Planning reform gives Planning Authority power to change building height limits

The Planning Authority’s council will have the power to ignore local plans and set new building heights in one of the more significant changes being proposed by government.

The proposed reform also allows the presentation of applications changing the “land use classification”, even in outside development zone (ODZ) areas.

These two particular changes will come about as a result of the widened definition of ‘minor modifications’ which can be considered in planning control applications. These applications are presently largely limited to changes in building and road alignment and zoning classification within the development zone.

Moreover, under the current law, ‘minor modifications’ for planning control applications explicitly exclude changes in height limitation. The proposed reform revises this definition to include “changes to height limitations”. This means the PA Executive Council can now address modifications related to building heights through the less rigorous framework of planning control applications.

This means that a private developer can now present a zoning application which proposes building heights that may be higher than what is enshrined in the local plan.

But the proposed reform also allows the PA itself to take the initiative and change the building heights. The Executive Council will be granted the power to initiate Planning Control Applications on its own steam.

Previously, the authority (which includes the Executive Council) was not considered as “any person” who could submit a planning control application. The reform proposes to amend this by explicitly stating that the Executive Council may, of its own motion, initiate and carry out such planning control applications. This grants the Executive Council a proactive role.

Land use classification in the ODZ

Apart from building heights, the proposed reform also foresees that changes to land use classification can be approved through planning control applications even in ODZ areas.

Presently, Article 54(2)(b)(ii) of the planning law explicitly excludes “changes in zoning of a site which lies in an Outside Development Zone or which is within the Development Zone but not designated for the purpose of development” from being considered under the regime of “minor modifications”.

(Photo: James Bianchi/MaltaToday)

This means that as things stand today, planning control applications cannot be used for zoning changes in ODZ areas.

But the new Article 54(2) redefines “minor modifications” to include “the introduction or alteration of zoning designations within the local plan, including changes to height limitations and land use classifications”.

When asked about this change PA Chief Executive Johann Buttigieg replied that the proposed revision is meant for applications for new areas of containment in the ODZ, where industrial and commercial development can be allowed. But the bill tabled in parliament does not limit changes in zoning in the ODZ only to areas of containment. 

Power to issue ‘interpretive’ circulars

Moreover, the proposed reform also grants the Executive Committee the power to issue “interpretative circulars”. The bill introduces a new article at law (51A), which empowers the council to issue circulars from time to time to provide guidance, instructions, or clarification on the interpretation or application of any provision in applicable laws or policies.

This power allows the Executive Council to directly influence how policies are interpreted and applied in practice. This adds up to the discretionary power given to boards to deviate from established policies by taking a contextual approach.

What is the Executive Council?

The Planning Authority’s Executive Council is chaired by the executive chairperson, presently Johann Buttigieg, who is appointed by the government for three years. It also includes two permanent members who serve as the chairperson and deputy chairperson of the Planning Board; two additional permanent ‘independent’ members appointed directly by the minister for a three-year period, and two members appointed by the Environment and Resources Authority (ERA).

In meetings of the Executive Council, the executive chairperson, or in their absence, the acting executive chairperson, has an original vote and a casting vote in case of a tie. The committee presently has the power to determine zoning applications and to determine applications to de-schedule properties. Its powers have now been widened to initiate zoning applications.

New discretionary powers when renewing permits

While the current law states that new plans and policies would be taken into account for permit renewals unless the site was already committed by the original permit, the proposed changes introduce significant discretionary power.

The Planning Board may, “in its discretion and on the basis of justified spatial, architectural, or contextual considerations, decide to renew the previously approved permission notwithstanding such changes” in applicable plans or policies. This gives the board flexibility when considering renewal applications despite any policy changes that would have happened in the meantime. It also means that a development which contradicts policies which came into force after the original permit was issued can still be renewed.