Issue link: https://maltatoday.uberflip.com/i/457075
maltatoday, WEDNESDAY, 4 FEBRUARY 2015 7 News value for illegal properties? illegal developments was also made in the PN's electoral programme that specifies that this will not apply to cases involving an "environmen- tal 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 encroach- ments on public pavements in resi- dential areas that took place before January 2013. The 2013 amnesty In 2013 MEPA claimed that the legal notice addressed the social re- alities 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 irregular- ity, which took place before January 2013. The developments, which can al- ready 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 pave- ment as long as the pavement width of 1.2 metres is retained. The amnesty also applies to in- creases 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 encroach- ments, which exist within the foot- print of a built property. This in- cludes 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 altera- tions or modifications have been carried out to garage levels, so long as no entry or exit points are elimi- nated 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 ex- isted prior to 29 January 2013. The architect will also need to submit a site plan, photographic evidence and a plan showing the dif- ference in size from what had been approved by the authority. Appli- cants 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 not- withstanding the other provisions of this Act, any person who is served with an enforcement notice in re- spect 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 de- velopments will be granted a permit, which can only be issued according to the other provisions of the law which require the removal of any il- legality before the permit is issued. This means that presently al- though the law may be invoked to stop the execution of enforcements against illegalities, it does not enable planning abusers to put these prop- erties on the market in a way that they profit from past illegalities. The provision which can be used to stop MEPA from executing enforce- ment notices only applies to devel- opment 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 Au- thority, "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 be- tween the 2010 law and the present proposal is that while Schedule 8 only affects ODZ infringements car- ried out post-2010, the new proposal earmarks illegal development that was carried out before 1994 when the Planning Authority was fully es- tablished. 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 MaltaTo- day. Contacted by MaltaToday, former MEPA CEO Ian Stafrace thinks that there is a major difference between what is presently envisioned in Ar- ticle 91 and what is being presently proposed. This is because the ap- plicant will be finally issued with a permit following a process. "As such, it would seem that this would go beyond the scope of Ar- ticle 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, archi- tect Robert Muscumeci, who cur- rently 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 re- maining 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 prop- erty generates injury to the general amenity. "This should be discour- aged," Musumeci told MaltaToday. He is also calling on MEPA to en- sure 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 dai- ly 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 consid- ered 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," Mu- sumeci added. Changing the goalposts? A consultation document entitled 'For An Efficient Planning System' released in April 2014 by the Malta Environment and Planning Author- ity, proposes that "the minister (re- sponsible for planning) can make regulations to regularise develop- ment", 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 devel- opment 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 De- cember 2010, prohibited the MEPA from regularising any illegal devel- opments built in ODZ, or scheduled areas. According to the consultation document, the deletion of the sixth schedule will be replaced by the im- position of daily fines: ostensibly, this would mean that daily fines start falling due from the day some- body applies to regularise their il- legal development, to the date that MEPA issues permission. In an interview with MaltaToday published in December parliamenta- ry secretary Michael Falzon claimed that the prohibition of sanctioning in ODZ areas has not led to any im- provement. "What is the use of prohibiting MEPA from sanctioning illegali- ties when these illegalities simply remain in place… this is like crying wolf, saying that we can't ever regu- larise these buildings while effec- tively 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 ille- gal buildings without society gain- ing anything in return, or imposing exorbitant fines which would serve as an effective deterrent for the fu- ture 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 Cal- lus insisted that he would prefer to comment when he is "in full cogni- sance of what the government in- tends 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 Plan- ning and Environment Parliamen- tary Committee." It is not clear whether a revision of the Environment and Planning Act will be needed for the amnesty to take effect, or whether just a legal notice will do Armier shantytown – will not benefit from the amnesty