Inside the development zone

Grave concern has understandably been expressed by various sources in recent months regarding the persistent encroachment of development within areas indicated in local plans as being situated outside the development zone.

The latest development application, which has raised objections on both social and written media and mobilised residents in the area to participate in a protest in recent days, is different in that it concerns development of a considerable size proposed to be carried out in Pembroke on land which – while being undeveloped to date – is indicated by applicable policy as being within the development zone.

Among the various opinions put foward in this regard, some have argued protests by third parties, who may themselves own properties situated on land within the said zone, are entirely unjustified precisely in view of such categorisation.

This article will not specifically enter into the merits or otherwise of the proposed development. It was recently reported that the government may not intervene to halt the application process.

This is correct, and it would be remiss to deprive any applicant of the right to submit his or her proposal for due consideration by the competent authorities.

The focus of this discussion is rather the manner in which an application of this nature ought to be assessed.

Does the location of the proposed deve-lopment within the parameters of the development zone (as opposed to several applications which lie outside the area intended for development and are therefore to be evaluated on the basis of different criteria) imply a blanket approval of such development in principle?

This is subject to further evaluation, which will be undertaken by the Planning Authority in the event that a full development permission application is subsequently submitted by the applicant.

It is correct that the government may not intervene to halt the application process, and it would be remiss to deprive any applicant of the right to submit their proposal

Our law is clear in this regard – the answer is Article 72 of the Development Planning Act (Cap. 552 of the Laws of Malta) specifically instructs the Planning Board to give regard to a number of factors in its determination upon an application for development permission.

They include, among others, plans, policies, any other material consideration, including surrounding legal commitments, environmental, aesthetic and sanitary considerations which the Planning Board may deem relevant, and also representations made in response to the publication of the development proposal.

The ranking of the factors as stipulated in the above-cited provision of the Deve-lopment Planning Act has long been a matter of discussion from a planning law perspective and furthermore the subject of various judgments delivered by the Court of Appeal (Inferior Jurisdiction), which has clearly pronounced itself in this regard on several occasions.

It is, in this context, important to notea particular amendment which came into effect last year further to the Mepa demerger and the promulgation of the above-mentioned Development Planning Act (Cap. 552), which replaced the Envi-ronment and Development Planning Act (Cap. 504).

Reference is made to Article 69 of the previous legislation Cap. 504 (now replaced by Article 72 – Cap. 552), which established those factors that the Malta Environment and Planning Authority was bound to consider in its determination of a planning application and provided that the authority shall apply (i) plans and (ii) policies (Sub-Article 1) and shall also give regard to other material considerations and representations put forward  by third parties as detailed above (Sub-Article 2).

The categorisation thereby established by the wording of the law effectively created a distinction between the ‘primary’ issues to be evaluated by the authority during the application process and other considerations which – despite their possible relevance – were attributed a ‘secondary’ or ‘ancillary’ status by the applicable law.

The new provision (Article 72 Sub-Article 2 of Cap. 552) contains no such distinction, thereby placing all considerations – including those concerning environmental and aesthetic issues and third-party representations – on the same footing.

Where does this leave the Planning Authority in terms of its assessment of development applications and particularly in terms of proposed development which – notwithstanding its situation within the development zone – is likely to have a significant impact from an environmental perspective?

The amendment in question has served to promote development in certain cases – particularly with regard to applications which hinge upon the existence or otherwise of a valid commitment on site – and this by requiring the authority to attribute equal significance to certain factors which were previously deemed to be of lesser importance.

On the other hand, however, the authority is now bound to evaluate all of the factors in the same manner, including those which may possibly militate against development in certain cases.

It will certainly be interesting to see how the authority will apply these principles in the context of the above-mentioned application and specifically in view of the fact that – if approved – the proposed development which lies ‘within the development zone’ shall necessarily have an irreversible impact upon the site and its surroundings.

Victoria Cuschieri practises planning law at Spiteri Bailey Advocates.

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