Tribunal slashes fines: €42,000 discount for Gaffarena, no mercy for Polidano

A tribunal that slashes the Planning Authority’s daily fines and penalties on rule-breakers waived a total of €169,458 in fines on 25 planning infractions – either on humanitarian grounds, or because the fines were disproportionate.

Property entrepreneur Marco Gaffarena was granted a €42,791 ‘discount’ alone on two pending enforcement fines for illegalities committed outside the development zone – one in Hal Farruġ and another on the site formerly occupied by the illegal Iċ-Ċavett restaurant in Qormi’s tal-Handaq.

Gaffarena had accumulated a staggering €85,582 in daily fines on the two sites. The decision to reduce the fines was taken on 29 March by the Environment and Planning Review Tribunal (EPRT), which has the power to waive or reduce hefty daily fines imposed against infractions.

The right to present petitions against the fines imposed by the Planning Authority was established in legislation approved in 2012.

Fines can be reduced on “humanitarian” grounds or because the fines are deemed to lack a sense of proportion when compared to the nature and scale of the illegality in question.

Gaffarena had incurred a fine of €35,000 after the PA issued a planning enforcement issued in Ħal Farruġ in 2008. The infraction consisted in the extension of an existing room, the construction of a stone structure and a boundary wall, animal cages and illegal excavations on a farm. In 2020 the Planning Authority refused an application to change the use of the site from stables to a ‘zoo’ and a residence, but an appeal is still pending. In this case the fine was reduced by 50% on the basis that the fine imposed was disproportionate considering the nature and facts of the case.

Gaffarena had also incurred a €50,000 fine for infractions at Tal-Ħandaq in Qormi consisting of the building of structures without permit, including a swimming pool, and the use of the property for private functions.

A PA official had confirmed the use of the site for commercial purposes in an inspection in 2014. In this case, Gaffarena had argued that the site had been occupied by a third party who had advertised the illegal eatery, known as Ċavett Place, from which he had later been evicted.

But the illegal structures were not removed. Taking in consideration that a third party committed the illegality, the EPRT slashed the due fine by half.

Mark Gaffarena had secured the land in question in a €1.65 million property-and-cash deal in 2015 – the Old Mint Street scandal – in exchange for his half-share of a Valletta property that housed a government agency’s offices. The controversial transfer had resulted in the resignation of parliamentary secretary for lands Michael Falzon, after two investigations by the National Audit Office and the Prime Minister’s Internal Audit and Investigations Department, as well as a court case filed by former Prime Minister Joseph Muscat seeking a rescission of the land deal. In 2018, Gaffarena presented new plans for an agritourism complex on the Handaq field but the application was later withdrawn.

Fines in paradise: €50,000 fine reduced to €40,000

The EPRT also partly accepted a petition by the owners of a lido in Paradise Bay, reducing a €50,000 fine accrued between 2014 and 2019 by €10,000.

In 2014 the owners of the lido were served with an enforcement order against the construction of an illegal canopy covering the restaurant’s terrace, the construction of a room being used as a kitchen, the creation of concrete paved areas for the placing of sunbeds and umbrellas, the levelling of pathways, and the development of cladded boundary walls between the sand level and concrete area. The illegalities date back to 1993 when the first enforcement order against the illegalities was issued.

But the lido was regularised in July 2020 after the owner presented plans to upgrade the area and remove some of the illegalities. In its petition D.I.K.K. Limited had argued that the fine would place “financial strain on the company” particularly in light of the COVID-19 pandemic and its effect on the catering industry.

The Planning Authority defended the fine imposed on the owners, and replied that the company had benefitted financially from the illegal development for six whole years, apart from the the fact that the illegalities preceded COVID.

But in its decision the EPRT said that it could not ignore the effect of the pandemic on the finances of the commercial operation, considering the “miserable” financial situation facing beach establishments as a “humanitarian element.” The tribunal also took in consideration the expenses the owners had to fulfil the conditions of the permit issued in 2020. The tribunal even took note that it took six years for the PA to decide on the sanctioning application.

In their petition the owners cited their ambitious plan to rehabilitate the sand dunes at Paradise Beach “with the sole aim of enabling the community to derive direct social benefit through preservation of environmental surroundings of the area”. But the PA pointed out that in so doing the owners will be simply abiding by a condition imposed by the Environment and Resources Authority in view of the scheduling of the beach as a Natura 2000 site.

The pandemic was also taken in consideration in reducing pending fines for two establishments which had abusively laid out chairs and tables in Old Theatre Street in Valletta.

While the EPRT accepted a number of petitions based on humanitarian considerations including one case of dementia and another involving a marital separation, it turned down 9 out of 11 petitions presented by Polidano Brothers for over €56,000 in daily fines on different illegalities in the Ħal Farruġ area. But the tribunal only partly accepted two of the petitions, reducing the pending fines by €372 and €1,480 respectively.

One of the greatest beneficiaries of the tribunal’s generosity was a 63-year-old farmer who faced a €50,000 fine and was reduced to €20,000. The farmer argued that the fine was grossly excessive as the illegality consisted of a shelter for his flock of sheep. The structure was later regularized by the PA itself, but the farmer had already accumulated a substantial amount of daily fines which can only be stopped once the illegality is removed or regularised. In its decision the EPRT said that it could not ignore the humanitarian aspect and the fact that it took the PA two full years to process the application to regularise the development.

In the March 29 session, the EPRT heard 42 petitions, 11 of which were presented by Polidano Brothers. In total it partly accepted 25 petitions, reducing the global amount of fines due to the state by €169,458. The fine reduction ranged from 10% to 60%, with the fine being completely forfeited in only two cases.