Two-storey buildings located outside urban conservation areas (many of which were built in the 1970s to 1980s era) may be easily pulled down and replaced by multi-storey apartments following a simple planning application. This is possible because the local plans published in 2006 were specifically designed to promote this state of play.
In that same epoch, another policy was introduced so that where three allowable floors were allowed, a penthouse floor could also be permitted ‘over and above’. In addition to this, the then Lawrence Gonzi-led cabinet had decided to ‘close off’ the development zone boundaries by increasing the developable zone by an area which critics had said to have been equivalent to “the size of Siġġiewi”.
Fifteen years on, it is fair to say that we have had to become accustomed to some questionable visual settings. The social media is constantly inundated with pictures showing isolated multi-storey brick buildings featuring expansive blank party walls that ought to stay that way as long as the person next door decides to erect a building having the same height which, unless located in a corner with three frontages, would result in yet another unsightly party wall.
Meanwhile, a good number of rationalised land that was added to the development zone in 2006 remains pristine, however destined to remain so unless 75 per cent of the respective owners reach an agreement on a comprehensive plan endorsed by the Planning Authority.
The government is now being called upon to put an end to this state of affairs. Indeed, such calls are generally motivated by genuine pleas to save what remains of our two-storey streetscapes. One solution being mentioned is for development not to take place if not all the property owners in the same street come to a joint agreement on a design and undertake construction at once. I will leave it up to the readers to decide whether this is a workable solution.
Another suggested solution is to change current policies as well as withdraw those valid permissions that would result in the creation of expansive blank party walls. Is this legally possible? Most definitely.
Let me first focus on the issue of ‘withdrawing’ permissions. Indeed, the Planning Authority may require any existing works covered by planning permission to be discontinued by virtue of Article 56(1) of the Development Planning Act. This, however, is subject to a “compensation for any losses sustained as a result of the order”.
This means that the Planning Authority is in a position to ‘stop works’ at any point in time, provided it effects monetary compensation. It is instructive to note that this legal provision has nothing to do with the oft-mentioned Article 80 which regulates the revocation of permissions tainted with fraudulent and/or erroneous information.
The other idea being floated is to modify the current local plans so as to restrain the current permitted building heights- Robert Musumeci
The other idea being floated is to modify the current local plans so as to restrain the current permitted building heights. Is this legally possible? Most certainly. Our Planning Act is formulated with sufficient precision to enable citizens to foresee that planning policies may change from time to time, even if to their disadvantage.
Indeed, Article 41(2) of the Development Planning Act allows for the modification of local plans that are already in force. What is important is that the proposed changes are issued for public consultation and communicated concurrently to the Standing Committee for Planning in Parliament.
This brings us, however, to the next question: are those affected by the new ‘constraints’ entitled to monetary compensation notwithstanding them not being in possession of a planning permission?
Environment Minister Aaron Farrugia reportedly stated that “a change in building heights policy could result in compensation claims running into billions”.
Is that true?
The courts had the occasion to examine a number of cases concerning restrictions in the context of spatial planning and held that such restrictions, even when permanent, do not give rise to automatic compensation. Yet, this does not mean that the courts are precluded to think that compensation due to a change in zoning is never due.
When, for example, a certain Joseph Fenech claimed that his legitimate expectations to obtain planning permission to develop his Xemxija plot were frustrated as a result of a scheduling order, said plaintiff was awarded compensation on the basis of the state’s ‘interference’ in terms of Article 1 of Protocol No. 1. This decision was later overruled by the Court of Appeal, however only because it was delivered prematurely since the claimant had instituted other legal procedures.
It follows that there is nothing to imply that, within the margin of appreciation enjoyed by the Maltese courts, restrictions in the context of spatial planning cannot be equated to a disproportionate interference in terms of the said Article 1 of Protocol No. 1 in such a way that compensation is due to those affected. Minister Farrugia could be right!
Robert Musumeci is an architect and lawyer with a PhD in Development Planning Law