MEPA board gives interpretation to planning law

In December, the Malta Environment and Planning Authority board has ruled that illegalities in scheduled zones - including Natura 2000 sites - and scheduled monuments can still be sanctioned, if the applications were presented before January 2011.

The Environment and Development Planning Act, which came in force in 2011, rules out the sanctioning of illegalities in scheduled zones mentioned in Section 6 of the Environment and Planning Act.

Before the law was approved, MEPA could approve any illegal development, irrespective of whether it was located in a scheduled site or not.

This means that MEPA will not accept any applications to sanction illegalities in scheduled sites presented after 1 January 2011, it will still process applications presented before that date.

In a meeting held in December, the MEPA board gave its "interpretation" of the law after being faced with an application to sanction illegalities in a scheduled zone presented before 2011, a MEPA spokesperson confirmed.

According to the spokesperson the MEPA Board confirmed the "interpretation" that Schedule 6 which regulates the issue of sanctioning in ODZ, scheduling properties and scheduled areas could not be applied retroactively but only applies for applications submitted after 2011.

While MEPA can still refuse these applications if these are deemed to conflict with other policies and laws, MEPA will not automatically exclude them.

But the law as it stands does not make any reference to the January 2011 cut-off date and simply states that MEPA cannot sanction illegalities in scheduled zones. 

Draft legal notice withdrawn

In July, MaltaToday had revealed that the government intended to clarify this legal quandary by issuing a legal notice drafted by MEPA chief executive Ian Stafrace which included a provision enabling MEPA to consider applications to sanction illegalities in scheduled areas if these were presented before January 2011.

But following the publication of a story in MaltaToday, the draft legal notice was withdrawn by the government.

But parliamentary secretary Mario de Marco insisted that the law as it stands still enables MEPA to consider applications for the sanctioning of illegalities in scheduled areas if presented before January 2011.

 "It is a generally recognized principle of law that a law cannot have retroactive effect," Demarco told MaltaToday.

But MEPA auditor Joe Falzon disagreed with this interpretation.

"Article 70 is very clear. It excludes the sanctioning of buildings listed in Schedule 6 without giving any time limit... It is clear that the legislator intended the law to apply retroactively". 

The 'Frequently Asked Questions' section of the MEPA website published in March 2011 had already excluded pre 2011 applications from the law.

In fact, pre 2011, applications were already being excluded from the outright ban on sanctioning illegalities in scheduled sites envisioned by the new law.

One particular case involved an application by the Cottonera Waterfront Group to sanction illegalities in Saint Angelo Fort.

The case officer report recommending the approval of the permit referred to the law banning the sanctioning of illegalities in scheduled buildings, adding that "this provision does not apply for applications submitted prior to 1 January 2011".

Moreover, according to the MEPA spokesperson, the Board felt the need to confirm this interpretation after the matter arose in an application submitted to sanction illegalities concerning a scheduled building, which application was submitted before January 2011.

Impact of interpretation

MaltaToday is informed that this interpretation will have a major impact on hundreds of applications presented to sanction illegalities in scheduled areas before 2011. The interpretation could also impact on a number of appeals like that against the MEPA board's refusal to sanction boathouses in Dwejra. 

But MEPA can still refuse these applications if these are in conflict with other policies, though it would have had a stronger case if the law was applied retroactively.

Planning experts consulted by this newspaper dispute the interpretation given by government that the planning law cannot be applied retroactively mentioning the fact that if a local plan is changes after an application is presented in its decision MEPA still has to abide to the latest local plan.

Another example showing that the present law is retroactive is that applicants have who applied before 2011 do not have the right to apply for reconsideration, a procedure that existed under the old planning regime.

READ MORE @ 'No intention to legalise illegal buildings' - Mario De Marco