‘No intention to legalise illegal buildings’ – Mario De Marco

The government has backtracked from issuing a legal notice drafted by MEPA Chief Executive Ian Stafrace, which would have enabled the Malta Environment and Planning Authority to sanction illegal developments on scheduled areas like Natura 2000 sites if the applications were submitted before January 2011.

While making it clear that no such legal notice will be issued, Parliamentary Secretary for Tourism, Culture and Tourism Mario De Marco is now saying that government never had any intention to reverse its zero tolerance against sanctioning illegalities on protected site, which he described as a “cornerstone” of government policy.

It was MaltaToday which revealed MEPA’s intention to publish the controversial legal notice in last Wednesday’s edition.

The draft legal notice, seen by MaltaToday, stated: “that the provisions of article 70 of the Environment and Development Planning Act, with regards to Schedule 6 of the Act, shall only apply to new applications submitted on or after 1st January 2011”.

This would have enabled MEPA to sanction illegal developments to legalise development on protected sites included in Schedule Six of the law.

At present the MEPA law makes it clear that no development can be allowed on scheduled properties and does not mention any cut off date from when this law should apply.

“In the circumstances, government has no intention of introducing any regulations that will change the effect of Article 70,” a spokesperson for De Marco told MaltaToday when asked whether the proposed legal notice will be enacted. 

At no point did the government spokesperson deny the existence of the draft legal notice mentioned by Malta Today.

But the government spokesperson strongly denied that MEPA had the intention of changing the law to make it easier to approve illegal buildings on scheduled sites.

Article 70 of the Environment and Development Planning Act that prohibits the favourable consideration of applications in scheduled properties came into effect on the 31st December 2010 as a result of the MEPA reform process.

But according to the parliamentary secretary’s spokesperson  “it is a generally recognised principle of law that a law cannot have a retroactive effect.”

This means that according to the government applications presented before January 2011 cannot be rejected on the basis of Article 70.

This means that according to government the legal notice would not have made any difference, as MEPA cannot apply the law retroactively to permits issued before January 2011.

But according to the government spokesperson the fact that the law cannot be applied retroactively does not mean that applications to sanction illegalities filed before the 31st December 2010 will be favourably considered by MEPA.

“The authority has indeed, over the last few months, consistently refused applications to sanction various illegal developments in ODZ and scheduled areas, even if the application was filed before 31 December 2010,” the government spokesperson added.

As an example the government’s commitment against ODZ development the spokesperson mentioned the fact that over the last few weeks MEPA refused to sanction boathouses built illegally at Dwejra irrespective of the fact that the applications were filed prior to 31 December 2010. “It did so on the basis of its consideration of the applications in question without having to recur to Article 70.”

In fact the reason given by MEPA chairman Austin Walker when the board refused to sanction the Dwejra boathouses was that the sanctioning would have been “against the public interest.”

But it is doubtful whether the Appeal’s Tribunal would accept this vague reason if the government had proceeded to issue the legal notice allowing MEPA to sanction pre-2011 illegalities.

The case against sanctioning the Dwejra boathouses is already weakened by an Action Plan approved in 2007, which facilitated the approval of scores of similar boathouses on the eve of the election.

In fact, MaltaToday is informed that lawyers representing the owners of the Dwejra boathouses were already citing the draft legal notice in their bid to overturn MEPA’s first decision.

Moreover unlike the MEPA board which being under constant media spotlight is duty-bound to show zero-tolerance against ODZ illegalities, the Appeals’ Tribunal which is legally independent of MEPA has to strictly abide to the law. 

Planning experts consulted by this newspaper dispute the interpretation given by government that the planning law cannot be applied retroactively mentioning the fact that if a local plan is presented after an application is presented in its decision MEPA still has to abide to the local plan. 

Another example showing that the present law is retroactive is that applicants have who applied before 2011 do not have the right to apply for reconsideration, a procedure that existed under the old planning regime.