James Debono’s guide to the new ‘outside development zone’ policy

Following the storm of protest against the extension of development zones in 2006 and controversial permits outside development zones, former prime minister Lawrence Gonzi was returned to power pledging a MEPA reform based on the premise that: "ODZ is ODZ" - a zero tolerance towards countryside development.

But elected on a vaguely defined but markedly pro-development platform and boosted by a resounding electoral mandate, the newly elected administration is once again tinkering with policies regulating ODZ development.

Surely Michael Farrugia, the parliamentary secretary responsible for planning, is right in pointing out that contrary to popular perception, low-key developments like storage facilities for farmers are already allowed by existing policies approved by previous administrations. 

This is because agriculture in itself is considered to be human intervention, which requires a number of facilities to make it economically viable. 

In fact the new policy regulating ODZ development seems motivated by a  genuine desire to introduce a dose of entrepreneurship in Maltese agriculture through innovative measures like allowing farmers to sell their produce directly from farm shops.

But it also seems bent on changing the goalposts to accommodate land owners who are not necessarily farmers and development which was previously not allowed or severely restricted (at least on paper).

In fact, the main difference between old regime regulating countryside development and the new policy issued for public consultation by the new Labour government is that a myriad of developments including agritourism facilities will now be allowed in buffer zones for sites of ecological importance.

New ODZ developments to be permitted in new policy:

• 400 square metre development on rural holdings greater than 60 tumoli
• Swimming pools in buffer zones to sites of ecological importance
• The reconstruction of existing farmhouses and rural buildings
• Excavation of basements under all new developments permitted by new policy
• Change of use from farm buildings to dwellings
• Legalisation of all concrete paths constructed before 2004
• More timber stables in the countryside
• Animal sanctuaries
• 15 square metre farm shops selling agricultural products
• 60 square metre stores
• 50 square metre buildings for olive oil and honey production
• 200 square metre 'boutique' wineries on Level 2 protected areas
• Possible combination of all these developments on one site

Agritourism or speculation?

For the first time since the controversial 2006 extension of building boundaries, the new policy foresees limited residential development in the countryside in the shape of new buildings used for agro-tourism purposes. But while the 2006 extension foresaw massive development on the outskirts of towns and villages, the new policy paves the way for small-scale developments in the heart of the countryside.

Instead of restricting agritourism permits to registered farmers, the new policy seems tailor-made to facilitate investment by non-farmers.

The new policy effectively enables owners who are not farmers themselves to reap profits from land, which they had bought cheaply in the past due to its ODZ status. In short, land which previously could not be developed has suddenly acquired value.

In fact, to benefit from the new policy, the applicant must be either a registered farmer tilling 60 tumoli (67,000 square metres) of contiguous land or an owner who enters in to an agreement with the farmers tilling the land in question. 

Surely the policy includes a number of safeguards against abuse.

As a safeguard against future speculation, the policy proposes a legally binding contract to ensure that the agro-tourism accommodation and the farming enterprise are not transferred separately.

Moreover, in the event the landowner is not a registered farmer, the agro-tourism project must be subject to a legally binding partnership between the owner and farmers from the locality. 

The farming activity on the site of the project must also have been in operation for at least five years prior to the application.

Another important safeguard  against the proliferation of vacant rural buildings is that any building permitted by this policy which is not used for "a period of three consecutive years within 30 years from the date of the issue of the permit" will be demolished.

The new policy also limits development to a maximum floor-space of 400 square metres (the size of four average size dwellings), which can be either spread horizontally across the 60 tumoli, or vertically over a number of floors.   

According to Michael Farrugia the 60 tumoli threshold is aimed at encouraging neighbouring farmers to join forces, possibly as cooperatives.  In fact, 60 tumoli land parcels falling under the same ownership - the size of 10 football grounds - are rare to find.

Therefore the advantage of setting a 60 tumoli limit is that it will limit the mushrooming of agritourism facilities on smaller land parcels. In this way,  new agritourism facilities can only be developed over a very large area. 

It could also act as an incentive for neighbouring farmers to pool resources, and this may well serve as an incentive against land fragmentation, a problem which stifles the development of Maltese agriculture.

One risk of the new policy is that although limited, the new development can take place in ecologically sensitive areas.

Another risk not foreseen by the new policy is that developers may seek to incorporate other facilities like boutique wineries, horse riding establishments and stables, swimming pools, olive oil production, bee keeping facilities, farm shops and other developments permitted in the policy, all located in the same area.  Potentially this can easily result in oversized, 1,000 m2 developments right in the heart of the Maltese countryside.

Moreover, applicants may even come up with novel ideas not envisioned by the policy. In these cases, the policy itself gives MEPA board members discretionary powers.

Significantly, according to the new policy, such development can even take place on sites accorded a Level 3 grade of protection to serve as buffer zones to sites of scientific and ecological importance.

Moreover, while most other developments like stables and swimming pools are also excluded from Class A or Class B areas of archaeological importance or in areas of high landscape value, no such restrictions apply to agritourism facilities. 

One sensible option could have been that of restricting agritourism to existing rural buildings allowing minor extensions and conversion works.

In fact the new rules also permit the redevelopment of existing rural buildings in to agritourism facilities.

Swimming zones in buffer zones

The construction of new swimming pools is already allowed within the boundary of existing buildings. But while the present policy states clearly that swimming pools cannot result in a loss of fertile, good quality agricultural land or adversely affect valleys, cliff sides or any scheduled property, the new policy simply forbids swimming pools in areas accorded a Class A or Class B level of archeological importance or which are considered as Level 1 or Level 2 areas of ecological importance.

The new policy paves the way for the development of swimming pools on buffer zones to Level 1 and Level 2 areas which enjoy level 3 or level 4 protection.  The size of pool areas remains restricted to a maximum of 100m2.

Rebuilding farmhouses

The new policy allows the demolition and reconstruction of rural building which have no vernacular or architectural significance. But in such cases, the policy makes it clear that the replacement building cannot exceed the total floor area of the previous buildings. 

No redevelopment can take place if the building is considered a "ruin". 

Although only buildings covered by a permit can be redeveloped, any pre-1967 buildings "not worthy of retention" can apply for re-conversion. 

A full basement may also be permitted as long as it is limited to the floor area and no external ramps are constructed.

The complete demolition and reconstruction of existing farmhouses is not foreseen by the present policies regulating development in ODZ. This however, opened up something of a grey area, where MEPA was faced with applicants presenting multiple applications to demolish as much as possible of the old building. 

Presently, for conversion to take place a building "must be in a sound structural condition and be capable of conversion without substantial rebuilding". The rebuilding of large sections of walls is not allowed unless this serves to safeguard the remainder of the building.

This ambiguity led to cases like that involving former PN President Victor Scerri, who had to resign after a damning report emerged on the approval of a farmhouse development proposed by his wife.

Currently only registered farmers are allowed to demolish and reconstruct rural buildings. This led to cases of developers presenting themselves as "part time farmers". This will no longer be the case as the new law makes it perfectly legitimate to completely rebuild a farmhouse as a dwelling.

The new policy also envisages the conversion of existing ODZ rural buildings in to dwellings even if the former use was not residential. 

The only condition for the existing building to be converted is that it must have a minimum habitable area of 100 m2 and that it already be serviced by the road network.  Such buildings may even be changed into more than one dwelling unit, provided that each unit has a minimum habitable area of 150 square meters. 

Leaving room for interpretation, the document states that any such conversion should not involve "substantial lateral or vertical extensions" or "substantial rebuilding".

While the new policy will result in a greater use of presently dilapidated buildings, it could also pave the way for more construction work - including excavations to carve out basements - in the countryside.

Only in timber stables

The development of new ODZ stables, even those outside the boundary of an existing building, will be facilitated by the new policies.

According to the new policy, new stables can be permitted in ODZ areas as long as these are constructed in natural timber: a positive measure ensuring that such development can be reversed if these stables are disused.

Presently, new stables are not allowed on any protected area irrespective of the level of protection but the new policy allows stables to be developed on land accorded Level 3 protection.

Stables, at this stage, cannot be located on land irrigated by natural sources and should be preferably located on non-agricultural land. Moreover, new stables are only allowed within 300 metres from the development zone boundary. No such restrictions exist in the new policy.

The existing policy also bans the erection of any new structures in ODZ areas for horse riding establishments,  but allows the conversion of old buildings. No such exclusion is made in the new policy which applies to both stables and horse riding establishments.

The new policy also allows the reconstruction of buildings "which are not worthy of retention" in to stables.  Although the development cannot exceed the footprint of the previous building, a full basement may be allowed under the stable.

The new policy also allows the construction of new stables within the defined boundary of an existing buildings, but these have to be constructed in timber. 

It also foresees the conversion of existing buildings of architectural, historical and vernacular importance in to stables or horse-riding establishments.

The policy states that due to requirements for reasonably wide door openings, it is likely that "only historical buildings designed to accommodate animals will be suitable for conversion".

Similarly to the present policy, stables must be located at a distance of not less than 100 metres from the development zone boundary.

According to the new rules, animal sanctuaries may also be permitted in ODZ areas, including buffer zones to protected areas. Animal sanctuaries are allowed to build 1.2 metre high structures and even to fence the site.

A new lease of life for agriculture?

The most innovative aspects of the new plan is the encouragement of rural entrepreneurship by opening new possibilities for farmers, like the opening of farm shops which could enable farmers to sell directly to clients from their own farm. 

Moreover, the new shops must be built within the boundary of the farm and cannot exceed 15 square metres. These shops will only be allowed to sell local agricultural produce. The new policy also envisions the conversion of farm building to visitor attractions.  The theme of these attractions has to be related to agriculture or local crafts. 

One disadvantage of the new policy is an increase of car traffic in rural areas.

In fact visitor centres will also be allowed to accommodate the additional parking needs. On a positive note, the use of grass blocks for parking is being suggested instead of concrete.

Similarly to previous policies, the present document foresees the construction of new buildings for olive oil production, bee keeping and honey protection. But this time round, such developments can also take place on sites enjoying a Level 2 or Level 3 grade of protection and are only restricted in Level 1 areas. 

The new building will have a maximum floor space of 50 m2 and must be compatible with the character of the surrounding area. A basement will also be permitted. 

The new policy would allow the construction of 200 square metre new wineries, even on sites of ecological importance enjoying a Level 2 or Level 3 protection, where this development is presently not allowed.

Only owners of vineyards can apply to build these wineries, and these will have to sign a legally binding contact to tie the ownership of the winery to the vineyard holdings.

The new policy also enables farmers to build greater stores. 

While the current limit is 40m2 for farms greater than 20 tumoli, the new policy allows farmers owning more than 18 tumoli a storage space of 60 square metres. They are also allowed to build a new basement.  Moreover, while previously no new stores were allowed on all areas of ecological and scientific importance, according to the new policy only sites with the highest level of protection (Level 1) are safeguarded from this kind of development.

Livestock farmers will also be allowed to construct a 250m2 single dwelling within the boundary of an operational livestock farm. Moreover, 100m2 dwellings are also allowed outside the boundary of a livestock farm as long as this is not more than 100 meters away from the farm.  Such development can also take place in buffer zones for sites enjoying Level 1 or Level 2 protection.

Sanctioning of illegal paths

With a stroke of the pen, the new policy legalises "concrete access paths to arable land holdings" built prior to May 2004. Hundreds of such paths in sensitive ecological areas have been created in the past years in the absence of any planning permit. 

But new paths will have to be constructed through the use of grass blocks or compacted soil.  Gates are also permitted as long as these are constructed in timber and do not exceed a height of 1.2 metres.    

Why are buffer zones protected?

According to the new policy, agritourism establishments and various farm buildings will be allowed on sites currently enjoying Level 3 protection and sometimes even in areas enjoying Level 2 protection.

For areas of scientific and ecological importance there are currently four levels of protection - Level 1 is the highest degree of protection whereas Level 4 is the lowest.

No development is normally allowed on Level 1 or Level 2 areas while only minimal development is allowed on Level 3 areas.

Habitats that are very rare, or areas that support very rare species, would qualify as Level 1 areas. With the exception of the redevelopment of existing rural structures, no development of any sort is foreseen in these areas through the new policy.

The restrictions on development depend on the level of protection. For Level 1 and Level 2 areas, the Authority designates a buffer zone with a Level 3 degree of protection.

An example of a site enjoying a Level 3 protection as a buffer to a protected area was the site in Mistra, previously where MEPA had controversially approved a disco before the 2008 election. The permit was subsequently withdrawn. Areas like this one will now be available for agritourism development.

Buffer zones are considered as an important component of scheduling since any activities on these sites may still have an indirect impact on the Level 1/Level 2 scheduled areas and the overall integrity of the protected features and/or habitats. In fact, the Mistra disco development was recommended for refusal because of its impact on the integrity of an adjacent 'Level 1' area.

While small-scale developments are therefore allowed by MEPA in Level 3 and Level 4 areas various policies, including current policies on swimming pools and farm developments exclude any new development on these buffer zones. All this is set to change if the new policy is approved.