An amnesty is often used as a political tool to provide a remedy for problems that lie outside the confines of legality. Kurt Sansone explores the impact of the decision to offer absolution for planning sins.

Joyce* is an elderly woman who owns a ground floor house but selling it has been an impossible venture for several years.

The previous owners had extended the kitchen into the backyard to create space for a small third bedroom.

When Joyce and her late husband bought the house, the yard was already smaller than the legal requirement.

Joyce may not be a real person but her case resembles that of many others who bought properties with planning infringements and are stuck in limbo.

The planning amnesty unveiled last week could possibly provide Joyce with a solution. She will be able to regularise the illegality, making her property sellable.

But it would be naïve to believe this scheme is targeted at social cases where a legitimate argument could be made for regularisation. Its ramifications go deeper than that.

In the words of Alternattiva Demokratika deputy chairman Carmel Cacopardo, this is “a catch-all scheme” that rewards those who broke the law.

“Any such scheme should have targeted only minor infringements that would be clearly defined at law, such as yards being a few inches smaller than permitted or garage ramps with a wrong gradient,” Mr Cacopardo says.

As things stand there is no distinction between minor and major infringements and the scheme also applies to illegalities in urban conservation areas and scheduled buildings, he adds.

“An amnesty like this is morally reprehensible because it signals the end of rule of law and like any amnesty it is a political statement that good governance has failed,” Mr Cacopardo argues.

This is not the first scheme of its kind. In January 2013 the outgoing Nationalist government had unveiled a similar amnesty. However, the scheme did not give legal certainty to convince banks the properties were officially sanctioned.

An amnesty like this is morally reprehensible because it signals the end of rule of law

This is what prompted the incoming Labour government in 2013 to work on an amnesty that provided legal certainty.

When interviewed by The Sunday Times of Malta in March last year, then planning parliamentary secretary Michael Falzon insisted on not calling it an amnesty because applicants would still have to pay a penalty to be regularised.

It was a question of semantics. The end result of the exercise is the closure of two eyes to building infringements. The scheme does include a condition that makes it impossible for an infringement to be regularised if the illegality is considered an injury to amenity – a nuisance to neighbours or harmful to the environment.

But Mr Cacopardo is not sure this will be an effective deterrent to blatant abuse being regularised.

Although injury to amenity is defined at law, its interpretation is very subjective, he insists, and much will depend on how the board deciding these cases will interpret it.

“The board will have absolute discretion and with so much pressure as a result of an approaching election, we all know what absolute power does,” Mr Cacopardo says.

His critical views were reflected in a statement by the Chamber of Architects that expressed fears the new regulations will serve to promote the laissez-faire attitude of certain developers.

On the flipside, the Malta Developers Association described the amnesty as the “only remedy” for families who lived in properties with several irregularities that could never be sanctioned.

Economist Philip Von Brockdorff says the amnesty is another policy choice in a string of decisions taken by this government to boost the construction and real estate sector.

“The government realised from day one that the construction sector is a key driver of the economy, so much so that one of its first decisions was to reduce planning fees,” he says.

The value of a property will increase the moment an illegality is regularised, he adds. “It will be sold at a higher price or rented out with greater ease.”

Official statistics downplay the importance of the construction sector to the economy but Dr Von Brockdorff begs to differ. There is a lot of undeclared activity going on in the sector, which is not captured by official figures, he says.

“However, the impact of a thriving construction sector does trickle down in the form of increased consumption because it leaves a lot of money in the pockets of service providers like tile layers, plumbers and electricians.”

The planning amnesty, which follows the introduction of a flat tax rate on rental income intended to draw the rental market out of the shadow economy, will boost the sector and this will contribute to more GDP growth, he says.

“And this does not yet factor in works on the high-rise buildings being proposed.”

The short to medium term consequences may be positive, Dr Von Brockdorff notes, but reliance on construction can also have long-term negative impacts, not least environmental degradation.

The planning amnesty risks perpetuating environmental damage unless injury to amenity is interpreted strictly. But there is also another consequence related to how people perceive rule of law.

Whether the lack of respect for laws displayed by many in society is a direct result of amnesties is debatable but what is probably true is that Maltese culture is amenable to closing an eye to wrongdoing.

Mr Cacopardo argues this is the result of a Catholic culture that allows people to sin as they please because it will eventually be forgiven.

It is one way of interpreting an amnesty, only this time the absolution will not be dispensed by a priest but by a planning board.

*Name is fictitious

kurt.sansone@timesofmalta.com