MEPA to ignore Tribunal’s sentence on illegal buildings

The Malta Environment and Planning is standing by its legal interpretation that the ‘Sixth Schedule’ of the Environment Planning Act – which prevents it from legalising illegal developments in protected areas – cannot be applied retroactively to applications presented before 2011. 

The authority will be disregarding a recent landmark sentence handed down by the its own review tribunal, which decreed that MEPA's limits on green-lighting illegal structures in schedule and outside-development zones (ODZ), was retroactive to the 2011 law when it was introduced.

The consequence was that the tribunal's ruling quashed the interpretation, given by the MEPA board in December 2011, that ‘Schedule 6’ – under which such decisions fall – could only apply to applications submitted after 2011: the MEPA board had insisted that the limits imposed by the 2011 law were only valid for post-2011 applications to regularlise illegal structures.

The ‘Sixth Schedule’ not only bans any regularisation of illegal buildings in scheduled areas like Natura 2000 sites but also of any illegal structure located outside development schemes which was constructed after 2008.

A spokesperson for MEPA told MaltaToday that the authority’s interpretation of the law remains the same as given on the authority’s website, which states that the ‘Sixth Schedule’ of the law applies only to applications submitted after 1 January, 2011.

MaltaToday is informed that the tribunal’s strict interpretation of the ‘Sixth Schedule’ has opened a can of worms at MEPA. 

This is because apart from banning the regularisation of buildings in scheduled zones like Natura 2000 sites, the ‘Sixth Schedule’ also forbids MEPA from regularising any illegal development located Outside Development Zones if this was constructed after May 2008. 

Only livestock farms and development not exceeding the existing footprint of a legal building are exempted from this blanket ban. 

Were MEPA to heed the tribunal’s sentence it would lose the power to regularise any ODZ illegal developments constructed after 2008 even in cases where the application to regularise the development was presented before January 2011.

One such pending planning application presented in December 2009 is to regularise illegalities in the Monte Kristo Winery and Vineyards by the Polidano Group.  

The application is still being “vetted” by the Malta Environment and Planning Authority.

The landmark sentence

Curiously it was MEPA’s own head of legal service, Anthony De Gaetano who argued that ‘Schedule 6’ should be applied retroactively in a case involving illegal development in Dwejra.

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 confirmed 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 illegalities in protected areas if presented before January 2011.

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, which 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 De Gaetano said that although MEPA intended to issue the legal notice in July 2011, it 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 issuing 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.

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.

The present administration now plans to remove 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.