Robert Abela’s summer gift to developers: Looser planning laws

Robert Abela has used the age-old tactic of presenting controversial legal changes in the midst of summer, when many are not looking and the Opposition is in disarray.

This time around, the prime minister and Planning Minister Clint Camilleri have gifted developers looser planning laws, which they want to be rushed through parliament before the summer recess.

Sources close to government have told MaltaToday the prime minister wants the amendments to be discussed only in plenary thus avoiding the committee stage.

The proposed changes will make it harder for building permits to be overturned on appeal and also give the minister new powers to introduce regulations that establish the “procedures, criteria, and conditions under which existing illegal developments or structures may be assessed, regulated, or otherwise addressed” by the PA.

On Friday afternoon, the government published Bill 143 and Bill 144 that will amend the Development Planning Act and the law regulating the Environment and Planning Tribunal, respectively.

What was supposed to be a simple change to stop development from taking place while a permit is being appealed has ended up being a major overhaul of the planning system.

A protest in Valletta in 2023

The prospected changes grant more discretionary power to planning boards to deviate from policies; limit the court’s ability to revoke permits; and limit appeals to the grounds stated in objections filed before a project is approved.

The proposed reform also suggests that the most recent policy changes will override local plans and the overarching Strategic Plan for the Environment and Development (SPED).

An amendment also seeks to limit the type of information that can be made available by tightening the provisions that ensure public access to planning files. The proposed amendment introduces a proviso that “any information or documentation not expressly identified” in the law as accessible “shall not be made available, unless otherwise provided by applicable regulations or, where appropriate, at the discretion of the authority”.

As a sop to environmentalists, the changes propose increasing the daily fines for breach of enforcement orders to €2,000 per day from the current €50.

The changes were presented to Cabinet and the Labour parliamentary group last week with sources close to government saying there were no objections from those present. However, the sources added that several ministers were absent from the Cabinet meeting.

Meanwhile, sources close to the parliamentary group told MaltaToday that the prime minister even hinted that the Opposition was unlikely to oppose the changes.

The Nationalist Party is in the midst of a leadership contest but its planning and environment spokespersons yesterday criticised the government for tabling the bills without public consultation. The PN condemned the timing of the bills, calling it an attempt to bypass democratic scrutiny. 

The PN warned that the proposed laws would strip away vital legal safeguards, limit the public’s right to appeal, and grant excessive powers to the Planning Authority and the Environment and Planning Review Tribunal. It also expressed concern that the courts would no longer be able to revoke permits, further weakening accountability.

The amendments were also criticised by Moviment Graffitti, calling them a “developer’s wish list”. The group said the changes dismantle all legal safeguards in environmental protection and urged the public to “prepare for the fight ahead”.

READ ALSO | PN, ADPD and Graffitti criticise planning proposals | PL president says planning reform must include everyone

Illegally built swimming pools in Qala still stand despite court revoking the permit

Loosening the planning screws: The salient changes

The government has published Bill 143 and Bill 144, which propose several changes to the planning system, including the appeals tribunal. The following are the salient features of what is being proposed.

• Discretionary power of boards

The Planning Board will be able to make decisions that deviate from existing policies based on spatial, architectural, or contextual considerations. These justifications will not constitute an error of law.

• Hierarchy of policies

Any earlier planning policy document shall be interpreted and applied in alignment with the provisions of the most recently published document in the hierarchy. This means that any policy approved after 2006 will take precedence over the local plans.

• Redefining illegal works

The new cut-off date for determining historical illegal works without a development permit will increase from the year 1967 to 1978.

• PA power to change building heights

Planning Authority will be given power to change building heights through the planning control applications process which currently excludes such changes. This falls under a proposed new definition of what a minor modification is.

• Power to revive expired permits

The minister will have the power to revive expired development permits. Today, the minister can only renew the validity of permits that have not yet expired.

• Appeals tribunal

The planning tribunal must deliver its final decision within five months in cases presented by third parties during which works are suspended, and within one year in appeals filed by the applicant.

• Appeals court

A tribunal decision appealed in front of the law courts has to be decided in five months during which works will remain suspended.

• Restricted grounds of appeal

The grounds of appeal will be strictly limited to concerns already raised during the planning process, unless it can be proven that the issue could not have been reasonably foreseen at that stage.

• 10-day time window for objections

A new proviso allows objections to be filed up to 10 days after the publication of the case officer report.

• Frivolous appeal fine

The tribunal will be empowered to impose a fine of up to €5,000 on an appellant if it declares an appeal to be frivolous or vexatious. This decision is final and cannot be appealed in court.

• 20-day time limit for appeals

An appeal will have to be filed within 20 days of a planning decision being published, instead of the current 30 days. A similar 20-day window will be available to appeal in court a decision taken by the Environment and Planning Tribunal.

• Limiting permit revocations

The tribunal’s factual determinations are deemed final and not subject to review by any court, except for questions regarding the legal correctness of decisions based on those facts. This means courts cannot re-evaluate the facts of a case, only how the law was applied to those facts. The Appeals Court will be unable to directly revoke a permit but will only have the power to confirm or annul the tribunal’s decision. If the Appeals Court annuls a decision, it is required to refer the acts of the proceedings back to the tribunal for a fresh decision that must be made in accordance with the legal parameters established by the court.

• Permit suspension

For appeals filed by third parties before the Appeals Court, the development permit is initially suspended. If the court fails to deliver a final decision within five months, the permit will no longer be deemed suspended. Any work executed after this five-month period, and before the court’s final decision, will not be affected or invalidated by the appeal’s outcome.

• Tribunal members

Members of the tribunal will be appointed by the President upon the advice of the Prime Minister and hold office for a term of 10 years, with the possibility of reappointment for an additional five years.

• Increase in daily fines

Daily fines for non-compliance with enforcement notices, which have not been appealed or complied with, have been increased from a maximum of €50 per day to not more than €2,000 per day.