Bahrija gate not illegal, owners claim in planning appeal

Landowners in Baħrija are now claiming they never needed a permit to install a gate blocking public access to an old footpath that leads to the Blata tal-Melħ coastline in Baħrija

Landowners in Baħrija are now claiming they never needed a permit to install a gate blocking public access to an old footpath that leads to the Blata tal-Melħ coastline in Baħrija, in the vicinity of Fomm ir-Riħ.

The Planning Authority issued an enforcement order demanding the removal of the gate, after it also refused the landowners’ request to regularize the gate.

The PA’s planning commission refused the request, saying the gate was in breach of the rural policy, which secures public access to any footpath, which already existed before 1967.

But the planning enforcement is now once again delayed by a fresh appeal filed by Ian Galea, one of the directors of Touchstone Limited, who is disputing the legal validity of the enforcement order and asking the Environment and Review Tribunal to revoke it.

This is because the PA is precluded from removing illegal developments if an appeal against its enforcement action is still pending.

“The planning application to sanction the gate was made with the intention of making the Authority pronounce itself in favour of a development which did not even require a permit,” architect Robert Musumeci contends in the landowners’ appeal.

The appeal refers to the Development Planning Act, which lists the kind of developments, which require a permit.

In the appeal Musumeci argued that the enforcement order is based on the wrong premise that the gate was illegally constructed, because the construction of a gate either does not constitute a development or falls within the category of developments, which do not require a permit. “The application (to sanction the gate) should not be in any way misconstrued as a form of voluntary admission that there was an illegality especially since the appellant is presenting this appeal to rebut any allegation made against him.”

The Bahrija gate saga

The gate has been blocking access to a passageway leading from Baħrija to il-Blata tal-Melħ since April 2021.

In its decision, the planning commission had indicated that the gate was blocking an established pre-1967 pathway, as detailed on its own official survey sheets.

Subsequently, the Planning Authority issued an enforcement notice for the removal of the gate and publicly announced that it would remove it. But no steps have been taken to remove the illegal gate so far.

The landowners have not filed an appeal against the PA’s decision but have instead filed an appeal against the enforcement order asking them to remove the gate.

The Rambers Association has recently called on the Planning Authority to declare whether enforcement or daily penalties will continue to be put off if an appeal is filed.

The Ramblers Association has also denounced the “unjust” sanctioning system, through which illegal developments even in ODZ and other protected areas can be regularised after the authorities are faced with a fait accompli.

The PA could not issue a planning enforcement against the gate while it was still processing the application to sanction the gate. Moreover, through their architect Robert Musumeci, the owners had already delayed enforcement action by requesting the suspension of the application in August 2021. Moreover, daily fines are only applicable when an enforcement notice is issued.

The ‘malpractice’ of carrying out illegal development to then apply for retroactive sanctioning has also been denounced on several occasions by the Environment and Resources Authority.

The planning reform carried out in 2012 had removed the PA’s power to sanction ODZ developments, but this decision was reversed in the reform carried out in 2015.

The Ramblers Association contends that the system rewards those “who operate illegally” without “facing any consequences” while penalising the public.

Despite the “frustrating” situation, the association is calling on the public to behave orderly and not trespass into other parts of the site while this matter is resolved.

The gate has been installed by Touchstone Ltd, a company owned by the Baħrija landowners Eliza Limited, which had acquired the land claimed by the feudal title of the Barony of Baħria.

In 2005, the company attempted to evict farmers after buying a 1,500-tumolo parcel from Salvatore Consoli-Palermo-Navarra, whose heirs sold the land for some €2.5 million.