Government seeks to remove ‘neighbour’s veto’

Fancy having your neighbour apply to change, without your consent, the zoning or alignment of the street in which you live? JAMES DEBONO explains what government is suggesting in a public consultation

Ian Stafrace – a PC application can impact on the rights of others
Ian Stafrace – a PC application can impact on the rights of others

Developers will no longer require the written consent of 75% of neighbouring owners when they apply to change the street alignment or zoning of a particular area, if a government proposal that has been issued for public consultation is approved.

The former CEO of the Malta Environment and Planning Authority, planning lawyer Ian Stafrace, is sceptical, noting that the consent mechanism avoided a “cascading of litigation and disputes” after the approval of planning changes.

But former planning minister Michael Falzon welcomed, when asked, the removal of the right given to neighbours to ‘veto’ planning changes, insisting that “giving people incontestable rights over their neighbours’ property never works”.

Changes to zoning and street alignment are normally done through a Planning Control  (PC) application.

The changes can be requested by the authority itself if these are deemed to be in the interest of proper planning. In such cases the MEPA is not required to seek the consent of residents in the area surrounding the development.

But when the changes are requested by a private person, the consent of 75% of neighbouring residents is needed.

A PC application can change only two conditions: the road alignment and the zoning of a site.

Stafrace argues that the legal notice requiring the consent of 75% of neighbouring residents did not diminish the ultimate authority vested in MEPA to commence the planning control process itself, without the need of any consent, or to carry out a local plan amendment either through its own motion, or at the request of the minister.

He notes that unlike a normal planning application, a PC application can impact on the civil and property rights of other owners, especially in the case of street alignments.

Through the proposed amendments, the mandatory requirement for consent will be removed for applications which change the alignment, “not just of that part of the road onto which the applicant’s property abuts, but even on a larger stretch of road”, where other properties are located.

Bu former PN Minister Michael  Falzon sees this as a case of giving “people incontestable rights over their neighbours’ property”, something which, according to the former minister, “never works.”

He also claims that existing regulations of the consent mechanism practically give the power of veto to owners, resulting in abuse.

“People with the right to object were abusing of this right as many were doing so with ulterior motives, such as bad blood between owners of neighbouring properties rather than genuine ones and, even worse, using this right to extort money by the outright ‘sale’ of their ‘no objection’.”

Stafrace acknowledged that the consent mechanism  represents  “a cumbersome obligation on the applicant” and may result in possible abuse.

“There have been cases where applicants would struggle to obtain consent, not because the proposal does not make sense, or because the proposal has a negative impact on a neighbouring property, but possibly for other reasons.”

But according to Stafrace, in such circumstances nothing stops the applicant, even as the law stands today, from making submissions to MEPA so that it takes over the process and carries forward the proposed changes in the public interest and in the interest of proper planning.

“MEPA should never shy away from this responsibility since the maintenance of the local plans and policies is one of its core functions,” he argues.

Effectively what will happen if the changes are approved is that MEPA will still determine applicant-driven PC applications without the neighbouring consent.

Still, Stafrace believes that when determining these applications MEPA should be bound by the same principles of public interest and proper planning.

“To my mind, the removal of this regulation should not be perceived as removing the public interest and proper planning benchmark through which PC applications, irrespective as to whether same are applicant- or MEPA-driven, are assessed and determined.”

On this point Falzon agrees.

“It is MEPA that should take the responsibility to ensure that requested changes do not realistically impinge negatively on others and on the community.”

According to the government the aim of the reform is to facilitate the processing of planning control applications.

Owners presenting PC applications will still have to notify neighbouring owners of their plans. The changes do not apply to PC applications related to sites added to development zones in the 2006 ‘rationalization’ of boundaries.