Balzan houses: Haunted by the Sixth Schedule?

The Malta Environment and Planning Authority (MEPA) may have found a way around the blanket ban on permits regularising illegalities on scheduled sites such as historical buildings or Natura 2000 sites introduced in 2010. 

This is because, according to a MEPA spokesperson, the authority can still approve permits on sites where it had previously issued an enforcement order against illegalities, if the application is meant to rectify these illegalities and the developer abides by the conditions imposed in the permit by the time that the permit is formally “issued”.

A formal permit is normally issued some months after a board decision, thus giving time for developers to redress pending illegalities on the site. 

When asked what legal advice was given to MEPA with regard to its recent decision to approve an application by Polidano Brothers for the restoration and extension of three townhouses in Balzan, a MEPA spokesperson replied that the application in question “was seeking to address the enforcement issues” and therefore the “Sixth Schedule is not applicable”.

According to the Sixth Schedule MEPA cannot regularise any illegal development on protected sites such as historical buildings or Natura 2000 sites on which the authority had previously issued an enforcement order.

Yet in the case of the Balzan development two enforcement orders, issued in 2004 and 2012 are still pending despite the permit granted by the board.

Polidano was served with two enforcement orders, one issued in 2004 in view of the demolition of part of a building, walls and other structures in back gardens and another issued in 2012 in view of the uprooting of trees and the pulling down of part of a garden rubble wall. Subsequently the law courts confirmed the validity of these enforcements but an appeal is now pending.

According to the MEPA spokesperson an enforcement notice is closed when either the illegal development is removed or else “it is sanctioned by some form of permission”.  

“Therefore, although the application decided by the MEPA board addressed the illegalities on site, the enforcement cases will be closed after the applicant would have honoured a number of requirements (such as the deposit of bank guarantees) and the planning permission is issued”.

The board imposed two bank guarantees, one of €46,000 to ensure that the restoration works are carried out according to the agreed method statement and another of €13,400 to ensure that landscaping works are carried out in line with approved drawings. A penalty was also imposed for works that were carried out without planning permission. 

Din l-Art Helwa had argued that according to law any application to sanction an illegality in a listed building must be refused if the illegality has not been remedied prior or during the processing of the application and not after a permit is granted. The NGO pointed out that one of the three dwellings has already been illegally demolished

The permit granted by the board includes the conservation of the properties and the retention of a number of significant features and structures within the properties which include a mill room, an underground cistern and WWII shelter and a pigeon loft. It also allowed the construction of an extension at the back of each townhouse.

MEPA’s interpretation on the applicability of the Sixth Schedule could offer a window of opportunity for other developers seeking to regularise illegalities in scheduled areas as these can still apply for a permit if this is meant to address these illegalities.

The Sixth Schedule nightmare

The Sixth Schedule of the Environment and Development Planning Act was meant to put an end to the long established practice through which developers applied to regularise developments carried out illegally in the past.

The controversial article bans MEPA from regularising any development on any scheduled area irrespective of when it took place and any illegal extension to ODZ development which took place after 2008.

According to MEPA the Sixth Schedule only applies to applications presented after 2010 although this interpretation was disputed by a sentence issued by the Review Tribunal.

The present government intends removing the blanket ban on the regularisation of development outside development zones (ODZ) and scheduled areas such as areas of ecological and scientific importance.

This emerges from the consultation document “For an efficient planning system” which has been issued for public consultation. The document is a consultation paper on the proposed split of MEPA into separate environment and planning authorities.

Recently planning applications have been presented to regularise illegal development on scheduled locations such as Paradise Bay and Xlendi Valley.

A practising architect who talked to MaltaToday explained that the Sixth Schedule needs to be defined clearly in view of the permit issued in Balzan, as this will have an impact on future decisions.

“While one understands that it does not make sense to invoke the Sixth Schedule to stop commendable restoration works like those presently envisioned at Balzan, it is a bit frustrating to see developers granted permits on sites where blatant illegalities took place on their watch a few years ago”. 

The architect suggested that any pending enforcements and illegalities in listed buildings should be completely redressed before any permit is issued for an extension of these buildings in their back gardens, as has happened in the Balzan case.