The Ramblers’ Association recently met with Environment Minister Miriam Dalli and Planning Minister Stefan Zrinzo Azzopardi to advocate for the thousands of walkers who are finding previously accessible footpaths obstructed with gates and no-entry signage.
For a long time now, the public has used many footpaths to walk in the countryside. Some footpaths pass through public land while others pass over private land but access was tolerated.
Many of the latter are documented in a 1968 survey used by public authorities, showing that public access has been an established fact for many years. We maintain that the public has gained a right of transit over these ancient footpaths as reflected in various court rulings.
Indeed, the PA has policies intended to safeguard the accessibility of the countryside by denying planning permission for gates and other obstructions. These policies were recently used to refuse the sanctioning of an illegally installed gate at Blata tal-Melħ, which would have obstructed the accessibility of the coast from the village of Baħrija.
The ability of the PA to use its policies to protect the accessibility to the countryside was recently challenged in a case involving Ta’ Ċenċ. Although several factors were case specific, the court seemed to suggest that such regulations were in conflict with the right to private property. However, this ignores the fact that, in the final analysis, all planning and land use regulations are restrictions of private property.
The case at Blata tal-Melħ promises to be an important one, pitting against each other conflicting jurisprudence involving the right to private property and collective rights to access the countryside which may have been established over the course of time.
The Ramblers’ Association is urging the government to work to resolve this impasse by ensuring that ancient rights of transit are not lost.
The meeting also discussed the abuse of the sanctioning procedure to defer enforcement against illegalities almost indefinitely. Typically, the association will report an illegal gate blocking access to a footpath. Instead of taking action, the PA will ask the contravenor to obtain permission for the illegality through sanctioning.
Might is right’ is codified in our planning system- Ingram Bondin
Months of hearings result in the sanctioning application being rejected because the gate was against policy. At this point an enforcement notice is issued asking the contravenor to remove the gate.
This is not the end of the story as the contravenor will appeal both the notice and the refusal to sanction the illegality in front of the Environment and Planning Review Tribunal (EPRT). Once again, enforcement is put on hold.
Should this fail, enforcement can be delayed even further through a second appeal in court. Once years have passed and the proceedings have run their course, the enforcement notice is reactivated and the case is put on a list for ‘direct action’.
But direct action is always subject to the ‘available resources’. No time frames are given and there is no clue on how cases are prioritised. Indeed, the enforcement action may be left languishing on the list forever.
In this way, the person who installed the gate illegally obtains an indefinite stay from enforcement action while walkers are unable to use the footpath for years on end. This travesty can be contrasted with the cavalier treatment third party objectors to development receive at the hands of the EPRT.
When a planning application is granted by the PA, objectors can also appeal in front of this tribunal. In the vast majority of cases, the tribunal will not suspend the planning application. The developer is simply allowed to develop the area irreversibly, making the ongoing appeal pointless.
So, while the PA will not take action against a self-confessed illegality because of a pending appeal, objectors appealing against development find their right to a fair hearing completely denied.
The unassailable conclusion is that the principle of ‘might is right’ is codified in our planning system. An act of courage and justice is required to reverse this degeneration of our institutions.
Ingram Bondin is president of the Ramblers’ Association of Malta.
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