Planning amnesty: New value for illegal properties?

Illegal properties which lack a planning permit cannot be sold, modified or redeveloped. This not only can render such buildings uninhabitable but also diminishes their commercial value. A planning amnesty through which owners can pay a fine to become legal, will allow owners to put these properties back on the market. 

The Malta Environment and Planning Authority is currently considering a procedure through which owners of illegal developments carried out before January 2013 within development zones and before 1994 in outside development zones (ODZ) can get a full permit after paying a hefty fine.

MaltaToday is informed that a range of fines will apply to different categories of illegal developments, each of which will be subject to a different fine. In this way larger and more commercially valuable developments will pay a heftier fine than minor agricultural developments, to become legal.

Details of the new procedure, which still has not been presented to the cabinet, were revealed in the Sunday Times. 

Interviewed by MaltaToday in December, planning parliamentary secretary Michael Falzon had already hinted that the government was considering a system allowing the regularisation of some but not all illegalities.

Through the new system approval of these applications to regularise past illegalities will not be automatic and may still be denied. It is not clear whether a new MEPA board will be set up to grant these permits.  

Speaking to MaltaToday a MEPA spokesperson replied that the way these permits are issued will be addressed “in a new legal notice” which is yet to be published.

But if the application is approved, the owner will benefit from the long-term advantages of having a full permit which would give him or her the possibility of applying for modifications and alterations and the possibility of putting the legalised property on the market.

Due to the appreciation in the commercial value of some of these properties resulting from regularisation, owners may be willing to pay hefty fines to have their properties legalised.

Existing legislation only allows owners to request MEPA to refrain from executing already issued enforcement notices against a number of minor illegalities, which are already defined in the law.  

Presently, to get a permit owners have to apply through existing procedures, which require them to remove the illegality before the development can be regularised. 

In fact an “amnesty” granted by the previous government through a legal notice issued on the eve of the 2013 general election is already in place for a number of minor illegalities, such as irregularly built internal yards. But technically this amnesty did not grant owners a permit which would enable them to sell such properties.

A spokesperson for MEPA explained that the major difference between the amnesty issued in 2013 and what is being proposed now, is that while through the existing legal notice “a concession for the sanctioning of minor illegalities may be granted, in the new proposal we are recommending that a permit is granted”. 

The proposed amnesty will also open a window of opportunity for developments made in outside development zones before 1994.

Amnesty not applicable to squatters

Asked whether the Armier squatters will benefit from the proposed “amnesty” a spokesperson for MEPA insisted that the proposal makes it clear that “the owner of the land has to give his consent for the illegality to be regularised”. 

This will also apply for all government property.

This means that squatters on government land will not be able to regularise their position with MEPA if they are not given the go-ahead by the government. But it will enable them to seek a full permit if the government gives its go-ahead.

Illegalities in Natura 2000 sites

The MEPA spokesperson confirmed that all owners of all ODZ developments carried out before 1994 will benefit from the proposed amnesty even if this does not mean that all applications will be accepted.

Existing legislation, namely Article 70 of the law, excludes the sanctioning of any illegalities on scheduled areas like Natura 2000 sites irrespective of when these were made. 

The only exception to the rule applies to cases where an application to regularise the development was presented before 2010, when the law came into place. 

Asked by MaltaToday whether the new system will overturn this prohibition, a MEPA spokesperson simply reiterated that “the proposal earmarks illegal development that was carried out pre-1994 and that “it is premature to state whether or not the law will be amended”.

Schedule 6 already prevents MEPA from regularising any ODZ development, which exceeds the approved footprint if this were carried out after May 2008. This will not change with the new system, which cannot be used to legalise any illegalities carried out after 1994. 

The major change will be that MEPA will be able to regularise illegalities carried out between 1967, when the first planning regime came in being, and 1994 when MEPA was fully set up.  

Controversial developments carried out partly or entirely without a permit before 1994 include additions to the Grotta discothèque in Gozo and the various accretions added to Popeye village in Anchor Bay over the years. They also include a large number of agricultural and rural structures.  

A number of ODZ villas and dwellings constructed before 1994 – which currently cannot be sold or redeveloped – may also be eligible for regularisation through the new scheme. 

The electoral mandate

In its electoral manifesto the Labour Party promised that it “will continue to implement and facilitate schemes for regularisation for those who have minor pending issues with planning and sanitary compliance”. On 30 January Joseph Muscat declared that the regularisation of cases involving minor planning issues will be treated responsibly and efficiently as soon as possible. 

“Many genuine owners have been waiting years for the regularisation of such minor matters and these cases will be treated in the immediate future,” he said.  But while it is clear that the government has a mandate for addressing minor irregularities, no reference was made in Labour’s manifesto to regularising ODZ illegalities.

A commitment to regularise past illegal developments was also made in the PN’s electoral programme that specifies that this will not apply to cases involving an “environmental outrage”.  The PN also proceeded to implement this pledge before the election.

Just a month before the general elections, the government used the power of incumbency by issuing a legal notice aimed at regularising minor irregularities like encroachments on public pavements in residential areas that took place before January 2013.

The 2013 amnesty

In 2013 MEPA claimed that the legal notice addressed the social realities of a number of families who ended up with a property that could not be modified, sold or in some cases could not even be supplied with water and electricity meters due to departures from permits. The concession applied to any irregularity, which took place before January 2013.

The developments, which can already be regularised through the legal notice, include pilasters, ramps and steps, which do not protrude more than 30 centimetres beyond the official alignment onto the pavement as long as the pavement width of 1.2 metres is retained.

The amnesty also applies to increases in height of less than 1.25 meters from the approved permit but the increase in height should never apply to additional floors.

A concession was also being given to a number of minor encroachments, which exist within the footprint of a built property. This includes cases where the façade of a building encroaches within the first one-third of a front garden,

The amnesty also applies to cases where an owner changed the use of a unit into a residential development or where a permitted residential unit was subdivided into two or more units. But persons who have changed a washroom into a penthouse cannot benefit from this amnesty.

The legal notice also provides for those cases where internal alterations or modifications have been carried out to garage levels, so long as no entry or exit points are eliminated and the garage has more than one level of parking.

To benefit from these concessions, owners of dwellings have to submit a request, certifying that the structure, to which the request relates, had existed prior to 29 January 2013. 

The architect will also need to submit a site plan, photographic evidence and a plan showing the difference in size from what had been approved by the authority. Applicants and their architects are then informed by the MEPA Enforcement Directorate whether their request has been accepted or not. 

The status quo

The present law states that notwithstanding the other provisions of this Act, any person who is served with an enforcement notice in respect of development referred to in Schedule 8 “shall have the right to claim that such notice shall not be executed”. 

But the same law makes it clear that this does not mean that such developments will be granted a permit, which can only be issued according to the other provisions of the law which require the removal of any illegality before the permit is issued. 

This means that presently although the law may be invoked to stop the execution of enforcements against illegalities, it does not enable planning abusers to put these properties on the market in a way that they profit from past illegalities.

The provision which can be used to stop MEPA from executing enforcement notices only applies to development carried out prior to January 1, 1993 within development zones and to the illegalities specified in the legal notice issued in 2013.

According to the present law the minister responsible for planning may, after consultation with the Authority, “make regulations to give better effect to the provisions of this article”.  

This power was used to grant the 2013 amnesty.

For MEPA the major difference between the 2010 law and the present proposal is that while Schedule 8 only affects ODZ infringements carried out post-2010, the new proposal earmarks illegal development that was carried out before 1994 when the Planning Authority was fully established.

It is not clear whether a revision of the Environment and Planning Act, which would need parliamentary approval, is needed before the new amnesty comes in place or whether a sheer legal notice will suffice.

“It is premature to state whether or not the law will be amended,” a MEPA spokesperson told MaltaToday. 

Contacted by MaltaToday, former MEPA CEO Ian Stafrace thinks that there is a major difference between what is presently envisioned in Article 91 and what is being presently proposed. This is because the applicant will be finally issued with a permit following a process. 

“As such, it would seem that this would go beyond the scope of Article 91… My understanding is that any such scheme will be based on legislation that is yet to be enacted”.  But Stafrace added that it would be more appropriate to wait until such measures are officially published to be in a better position to analyse.

Reform should address legal limbo 

Contacted by MaltaToday, architect Robert Muscumeci, who currently advises the government on policy matters, expressed himself against “any blanket amnesty”.

Insisting that he is expressing his “personal views”, Musumeci pointed out that what should be addressed is the “legal uncertainty” faced by owners of properties already made immune from enforcement action by virtue of current law “and yet remaining illegal.” 

Musumeci referred to the current law through which applicants can already avoid direct action by virtue of Article 91. Musumeci expressed concern that regularisation is even possible in cases where illegal property generates injury to the general amenity. “This should be discouraged,” Musumeci told MaltaToday.

He is also calling on MEPA to ensure that regularisation procedures are supported by remedial measures, such as aesthetic ameliorations, which should be carried out within a stipulated time frame.

Musumeci also insists that the daily fine regime should be extended to cover pre-2012 illegalities and should not be limited to those which took place after 2012, as is presently the case. Removal should also be considered with regard to illegalities which cannot be regularised by law.

“Regularisation must always be subject to owner’s prior consent – not least, leased public land,” Musumeci added.

Changing the goalposts?

A consultation document entitled ‘For An Efficient Planning System’ released in April 2014 by the Malta Environment and Planning Authority, proposes that “the minister (responsible for planning) can make regulations to regularise development”, a power already foreseen in a more limited way in Article 91 of the present law.

Moreover the document issued in 2014 proposed removing the blanket ban on the regularisation of development outside development zones (ODZ) and in scheduled areas, such as areas of ecological and scientific importance.

Article 70 of the Environment and Development Planning Act enacted by the previous government in December 2010, prohibited the MEPA from regularising any illegal developments built in ODZ, or scheduled areas.

According to the consultation document, the deletion of the sixth schedule will be replaced by the imposition of daily fines: ostensibly, this would mean that daily fines start falling due from the day somebody applies to regularise their illegal development, to the date that MEPA issues permission.

In an interview with MaltaToday published in December parliamentary secretary Michael Falzon claimed that the prohibition of sanctioning in ODZ areas has not led to any improvement.

“What is the use of prohibiting MEPA from sanctioning illegalities when these illegalities simply remain in place… this is like crying wolf, saying that we can’t ever regularise these buildings while effectively leaving everything as it is, with society gaining nothing in return?” he asks.

The parliamentary secretary also hinted that the choice is ultimately one “between demolishing all illegal buildings without society gaining anything in return, or imposing exorbitant fines which would serve as an effective deterrent for the future while allowing the possibility of sanctioning in some cases”.

Opposition in the dark

Asked by MaltaToday yesterday to comment on the proposed amnesty opposition, spokesperson Ryan Callus insisted that he would prefer to comment when he is “in full cognisance of what the government intends to do.”

He lamented that the opposition has been left in total darkness on this issue. 

“To add insult to injury the matter has not been brought up at MEPA board level and neither at the Planning and Environment Parliamentary Committee.”