Landmark ruling prohibits MEPA from legalising illegal buildings, retroactively

A law prohibiting the Malta Environment and Planning Authority (MEPA) from legalising illegal buildings in protected zones like Natura 2000 sites, can be applied retroactively, an environmental tribunal has decreed.

This is a landmark ruling from the Tribunal for Environment and Planning Review, because it now means that MEPA’s decision-makers cannot legalise any illegal building in protected zones.

MEPA claimed that it could legalise illegal buildings on applications presented after January 2011, when the new law came into effect.

Instead, the tribunal says the ban on MEPA is retroactive, quashing the interpretation given by the MEPA board in December 2011 that ‘Schedule 6’ – under which such decisions fall – only applied applications submitted after 2011. 

The important ruling is set to have widespread consequences on pending applications to legalise illegal buildings located in scheduled areas.

The ruling clearly states that development can be legalised, irrespective of when the application to “sanction” – the terminology employed at MEPA to make what is illegal, legal – was presented.

Schedule 6 of the Environment and Planning Act, approved in 2011, clearly states that no illegalities can be sanctioned on these scheduled sites. But of its own will, MEPA interpreted this law as meaning it could allow applications to sanction presented before 2011.

Moreover the current Labour administration intends to do away with Schedule 6 to allow developers to sanction illegal developments on scheduled sites, irrespective of when these were presented.

Landmark ruling

The tribunal – composed of architects Chris Falzon and Jevon Vella, and lawyer Ramon Rossignaud – upheld a decision taken by the MEPA Board when it was chaired by Austin Walker in 2010, to deny a permit to a fishery store located at Dwejra in Gozo, because the law stated that no illegalities could be legalised on scheduled sites.

The ruling confirms a MaltaToday probe in July 2011, which revealed that the former Nationalist government had backtracked on issuing a legal notice drafted by MEPA chief executive Ian Stafrace, specifying that MEPA could still consider applications to sanction pre-2011 illegalities.

The legal notice was aborted following reports by MaltaToday.

Indeed, in its submissions the fishery store’s lawyer referred to Stafrace’s declaration that the Sixth Schedule, that bans MEPA from sanctioning illegalities on scheduled sites, should not be applied retroactively; and that the issue had to be clarified in Legal Notice 514/10.

But MEPA head of legal services Anthony De Gaetano said that although MEPA intended to issue this legal notice in July 2011, this legal notice was never issued.

De Geatano directly referred to the MaltaToday article published in 2011, in which a spokesperson for former environment minister Mario de Marco confirmed that the government had no intention of enacting the proposed legal notice.

The Tribunal proceeded to uphold De Geatano’s argument, that the present law – which makes no exemptions for pre-2011 applications – remains binding.

The Tribunal declared that had the law not been retroactively applied, it would not even be able to hear the case itself, because the Tribunal itself was created by the 2011 law that replaced the Planning Appeals Board.

While the tribunal’s sentence quashes MEPA’s interpretation, which was declared in a MEPA board meeting in December 2011 that the Sixth Schedule is not applicable for pre-2011 applications, this interpretation is still given on the MEPA website.

Labour reform gives blessing to illegalities

The Labour administration now plans to go one step further by removing the Sixth Schedule entirely.

The document entitled “For an efficient planning system” proposes the deletion of the Sixth Schedule which will be replaced by the imposition of daily fines: ostensibly, this would mean that daily fines would come into place from the day somebody applies to regularise their illegal development, to the date that MEPA issues permission.

A recent MaltaToday probe revealed 24 enforcement orders issued against illegal beach development in protected sites, which cannot be sanctioned according to the existing law.   

This means that MEPA cannot legalise these developments even if an application to sanction has been pending since before the new law came into place. But if the reform proposed by the present government comes in, MEPA will once again open the floodgates for applications to sanction illegalities in protected areas.