Under the previous administration, all illegal development carried out prior to January 1, 1993 within the established building zone boundaries was immune to direct action. Once served with an enforcement notice to remove the illegality, the owner had a right to claim that such notice remains unexecuted unless the illegality did not amount to a ‘change of use’. Nevertheless, the illegal status of the building subsisted, as a result of which the building would have remained ‘standing’ without water and electricity. Consequently, a substantial number of illegal buildings within the development zone were immune to enforcement action and, yet, destined to remain uninhabitable.
In 2012, the then Nationalist government made a second attempt to address this, quite anomalous, situation. Owners of illegal buildings were then able to lodge a ‘concession’ application (known as a ‘CTB application’) to be able to obtain water and electricity. Once a concession was issued, the illegality was likewise exempt from any possible direct action. Concessions were limited to specific categories of illegalities prescribed by law.
Nevertheless, a concession was not tantamount to a planning permission. In fact, applicants were still obliged to remove any illegal development prior to submitting an application for new development, regardless of whether a ‘concession’ was issued in relation to that same site.
Legal Notice 285 of 2016 (Regularisation of Existing Development Regulations) is not tantamount to a blanket amnesty
Unfortunately, applicants were led to understand that, once a concession was in hand, their building was ‘legalised’, particularly so since local financial institutions were eager to grant loan facilities on the strength of a valid concession. Meanwhile, property vendors were being challenged before the civil courts for warranting the ‘peaceful possession and real enjoyment of the property transferred’ to a bona fide buyer, having transferred an ‘illegal’ property containing illegalities purportedly ‘regularised’ through a CTB.
Undoubtedly, the serious weaknesses with the previous law were self evident. Against this background, the current administration could either opt to leave the situation ‘as is’ or seek to address the glaring legal uncertainties, leaving no stone unturned.
Ultimately, the government went all the way, providing the possibility for owners to ‘regularise’ an existing illegal development instead of a half-baked ‘concession’.
Legal Notice 285 of 2016 provides that the illegal development must be located within the boundary for development in a planning scheme or local plan. In other words, ODZ illegalities are a priori excluded from this regime. Even more so, it should be noted that the legal notice is not tantamount to a blanket amnesty.
Owners are required to submit a regularisation application and convince the Planning Authority that the illegality does not constitute an ‘injury to amenity’. Legally speaking, it must be shown that, once regularised, the development would not jeopardise the ‘comfort, convenience, pleasantness, safety, security and utility that may be enjoyed within and around a property, street or neighbourhood’. When considering an application, decision-makers are therefore required to, inter alia, have regard to privacy distances, safety issues and outlook levels.
In addition, upon an approval of an application, the PA has the power to impose any condition it may deem necessary, including the execution of specific works within a specified time-frame of two years, failing which the application would be dismissed. This was not possible under previous legal regimes because the planning authority was prohibited from imposing any ‘extraneous’ measures with regard to pre-1993 illegal development, however serious the illegality. Likewise, CTBs were equally issued without having any regard to the amenity of the area, provided, of course, the illegality featured in any of the prescribed categories.
All things considered, it could be argued that the regularisation legal notice has addressed two major inadequacies. As illustrated above, the PA is in an unprecedented position to act on illegalities, otherwise immune from direct action under previous legislation.
Secondly, it is now possible for hundreds of home owners to market their property in a ‘legally certain environment’.
In my opinion, the Opposition did well to remain very cautious on the matter.
Robert Musumeci is a consultant in the Office of the Prime Minister.