Tribunal relies on applicant’s consultant

A planning permission for the construction of a residence was issued by the Malta Environment and Planning Authority (the MEPA) subject to archaeological monitoring. Incidentally, the building, though of no outstanding historic value, sits on clay foundations.

Subsequently, it transpired that the permitted works proceeded illegally since the applicant failed to appoint an archaeological expert. Although the excavation works were evidently not monitored, the Authority sanctioned the illegal development following a request made by the applicant to that effect. Nevertheless, this permit was issued on condition that a ‘payment to the value of €8,327.51 is made towards the heritage improvement initiatives in the planning fund.’

But even so, the applicant lodged an appeal before the Environment and Planning Review Tribunal, insisting that the said amount was ‘excessive and unjustified’. The applicant explained that his architect had submitted a ‘Heritage Management Consultants Certificate’ stating that the ‘original foundations’ were ‘maintained’ and ‘no clearance or ground disturbance works were made’, though admitting that the excavation works were not monitored.

In addition, the applicant observed that the Superintendent of Cultural Heritage had described the building in question as a ‘modern building of no cultural heritage’ situated ‘just outside’ an Area of Archaeological Importance. In his conclusions, the applicant contended that in his case, no amount was therefore due because a planning gain (equivalent to ‘€11,464.87 per 200 sq.m.) should only apply when the disturbed area is archaeologically sensitive. 

In reply, the Authority disagreed with the applicant, pointing out that excavation works were carried out without being monitored. The Authority maintained that contrary to what the applicant purported, the development lies within an Area of Archaeological Importance. In the circumstances, the Authority ‘applied its discretion to impose a planning gain’ once the applicant proceeded with the excavation works without prior consent from the Superintendent of Cultural Heritage. In this case, the requested amount was based on the clay area which was ‘disturbed’, namely 143 square metres.

In its assessment, the Tribunal observed that the applicant had commissioned a heritage consultant, who in turn confirmed that “no clearing or ground disturbance works were made and thus there was no need for further monitoring.” The Tribunal was thus convinced that the illegal works did not amount to ‘ground disturbance’ and consequently decided that the €8,327 fine was deemed unreasonable. Nevertheless, the applicant was still made to pay a reduced fine equivalent to €1,200.

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Dr Musumeci is a warranted perit and a Doctor of Laws