Architects slam PA ODZ scheme as ‘a morally dubious ticking time bomb’

Not only should the Planning Authority scrap its proposed legal amendments to the country’s Outside Development Zone boundaries, but the Kamra tal-Periti (Chamber of Architects) has called for the regularisation of the ODZ scheme to be “reconsidered in its entirety to mitigate its social and environmental impacts”.

With the PA’s proposed amendments to the 2016 Regularisation of Existing Development Regulations, a scheme that was meant to have lasted just two years but which was instead extended indefinitely, developers who built on sites “partially” in ODZ will now also be able to pay a fine to legalise their irregularities.

While the original 2016 regularisation scheme only accepted sites within development boundaries, the new scheme refers to sites encroaching on ODZ and includes illegal development, which goes against policies.

In a hard-hitting statement against the proposed amendment and the regularisation scheme as a whole, the Kamra has warned the situation will place a “ticking time bomb under the industry and expose the PA to significant financial liability”.

Labelling the scheme “morally dubious”, the Kamra said, “social justice and equity seem to have been side-lined altogether in the design of the original regularisation scheme” and that it is “the perpetrators of the illegalities should be responsible for paying the regularisation fees, and not the victims”.

The regularisation scheme served the purpose of placing properties that could not be put on the market due to unsanctionable and irreversible illegalities, and thus had no real value, back into the real estate market.

But such unsanctionable and irreversible illegalities can only be regularised, the Kamra points out, if they meet the criteria that they were affected before 2016 and that they do not cause “injury to amenity”.

It is the ‘injury to amenity’ phrase, according to the Kamra, that is the real fly in the ointment in that the term remains undefined despite the Kamra’s insistence that the PA provides an adequate definition. Those calls, the Kamra said, have repeatedly ”fallen on deaf ears”.

A ticking time bomb

Moreover, the Kamra highlights how a recent decision of the Environment and Planning Review Tribunal on the ownership of airspaces indicates that “many, if not most, regularisation permits issued since 2016 on the grounds that they do not cause injury to amenity, may actually be null and void, potentially placing a ticking time bomb under the industry and exposing the PA to significant financial liability”.

The state of affairs, the Kamra said, could have been altogether avoided “had the Kamra’s expert opinions been seriously considered, rather than summarily dismissed”.

It is also incomprehensible, according to the Kamra, “how those whose amenity could potentially be injured are not entitled to register their objection and appeal any decision the PA may take, as it observes how, unlike in other types of planning applications, site notices are not affixed to buildings subject to regularisation applications, which limits the opportunity for public participation in decision making – in breach of European Directives.

Regularisation applications are also exempt from consultations from other relevant public authorities, including the Superintendence of Cultural Heritage (SCH), which, the Kamra points out, “is particularly problematic given that properties located within UCA are currently included in the regularisation scheme.”

It adds that the illegalities being regularised may very well conflict with heritage policies. The expansion of the scheme to partially include the ODZ without the possibility of receiving feedback from other regulatory authorities, such as the Environment and Resources Authority (ERA) and the Agricultural Advisory Committee (AAC), “may further undermine the protection of the environment and the agricultural industry”.

Developers being let off the hook

The scheme’s primary beneficiaries were the owners who were unaware that they bought a property with illegalities. They were, the Kamra observes, “for all intents and purposes conned and their good faith abused.

“When putting their property on the market, they suddenly realised that all the effort, time and sacrifice put into paying their home off was in vain, as the illegalities which they were unaware of rendered their property devoid of any value.

“While it is true that they could have sought professional advice before acquiring their homes, all property buyers have a legitimate expectation that a vendor is selling them a legally compliant property. Indeed, many transfer deeds contain clauses wherein vendors guarantee that the property is ‘built according to planning and building regulations’.”

As such, property owners could seek legal recourse for compensation or redress from the vendors, who, in most cases, would be the developers of the building.

“Thus,” the Kamra explains, “the regularisation scheme provided an opportunity to avoid going to court to seek redress with an uncertain outcome and apply for regularisation to make their property compliant with at least planning regulations, if not building regulations.

“This effectively let developers off the hook from having deeds they signed off rendered null and void, and limiting the scope of compensation to planning and professional fees.”

But in practice, the Kamra said, “the victims paid the (monetary) price for regularising their position while the perpetrators were absolved from all penalties. Indeed, the high fees effectively make it unaffordable for people on lower incomes, who are more likely to have been cheated when acquiring their homes if they could not afford professional support.”

The Kamra stressed that the perpetrators of the illegalities should be responsible for paying the regularisation fees and not the victims.

PA generated €29 million through regularisation applications in one year

The Planning Authority also benefitted greatly in financial terms from the scheme, the Kamra said, observing how, in 2019 alone, the PA generated €29 million through regularisation applications, some of which it used to finance the Irrestawra Darek scheme.

“Indeed, it may be argued that the PA has become financially dependent on regularisations.

It reached the point where regularisation applications are being demanded from planning officers to regularise discrepancies of one or two centimetres, adding thousands of euro to the total planning fee revenues per applicant.”

In this context, the Kamra said it needs to be explained whether the PA has made any estimates or forecasts on the number of regularisation applications it is expecting to receive and the funds it will generate as a result of the expansion of the scope of the scheme.

Similarly, it would also be essential to understand where any increase in revenues shall be diverted.

A morally dubious scheme that rewards lawbreakers

The current regularisation scheme “is morally dubious as it rewards those who break the law at the environmental and social expense of all those who follow it.

“This scheme encourages a mentality that paying money and asking for forgiveness while still profiting from misdeeds is an acceptable substitute for behaving correctly and complying with statutory requirements.

“Social justice and equity seem to have been sidelined altogether in the design of the original regularisation scheme,” the Kamra added.

Making matters worse still, the Kamra underscores how, while the scheme has allowed several properties to be placed on the market, the end result is a significant number of properties that are substandard, poorly built, or fail to comply with building regulations.