A stinking amnesty

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 i

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 Notifica- tion 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 that 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 has 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 that regulation 3 of the 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 submission 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 has 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?

Parliamentary Secretary Deborah Schembri