The planning amnesty is wrong. We must end the cycle of sanctioning illegality

The Planning Authority seems to have been unable to control abusive development

6 September 2016, 8:17am
Cartoon by Mikiel Galea
Cartoon by Mikiel Galea
If there is a single thread uniting many of Malta’s environmental concerns, it would be a lack of proper planning and enforcement.

Despite various amendments to the structure of Malta’s planning authority since it was founded in 1992, we seem to have been unable to control decades of abusive development. The fact that the PA has now resorted to an amnesty to sanction such illegalities only attests to this failure.

The government’s justification is that many of the illegalities in question are only minor infringements, which do not warrant the demolition of the property. This is true for many cases, but as the the Kamra tal-Periti points out, the legal notice does not distinguish between major and minor illegalities. 

The KTP observes that the legal notice contains many vague statements which give the impression that anything can be regularised. This contrasts with Deborah Schembri’s declaration that: “Many people are unable to sell their properties, because banks refuse to loan money to people who want to purchase houses with planning illegalities.”

In reality, the legal notice applies to any development which does not constitute an “injury to amenity”: not just to the “separated couples” or “cancer patients” cited by Schembri as examples of a social need for this amnesty. As the Chamber of Architects said, this is an “entirely subjective criterion that is open to wide interpretation”.

There are other considerations too. Most illegalities which are not to the detriment of third parties can already be exempted from PA enforcements. These include sanitary illegalities related to the size of internal yards or back yards, encroachments which go beyond the existing official building alignments, pilasters, ramps and steps which do not protrude more than 30cm beyond the official alignment onto the pavement, and other similarly trivial infringements. 

These illegalities are mentioned in legal notices issued in 2012 and 2013. The problem with this mechanism is that although owners are exempt from enforcement, they still find difficulties when selling these properties. If the government’s concern was exclusively to address this issue, it could have simply strengthened the existing mechanism: limiting the scope of the regularisation to the illegalities mentioned in these legal notices, while giving owners the chance to fully regularise their position. 

Instead, we have ended up with a generic amnesty which gives the PA massive discretionary powers.  

Moreover, when the scheme was first announced in February 2015, PA executive chairman Johann Buttigieg confirmed it was intended for illegalities committed before 2013 in development zones. But the legal notice now states that any extension or addition beyond this footprint visible on aerial photos taken in March 2016 can be regularised through the amnesty. 

This means that illegalities committed as recently as five months ago can still be regularised. The government could have opted to only regularise illegalities which go beyond footprints seen in aerial photos taken in 2012 or in 2008. The choice of a 2016 cut-off date raises questions on whether this was introduced to accommodate people who had prior knowledge of the amnesty, and who continued developing illegally in the past months. 

The upshot is that anyone who irregularly developed before March 2016, can now apply to legalise the development for 6,500 euros. If the application is approved, the developer can sell it at more than 10 times the fee paid to regularise it.

If an application is refused, the applicant is refunded a percentage (90%) of the fees of the application, However there is no obligation for the Authority to issue an enforcement notice and/or to request the removal of the illegality. The PA has said that it will “reserve the right to issue an enforcement order” if an application to regularise is refused. This will result in the PA having massive discretionary powers to determine where action is, or is not, needed. 

It stands to reason that the PA should automatically issue an enforcement order if an application to regularise an illegality is refused.

Meanwhile, although decisions will be taken by a board at a public hearing, the absence of clear guidelines does not bode well: especially in view of the fact that the scheme (which will be operational for the next three years) will coincide with the electoral campaign. This raises the spectre of the government using this scheme as part of its power of incumbency. 

Lastly, the regularisation scheme coincides with a general drive to favour illegalities. The rural policy approved in 2014 has made it easier to sanction irregularities in the countryside. The MEPA demerger resulted in a toothless Environment and Resources Authority, as attested by the recent controversial approval of two high-rise development projects, in Mriehel and Sliema. On all fronts, the government has relaxed environmental protection mechanisms that were already weak and ineffective.

The latest regularisation scheme only makes it easier for developers and owners to regularise illegalities in development zones. It also sets a precedent: that illegalities committed now can be regularised in the future. After all, an amnesty is always presented as a one off, but ends up being repeated.

Clearly, amnesties are not the answer. What is needed are clearer policies, better enforcement and a permanent end to the cycle of sanctioning illegalities.