The committee that examines applications in ODZs is allowing ruins to be turned into countryside villas, prompting sharp objections from other entities over the dubious approach being taken. Victor Paul Borg looks at three cases.

 

The Planning Commission “ignored all applicable policies” when it approved a proposed cliff-edge villa that mostly lies in ODZ countryside, the environment watchdog has charged in an appeal against the permit.

The works on the villa in Żebbuġ, Gozo, have now been suspended by the Environment and Planning Review Tribunal until the challenge made by the Environment and Resources Authority and the Żebbuġ Local Council is heard.

The wording of the appeal can be seen as another repudiation of the Planning Commission, which processes applications for Outside Development Zones and village cores. 

The commission, chaired by Elizabeth Ellul, a member of the parent Planning Authority’s executive council and planning board, has been buffeted by criticism in recent months over its approval of a range of controversial applications, particularly in allowing country villas to morph out of the ruins of rural buildings. 

The proposed villa in Żebbuġ has an expansive private terrace that offers spectacular views of the west of Gozo. 

Before it granted the permit, the commission asserted that the development “lies within development zones”. 

The Commission is clutching at straws in order to approve this development

However, in its appeal submission obtained by Times of Malta, ERA pointed out that “three-quarters of the site lies in outside development zone”.  

The Environment and Resources Authority accused the commission of “turning a blind eye to the holistic aspect of the proposal and clutching at straws in order to approve this development”.

“One cannot comprehend,” it wrote in its appeal, “why the Commission chose to ignore all applicable policies and carry out a cherry-picking exercise in which it selectively chose whatever it suits it in order to approve the proposed development”. 

The plans had also been opposed by the Superintendence of Cultural Heritage, which had called upon the Commission to “enforce its relevant policies” for “the safeguarding of natural and cultural heritage”. 

The Planning Authority’s own report on the case detailed nine substantive ways in which the development jars with planning policies and recommended refusal – yet the development was approved last June, in turn prompting the Environment and Resources Authority’s legal challenge.  

‘Perplexity’ over permit for  ruins to become a residence

Last January, the review tribunal held that the Planning Commission was interpreting or applying policies wrongly on other ODZ applications as well. 

The tribunal’s judgment was delivered on appeal after the granting of a permit to build a house in the lush Lunzjata Valley in Gozo. 

The applicant, Stephan Tabone, had applied to build a “terraced house” on a site on which there is some kind of ruin.

The Rural Policy and Design Guidance of 2014 permits the rehabilitation and complete redevelopment in cases of “existing buildings” in the countryside or outside development zones which are covered by a development permit or which existed prior to 1978 – all buildings existent before 1978 are defined as legitimate at law. The policy specifies that the function or use of the building would have to have been “already legally established.” 

The commission had begun to grant permits for houses to applicants who could produce documentary evidence that a building or the vestiges of it – even those that had been reduced to rubble over the decades or centuries – had once been used as a residence. 

In the case of Lunzjata Valley, the applicant presented a contract dating to August 7, 1947 in which the place was described as a “ruined building”. This led to approval – which was appealed. 

During the appeal, the planning authority defended the grant of the permit by saying that “internal verifications” had led to the “moral conviction that the site was in fact used as a residence”.

The tribunal, however, cited the requirement that the residential status of the building or ruin had to be “legally established” by the cut-off date of 1978. It quoted the glossary of the policy which defined “legally established” as, amongothers, “that which is visible on the 1978 aerial photographs.”  

The tribunal said this meant that there “has to be some form of building visible on aerial photos of 1978”. 

However, aerial photos dating as far back as 1957 showed there was no structure that could be “objectively” considered a residence. 

The tribunal maintained that the Planning Commission was wrong to grant permits on the sole consideration of whether a residence could be inferred from notarial archives at some point in the distant past. 

It added that it was “somewhat perplexed” as to how the authority considered the evidence presented to be of residence.

It revoked the permit and relayed its sentence to PA chairman Johann Buttigieg for his “cognisance” and for the PA to define more unequivocally the term “existing building.” 

The applicant then submitted a fresh application with an amended plan. The commission viewed this as a “new full development application which is totally independent from any other application on site” – and granted the permit last March 12, almost two months after the tribunal had decided it was applying the policy wrongly. 

The appellants appealed yet again but in a decision on July 31 the tribunal dismissed their appeal on technical grounds. However, the tribunal’s original decision was reconfirmed in a judgment by the Court of Appeal on March 19. 

Yet despite the rulings of the tribunal and the court, the commission has since served several other permits based on the same rationale deemed flawed. This was pronounced by the commission in the sitting of last August 6, when it mentioned “similar approved applications”. The commission defended its “consistency” in the face of intense public criticism after it had, in a previous sitting, signalled its intention to overturn a recommendation of the Planning Directorate and grant a permit for a tiny room in the Qala countryside to morph into a pool villa. 

The site belongs to major property developer Joseph Portelli and his business partner Mark Agius, who fronted the application. 

In that application, documentary evidence was presented that purported to prove the small country room was once the woman’s residence. Investigations by Times of Malta eventually unearthed documents showing the woman had actually lived in the village. 

At a sitting on August 6, the Planning Directorate reconfirmed its stance for rejection of the application by citing the judgments of the tribunal and court in the Lunzjata Valley case. 

The commission then reportedly berated the directorate for not drawing its attention to the judgments earlier or not working in an analysis of these sentences in reports on other applications that invoke the same policy. However, the tribunal had in fact transmitted its judgment on the Lunzjata Valley case to the PA’s executive chairman for his “cognisance”.  

‘Policy review’ under way

A “working group” has been convening since 2018 to review the policy being invoked for these countryside villas, a spokesperson for the Environment Minister has told Times of Malta.

He spoke of these developments’ “adverse impacts on the rural landscape, character and scenic value”, as well as “cumulative impacts” of “existing and new structures scattered in the countryside”. 

He added that the working group had “identified a number of proposed changes” in the past months, and that more information “will be communicated in due course.”    

Meanwhile, Times of Malta asked Planning Commission chairperson Elizabeth Ellul whether her position as commission chairperson was tenable given the commission’s approval of applications in disregard of a judgment by the Court of Appeal.

She was also asked to clarify a line in the minutes of the August 6 meeting – on the Qala case – in which the commission maintained, in reference to the judgments of the tribunal and court, that “it is adamant there is no infringement of the policy”.

“Kindly send your queries through the official PA channels please,” Ms Ellul wrote in her reply.  

Transport Minister Ian Borg, in charge of appointing members of the commission, was asked whether the position of members of the commission was tenable given their apparent intransigence in the face of the court’s judgment. 

His spokeswoman replied that the PA “works independently” and that “no comments could be made on specific applications” particularly ongoing cases. 

“Dr Borg and Parliamentary Secretary Chris Agius have faith in all board members they appointed,” she added. 

How to turn a rabbit hutch into a villa with pool

The Planning Commission has been criticised for allowing developers to procure permits for villas with pools in stages, over the years, in mockery of holistic planning policies and objectives.  

This can be seen in the permit granted for a pool villa on the slopes outside the village of Żebbuġ in Gozo (not the same as the one in the main story). 

The area is classed by the Planning Authority as an area of High Landscape Value and Ecological Importance that is supposed to be protected from the intrusions of development. 

An initial application for a rabbitry was refused in 1994 but it was built illegally anyway and sanctioned in 1996. Additional structures were then constructed but put under enforcement procedures in 2009. 

The enforcement order was lifted in 2013 with the approval of an application to demolish the farm and build a “dwelling” – a permit granted despite policies disallowing conversion of farms into dwellings in areas of High Landscape Value. 

The adoption of the Rural Policy and Design Guidance in 2015 prompted another application, this time for a swimming pool. 

Dwelling had not been built

The policy permits swimming pools if they fall in ODZ terrain so long as the pool and any “ancillary facilities are located within the curtilage of a legally-established accommodation”. 

Approval was granted even though there was no “accommodation” in reality because the “dwelling” had not been built. 

Yet another permit was served in 2018 for drive-in and three parking bays. 

The final permit – to renew the now unified permit – was served last July 31 to Marcin Depczynski of Żebbuġ Farm Ltd. 

Judge Mark Chetcuti implicitly criticised this sort of fragmentary approach in a judgment delivered on June 19 in which he revoked a permit for a swimming pool that had been granted to Transport Minister Ian Borg. 

The permit for Dr Borg’s house had been granted under the terms of the local plan a few years ago, while the pool was permitted in a subsequent application under provisions of the 2014 rural policy.  

Mr Justice Chetcuti held that policies of the local plan ought to have taken primacy in assessment of the application for the pool area – and revoked the permit in his sentence.