A hotly-contested kiosk on the Sliema promenade has applied for the sanctioning of works that exceeded its permit limitations, raising questions about lack of enforcement and fines when planning law and conditions are contravened.

The kiosk on The Strand was recently the subject of an online petition that called for the freeing up of pavements as another portion of the promenade was “stolen”.

But no action has been taken, said heritage NGO Flimkien Għal Ambjent Aħjar.

Strongly objecting to sanctioning, it has called for the removal of the additional “illegal” structure, to come in line with approved drawings and permit conditions.

The application is still at an early vetting stage and needs to be validated and published in the Government Gazette before the public can submit registered representations during the statutory period, the Planning Authority said in its response to questions on enforcement action.

Its Compliance and Enforcement Directorate is awaiting the outcome of the application proposing “sanctioning of enclosure to approved area for tables and chairs”.

If the application is refused by the Planning Commission, an enforcement notice with a daily fine will be issued. If, on the other hand, the application is approved, a sanctioning fine applies, as per Schedule of Penalties Regulations, the PA explained.

Time allowed to apply for sanction

But the application to authorise the non-compliant development has opened a can of worms, with the move highlighting a loophole – “or rather, an abyss” – for the PA to get out of enforcement, according to Claire Bonello, legal representative on many planning cases.

She described the situation as “standard practice”: when planning law and conditions were broken, the PA did not issue an enforcement notice but instead gave the contravener time to file an application to sanction.

It should not be up to private citizens to act as investigators when we have a regulatory agency to carry out this work

“Naturally, this takes years and years to be appealed,” Bonello added. “In the remote circumstances that enforcement fines are ever issued, the contravener simply petitions (for free) to the Environment and Planning Review Tribunal and the fines are forgiven on a multitude of silly grounds.

“Moreover, the petition procedure is not public, and all enforcement is bypassed. So, it is a system doomed to help contraveners,” Bonello said.

Blatant breach of permits

Application PA/07319/18 for the kiosk was approved with clear plans and limitations. But the applicant went ahead and built a structure that was “blatantly” in breach of the permit, said Romano Cassar, a Ramblers’ Association founding member.

Cassar has taken a personal interest in the kiosk case, even though the NGO does not tackle urban areas. 

He has insistently sought updates from the PA on the imposition of enforcement notices and daily fines for transgressions.

“It is already bad enough that the PA issues permits for a takeover of public land. It should not then be up to private citizens to act as investigators and reporters when we have a regulatory and enforcement agency, paid from our taxes, to carry out this work,” he said.

The permit application had sought to change the design of an already approved kiosk, but it should have been rejected in the first place for being in conflict with provisions in the policy, Guidance and Standards for Outdoor Catering Areas on Public Open Spaces, the petition had stated.

These expressly prohibit outdoor catering areas contiguous to kiosks, and stipulate that awnings are used only during the hours of operation and are easily retractable.

While the approved plans allowed for demountable umbrellas and windbreakers up to 1.2 metres high, a permanent roofed enclosure has instead been installed, obstructing views of Manoel Island and Valletta.

Policies disallow such a structure

The Sliema local council, which had objected to the application, also pointed out it had been recommended for refusal and granted when “applicable policies disallow such a structure”.

The Planning Commission had ignored the council’s objection and case officer report, which also stated that the application ran counter to the Strategic Plan for Environment and Development, aimed at protecting and enhancing the character and amenity of urban areas.

Objectors protested that the promenade and pavements, even on Għar id-Dud and elsewhere, have been constantly “raped” by the addition of kiosks, street promoters, restaurants and other commercial aims, extending beyond their encroachment, and turning once pleasant walks into obstacle courses.

This prompted the public outcry at the “latest land grab” at a time when open recreational spaces were needed more than ever, FAA had said.