Issue link: https://maltatoday.uberflip.com/i/563633
maltatoday, SUNDAY, 30 AUGUST 2015 12 News Consent of owners required after grant of planning permit Removal of obligation to seek owners' consent before submitting planning applications is justified by selective reading of a sentence issued by the law courts on a disputed shaft on top of a restaurant JAMES DEBONO THE government is citing a court sentence over the disputed own- ership of a shaft to justify a major change in planning laws which will remove the legal obligation to seek the consent of owners before one presents a planning application. According to the proposed plan- ning law piloted by Parliamentary secretary for planning Michael Falzon, an applicant will no longer require the consent of the owner of a property to develop it. All that is needed is simply to inform the owner by registered letter. This means that the owner can- not withhold his con- sent before the applica- tion is approved. The court sentence cited by the govern- ment to justify the change states that while the Malta En- vironment and Plan- ning Authority should "not even consider" applications where the applicant fails to obtain the consent of the owner it should refuse applications when the dec- laration of ownership made by the applicant is challenged by third parties. The procedure could also cre- ate a loophole for owners who are in the public eye to evade scrutiny by letting third parties apply for them. Through this legal change these owners will only be asked to give their consent after a permit is granted. The government also insists that the removal of the need to obtain the consent of the owner when an applica- tion is presented does not re- move the need to obtain the consent of the owner after the permit is issued. " T h e a m e n d e d p l a n n i n g law does not give a legal title to the applicant if the permit is ap- proved as this is always issued with the condition that he has to obtain the consent of the owner before commencing works," a govern- ment spokesman said. But MEPA insiders confirmed that the removal of the need to ob- tain consent could end up increas- ing bureaucracy, with the authority wasting its time on vexatious ap- plications which lack the consent of owners. Following MaltaToday's revela- tion on Wednesday that the new planning law removes the obli- gation of applicants to seek the owner's consent before seeking a planning permit, a government spokesperson justified this deci- sion, by referring to the court sen- tence. In this sentence the court decreed that in cases where ownership is contested the authority's power is limited to determine the planning aspect and cannot determine own- ership issues. "Otherwise whoever wants to hinder the authority from consid- ering development proposals ac- cording to planning laws will be able to do so by claiming a right over the site," the court ruled in a case con- cluded in June. The sentence cited by the government does not in any way challenge the law requiring the consent of owners but states that in cases where ownership is con- tested, the MEPA should leave this matter to the civil courts. In fact the sentence states that in cases where the applicant fails to obtain the consent of the owner and the ownership is not contested by anyone, "the authority should simply not even consider the ap- plication". Moreover the case cited by the government was not one where the applicant failed to obtain the con- sent of the undisputed owner of the site, but one in which a dispute arose on the ownership of a shaft required for the passage of a chim- ney on a restaurant. While the de- veloper was claiming that he was a co-owner, with other owners in the same block, of a shaft required by the applicant to construct a chim- ney, the other parties were disput- ing this claim, insisting that they were the sole owners. The court, while recognising that MEPA should not consider appli- cations where the consent of the owner is not granted, MEPA can- not stop applications where the ownership is disputed. MaltaToday has also sought the advice of different experts in plan- ning law who concurred that the sentence cited by the government did not preclude MEPA from re- questing the consent of owners be- fore applying. "The decisions of the courts (on appeals on decisions of the Envi- ronment and Planning Review Tri- bunal) stated that MEPA cannot determine who the owner is or determine disputed ownership issues. However this does not mean that the law as it cur- rently stands is wrong since the law puts an onus on the applicant to assume the re- sponsibility for the declaration that he is making." The legal experts consulted by MaltaToday pointed out that be- fore 2010, the obligation of the applicant was to inform the own- er and give MEPA proof that the owner has been informed. This led to awkward cases like that of a golf course application in Rabat, which included land owned privately. After 2010, the obligation on the applicant was to inform the own- er and give MEPA proof that the owner has been notified, and the applicant has to also declare that even though he is not the owner, he has the consent of the owner to submit the application. In fact, in the permit conditions, a standard condition states that if the courts find that such a declaration (either that applicant is the owner when he is not or else that the applicant had the consent of the owner when he did not), then the courts may annul such a permit. What is being proposed now is to revert the situation to what it was before 2010. The Malta Developers Associa- tion, in submissions to the govern- ment about the law, has objected to this major change, insisting that the obligation to seek the consent of owners must not be removed. Architect Simone Vella Lenicker also described the change as an un- desirable proposal. "The current system whereby the applicant must declare that he has obtained the owner's consent to submit an application for devel- opment permission has cut out a significant amount of abuse. This should be retained," she said. What is being proposed now is to revert the situation to what it was before 2010 Parliamentary secretary Michael Falzon is piloting the new planning laws which will remove the obligation to seek the consent of owners before applying for a development permit