An application to operate a snack bar at Number 20 A Saqqajja Hill, Mdina was lodged before the Planning Authority. The location of development classifies it as a designated Class B boundary of National Protective Inventory and an Area of Archaeological Importance. The Development Control Commission issued the permit on condition that the excavated area at the back of the premises had to be permanently sealed off and not utilised in any way as part of the premises since it was being alleged that it was excavated illegally.
The Authority in fact further claimed that the said excavations were undertaken illegally during the processing of the application itself. Mepa therefore wanted to show its preoccupation that whenever illegal excavations being carried out in sensitive areas are sanctioned, the people at large would perceive the wrong message. The Superintendence of Heritage shared the same opinion, stating that no benefit should ever be gained out of illegal excavation and suggested that the said area be permanently sealed off.
In his request for appeal to renounce the above condition, the applicant stated that contrary to what was being purported by Mepa, the excavations were carried out by neither him nor the previous owners. To this effect, appellant (in this case the applicant) also submitted an affidavit over the signature of the previous owners, stating that they were never involved in the carrying out of any illegal works.
After taking cognisance of the submissions made by both parties (Mepa and appellant), the Planning Appeals Board ordered the Authority to issue the permit on the premise that Mepa failed to forward any solid evidence indicating that appellant was involved in the excavation works. The Planning Appeals Board also noted that the Superintendence of Cultural Heritage corroborated this lack of evidence, stating that the exact date of the works was unknown. The presence of rusty nails affixed to the rock face was also interpreted as ample visual evidence indicating that the excavation works were not of recent origin. Against this background, the Planning Appeals Board underlined that the closure of the excavated areas, which according to Mepa were carried out illegally, would result in no planning gain to the community at large.
This decision gives rise to a number of important issues:
Current planning law underlines that development proposals cannot be considered further unless any illegal development is first sanctioned or removed. This is in fact regulated by Mepa Circular Policies 2/96 and 2/98.
In the first instance, the fact that a permit was issued on condition that an alleged illegality is removed, signifies that for practical reasons it should be possible (notwithstanding the rationale underlining Circular Policies 2/96 and 2/98) for Mepa to issue permits on condition that any identified illegalities are removed, even if a request for sanctioning is not made. In this way, the application planning process is rendered much more sensible.
On the other hand, it would have been justified on the part of Mepa to impose such condition to remove the illegal works (in this case the sealing of the caves), only if there was solid evidence demonstrating that the caves were excavated illegally. The fact that applicant had not requested Mepa to sanction the excavation works as part of the request, signified that applicant did not admit that such works were carried out in an illegal manner.
In other words, by not including the sanctioning of the caves in his proposal request, applicant did not acknowledge that the caves were constructed illegally.
In parallel, it remains crucial on the part of Authority that any claims of any identified illegal work are to be substantiated by solid evidence highlighting the period when such work was carried out. In the absence of solid evidence, Mepa should never hold applicants responsible for any construed illegalities that allegedly “could” have taken place.
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Mr Musumeci is an architect and founding partner of RMPERITI.