Hugo’s cat and mouse with PA reveals loophole for those with power to pay

Developers can continue presenting requests to regularise illegal developments even after a first, second and possibly third rejection, if they can afford to pay €50 in daily fines, delaying any removal of the illegality.

The Planning Authority has slapped Hugo’s Burger kiosk in Hal Ghaxaq with an enforcement order four days after an article published on the Sunday edition of MaltaToday.

The PA is presently evaluating an application by Hugo’s group CEO Luke Chetcuti to regularise the kiosk, which is identical to another application already rejected by the Planning Commission back in October 2020.

Permission for the 42sq.m kiosk – set up in a corner between the Tal-Barrani road in Għaxaq and a narrow lane – was rejected due to safety concerns raised by Transport Malta, which believes that the kiosk, located 12m off the Tal-Barrani arterial road, could cause congestion in this road, resulting in lack of visibility for drivers.

The PA had failed to issue an enforcement order accompanied with daily fines immediately after its rejection of Chetcuti’s first regularisation attempt and only issued the enforcement order six months later.

The enforcement order was issued on 22 April – four days after a report published in MaltaToday noted the absence of any enforcement order on the site despite two consecutive attempts to regularise the illegality.

But the enforcement was immediately ‘suspended’ pending the outcome of the application to regularise the kiosk. A PA spokesperson confirmed that the application foresees a daily fine, which have to be paid even during the processing of the application.

But the PA presently does not have any power to stop any applicant from resubmitting applications, which have already been rejected in the past. Technically this allows the owners of illegalities to keep filing the same application over and over again to have their illegality regularised.

“The Authority does not have the power to not accept any development application that gets re-submitted after it would have been refused by the Board/Commission,” a PA spokesperson told MaltaToday.

Thus by presenting a second application to regularise the illegality the owners are exploiting a loophole in planning rules which enables them to continue operating from the illegal site despite the breach in planning regulations.  In fact the PA has no choice but to suspend enforcement actions while processing applications to regularise these illegalities.  The fact that developers can continue presenting applications to regularise the development even after a first and possibly second and third rejection means that developers who can afford to pay €50 in daily fines, can effectively delay any removal of the illegality.

This has been the state of affairs since the inception of the Planning Authority with the situation being partly rectified in 2012 when the PA lost its power to regularise illegalities in the ODZ while fines were also increased.  But this decision was reversed in the new planning law approved in 2015, which restored the PA’s power to regularise ODZ illegalities.