Planning Amnesty: Failed applicants to get refund but risk enforcement

PA evasive on why cut off date for regularising illegalities was changed from January 2013, when scheme was first announced in 2015, to March 2016 in present law

A planning enforcement results in rare direct action from the PA. Here a bulldozer gets ready to remove an illegally constructed villa in Zebbiegh. Photo: Gilbert Calleja
A planning enforcement results in rare direct action from the PA. Here a bulldozer gets ready to remove an illegally constructed villa in Zebbiegh. Photo: Gilbert Calleja

The Planning Authority is legally obliged to refund 90% of the fees incurred by applicants whose applications to regularize illegalities are rejected, but curiously it is under no legal obligation to ask these owners, through an enforcement notice, to remove these illegalities.

The planning amnesty, which enables the Planning Authority to regularise illegal developments against the payment of a ‘fee’, was presented on Monday. But the PA may still refuse applications to regularise illegalities.

Sources in the authority have expressed concern that the PA will be put in an embarrassing situation – that of being informed about new illegalities without having any legal obligation to ask for their removal through an enforcement order.

But when asked about this anomaly a PA spokesperson replied that in such cases the authority “reserves the right to issue an enforcement order”, which suggests that the PA will use its discretionary power on whether to proceed with an enforcement notice against developments which cannot be regularised.

Fees for regularising illegalities vary according to the size and type of the building. The cost for regularising a 150 square metre illegality ranges from €1,500 for a flat, to €3,600 for a commercial establishment and €6,500 for a penthouse.  

The fee has to be paid before a case officer report recommending the approval or refusal of the application to regularise is presented. But when an application is refused 90% of planning fees are refunded, which means that the owner of an illegal and unregularised 150 square metre penthouse would end up paying €650 while the owner of a similarly sized flat will have to pay €150. 

Why March 2016?

Any extension or addition beyond this footprint visible on aerial photos taken in March 2016 cannot be regularized through the amnesty. This means that illegalities committed as recently as five months ago can still be regularised under the new planning amnesty.

When the scheme was first announced in February 2015 PA executive chairman Johann Buttigieg confirmed that the Planning Authority was considering an amnesty for illegalities committed before 2013 in development zones.

Asked why the cut off date was changed to include the regularisation of illegalities committed between 2013 and 2016 the PA spokesperson replied the date was changed “because the 2016 photos were not available,” when the first announcement was made.

But when asked why the PA had not used earlier sets of aerial photos like those taken in 2012 or 2008, the PA spokesperson replied that the PA opted for 2016 to ensure that the photos “coincide with the introduction of the legal notice itself.”

The planning amnesty announced by parliamentary secretary Deborah Schembri is not limited to dwellings with minor irregularities but applies to a wide range of illegal developments, including boathouses, retail shops, livestock buildings in urban areas, sports facilities, garages, car parks and even film sets.

Moreover while illegalities outside development zones are excluded, illegalities in urban conservation areas or in scheduled historical buildings can still be considered. 

The Kamra tal-Periti has also criticised the legal notice for failing to distinguish between minor illegalities and major ones.

“The legal notice contains many vague statements which give the impression that anything can be regularised,” the Kamra tal-Periti said in a statement.

The amnesty is not automatic because applications for regularisation will still be assessed by a board chaired by Martin Camilleri (a former PA case officer and team manager) whose members include architects Aaron Abela and Anton Camilleri.

Illegal developments cannot be regularised if in the opinion of the Authority, the development constitutes an injury to the amenity. The legal notice specifies that the use of these buildings as dwellings, offices or retail outlets is not deemed to constitute an injury to amenity. But the PA cannot regularise other uses (such as restaurants) if such use is not permitted in the area by current planning policies.

While the fee imposed on regularising an illegal apartment with a roofed area of 150m2 amounts to €1,500, regularising an illegal penthouse of the same size would cost €6,500. Regularising a fully detached villa with a roofed area of 250m2 would cost €5,600.

Regularising a 25m2 boathouse – used by a registered fisherman – will cost €200.

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