The Commissioner for Environment and Planning within the Office of the Ombudsman ruled that a Planning Authority’s circular relating to irregular developments is “unfair, irregular and against the principles of natural justice”.

The issue had been raised by the Kamra tal-Periti, which felt that this had serious implications for those property-owners who had minor irregularities.

In a statement, the Kamra tal-Periti said that while it did not condone illegal development, certain rights had been granted to property owners in the past and these could not be taken away at a later date.

Category B concessions (CTB) came into force in August 2012, enabling residential property owners to submit an application to the Planning Authority to cover illegal development that fell within specific strict parameters.

If approved, the applicant would then be allowed to request permission for alterations and additions to the property, and a compliance certificate for the provision of new water and electrical services to the dwelling could be issued. 

The CTB regulations restored the affected properties’ market value to levels comparable to legal properties of a similar description. As a result, these properties became sellable again, and banks were reassured that the effects of the concession were permanent.

With the coming into force of the Development Planning Act in 2016, the CTB regulations were repealed and no further applications could be submitted. In August 2016, new regulations were published that allowed for the regularisation of various types of illegalities, with no specific parameters, as long as these were not deemed to be an “injury to amenity”.

Banks reassured that the effects of the concession were permanent

However, the Kamra tal-Periti was concerned by reports from its members that the Planning Authority was requiring holders of CTB concessions to regularise their property at a much heftier fee than what they had originally paid for the concession.

In January 2019, the Planning Authority published a circular saying applications for sites covered by a CTB concession could only be made once the irregularity was either sanctioned or removed.

“If the illegal development cannot be sanctioned, a regularisation application would need to have been submitted and approved prior to the planning application being confirmed as complete,” the circular read. 

The Kamra tal-Periti requested the Ombudsman’s office to investigate this matter in March 2019, explaining that holders of CTB concessions for minor irregularities could be facing serious risks on their investment unless the Planning Authority changed its interpretation of the law.

In a decision delivered on May 7, the Ombudsman’s Office recommended that the Planning Authority should “withdraw and cancel this part of the circular”. 

This would allow new applications to be submitted on a site covered by a CTB concession without the need for sanctioning, regularising or removing the illegal works covered by the same CTB concession, as long as no further illegal development has taken place on site.