Consent of owners required after grant of planning permit

The government is citing a court sentence over the disputed ownership of a shaft to justify a major change in planning laws which will remove the legal obligation to seek the consent of owners before one presents a planning application. 

According to the proposed planning law piloted by Parliamentary secretary for planning Michael Falzon, an applicant will no longer require the consent of the owner of a property to develop it. All that is needed is simply to inform the owner by registered letter. This means that the owner cannot withhold his consent before the application is approved.

The court sentence cited by the government to justify the change states that while the Malta Environment and Planning Authority should “not even consider” applications where the applicant fails to obtain the consent of the owner it should refuse applications when the declaration of ownership made by the applicant is challenged by third parties.  

The procedure could also create a loophole for owners who are in the public eye to evade scrutiny by letting third parties apply for them. Through this legal change these owners will only be asked to give their consent after a permit is granted.

The government also insists that the removal of the need to obtain the consent of the owner when an application is presented does not remove the need to obtain the consent of the owner after the permit is issued.

“The amended planning law does not give a legal title to the applicant if the permit is approved as this is always issued with the condition that he has to obtain the consent of the owner before commencing works,” a government spokesman said.

But MEPA insiders confirmed that the removal of the need to obtain consent could end up increasing bureaucracy, with the authority wasting its time on vexatious applications which lack the consent of owners. 

Following MaltaToday’s revelation on Wednesday that the new planning law removes the obligation of applicants to seek the owner’s consent before seeking a planning permit, a government spokesperson justified this decision, by referring to the court sentence.

In this sentence the court decreed that in cases where ownership is contested the authority’s power is limited to determine the planning aspect and cannot determine ownership issues.

“Otherwise whoever wants to hinder the authority from considering development proposals according to planning laws will be able to do so by claiming a right over the site,” the court ruled in a case concluded in June.

The sentence cited by the government does not in any way challenge the law requiring the consent of owners but states that in cases where ownership is contested, the MEPA should leave this matter to the civil courts. 

In fact the sentence states that in cases where the applicant fails to obtain the consent of the owner and the ownership is not contested by anyone, “the authority should simply not even consider the application”.

Moreover the case cited by the government was not one where the applicant failed to obtain the consent of the undisputed owner of the site, but one in which a dispute arose on the ownership of a shaft required for the passage of a chimney on a restaurant. While the developer was claiming that he was a co-owner, with other owners in the same block, of a shaft required by the applicant to construct a chimney, the other parties were disputing this claim, insisting that they were the sole owners.

The court, while recognising that MEPA should not consider applications where the consent of the owner is not granted, MEPA cannot stop applications where the ownership is disputed.

MaltaToday has also sought the advice of different experts in planning law who concurred that the sentence cited by the government did not preclude MEPA from requesting the consent of owners before applying.

“The decisions of the courts (on appeals on decisions of the Environment and Planning Review Tribunal) stated that MEPA cannot determine who the owner is or determine disputed ownership issues. However this does not mean that the law as it currently stands is wrong since the law puts an onus on the applicant to assume the responsibility for the declaration that he is making.”

 The legal experts consulted by MaltaToday pointed out that before 2010, the obligation of the applicant was to inform the owner and give MEPA proof that the owner has been informed. This led to awkward cases like that of a golf course application in Rabat, which included land owned privately.

 After 2010, the obligation on the applicant was to inform the owner and give MEPA proof that the owner has been notified, and the applicant has to also declare that even though he is not the owner, he has the consent of the owner to submit the application. In fact, in the permit conditions, a standard condition states that if the courts find that such a declaration (either that applicant is the owner when he is not or else that the applicant had the consent of the owner when he did not), then the courts may annul such a permit.

 What is being proposed now is to revert the situation to what it was before 2010. 

The Malta Developers Association, in submissions to the government about the law, has objected to this major change, insisting that the obligation to seek the consent of owners must not be removed.
Architect Simone Vella Lenicker also described the change as an undesirable proposal.

“The current system whereby the applicant must declare that he has obtained the owner’s consent to submit an application for development permission has cut out a significant amount of abuse. This should be retained,” she said.