Environment watchdog had ‘concerns’ on regularisation of partly ODZ properties but refuses to divulge feedback

The environment watchdog had expressed “concerns” on the “potential” environmental impact of regularising illegalities in properties partly located outside the development zone, MaltaToday has learnt. 

But the Environment and Resources Authority is refusing to divulge the document containing its feedback on the regularisation scheme that was unveiled last week. 

The authority was one of the entities which submitted its feedback on the proposed legal notice during a public consultation exercise carried out in November 2022. 

The legal notice as approved by government includes no changes from the draft issued in November except for the publication of the fines one is expected to pay to regularise the illegal development. 

A spokesperson for ERA confirmed with MaltaToday that the authority’s comments during the public consultation “mainly addressed the environmental concerns potentially related to the regularisation of illegal developments in areas Outside the Development Zone (ODZ)”.   

But despite repeated requests, ERA inexplicably failed to provide MaltaToday with the full text of its submission presented during the public consultation. 

MaltaToday has filed a freedom of information request asking the Planning Authority to publish all the submissions made during the public consultation on the regularisation scheme. 

ERA has over the past years consistently opposed numerous planning applications requesting the regularisation of illegalities in ODZ. 

Such illegalities were sanctionable only if they conformed to existing policies. With the new rules, property owners can seek sanctioning even for illegalities that do not conform to planning policies. 

On several occasions ERA officers objecting to planning applications in the ODZ have denounced “the malpractice of first carrying out development outside development zones without the required permits and subsequently expecting the regulatory authorities to retroactively sanction a fait accompli.” 

The regularisation scheme explained 

The new regularisation scheme will enable owners of properties located in the development zone which are already established by a planning permit but which contain illegalities protruding into the ODZ to regularise their position.  The application applies to illegalities which cannot be regularised through existing policies. 

For example, as things stand now anyone who has illegally built a swimming within his property can already apply to ‘sanction’ the illegality if this is within the present rules allowing pool areas of 75sq.m. 

But through the latest scheme someone who has constructed a pool area larger than the 75sq.m limit, will be able to regularise it, if this is contained within the curtilage of a property originally approved in the development zone. 

According to the PA this revision “will affect many individuals and families since, if their property can be regularized, the burden preventing the financing of bank facilities or the placing on the market will be lifted”. 

The PA has emphasised that the scheme is targeted towards “persons whose property contains minor irregularities and has small parts falling outside the development zone”.  Examples cited by the PA include yards, backyards and internal heights in breach of sanitary laws.  Such illegalities are often impossible to remove without demolishing the entire structure. 

But environmentalists fear the scheme will flood the property market with lucrative and newly legalised properties spilling in the ODZ, further blurring the distinction between the development zone and the ODZ. 

One major safeguard against abuse is that the illegalities that can be regularised through the scheme must be located within the “curtilage” of the original building which must be located within the development zone.  Moreover, the original building must have a planning permit.  

Curtilage is defined as the site area established in the original permit for properties established after 1967.  

But it remains unclear how the PA will deal with illegal additions to pre-1967 properties, which are considered to be legally established since no planning procedures existed before that date.  Moreover, properties approved before the establishment of the Planning Authority in 1992 often lack detailed site plans outlining the curtilage of the original building. 

Properties entirely located in the ODZ will not be eligible. 

Regularization is not automatic with the final decision being taken by a Planning Commission. 

To regularise their position owners will have to pay a fine which is proportional not the size of the illegality but to the size of the ODZ area included in the property.  In the case of unroofed development like pools and paved areas, the fines will range from €400 for properties with an ODZ area of less than 25sq.m to € 989,000 for properties with an ODZ area of over 10,000sq.m. 

For roofed developments like gazebos and tool sheds, regularisation will cost between €450 for properties with an ODZ area of 25sq.m up to €1.2 million for properties with an ODZ area of more than 10,000sq.m.