In recent months the message from several Government officials has been that they have their hands ‘tied’ when it comes to changing certain development plans and policies. This self-freezing attitude is one of choice and is not imposed on them by any legislation. They also choose to take long in making the changes to other plans and policies that they had promised to change. Such an attitude gives the impression that plans and policies in Malta can never change and when changed, so much time would have passed that one wonders whether the underlying reason is a laissez-faire attitude that allows developers to plunder the country’s urban and natural environment at the expense of communities that live in the affected areas and the wider general public.
Choosing not to act at all or choosing not to act on time means a de facto end to planning in Malta. If land-use planning is not used to provide a timely change in the direction of a country’s development, which would place the public interest and wellbeing at its heart, then what is its whole purpose? The KA’s concern on this lack of action and the procrastination in taking timely action is its key reflection on the occasion of World Town Planning Day 2021.
‘Vested rights’ as opposed to ‘legitimate expectation’
The Development Planning Act 2016, the main legislation that regulates land use, is clear on what vested rights are enjoyed by property owners. Such rights are restricted to the possession of a valid development permission and do not include any other expectation that the owner might have.
Article 72(2) states that in determining an application for development permission, the Planning Authority or any of its decision-making boards shall have regard to plans and policies (apart from other factors such as representations from the public). Such plans and policies are those that are in force, that is, those approved by the Minister responsible for planning or by Parliament, as the case may be. The Article specifies that such plans and policies cannot be applied retroactively to affect vested rights arising from a valid development permission.
Moreover, Art 53(1), which deals with the preparation of a plan or policy, refers also to the procedure to be adopted in the case where land is going to be removed from the development zone. The Development Planning Act does allow for Government to remove land from development zones. Of course, this matter has to be approached in a highly responsible manner, judiciously, in the interest of the common good and definitely not frivolously. However, invoking reasons which claim that “hands are tied” when this is obviously not the case, raises questions on the reasons for the adoption of such an attitude.
If Parliament approved the Development Planning Act in 2016 and did not want to impede politicians from carrying out positive changes that are beneficial to communities, then why are Government officials choosing to adopt such a fatalistic attitude?
The law specifically refers to a property owner’s rights as being “vested rights arising from a valid development permission”. It is obvious that owners would have expectations based on current plans and policies. But does this mean that therefore such plans and policies can never change? The law does not give any weight to other expectations that the property owner might have.
Proponents of the concept of legitimate expectation when applied to planning seem to propose that buying land should be a risk-free venture. Let us suppose that a parcel of land is included in a development zone overnight and the owner’s wealth increases by a hundredfold. Maltese law does not allow such an increase in wealth to be taxed. This means that, on paper, the landowner gets wealthy overnight. Let us also suppose that later on, because of proper planning considerations and in interest of the common good, Government removes the land from the development zone and the owner claims that he had a legitimate expectation to develop such land. One has to keep in mind that the owner would not have paid one cent when the value of the land increased through the first change in the zoning policy. Freely given, freely taken should be the fundamental principle.
Wise buyers, when purchasing land to have it developed, would insist on a clause stating that the deed of purchase is subject to development permissions being granted. This is because the value of land can go up and down. The value mainly fluctuates because of changes in demand and supply and changes in planning policies. Proponents of the legitimate expectation concept do not seem to recognize that a development plan or planning policy would need to change due to demographic, economic, social or environmental trends. They seem to propose that development plans and planning policies once approved are incapable of being changed at all in the future and hence incapable of responding to the emergent needs of the citizens.
The legitimate expectation concept, when applied to planning, is flawed for another reason. Suppose that a person invests in a two-storey house knowing full well that, at the time, the height limitation in the area is two storeys and the area is zoned for residential use. One fine day the height limitation policy in the area is relaxed allowing the construction of ten-storey buildings and the area has its zoning changed from residential to entertainment. The changes in zoning and height limitation have a detrimental effect on the enjoyment of the property by the owner of the two-storey house. Should not such owner argue that he had a legitimate expectation that once he bought the house in an area zoned as residential with a height limitation of two storeys then such zoning and height policy should remain unchanged forever? This example shows that if the legitimate expectation concept continues to be upheld by Government officials, even if not officially, then planning is paralysed or dead. If legitimate expectation is to be applied, then it has also to be applied not only for the benefit of developers submitting a development application but also to the whole community of owners that will be directly affected by changes in zoning and height limitation. What is good for the goose is good for the gander. But this also means that, at the end, the planning function in the country is paralysed and held hostage by individuals and their consultants who see rights where there may be none.
Even if there might be a court case that upholds the argument of legitimate expectation, this does not enshrine such a concept into law. A subsequent court decision might throw away all the arguments upheld by another court. The reason is simple. In Malta, the concept of precedent is not recognized at law. This is just a line of reasoning which has been used by project proponents to impress decision-makers to favour questionable development projects.
Concept of precedent in planning
Over the last 20 years, since the setting of the Planning Authority in 1992, various developers’ consultants, mainly architects and lawyers, tried to introduce the concept of precedent into the planning system. This concept of precedent just does not make sense in planning since a particular development proposal cannot be compared to another one due to its intrinsic individual peculiarities. One cannot compare one street with another or even a particular development with another one in the same street. Should a development permit, obtained through dubious ways, set a precedent for future similar development? In other words, should one mistake become the rule of thumb and determine a new planning policy? This would result in a hotchpotch planning approach where policy is thrown out of the window and decisions taken on the basis of precedent.
Both concepts of precedent and legitimate expectations are anathemas to planning since they mean the end of planning and the absolute supremacy of perceived property rights even in the case where such rights are granted by the planning system itself.
Procrastination in reviewing local plans and abandoning the Paceville Masterplan
For the last eight years, promises have been made that local plans would be reviewed. Significant demographic, environmental, economic, and social changes have occurred since the local plans were being prepared in the early 2000s. Instead of reviewing them in a holistic manner, Government has opted to go for various piecemeal changes that do not consider adequately the impact that such changes would have on the communities surrounding the areas that were being reviewed. Moreover, the masterplan for Paceville, one of the areas in Malta that is being developed at a fast pace, has been shelved. This is a case where planning is not being made to address urgent issues facing a whole community. Instead, the locality of such community is left at the mercy of developers defining the future liveability, or lack of it, of the area.
Some Government agencies enjoy lack of public scrutiny when carrying out development
Planning has also taken a back seat in the case of certain Government agencies. For the last years, the KA has consistently advocated against the use of the legal instrument known as Development Notification Order (DNO) being used by Government to shield some of its departments and agencies from proper planning scrutiny including public consultation scrutiny. This legal instrument is resulting in major developments such as the 85-industrial unit complex in Xewkija Gozo. Such development is nothing less than an eyesore due to its lack of planning scrutiny prior to its construction.
Causes of deterioration in urban and natural environment including Gozo’s ridges
Why would people be shocked at the uglification of Xlendi or the destruction of the ridges in Xagħra Gozo? The root cause of all this is the lack of political will to change the ill-advised plans and policies that had been approved in spite of warnings from various NGOs, local councils and the KA that such plans and policies would result in what everyone is now witnessing. Authorities seem to have been more interested in satisfying narrow interests than the common citizen’s wellbeing which includes that of young Maltese who will grow in a country where the urban and natural environment leave much to be desired. The KA has repeatedly called for the protection of Gozo’s ridges through the reversal of damaging clauses that were introduced in the Development Control Design Policy, Guidance and Standards of 2015. Was not the destruction of ridges in the 1970s, 1980s and 1990s enough for the authorities to recognize that inadequate planning is as bad as minimal planning or no planning at all?
Why the continued dragging of feet in approving changes to the Rural Policy and Design Guidance?
There has been much fanfare about the proposed amendments to the discredited Rural Policy and Design Guidance which allows ruins in the countryside to be transformed into villas with swimming pools. And yet, a full year after the public consultation on this policy ended, the amended policy has not yet been approved. All applicants and new ones that have applied since then are being allowed to have their application approved. The most sensitive amendments to the policy could have been brought into force last year but the authorities have failed to do so. Again, proper planning is being put aside for considerations that are detrimental to the interests of the public interest and well-being.
Less planning by the Planning Authority
It is indeed of concern that the authority which has been entrusted with the function to regulate development on land is unable to carry out regular studies which are fundamental to its core mission. The PA has awarded a tender for the provision of consultancy services for the preparation of demography, employment and housing studies for the review of the Spatial Plan for Environment and Development (SPED). The whole raison d’etre of the Planning Authority is to continuously monitor demographic, economic, social and environmental trends so that any impact that such trends have on land use would be adequately addressed in advance in the public interest and wellbeing. The KA is concerned that the Planning Authority is not carrying out its function of curbing unsustainable development on an ongoing basis. This does not augur well for proper planning in the country.
Time to recognize planning as a profession
It is not surprising that planning is in such a bad state. Politicians have for many years consistently treated the interdisciplinary skills that planners have as not worthy enough to be recognised officially, which would lead to planning being recognized as a profession in Malta. The planning system inherently requires the set of interdisciplinary skills that planners are trained in because the core purpose of planners is to serve the interests of the wider community and not particular interests.