A stinking amnesty

It smells


The planning amnesty which Parliamentary Secretary Deborah Schembri launched last week to regularise development illegalities that cannot be addressed through a proper application of planning policies is a throwback to the Stone Age of land use planning in Malta.

While land use planning in Malta has been and  always will be the most controversial of activities of public bodies, it has to be stated that, since 1992, the Planning Authority (warts and all) has developed into the most transparent government authority. It could be much more transparent but no one in his right senses doubts that, to date, it still surpasses all the other government departments and authorities in issues of transparency.

Applications for the issuance of a development permit are publicised through a site notice and on the Planning Authority website, as well as in the Malta Government Gazette. On the Planning Authority website one can also examine the exact proposal, as all the drawings submitted can be viewed online. On the basis of this available  information, it is possible to submit to the Planning Authority observations about – and objections to – the development proposal , which observations and objections have to be addressed when the final report on the particular application is drawn up recommending approval or refusal of the development proposal.

To date there is one exception, commonly referred to as the DNO  (Development Notification Order) application which is a fast-track application process. Generally, this type of application is non-controversial and involves minor or straightforward applications. However, recently the Planning Authority considered that it was advisable to reduce the number of cases to which the DNO process applies, thereby widening the number of proposals for development which are subject to public consultation.

Legal Notice 285 of 2016, published under the authority of Parliamentary Secretary Deborah Schembri, stands in stark contrast to all this and stinks. Entitled Regularisation of Existing Development Regulations 2016, these regulations establish the procedures to be followed in order to regularise existing development illegalities. We have to thank Dr Schembri for small mercies, as she excluded illegal ODZ developments from the regularisation process. However, she did not consider it appropriate to similarly exclude illegal developments in UCAs (Urban Conservation Areas) or illegalities concerning scheduled or protected properties.

Nor is there a distinction between minor illegalities and major illegalities. Had the proposed regularisation process sought to sanction minor illegalities, matters would have been substantially different and most probably the proposal would have been acceptable. This would be so even though most of the minor illegalities would most probably not require an amnesty. Most can easily be dealt with within the parameters of existing policies and regulations. These cases of minor illegalities are, in fact, the perfect camouflage for the major illegalities.

To ensure that this camouflage works as planned, Legal Notice 285 of 2016 makes short shrift of the transparency process by ensuring that it is not applicable to applications for the regularisation of illegal developments. The legal notice, in its regulation 5, emphasises only one exception, which is those cases where an illegal development was subject to an enforcement order. In such cases where an enforcement order would have been issued “following the submission of a formal complaint by third parties” the said third parties will be informed that an application has been submitted for the regularisation of the illegalities and they will be given the opportunity to be considered “interested parties”.

In all other cases, contrary to the provisions of the Development Planning Act of 2016, no one has the right to be considered an interested party. This can be stated with certainty as being a specific objective in view of the fact the regulation 3 of Legal Notice clearly spells out its objectives, which are: “to lay down procedures by which any person may request the regularisation of an existing irregular development.”

The legal notice makes no provision either for access to information about the proposals submitted or on the timeframe for submissions of observations and/or objections by interested third parties other than by the solitary exception referred to previously.

This is the state of affairs which led four environmental NGOs – Flimkien għal Ambjent Aħjar, Din l-Art Ħelwa, Friends of the Earth (Malta) and Ramblers Association – to submit in Court a judicial protest in which they insisted that the government cannot ignore the transparency provisions of the Development Planning Act 2016 when considering whether to regularise illegal development. These applications have to be publicised and the public has a right to scrutinise them as well as submit comments and objections when they consider these to be appropriate.

There is only one simple question to ask: why this stink?

published in The Malta Independent on Sunday – 4 September 2016

Tletin sena lura, ma Deborah Schembri

Deborah Schembri 11


L-iskema li tħabbret il-ġimgħa l-oħra mis-Segretarju Parlamentari Deborah Schembri dwar il-ħruġ ta’ permessi ta’ żvilupp fejn hemm bini illegali jew irregolari hi inkwetanti għax tagħti daqqa ta’ ħarta lit-trasparenza fil-proċess tal-ippjanar fl-użu tal-art.

Sal-lum dettalji dwar l-applikazzjonijiet (tip, użu, lokalità u identità ta’ żviluppatur) ikunu ppubblikati u hemm żmien stabilit sa meta kull persuna li għandha interess tkun tista’ toġġezzjona għall-iżvilupp propost. Wara, sal-lum hemm ukoll il-possibilità ta’ appell.

Dan m’huwiex possibli li jsir f’dawn l-applikazzjonijiet dwar il-bini illegali. Ser jagħtu ċans biss lil min żmien ilu jkun għamel rapport u li a bażi tiegħu tkun ħarġet ordni ta’ infurzar (enforcement order).  Dan imur kontra il-prinċipju bażiku stabilit fil-liġi tal-ippjanar: l-informazzjoni għandha tkun pubblika kollha. Għax jekk l-informazzjoni ma tkunx pubblika l-iskrutinju pubbliku ma jistax isir.

B’daqqa ta’ pinna Deborah Schembri bagħtet l-ippjanar ta’ l-użu tal-art tletin sena lura. Fejn kollox isir bil-moħbi.

Min qal li l-aqwa fl-Ewropa?

In Malta it pays to ignore planning law and policy

planning authority

The planning amnesty announced earlier this week has been in the pipeline for 18 months. In the initial stages of the debate – on 8 February 2015 in an article published in this paper – I had described it as The spoils of environmental crime.

The need to promulgate an amnesty is a political declaration that there has been a failure of good governance. Unfortunately, this is a common occurrence on these islands, where politicians are repeatedly held hostage by various special interest groups. It is has happened with fiscal issues and it is happening with development irregularities.

In 2012,  had through Legal Notice 229 of that year,  the Gonzi-led government introduced a concession related to infringement of sanitary rules in development. On the Planning Authority website, the present amnesty has been labelled as “the new regularisation process”. It is described as a “one-time opportunity to regularise existing unsanctionable non-conformant development located entirely within the development boundaries”. The only practical limitation to the said regularisation is if the said regularisation has an impact on third parties, described as “injury to amenity”. In such instances, the regularisation cannot be proceeded with. However, beyond a general definition of  “amenity” Legal Notice 265 of 2016 entitled Regularisation of Existing Development Regulations 2016 does not  go into any detail on the criteria as to what constitutes “injury to amenity”. This is very worrying as it signifies that third party rights are once more on very shaky grounds, with the Authority deciding each case on its merits.

The proposed regularisation is applicable within the development boundaries. This signifies that no application to regularise development illegalities carried out ODZ can be submitted. However, there are no limitations on the regularisation of illegalities carried out within urban conservation areas and more so on scheduled properties. The Planning Authority is authorised to regularise these irregularities if an application is submitted. It will all depend on the common sense of the individual decision-takers and the inevitable pressures that will be applied to approve most, if not all, of the applications submitted. On the basis of the Planning Authority’s past performance this is very worrying.

This amnesty, like the one before it, sends out one very clear message: it pays not to observe the law and policies. Those who, over the years, have ignored enforcement notices are now being rewarded.

This is ethically reprehensible as, simultaneously, those who have observed planning law and policies are indirectly being punished.  Does anyone seriously believe that after this amnesty there will be an increased observance of planning laws?

In a statement earlier this week, the Chamber of Architects and Civil Engineers  rightly pointed out that “ ………. these regulations will open the door to severe blots in our built landscape, and will serve to promote the laissez faire attitude of certain developers by condoning the provision of a mechanism for illegalities to become legal.”

The regulations promoting this planning amnesty are vague and open to a wide interpretation. This signifies a clear intent at drafting stage to ensure that the enforcement backlog is wiped out. It is, however, still unclear  whether and to what extent third party rights will be protected unless they had reported the illegality to the authority in the first place.

The whole exercise carried out by the authority is clearly drafted with the specific intent of protecting those who have ignored rules and regulations. Instead of observing the law, it is now possible to pay your way around it. This is now official government policy.

At the end of the day, the Maltese government is sending out a clear message: in Malta it pays to ignore planning laws and policies. Wait for the next amnesty when you can cash in the spoils of environmental crime.

published in The Malta Independent on Sunday : 28 August 2016