While refusing to say that the Planning Authority has failed in its enforcement duties, CEO Johann Buttigieg has agreed that there have been struggles with this aspect over the years.

In an interview with The Malta Independent on Sunday, it was highlighted to Buttigieg that PL MP Carmelo Abela had told this newspaper that the plans to allow the regularisation and concession of illegal developments shows that the enforcement "struggled" over the years, with the PA CEO interjecting and saying it "is true."

But he would not be drawn into saying it has failed.

"I will not say it has failed in its enforcement duties, but I will say that there were too many illegalities for the PA to enforce on everything," he said in response.

"When you have a culture where many do what they feel like then yes, there is a resource issue," Buttigieg said.

"Over the last 30 years, the PA has removed illegalities, by going on the ground with bulldozers, trucks etc. in 1,500 cases," he said. He said that it shouldn't be that we have to decide on which cases such action is taken, and on which cases it is not. "So what we are saying is that we are giving everyone the opportunity to either regularise or get a concession, and from now on you know that the fines for illegal building will be increasing by 40 times," in reference to the proposal to raise the maximum daily fines to €2,000. 

He also said that if a person creates another illegality after receiving a concession, they would lose it, "and the authority would have the right to remove the new illegality, as well as the old."

Public consultation ends today

A public consultation on bills related to the environment and planning comes to a close today. The exercise was initiated after the government had initially tried to rush two controversial bills through Parliament, with environmental NGOs and the Opposition harshly criticising the move, pushing the government to launch the consultation period.

Through the legal notices in question, the government is proposing that illegal developments built prior to 1994 on land located Outside the Development Zone (ODZ), and illegal developments built before 2016 within the development zone, will become eligible for regularisation. It also proposes that illegal developments that took place up until 2024 be eligible for a concession. 

He does not believe that the offer for regularisation and concessions is unfair on those who followed the rules, highlighting the "hefty fines" that those who infringed would need to pay.

Told that the message being sent is that if one has the money to pay for something illegal then they can do it as there would be a regularisation scheme down the line, he said it is not the message that is being sent. "What we are saying is that we want to stop the issue of irregularities. We are giving the opportunity for people to come forward and declare their illegality. What we are saying is that we know it is illegal, and we are giving people four years to regularise or get a concession. After the four years, then the fines will either go up as stated in the legal notice, or else the position would have been regularised. If that isn't done, the authority will come down on them."

He said that he has given instructions to the enforcement unit that it has to take action on those irregularities that cannot be regularised or be granted concession - there is a paragraph specifying such sites.

As to whether he believes it would be better if direct action is taken rather than regularisation, he said that in order to remove known pending illegalities using the same rate that has been used till now, "it would take us more than 90 years."

He said it is not a failure of resources. "Everything has a limit. Financially the Planning Authority has a limit. Even the government has a limit. Every household has a financial limit."

While the opportunity is being given for everyone to apply for regularisation and commercialisation, a Commission will then take a decision based on Place Quality standards, he said. 

More resources

Buttigieg expressed hope that the funds collected through the regularisation and concession proposal would lead to more PA resources.

Buttigieg explained that 90% of the funds collected from the applications would go towards investment in community projects, and 10% towards the administration and building up of the enforcement directorate. He expressed his preference for the percentage going to the PA to be higher than what it is.

Asked whether he believes the time it takes between an illegality being flagged and direct action being taken needs to be cut down, he highlighted past data. "We had times when we issued over 1,000 enforcement notices per year." Now, he said, they have reduced to around 200, noting that this is due to there being fewer illegalities. "I would say that over the last 20 years, people have recognised that it does not make sense to build illegally. Hopefully with the proposed increase in fines, it would be more of a deterrent to people to do so." Previously paying €50 per day was worth it for some people, he said, "but to pay €2,000 per day is a totally different kettle of fish. Hopefully we will drastically reduce illegalities."

He said that during his tenure as CEO, the most direct actions were taken by the authority. "I believe in taking direct action, but when there are no other solutions. There is a difference between having a small room in the middle of nowhere, and a scrapyard."

He said that he personally makes a differentiation between those who are genuine, and those who disturb the neighbourhood, create an impact on the environment etc., and that he would definitely take direct action on the latter, but personally wouldn't on the former. He said that at the moment, there are over 500 enforcement notices pending, and over 5,000 cases for direct action. "If you would be in my shoes, what would you choose to do? To go after the small ones, or the big ones?" 

While the legal notices dealt with regularisation and concession proposals, the two bills deal with amendments to the Planning Development Act, and amendments to the way appeals to planning applications are handled.

Buttigieg, during a media briefing in July, had said that a public consultation was not held before the planning bills were published to prevent land speculation. Responding to a question, he denied that discussions were held with the Malta Developers Association before the bills were published, but said there was one meeting with the National Building Council, of which the MDA is a member, "where we presented the points that are being proposed. It was not a consultation, it was just an information session."

Court of Appeal

One point of contention in the bills regards the Court of Appeal, where as per the proposal, annulled cases would be re-sent to the Environment and Planning Review Tribunal. This point has been the source of controversy, with activists pointing out that this will remove the court's power to revoke development permits.

Buttigieg denied that this would be stripping powers from the courts. "Planning permission is granted by the authority. The powers of the courts are there to review the decision of the tribunal."

"If the PA has issued a permit and a third party appeals, the tribunal can agree or disagree with the PA. If the person still feels aggrieved, they can go before the Court of Appeal, and the court should either agree or disagree with the tribunal. If it disagrees with the tribunal, it should state the reasons why it is disagreeing, guiding or ordering the tribunal in terms of what needs to be done, and then during the tribunal process, the applicant would need to follow the instructions given by the court. If the applicant does not want to follow the instructions issued by the court, then the applicant would either withdraw or scrap the project." Told that the courts have scrapped projects outright in the past, he gave the example of that happening with the db Group project in Pembroke, where the applicant then reapplied and the permit was granted, questioning "why are we going around in circles, having to re-object, pay again, etc." The original permit of this particular project had been declared null by the courts when it found that a planning board member had a conflict of interest.

Told that as the top adjudication body in Malta the courts should have the final say, Buttigieg said that it is always on a point of law, not of planning. "On a point of law, state what is wrong and send it back. Then either it is corrected in the process or (the project) is scrapped."

He does not believe that this clause will have a negative impact on appeals.

The bills propose the introduction of a 'recency rule', where the latest documents (approved plans, policies etc) override older ones regardless of position in hierarchy. This has been quite a contentious point, and NGOs have argued that the Local Plans, "which provide crucial planning and environmental protection constraints, will lose their standing and be overridden by more recent lower level policies which allow loopholes in favour of developers."

Told that the change could mean that if policies drafted in the future clash with the local plans they would have precedent over them, Buttigieg said that "where you have site specific policies, those policies apply. Where you have general policies, then you have a situation where, if there is a conflict between the plans and the subsidiary legislation, then the last one would take precedence. The reason being that the last one would be more in line with the political goal of the government at the time, and also because the last document would have taken into consideration all other documents that were in place."

Regarding the concern that the bills could create a situation where the certainty people have with the local plans and the SPED in terms of what is allowed and isn't could end up having certain aspects upended in the future by new policies if there is a contrast, he said "it cannot."

"It cannot because policies are there as a guidance to the local plans. When you have a conflict between the interpretations, then yes the latest plan, because that has already taken into consideration what is written in the local plan, should always take precedence."

He also said that any new policy passes, "at least, through a strategic environmental assessment screening and any other study that needs to be carried out. In that screening, it can never go against, at least, the SPED."

Building heights

The bills also propose extending the powers of the executive council, to provide it with the power to change height limitations and land use classifications. The PA CEO said that the Executive Council and the Minister already have a right to change building heights and zoning, noting that it is always with the approval of the minister. "What we are proposing here regards how this process takes place." He explained that the bills would remove the local plan review requirement for such changes for the Executive Council.

"What we are proposing is that both the public in general, if they have more than 75% consent, or the Planning Authority, can file an application for the changes to take place. The application would still include the public consultation, will still go before the Standing Committee in Parliament for discussion, and the Standing Committee will still give its advice to the minister. It will still include the Executive Council's decision and include the approval and endorsement of the minister. So nothing has really changed."

Clarifying the point that 75% consenting would be needed to apply for changes in building height, he said that this is in reference to 75% of the owners in a block, not just of a building. "You can either have a change where 75% of the owners of a block, or of that particular zoning, agree. When we say block, we mean those surrounded by streets."

Asked whether, hypothetically, this could result in a situation where in a zone one row is of a certain height and the others being far lower, he said this is what they want to avoid. He said that this is the current situation with the local plans. "We have situations where in one single block there are 5 or 6 different height limitation zones," in the local plains he said. "How are you going to avoid blank party walls," he asked.

Asked whether this will worsen the situation, seeing blocks in the middle of zones sticking out because of a change in height limitation, Buttigieg disagreed, saying people would have the right to apply, noting that at least 75% of the owners would need to do so, "but it doesn't mean it would be approved."

He said that the Constitution can be changed with a 2/3rds majority in Parliament. "So with 75% you cannot change a zoning and height limitation if they all agree?"

When asked, he said that this does not apply to the outside the development zone. "What we said is that it applies to change in zoning also within ODZ," he added, referring to zones like settlements within ODZ, areas of containment and industrial areas where building already takes place. He said that applications would still go for public consultation, to the Parliamentary Committee and would require the endorsement of the minister.

He said that if somebody thinks that with this change there could be a rationalisation zone exercise, "it is not the case, and we have already stated that if needed we will clarify this."

Asked whether he concedes that the Planning Authority is responsible for the uglification of Malta's streetscapes, Buttigieg said that the PA "has not done enough to ensure that design is given due importance." He said that they had legislated for the Design Advisory Committee, but he had a different idea of how it would work.

"We are in discussions with the Chamber of Architects to revamp the Design Advisory Committee and to create a Design Architectural Policy."

"I'm not criticising the DAC, because the people that there are very competent, but the biggest problem the country has is fragmented ownership. Unless we are read to impose how design should take place, then everyone will continue to create their own designs."