Ombudsman finds PA circular on CTB properties to be ‘against principles of natural justice’

The Commissioner for Environment and Planning within the Office of the Ombudsman has found that the Planning Authority’s decision to require holders of CTB concessions to sanction or regularise their property was “unfair, irregular and against the principles of natural justice”.

“The Council of the Kamra tal-Periti does not condone illegal development in any way, however once certain rights were granted to property owners in the past these cannot be taken away at a later date, more so when the legal ramifications are wide ranging and potentially serious,” the Chamber of Architects and Civil Engineers said in a statement on Friday.

The Eight Schedule on Category B concessions, commonly known as CTB concessions, came into force in August 2012 and had been taken up by thousands of property owners.

Residential property owners were able to submit an application to the then Malta Environment and Planning Authority to cover illegal development that fell within specific strict parameters. If approved, the applicant would then be allowed to request permission for alterations and additions to the property, and a Compliance Certificate for the provision of new water and electrical services to the dwelling could be issued.

Before then the statutory minimum dimensions of backyards, internal yards and clear internal heights were binding, and no allowances or discrepancies were permitted, unless approved by the General Services Board in very particular cases.

The Chamber said that the Planning Authority’s Circular 4/12 points out that CTBs do not have an expiry date, adding that the CTB regulations had the effect of restoring the affected properties’ market value to levels comparable to legal properties of a similar description.

“As a result, these properties became sellable again, and banks were reassured that the effects of the concession were permanent,” the Chamber said.

It said that with the coming into force of the Development Planning Act in 2016, the CTB regulations were repealed and no further applications could be submitted.

Then, in August 2016, new regulations were published that allowed for the regularisation of various types of illegalities, with no specific parameters, as long as these were not deemed to be an “injury to amenity”.

The Chamber said it had raised a number of concerns with the new regulations when it found that the PA was requiring holders of CTB concessions to regularise their property, “at a much heftier fee than what they had originally paid for the concession”.

It pointed to a January 2019 circular published by the PA in which it concluded that when an application for development permission is submitted on a site covered by a CTB concession, the irregularity need to either be sanctioned or removed, prior to any processing of the application. The circular added that if the illegal development could not be sanctioned, a regularisation application would need to have been submitted and approved prior to the planning application being confirmed as complete.

The Chamber said it had requested the Ombudsman’s office to investigate the matter last month, outlining its opinion that holders of CTB concessions for minor irregularities were facing serious risks on their investment unless the Planning Authority changed its interpretation of the law.

It also pointed out that have taken such properties as security against mortgages are also at risk in case of default, “as the value of such properties may be much lower than expected as a result”.

The Kamra tal-Periti requested the Ombudsman’s office to investigate this matter in March 2019, outlining its opinion that holders of CTB concessions for minor irregularities were facing serious risks on their investment unless the Planning Authority changed its interpretation of the law. Banks that have taken such properties as security against mortgages are also at risk in case of default, as the value of such properties may be much lower than expected as a result.

In a decision delivered earlier this week, the Ombudsman’s office said that the Planning Authority’s circular was “unfair, irregular and against the principles of natural justice”.

It ordered the authority to “withdraw and cancel this part of the Circular to the effect that a new application can be submitted on a site covered by a CTB concession without the need for sanctioning, regularising or removing the illegal works covered by the same CTB concession, as long as no further illegal development has taken place on site”.