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PR 32/19 | ODZ is a misnomer

Verżjoni bil-Malti

Just three weeks ago, the Planning Authority embarked on a ‘consultation’ process wherein it invited members of the public to comment on whether the scope of the current Rural Policy Design Guidance (RPDG 14) has had its intended effect. An effective consultation would require, as a basic premise, an understanding of the intent of those who drafted the original policy, and a thorough assessment of the actual effects of the current policy prepared by the Authority itself. In the absence of publicly available data and statistics this current consultation process is inherently flawed.

The three-week consultation period allowed makes a mockery of the term “public consultation”, especially when considering the vast implications that this policy has on our quality of life, and on the sensitivity of our natural environment. It is also unclear what this current consultation is attempting to achieve, since it appears to be more focussed on asking the public’s opinion on whether the RPDG has worked or not, and whether it should be aligned with the Strategic Plan for the Environment and Development (SPED) and the National Rural Development Programme, as though this were an option up for debate. It is therefore important that Phase 2 of the review process consists of the establishment of the overarching Objectives and Scope, and a consultation process undertaken on such Objectives and Scope, prior to delving into the detail of the Policy itself.

Nevertheless, a review of the RPDG (2014) is clearly urgent and needed; however, more benefit would be derived if the amended policy is aligned with an updated SPED, which is itself up for review within the next 12 months. The two processes must run in parallel, while maintaining the current premise of the SPED that the “Maltese landscape is a cultural landscape, and the surviving structures show its continued use, and are testimony of the country’s past”. A revised policy for our rural areas should base its principles on the realisation that our rural environment has an intrinsic value which exceeds its monetary worth at any one moment.

The term “Outside Development Zone” is a misnomer and should be abolished. It implies that no development activity may be carried out in such Zones, however it is a fact that legitimate development is necessary to maintain the character of our rural areas, and to accommodate uses that cannot be located within built-up areas. The construction of a rubble wall is development; the construction of a farm is development; the quarrying of rock is development; the dumping of waste is development.

Thus, rather than defining our territory in terms of “Development Zones” and “Outside Development Zones”, it is recommended to adopt two broad categories, namely Urban Areas and Rural Areas, in addition to the Coastal and Marine Areas. These should in turn be further classified to hone into more specific urban and rural typologies, allowing the formulation of more focussed policies which would recognise the distinctive characters, identities, and the activities taking place within such classifications (such as Countryside, Rural Conservation Areas, Agricultural Areas and Green Belts).

Villages and hamlets have for decades been designated as Urban Areas. This is incorrect. Villages form an integral part of rural landscape and identity. The urbanisation of rural settlements has brought about an exasperating urban sprawl, the effects of which can be witnessed through the out-of-control air pollution and exponentially problematic traffic generation.

Any type of development in the Rural Area should be of a design, quality and scale that respects the rural setting. The RPDG already requires that any “proposed development is of high quality rural design and must respect the rural context.” High quality contemporary architecture by its very nature should be responsive to its context, be it urban or rural. It would not otherwise be of high quality. Many of civilisation’s highest architectural achievements are found in natural contexts. The interplay between built and natural forms and materials provides for far more exhilarating cultural expression than false vernacular architecture. It is pertinent to point out that vernacular buildings were built at a time when rural construction was crafted by artisans making best use of locally available materials and tools to address the most basic needs of shelter and utility. They are indeed an important part of our cultural heritage and are best respected by not being mocked or falsified.

Furthermore, the Maltese Islands are in dire need of a Landscape Strategy for the Rural Area, which is site specific and which is studied to the extent that it takes a holistic view of this important asset which our country has, rather than adopting the all too common piecemeal approach which is entirely dependent on the whims of certain developers.

The positive effects that the natural environment has on addressing climate change, air and water quality, biodiversity, social well-being, and to national and local identity must be translated into effective planning policy. Our rural areas need to be safeguarded to ensure a sustainable future for our islands. The rural setting is as important, culturally, economically and socially as are our urban centres, our built cultural heritage, and our natural resources, and must be recognised and treated as such.

 

 

CIR 16/19 | CTBs and Regularisation

Dear Colleagues,

In March 2019, the Kamra tal-Periti submitted a complaint to the Commissioner for Environment and Planning within the Office of the Ombudsman regarding PA Circular 4/12. Following is a summary of the situation to date, and the Kamra’s guidance to periti.

 

Background and Ombudsman’s decision

PA Circular 4/12 states that when an application for development permission is submitted on a site which is covered by a CTB concession, then the irregularity “needs to either be sanctioned or removed, prior to any processing of the application.  If the illegal development cannot be sanctioned, a regularisation application would need to have been submitted and approved prior to the planning application being confirmed as complete.

The Kamra tal-Periti requested the Ombudsman’s office to investigate this matter, outlining its opinion that holders of CTB concessions for minor irregularities were facing serious risks on their investment unless the Planning Authority changed its interpretation of the law. Banks that have taken such properties as security against mortgages are also at risk in case of default, as the value of such properties may be much lower than expected as a result.

In a decision delivered on the 7th May 2019, the Ombudsman’s Office concluded that the above quoted paragraph from the Authority’s Circular “is found to be unfair, irregular and against the principles of natural justice” and ordered the Planning Authority to “withdraw and cancel this part of the Circular to the effect that a new application can be submitted on a site covered by a CTB concession without the need for sanctioning, regularising or removing the illegal works covered by the same CTB concession, as long as no further illegal development has taken place on site.

 

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Despite the passage of several months from such decision, the Circular has not been amended or withdrawn, leaving periti and their clients in a quandary as to how to proceed in such cases.  The Kamra tal-Periti sought clarification from the Ombudsman’s office and from the Planning Authority in the past weeks.

In response to such queries, the Ombudsman wrote to the Planning Authority in August, quoting a statement by the Authority in its response of the 21 May 2019 that “the Authority understands and agrees that applicants requesting development of a site covered by a CTB should not have their application stalled cause of illegalities indicated in the relative concession.

The Ombudsman noted that “As this statement contrasts drastically with the contents of the same Circular that is still in vigore  … and since the implementation of the same recommendation through a correcting circular is taking too long on such an important issue that affects the multitude, you are hereby urged to finalise this correcting circular whilst the Kamra tal-Periti is also being copied so that the Periti are directed in line with the Final Opinion recommendations.“

In a reply dated 4th September 2019, the Planning Authority stated that it “does not understand that further clarifications were meant to be issued further to its communication dated 21st may 2019, also because the requested clarification transpires from the Law itself through the application of the proviso to sub-regulation 14(1) of the Legal Notice 514 of 2010 read in conjunction with sub-regulation 1(3)(d) of Legal Notice 162 of 2016.

The Ombudsman responded on the 10th September 2019, stating that “Following the comments in your letter dated 4 September 2019 it appears that the Authority is not taking any action in line with my recommendations within a reasonable time and hence the provisions of sub-article 22(4) of the Ombudsman Act will apply.

Sub-article 22(4) of the Ombudsman Act states that “If within a reasonable time after the report is made no action is taken which seems to the Ombudsman to be adequate and appropriate, the Ombudsman, in his discretion, after considering the comments (if any) made by or on behalf of any department, organisation or local council affected, may send a copy of the report and recommendations to the Prime Minister, and may thereafter make such report to the House of Representatives on the matter as he thinks fit.

In response to an additional follow up email from the Kamra tal-Periti, the Ombudsman confirmed, on the 3rd October 2019, that “Following the final opinion the understanding was that this Office would not need to come to this, but this Office is committed to follow the whole procedure afforded by law in the circumstances, that is in order through the Minister concerned, the Prime Minister and publicly in front of the House of Representatives if need be.“

 

Guidance for periti

Although the matter has not yet been concluded, the Council of the Kamra tal-Periti felt it would be opportune to issue this Circular, outlining the current state of affairs, in order to provide guidance to periti and their clients on the situation as it stands. Periti are invited to quote this Circular and the Ombudsman’s decisions in their proceedings with the Planning Authority and the Environment and Planning Review Tribunal where necessary.

 

Note

All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

Perit Simone Vella Lenicker
President

 

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PR 31/19 | Partial Review of the Ta’ Qali Action Plan does not consider the national and public interest

In September, the Planning Authority published its proposals for a Partial Review of the Ta’ Qali Action Plan.

The review concerns an area of approximately 60,000 square metres located adjacent to the Embassy of the United States, and proposes to designate such land as a Commercial Area, with an overall building height of 17.5 metres.

The Kamra noted that “across the developed world, out-of-town commercial centres are largely being abandoned in favour of rehabilitated inner-city or urban facilities. These reinforce the desirability of city living and cut down on the vehicular traffic and the attendant pollution and traffic congestion that are inevitably caused by large regional commercial developments located outside the urban area.”

The Kamra tal-Periti further noted that “one of the justifications presented in favour of the proposals is that the site has outlived its usefulness in the industrial context. Whilst recognising that it would, perhaps, be unrealistic to hope for the area to be returned to its undeveloped state, it is pointed out that the general area is earmarked as a Rural Area and the Ta’ Qali National Recreation Centre, which includes no commercial hubs but only enterprise hubs (i.e. the existing industrial areas). It is therefore felt that the area should be re-developed into uses that are complementary to the sports facilities around the National Stadium, and to the adjacent Park tal-Familja. The emphasis on commercial development is therefore questioned in this regard, as is the extent to which the public interest and that of the environment in general were considered.

The proposed revision is premature and lacking in proper studies that would normally arise in a serious and well-considered approach. The Kamra pointed out that allowing intensification is not the solution to the Authority’s claim that the existing industrial use is redundant, and that the proposals appear to be directed more towards appeasing a major private landowner and facilitating their interests than achieving any planning gains or safeguarding the national interest and that of the public at large.

 

 

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PR 10/19 | Planning Authority decision is “unfair, irregular and against the principles of natural justice”

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The Commissioner for Environment and Planning within the Office of the Ombudsman has found the Planning Authority’s decision to require holders of CTB concessions to sanction or regularise their property to be “unfair, irregular and against the principles of natural justice”.

The Eighth Schedule regarding Category B concessions, referred to as CTB in short, came into force in August 2012. Residential property owners were able to submit an application to the Malta Environment and Planning Authority to cover illegal development that fell within specific strict parameters. If approved, the applicant would then be allowed to request permission for alterations and additions to the property, and a Compliance Certificate for the provision of new water and electrical services to the dwelling could be issued.

PA Circular 4/12 points out that CTBs do not have an expiry date. The CTB regulations had the effect of restoring the affected properties’ market value to levels comparable to legal properties of a similar description. As a result, these properties became sellable again, and banks were reassured that the effects of the concession were permanent.

With the coming into force of the Development Planning Act in 2016, the CTB regulations were repealed and no further applications could be submitted. In August 2016, new regulations were published that allowed for the regularisation of various types of illegalities, with no specific parameters, as long as these were not deemed to be an “injury to amenity”.

The Kamra tal-Periti had raised a number of concerns with the new regulations, and had published its position particularly regarding reports from members of the profession that the Planning Authority was requiring holders of CTB concessions to regularise their property, at a much heftier fee than what they had originally paid for the concession.

On the 28th January 2019, the Planning Authority published a Circular titled “Category B Concession (CTB) Explained”. The Circular concludes that when an application for development permission is submitted on a site which is covered by a CTB concession, then the irregularity “needs to either be sanctioned or removed, prior to any processing of the application.  If the illegal development cannot be sanctioned, a regularisation application would need to have been submitted and approved prior to the planning application being confirmed as complete.

The Kamra tal-Periti requested the Ombudsman’s office to investigate this matter in March 2019, outlining its opinion that holders of CTB concessions for minor irregularities were facing serious risks on their investment unless the Planning Authority changed its interpretation of the law. Banks that have taken such properties as security against mortgages are also at risk in case of default, as the value of such properties may be much lower than expected as a result.

In a decision delivered on the 7th May 2019, the Ombudsman’s Office concluded that the above quoted paragraph from the Authority’s Circular “is found to be unfair, irregular and against the principles of natural justice” and ordered the Planning Authority to “withdraw and cancel this part of the Circular to the effect that a new application can be submitted on a site covered by a CTB concession without the need for sanctioning, regularising or removing the illegal works covered by the same CTB concession, as long as no further illegal development has taken place on site.

The Council of the Kamra tal-Periti does not condone illegal development in any way, however once certain rights were granted to property owners in the past these cannot be taken away at a later date, more so when the legal ramifications are wide ranging and potentially serious.

 

KTP submits its Consultation Reply on the Kottonera Strategy document

The Kamra tal-Periti has submitted its feedback on the Kottonera Strategy document issued by the Cottonera Rehabilitation Committee as part of the public consultation process.

The Council of the Kamra tal-Periti welcomed the proposed Cottonera Strategy Document, which appears to have been prepared through a bottom-up approach which involved the residents, the Local Councils and the various entities which operate with the towns in the region. It is clear that this approach has led Government to have a good understanding of the problems faced by these localities, as well as to understand the various solutions which have been proposed by those who inhabit, or regularly visit, the area.

The Kamra has made four principal proposals in its consultation reply:

  1. Expansion of restoration grants in the Cottonera area
  2. The use of design competitions for the various public projects being proposed in the document to promote excellence in design
  3. The setting up of a Centre for Architecture and the Built Environment in the Cottonera area. Malta is indeed one of the few European countries not to have such a centre.
  4. Nine urban project proposals.

Click here for to read all the public consultation replies and press releases issued by the Kamra in the past few years.

 

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