ODZ regularisation: How the government ignored its own environmental regulator

The environment watchdog was completely ignored by the government when issuing a scheme to regularise illegalities in partly ODZ properties last April, MaltaToday can reveal.

The Environment and Resources Authority had not only expressed its “concerns” on the impact of the regularisation scheme but also proposed limitations to mitigate the impact.

ERA had called for clear definitions of illegalities that can be regularised.

But none of ERA’s suggestions were taken on board in the legal notice approved by government in April.

The information comes from a freedom of information request made by MaltaToday in which the newspaper requested ERA’s feedback during the consultation process. At the time, the authority had simply confirmed with MaltaToday that its 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)”.

Subsequently MaltaToday filed a freedom of information request asking the Planning Authority to publish all the submissions it received during the public consultation.  The request was denied on the premise that the PA was merely administering the public consultation process on behalf of the minister who had already published a summary of the feedback without the need to “identify each private individual and each entity who had raised the issue”.

Subsequently MaltaToday filed another freedom of information request with the Environment and Resources Authority. This time the request was fully accepted.

Fear of urban sprawl

In its submission ERA noted that rural areas are already “being adversely impacted by the piecemeal expansion and scattering of development”. Urban sprawl beyond the development boundaries is also having a negative environmental impact, the authority noted, resulting in “urban sprawl onto the countryside and visual intrusion of high-density development into the rural landscape.”

ERA warned that these negative impacts “could be exacerbated as a result of the proposed amendments which seek to regularise irregularities in certain ODZ locations”.

The controversial regularisation scheme which is being contested in the law courts by NGOs allows the Planning Authority to regularise illegalities located in legal properties which are partly located within the development zone, but which have illegalities protruding into the surrounding ODZ.

The eligibility criteria by which a site could qualify for regularisation in such ODZ sites are not specified in the approved amendments.  In this way illegalities like swimming pools  surrounded by paved areas, gazebos and even built structures protruding in the ODZ may be sanctioned. Presently the PA can only sanction developments conforming to policy.

The draft proposal for the regularisation scheme was issued for public consultation in November 2022, during which ERA submitted a detailed submission which included suggestions on how to minimise the environmental damage of the scheme.

But the  legal notice as approved by Planning Minister Stefan Zrinzo Azzopardi included 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.

Scale and types of sanctionable illegalities should be defined

In its submission ERA had clearly called for a clear definition of the type of illegalities which can be regularised by the scheme. ERA expressed concern that as proposed the scheme can result in the regularisation of “urban development on a site which is mostly ODZ and only partly within the Development Zone”, something which according to ERA “would be of environmental concern”.

ERA also presented several recommendations to ensure that “regularisations are kept to the barest minimum.” For this aim it proposed that “the scale and types of eligible irregularities are clearly specified and  limited to minor interventions”; and “no development should be regularised if it constitutes or resulted in an adverse impact on the environment.”

ERA also  gave a clear definition of what constitutes an adverse impact on the environment; including visual intrusion into the rural landscape, damage to environmentally sensitive areas such as ridge-edges; valley beds and valley sides, development resulting in geo-technical instability and development whose specific characteristics, site context or case history would result in the creation of problematic precedents for other environmentally-inconsiderate development.

The legal notice itself makes no reference to adverse environmental impacts resulting from regularisation but states that any development approved should not constitute an “injury to amenity.”

While acknowledging that the Planning Authority’s intention not to regularise illegalities constitute an injury to amenity, ERA warned that “without due environmental safeguards and criteria, the proposed amendments may be construed as unintentionally promoting development in ODZ, increasing the risk that irregularities on ODZ land “ will be regularised irrespective of their environmental impacts”.

ERA also noted that the regularisation process does not involve consultation with ERA, since environmental impacts are expected to be relatively “low or absent”. But when noting that as worded the legal notice does not exclude the regularisation of properties which are mostly ODZ, ERA argued that in such cases ERA’s feedback should be “factored in”.

ERA also expressed its reservations on using money derived from fines imposed on regularised ODZ properties for urban improvement project s,arguing that “adequate environmental safeguards” should be in place, “to avoid giving the impression that the funding of urban improvement schemes will be taking place at the expense of the countryside, the rural landscape and the natural environment”.

ERA also gave concrete examples of the kind of development located in the curtilage of properties which are partly within the development zone but which extend in the ODZ which raise environmental concerns. These include properties which include  “ODZ land which is currently occupied by one storey buildings, stores or sheds, lateral extension of the back elevations of development onto the ODZ” adding that it has regularly “objected to encroachments of urban development onto ODZ land, as part of the consultation on the development applications”.

ERA also expressed its concern that the scheme will exacerbate environmental impacts in rural hamlets known in planning jargon as Category 1 Settlements to which the scheme also applies noting that present policies have already contributed to an encroachment on rural land.

ERA noted that these hamlets were designated through well-defined boundaries in the Local Plans, with the aim of containing urban development therein. But the same authority expressed concern that the  Development Control Design Policy drafted in 2015 has already resulted in higher-density development in these areas.

“In some instances, edge-of-settlement permits resulted in developments encroaching onto rural land beyond the settlements’ boundaries, resulting in potential impacts on the landscape at the urban-rural interface”.

Government’s generic reply to 292 submissions

In its generic reply to all 292 submissions made during the public consultation issued in May, the government insisted that the planning system should seek to address problems faced by citizens, “including financial and social burdens on households created through a chain of occurrences”.

Moreover, according to the government “enforcement is not necessarily the only or best route to address these issues”.

The government also pointed out that only properties covered by a planning permit would be eligible for regularisation and that the original permit “must include land within the development zone”. Hence according to the government, “the percentage of the site which lies in ODZ is not relevant for eligibility purposes” and the application of the scheme “ is very limited within clear parameters for eligibility”.