ANALYSIS | How Labour revived ODZ sanctioning after Gonzi’s short-lived clampdown

Prime Minister Robert Abela brushed off the sanctioning of Charles Polidano’s 45,000sq.m illegally built Montekristo Estate as “an existing legal remedy”.

Abela further stated that he doesn’t believe the decision sets a dangerous precedent “because that’s the point of sanctioning”.

The prime minister even had the audacity to compare this to the regularisation of minor illegalities in residential buildings, ignoring the fact that what the Planning Authority had just sanctioned was a major commercial development that sprawled over a large swathe of ODZ land.

Abela, a former Planning Authority lawyer who served under both administrations, is well aware that the power to sanction illegal developments in ODZs is no divine right. Indeed, it can be withdrawn by the state as had effectively happened in the last years of the Lawrence Gonzi administration before 2013.

The bulwark against ODZ regularisation: Schedule 6

In fact, the Planning Act approved in 2010 included the ‘Sixth Schedule’, which not only banned any regularisation of illegal buildings in areas like Natura 2000 sites (irrespective of when these were constructed), but also banned the regularisation of any illegal structure located outside development schemes which was constructed after 2008. In short, anything in the ODZ which did not appear in aerial photos taken in 2008 could not be regularised.

Sure enough, this came across as a major policy U-turn after decades where the ‘build now, sanction later’ mentality had become deeply ingrained. It was a mentality encouraged by the Planning Authority which had ‘sanctioned’ major ODZ developments like the Polidano-owned Solemar (later Riviera) Hotel in Marfa, sanctioned in 2001 against a fine of €460,000, and the Poligas plant in Ħal-Farruġ, sanctioned in the same period.

Moreover, the planning reform undertaken under the stewardship of former planning minister Mario de Marco represented an attempt to reach out to environmentalists infuriated by the 2006 extension of development zones. But the decision to stop the sanctioning of ODZ development represented a watershed and was largely welcomed by a sceptical green lobby which had long called for a ban on ODZ sanctioning.

A loophole for pre-2011 applications

Sure, this new commitment was soon qualified by a legal interpretation endorsed by the government of the time.

A MaltaToday probe in July 2011 revealed that the former Nationalist government had backtracked on issuing a legal notice drafted by former PA chief executive Ian Stafrace, specifying that the authority could still consider applications to sanction illegalities in protected areas if presented before January 2011.

A spokesperson for former planning minister Mario de Marco confirmed that the government had dropped the proposed legal notice seen by MaltaToday but insisted that since the law cannot be applied retroactively, the ban on sanctioning did not apply to applications presented before 2011.

One such pending planning application presented in December 2009 was to regularise illegalities in the Montekristo winery and vineyards by the Polidano Group. Another application to sanction the adjacent illegal Montekristo zoo was presented a year later.

Since most of the illegalities took place after 2008, their sanctioning was made impossible by the Planning Act approved in 2010. Still, the new legal interpretation opened a loophole for the development to be regularised. 

Tribunal ruling temporarily shuts the door

But the loophole was effectively closed by a landmark sentence issued by the Environment and Planning Review Tribunal in 2014 on a case involving an illegally built fishery store in a scheduled area in Dwejra.

In its ruling, the tribunal made it clear that Schedule 6 was retroactive, applying to any application even if presented before 2011.  The reasoning made perfect sense considering that other changes in planning policy including local plans are retroactive.

The decision effectively reopened a can of worms, which was abruptly closed by Labour’s counter-reform of 2015. This reform removed Schedule 6 from the statute books, relegating it to the annals of history. Thanks to this change, the Planning Authority could start regularising major ODZ illegalities.

The return of large-scale ODZ sanctioning

These included the 10,565sq.m Arka ta’ Noe in Siġġiewi, which was regularised in 2017, with the owner later applying to sanction a further major extension, which is still awaiting a permit.

It also enabled the PA to sanction the Grotta discotheque in Gozo—partly constructed on protected land—which was regularised in 2024.

But it was the sanctioning of Polidano’s Montekristo 118,647sq.m compound which stands out for its political significance. Once dubbed as the ‘largest illegal development’, Montekristo’s illegalities sprawled under a PN government and were granted full legitimacy under a Labour government in a case of political convenience that suits everyone except honest law-abiding citizens.