Why small changes could have a big impact – Tara Cassar

Last Tuesday, the Planning Authority initiated the public consultation process on a proposed amendment to the Development Notification Order [DNO] legislation. Through this proposed amendment, development specifically carried out by the Civil Protection Department on land under their ‘operational control’, can be processed as a DNO.

To those less familiar with the planning process this may seem like a trivial administrative detail. Few would even care to know what a DNO is, let alone what this amendment could imply. However, past changes to legislation have shown us how critical and far reaching the impacts of seemingly innocuous amendments to legislation can be.

Without getting too lost in detail, it’s important to at least have a basic understanding of what the Development Notification Order actually involves and what the proposed changes to this legislation could mean.

In principle, a DNO allows an individual to attain permission for (what should be) minor works, through a very simplified fasttrack process. The works concerned are meant to be so negligible that applicants are essentially not even requesting permission to implement these changes, but simply ‘notifying’ the PA of what works they intend on carrying out. The DNO legislation provides a list of the types of works that qualify.

Once this notification is submitted and has been validated by the Planning Authority, the applicant will receive a reply confirming whether or not the works qualify as a DNO within thirty days. And just like that, the process is complete.

The notification is not subject to any public scrutiny.

The public is never informed about the intended development and never given the opportunity to object. Without being given the opportunity to object, members of the public cannot be recognised as legally interested parties and therefore are not able to appeal the final decision. In this way the DNO process differs greatly from how conventional development applications are processed.

As is, the DNO legislation does not entirely exclude works being processed under a DNO from being carried out on sites of notable environmental sensitivity or on sites of heritage value. Instead the legislation allows some limited types of works.

With regards to the new change being currently considered, the draft amendment states that in cases where works are proposed by the Civil Protection Department and planned on either designated areas or scheduled properties, or on land protected under the Environment Protection Act or that falls Outside the Development Zone, prior clearance from the Superintendent of Cultural Heritage [SCH] or the Environment and Resources Authority [ERA] would be needed.

The draft amendment does not distinguish between different extents of development that may or may not be considered when put forward by the Civil Protection Department. In fact, the draft amendment does not distinguish between anything and this is the major concern. It is simply too vague and as such open to abusive interpretation. It fails to provide any restrictions or conditions and does not set any form of criteria that would need to be adhered to.

The amendment to the DNO legislation being currently proposed could essentially allow for new developments of a substantial size to be approved on protected sites if simply proposed by the Civil Protection Department, with the only requirement being clearance from either the SCH or the ERA.

It is also of major concern that such developments may be permitted through this fast-track process that completely lacks transparency, and wholly excludes the public from participating.

As recently as in 2016, the Planning Authority had revised the entire legislation concerning Development Notification Orders to reportedly, ‘do away with the practice that for certain works the public is not part of the planning process and had no right to an appeal’. If that was the intention behind the review, why is the PA today increasing the types of developments that may be processed through this exclusionary mechanism?

This is not the first time that the PA has included new forms of development that can be permitted through the DNO process since the legislation was reviewed in 2016. In April of 2018, in one sweeping move the Planning Authority rendered all fireworks factories built prior to 1994, legal. A number of stakeholders were extremely critical about the proposed change, amongst them the Kamra tal-Periti, who referred to the amendment as ‘a blanket retroactive amnesty’, further describing it as ‘unscrupulous regularisation’. The criticism fell on deaf ears.

It is hoped that this time round the Planning Authority will adopt a more cautious, as well as inclusionary approach, by taking on the reasonable criticism being put forward and not going ahead with such a potentially harmful amendment that denies the public its right to form part of the planning process and further compromises the transparency of our planning system.