permit was initially approved by the Planning Authority in 2022. It included plans for basement garages, 2,400sqm of retail outlets, and four overlying floors of 88 apartments including penthouses with rooftop pools.
CF Developers also submitted a separate application for more shops and 11 apartments adjacent to the project.
The development was billed as “the first luxury residential development in the central region of Malta” and “a new landmark in the neighborhood”.
Promotional material on Joseph Portelli’s website describes “eye-catching arched walkways” in an “elegant nine-block condominium building [that] is designed to blend seamlessly into the paved streets of Balzan with its natural limestone façade, wrought-iron detailing and traditional Maltese balconies, reminiscent of a bygone era."
The controversial former head of the Building and Construction Authority, Maria Schembri Grima, is the architect behind the project.
An artist's rendering of the internal landscaped communal swimming pool. Image: J. Portelli Projects
Residents and NGOs Din l-Art Ħelwa and Flimkien għal Ambjent Aħjar, together with the Balzan Local Council, then submitted an appeal to the Environment and Planning Review Tribunal (EPRT), which was accepted in part on 23rd March 2023.
The EPRT limited the number of floors to three full floors and one receded floor, instead of the four full floors and one receded floor which had been initially approved. The project would also need to be reassessed through a new case officer’s report, taking into account revised transport and floor management plans and mature trees and heritage features left out of the developers’ application.
In response, CF Developers opened a case before the Court of Appeal, but the judgements handed down on 12th July rejected the company’s arguments and upheld the Tribunal’s decision to repeal planning approval for the project.
The Court, presided over by Chief Justice Mark Chetcuti, who has delivered a number of notable judgements related to planning over the last months, argued that most of the points raised by the developers are technical matters that are fully within the purview of the EPRT.
Central to the case were differing interpretations of the height limits to be imposed, with the Court describing the Planning Authority’s reasoning for the initial permit approval as “pseudo-legal”.
It also decided that the Tribunal was acting fully within its remit when it adopted a “more restrictive interpretation” of the building height.
One bone of contention related to the complex system of conversion from floor levels approved in the legally binding Local Plans to the height measured in metres under the controversial 2015 document Development Control Design Policy, Guidance and Standards (DC15), which are then re-converted to a (higher) number of floors.
The height in metres of the development effectively fell between three and four floors. The Planning Authority said it was standard practice in such cases that “the number of levels added to a development proposal is that of the subsequent criteria”, i.e. it allows for the development of another floor.
The Court however argued that the Tribunal’s decision to apply the preceding criteria (i.e. not accepting the additional of another level) was simply a technical evaluation it cannot intervene in, and in any case pointed out that the principle of precedent does not apply.
In what can be understood as an implicit rebuke to the Planning Authority, the Court said it “cannot help but emphasise that a development should not have more levels than is indicated in the Local Plans.”
It substantiated its view by quoting from the Local Plan Interpretation Document on building heights: “Aesthetic considerations or the height of the building are not the only considerations which needs to be taken into account when assessing a development planning application. Floors are also centres of activity generation.
“This is a very important concept and not giving it the due consideration will result in increasing the development intensity in an area over and above that which is statutorily indicated in a local plan.
“Therefore, unless the local plan’s policy or its interpretation indicate otherwise, development proposals should strictly adhere to the number of floors stipulated in an approved local plan.”
For these reasons, among others, the appeal was rejected and the project sent back to the drawing board.
CF Estates reaction
In an announcement posted to the Malta Stock Exchange, CF Estates said that its subsidiary “took cognizance of and is reviewing the judgements of the Court of Appeal”, and will be “considering a project which fits the criteria and parameters established or referred to in these judgements.”
