WATCH | Neighbours’ blackmail, washrooms, and shifting goalposts

Michael Stivala refutes any suggestion that the proposed overhaul of planning rules is aimed at accommodating property developers like himself.

Stivala, who leads the Malta Development Association, a lobby group for developers and construction companies, insists the proposed laws affect everyone, “from tower developers to applicants for washrooms”.

“There are so many people out there who apply for a small thing like a washroom and end up facing neighbours’ capricious objections and spend years waiting to build it,” he tells me as we sit down for a longish chat, along with Kamra tal-Periti President Andre Pizzuto.

But when I point out that NGOs never object to washrooms, and that it is unlikely for ordinary citizens to spend hundreds of euros in appeal fees over such petty developments, Stivala insists otherwise. “There are many cases of capricious appeals presented by resentful neighbours… just talk to people who come in contact with the Planning Authority,” he says.

While conceding that there are “genuine” objectors, including NGOs that base their appeals on policy grounds, Stivala maintains that the present system leaves applicants at the mercy of neighbours’ “blackmail for a few hundred euros”.

Yet, Stivala still gives the impression that he is not fully behind the reform proposed by the government, especially the bill which stops works during appeals. In fact, in its initial statement meant to counter the NGOs’ claim that the legal changes represent a “developers’ wish-list,” the MDA had described this change as one which undermines legal certainty and discourages investment.

But when I ask whether it is not absurd for works to continue on projects like enormous ODZ swimming pools or extra apartment floors only for courts to later declare them illegal, Stivala does not directly defend the practice. Instead, he calls the proposed overall changes “fair”, arguing that the present system is open to blackmail and “allows for hundreds of capricious objections”.

Stivala substantiates his claim by referring to individuals whose sole contribution during the planning process is to declare an “interest” in the case without stating any objection. Today, these individuals are eligible to appeal despite not stating their objection. This will no longer be possible with the proposed amendments because appeals will be limited to policy objections presented at the initial stages and after the publication of the case officer report.

When I point out to him that the vast majority of permits revoked by the law courts involve large-scale developments, and that NGOs’ arguments are always based on policy and far from capricious, Stivala replies that from 12,000 annual planning applications, only a few are revoked by the courts. He says that because of a few applications which are cancelled, it does not mean that “everyone should suffer”.

Consultation before bill was presented

Both Stivala and Pizzuto confirm they were consulted on Bill 144, the reform linked to the planning appeals system, but not on Bill 143, which overhauls planning laws.

Stivala says the prime minister’s declaration two years ago about stopping works pending appeals had triggered discussions and from the very start the MDA had insisted that such a reform would not be acceptable unless the objection system was also changed.

But Stivala is less categorical about the wider overhaul of planning rules. “We only had discussions in which we presented them with the reforms which we would like to see… I only learned from someone else that the two bills had been tabled in parliament. We were surprised by this,” he says.

He neither denies nor confirms that individual developers were in the loop.

When asked whether the government is using the appeals reform as a pretext to push for a large number of unrelated changes, KTP president Andre Pizzuto will not speculate on government’s intentions. But he admits having preferred “proper and open consultation” before the bills’ presentation in parliament.

While fully consulted on the appeals reform, KTP “had no idea” about the planning overhaul, though Pizzuto notes prior discussions with the PA on issues such as extending the validity of permits in view of new bureaucratic requirements related to construction regulations.

A developers’ ‘wish-list’ to sweeten one bitter pill?

Asked if the overhaul of planning laws was meant to sweeten the pill, giving developers all they want in exchange for one reform that would stop works during appeals, Stivala emphatically disagrees.

He says some changes are not beneficial to developers, such as the lack of compensation when permits are annulled by the authority.

Stivala is referring to a change in the law which specifically removes compensation for losses related to land value, when discontinuance or removal orders are issued on lawful development or activities. Today, compensation is given for “any losses sustained” and is based on land value.

Pressed about proposals that will allow planning control applications presented by private developers to change building heights or to reclassify ODZ land, Stivala says the laws “do not affect developers only but all land owners”. He stresses that the PA’s 12,000 applicants every year are “not all developers.”

Pizzuto reiterates the KTP’s stand that this part of the reform—which proposes that heights and the classification of ODZ land be included as minor modifications, which can be approved by the PA through zoning applications—should be deleted.

On his part, Stivala insists the MDA is always opposed to any development on “virgin ODZ land” and that any changes to land classification in the ODZ should be discussed in parliament’s development and planning committee, something presently not required for ‘minor modifications’.

Pizzuto hints that the issue can be resolved by rewording the law so these changes are still considered major modifications. Stivala agrees, adding that “checks and balances”, including parliamentary scrutiny for major changes in zoning, are crucial.

But Pizzuto is also adamantly opposed to the change which reverses the hierarchy of PA policies. The government proposal shifts the order from the primacy of the Strategic Plan for the Environment and Development and the local plans to the newest policy to be approved.

“In a country, you have the Constitution, laws and legal notices. The Constitution is supreme and anything in breach of it is illegal. In the planning system the constitution is the SPED and anything in breach of it should not be allowed. I understand that there is a need to change plans and policies but this is not the way to correct outdated policies,” Pizzuto says.

In contrast, Stivala agrees with the proposed change because of conflicting policies enacted over different years. Stivala insists that the latest policies are in line with the “present priorities of the present legislator”.

Nonetheless, Stivala contends that he would prefer having the local plans changed. He also is ready to accept a condition excluding changes to development zones, while once again shifting the blame from developers to property owners who, according to him, are the ones to benefit from the inclusion of their land in the development zone.

Appeal to change the local plans

Pizzuto warns against piecemeal reforms and says the real question is whether the local plans approved in 2006 are still serving their purpose. He recalls his organisation’s opposition to the local plans in 2006 and his personal unease which contributed to his own decision as a new architect to leave the country for a while.

“My fear is that we are getting lost in a system where planning is done through applications while the environment is safeguarded through objections. I do not like this system. I prefer having planning policies in place which safeguard the environment.”

One point where Pizzuto and Stivala are in total agreement is the proposed new power to be given to PA boards to deviate from policy in a more context-based approach.

Would this specific reform practically eliminate the possibility of successfully appealing a permit on the basis of specific policy breaches, which can now be overruled by the board’s discretionary powers?

Pizzuto insists that this change is not being explained well, insisting that even at present the board has to consider “material considerations” and not just policies, adding that effectively nothing will change with the new law.

He also argues that NGOs can use this to their advantage, arguing that the contextual approach could be used to overrule pencil developments in areas characterised by terraced houses in localities like Santa Lucija, where present local plans foresee five-storey development.

But Pizzuto is concerned by another more insidious change to the appeal system—that which states that the factual determination of the EPRT (a board chosen by the prime minister) will be final and the law courts’ deliberations will be limited to points of law.

“We still cannot understand the intention behind this part of the law as it does not provide any definition of factual determination. Does approving additional storeys in a particular area because of the surrounding context amount to a factual determination or not?” he asks.

Stivala welcomes other changes which preclude the law courts from revoking permits completely, leaving the final decision to the EPRT which is obliged to follow the court’s decisions, now limited to the legal aspect.

“I simply cannot understand the pleasure some feel when a permit is cancelled… What’s wrong with a change in a system which presently obliges applicants to pay more fees to restart the process by having to resubmit an application instead of changing their plans to abide by the court decisions?”

Developers want a seat on the board

Now that a one-month consultation process has been launched after the backlash the proposed bills received, the MDA is taking the opportunity to make further demands including the appointment of its representative on the PA board.

“On the planning board there is presently a representative of the environmentalists. There is nobody representing developers and applicants,” he says.

When I point out that there are enough board members who are mostly silent but vote for more development, Stivala replies that these members represent the government, not developers.

This, it seems, could be another frontier for conflict with those who believe the system is already skewed to favour developers.