Partners in crime

It is an old maxim that ‘rules are there to be broken’. Inherent in that proverb is a sense of fatalism: we all know that no amount of law enforcement can possibly eradicate all crime everywhere; so part of us is resigned to the fact a certain amount of illegality is inevitable in every sphere.

There is, however, a significant difference between accepting illegality as inevitable, and condoning that illegality. Governments everywhere are in duty bound to at least try and uphold the rule of law, even if they cannot be expected to succeed in all cases. So an amnesty for illegal development, as Malta’s government now proposes, is tantamount to abdicating responsibility to act as a custodian of the law. Worse still, it makes the government an accessory to crime, in that it will profit from revenue generated directly by illegally-built property.

Under the scheme on offer, people are invited to pay hefty fines running into the hundreds of thousands of euros in order to ‘regularise’ the situation of property built in outside development zones: i.e., illegally. At least 70 villas qualify for compliance, which could possibly bring in just under 50 million euros for the government. 

This proposal is both unwise and dangerous. A planning amnesty creates an automatic injustice against those people who have all along complied with the law. Having played by the rules, such people will be understandably aggrieved when others who have broken the law not only get to see their misdemeanours sanctioned, but are also able to put those sanctioned properties (including ODZ villas) on the market and make a profit… thus literally reversing another maxim, that ‘crime doesn’t pay’. 

Such an approach can only encourage others to break the rules. It reinforces a widely held perception that illegal development is always worth the developer’s while, because there is always a chance it may be sanctioned in future through similar schemes.

This does not bode well in a country where the environment has already suffered greatly at the hands of unscrupulous speculators. Nor does it sit very well with the present government’s promise of ‘meritocracy’. In this case, an amnesty represents the very opposite: it literally rewards the undeserving.

Naturally, one can also understand the dilemma faced by the government on this issue. It is true that past administrations have left a legacy of thousands of pending enforcement orders; and there may even be an argument in favour of addressing hundreds of environmental notices with regard to minor infringements such as the size of internal yards, shafts and other typical (sometimes involuntary) transgressions. 

But legal remedies are already in place for such cases. Article 91 of the environment planning act empowers the government to halt pending enforcement notices against infringements within development zones and – in a more limited way – in ODZ hamlets. As things stand, owners of such properties can already be protected from pending enforcement notices, without benefiting from the advantages of a permit which would enable them to speculate on illegal property. If these owners want a permit, they can still apply through the normal process… which means that they would have to remove the illegality in question before applying.

There is therefore no need to issue an amnesty to address these issues – unless the amnesty is really just a pretext to regularize ODZ illegalities, and raise revenue in the process. 

Still less is there need for one on this scale. Judging from limited information given out so far, the amnesty applies retroactively to all pre-1994 illegalities, including entire villas built without a permit outside the development zone. Clearly, then, the intention is not limited only to addressing the many minor enforcement notices that have piled up over the years.

On closer scrutiny there are other worrying factors. MEPA has hinted that, while everyone will be able to apply for an amnesty, not everyone will actually benefit from one: with the final decision falling to a purpose-created board. There are no indications of what criteria will be used to discriminate between deserving and undeserving cases. Such discretionary power in the hands of a government-appointed board can be dangerous at the best of times. In cases where hundreds of thousands of euros may hang in the balance, it is almost literally asking for trouble.

Given that the beneficiary of this revenue will be none other than MEPA itself – which currently labours under a deficit – one can predict criticism that the planning authority will now have an interest in granting as many permits as possible.

This is clearly an unsustainable approach to environment planning. A better alternative would be to strengthen the existing enforcement system. Instead, the government appears to be weakening the positive reforms introduced in 2010. One of the key aspects of this reform was that it bars MEPA from sanctioning any development on scheduled and protected sites. Technically, all such development should be demolished. 

Lastly, one must be wary of justifying such an amnesty on the basis of the revenue generated. Governments should not allow themselves to become dependent on monies generated from illegality. Otherwise, they become no better than partners in crime: taking a cut of the proceeds of an illegal offence.