No consultation on MEPA’s new ‘compromise penalties’

MEPA claims the present law does not allow for any flexibility to reflect the circumstances of particular cases

The new legal notice states that the authority can consider written requests from persons served with daily fines to pay a “compromise fine” instead
The new legal notice states that the authority can consider written requests from persons served with daily fines to pay a “compromise fine” instead

No feedback was requested from the public before the issue by the government last week of a controversial legal notice allowing the Malta Environment and Planning Authority to discount fines imposed on planning illegalities. 

The law obliges MEPA to seek public consultation before any changes to planning policy are approved by the government but in this case MEPA claims that the changes were directly proposed by the government.

However, the legal notice issued in 2011, which introduced the strict daily fines being tweaked by the new law, had been issued for public consultation before it was approved a year later. 

Through the new legal notice MEPA will be given the power to accept or refuse requests by owners of illegal buildings to pay a “compromise penalty” instead of the daily fines which under the law can reach up to €50 a day.  

Prior to 2011 the maximum fine envisioned by law amounted to just €2,300. 

The Environment and Planning Act stipulates that planning policy approved and adopted by MEPA is subject to public consultation. 

“However, this is a legal notice which is issued by the minister and is not subject to such provisions,” a MEPA spokesperson told MaltaToday.

Legal notices drafted and approved by MEPA have been issued for public consultation in the past. In this case the legal notice was not issued for public consultation simply because it was directly drafted by the government.

But this defies the usual procedure adopted in changing planning laws.

For example the legal notice imposing daily fines itself was first issued as a draft legal notice by MEPA in January 2011. 

The public was given six weeks to submit its comments and feedback. This practice had continued so far under the present administration.

In October 2013 MEPA had issued a draft legal notice on changes to legislation regulating the change of use from one category of development to another. 

In October 2014 MEPA amendments to a legal notice meant to exempt owners from seeking the consent of 75% of neighbours when seeking a change in zoning or street alignment, was also issued for public consultation.

 

The new law explained 

The new legal notice states that the authority can consider written requests from persons served with daily fines to pay a “compromise fine” instead.

Any such request must specify “the impelling reason” why the penalty established by law is not to be paid, as well as “the manner in which the fine” is to be changed.

The new legal notice also foresees the creation of a new committee composed of three board members, one of whom is the chairman of the authority or a chairperson of one of the two Environment and Planning Commissions.  

 

“Procedure to allow flexibility” – MEPA

According to the spokesperson for the authority the Legal Notice is intended to address situations where the fine imposed would not be “proportional to the illegality committed”. 

MEPA claims that the present law does not allow for any flexibility to reflect the circumstances of particular cases.

Those who feel that fines are unjust can already appeal to MEPA’s Environment and Planning Review Tribunal – which serves as an appeals tribunal.

But according to MEPA this is “an additional financial burden” which “further protracts the time taken for a final solution to be sought”. 

Moreover, according to MEPA, the provisions of this Legal Notice allows for a swifter and more streamlined process.

An additional benefit of these amendments according to MEPA is that in the case of the Environment and Planning Review Tribunal appeals on fines are decided without the tribunal knowing the general thrust of the board’s original decision, whereas “review of fines under the latest provisions will be decided by a sub-committee made up of members of the same board who would thus be aware of the circumstances of the original decision”.

The MEPA spokesperson also pointed out that those who make a request for a “compromise penalty” will be renouncing their right to appeal against the fine imposed on them in front of the Environment and Planning Review Tribunal.

But while the Environment and Planning Review Tribunal cannot reduce fines, but only remove them if these are deemed to be in breach of the law, the new MEPA subcommittee will have wider powers including that of reducing the fine. Moreover no clear guidelines exist to regulate the actions of the new committee.

When asked whether MEPA is guided by any policy document in assessing requests for lower fines, the MEPA spokesperson replied that “the sub-committee will decide on the review of fines requests based on the current penalties in force and other material considerations that are brought forward within this context”.

The MEPA spokesperson confirmed that the proceedings of the subcommittee shall be held in public and the decisions will be made public “in a similar manner as per other authority decisions”.