Bill 143 Amending the Development Planning Act – An Overview
On 23 July, the Maltese Government tabled Bill 143 proposing substantial amendments to the Development Planning Act. These changes aim to modernise the planning process, redefine development permissions, and strengthen the role of the Planning Authority. This Bill proposes various amendments to the Development Planning Act, Chapter 552 of the Laws of Malta.
Maltese Government framed the proposed amendments as an intention to strengthen the legislative framework governing land use and development control in Malta, aiming to clarify key definitions, update institutional references, and enhance procedural fairness, transparency, and consistency in planning decisions. It states that this Bill empowers the Planning Authority to issue guidance circulars, improve the regulation of ownership and consent in development applications, and consolidate rules on vested rights, renewal of permits, and public participation. The proposed amendments are also poised to improve enforcement mechanisms and compensation rules, clarifying the revocation and modification of permits in cases of fraud or material error, and allowing for policy application based on site-specific considerations; but what does this Bill actually propose?
A. Permissions – Development, Ownership and Third-party involvement
Changes to what is defined as Development
The Bill adds to the list of developments which require a development permission, namely by including: the making of any material change in the use of land or buildings, the use of a building in a manner that results in an increase in the number of dwelling units over and above its previous use, the deposit of materials on land, the clearing of valleys from accumulated sediment, and sea related developments including land reclamation, aquaculture, beach development, and any related use and the placing or display of advertisements.
On the other hand, the Bill proposes that the demolition or breakage, not visible from any road, and the deposit of inert materials on land, including in exhausted or disused quarries, where the land is being returned to its original condition, levels, and contours, is not to be deemed as development for planning purposes.
On another note, as the law currently stands, any works carried out after 1967 and not covered by a development permission issued by the Planning Authority are deemed to be illegal. The Bill now proposes a change to the year 1967 in that works will be deemed illegal if carried out without a development permission after 1978
The Applicant is not necessarily the owner
The Bill proposes some changes with regards to who can apply for a development permission. An applicant submitting an application pursuant to article 71 must declare that (a) they qualify as the owner of the site; or (b) they are duly authorised to submit the application in terms of any other law or by virtue of an agreement with the owner in which case the owner’s consent shall not be required; or (c) they have obtained the consent of the owner of the site and are able to provide evidence of such consent upon request by the Authority. The current bill does away with having to notify the owner of the site with the intention to apply for works via a registered letter.
Third-party Intervention
The Bill proposes that any person wishing to declare an interest in a proposed development, must do so by submitting a written declaration to the Planning Board within the time established by regulations and include their full name, the relevant identification number and email address; this also applies to interested entities. The interested party will also be required to clearly state the reasons for concern, with specific reference to applicable planning policies and relevant environmental or planning issues; a simple unsubstantiated objection will therefore not apply increasing the chances of having to seek technical advice to ensure that proper grounds are being set out in the objection.
Moreover, any changes or extension to the grounds of concern may only be carried out up to the deadline given for submissions after the preparation by the Executive Chairperson of the report in respect of the development application, in accordance with regulations made under the Act, and may not be changed or extended at a later stage, unless there is a change in the plans. In such cases, only new grounds relating directly to the modifications introduced in the revised plans can be submitted.
Application Review
Other amendments relate to documentation which is taken into consideration when determining an application for development. The Bill proposes the removal of a proviso which stated that subsidiary plans and policies shall not be applied retroactively to adversely affect vested rights arising from a valid development permission, or a valid police or trading licence issued prior to 1994. Moreover, the Planning Board will consider spatial, architectural, or contextual considerations instead of surrounding legal commitments, environmental, aesthetic and sanitary considerations. The term contextual considerations has not been defined and sanitary considerations, effectively pertaining to health and safety, is being done away with.
Moreover, the Bill proposes that the Planning Board may depart from adhering to plans, policies and regulations which impose fixed or prescriptive conditions based on spatial, architectural, or contextual considerations. The Bill a priori excludes the possibility of considering the justification granted by the Planning Board as an error of law in cases where the policy does not expressly provide for discretion of the Board to depart from mentioned plans, policies and regulations, provided that the decision explicitly references site-specific evidence and clearly articulates planning reasoning.
Vested Rights
The Bill proposes a list of so called vested rights which cannot be extinguished by virtue of determining an application for development, namely: (a) a valid development permission which has been lawfully implemented; or (b) a use which is currently ongoing and has not been interrupted for more than five (5) years since the possession of a police or trading licence that was valid on the last day it was legally required; or (c) any development which does not require a permit in terms of article 70(2); or (d) any use or activity deemed lawful under the Development Planning Act or other law.
Commencement Notice
In addition to a slight amendment to the definition of commencement notice, the Bill proposes a newly proviso which states that neither the obtainment of a permit nor the utilisation of a permit nor the submission of a commencement notice should be construed as certification of the structural soundness or safety of the works.
Permit Duration and Renewal
The Bill proposes that the Planning Board may impose on the applicant a time limit for the development to be completed. Moreover, the Planning Board, on the application of the person holding the full development permit, shall renew the permission if the application is valid and any updated plans and policies will be taken into account, however the Planning Board may, in its discretion and on the basis of justified spatial, architectural, or contextual considerations, decide to renew the previously approved permission notwithstanding such changes.
The Bill also expands on the provision that the permission remains in force and attaches to the site and is deemed to the benefit of the lawful owners and if consent is acquired from the owner or owners of the site, the permit may be utilised, in line with civil law provisions.
It is also proposed that the Minister may, by regulations, establish rules governing the period of validity of development permits, including provisions for varying such periods, provided that any variation shall have the effect of extending the validity of a permit or reinstating the validity of a permit after it has expired.
Permit Conditions
The appeal time for an applicant to request a reconsideration of the conditions attached to a development permission has been reduced from 30 to 15 days.
Cancellation of Permits
It is also proposed that article 80 pertaining to reasons for revocation and modification of a permit, is replaced and instead, power is given to the Planning Board to, within the validity period of the relevant permission, correct any error or omission, either on its own initiative or upon a request made by the applicant, provided that such correction does not alter the substance of the decision originally taken.
Moreover, the Bill proposes article 80A which borrows from the current applicable version of article 80 and allows the Planning Authority, either following a request or following the own initiative of the Executive Chairperson, revoke, modify any development permission, including any clearance issued by the Planning Board in accordance with an order, or revert the application to the pre-determination stage in order that the planning process may recommence, in which case, the amended proposal shall be published on the website of the Department of Information and advertised by means of a notice affixed on site, and the application shall be processed afresh in accordance with the law.
The Bill also states that such initiative may be taken either due to cases of fraud or the submission of wrong information or due to an error on the face of the record (meaning an error made by the Planning Board in reaching its decision) or where public safety is concerned. This article is applicable unless a year has lapsed from the development permission or clearance was issued by the Planning Board. However, in cases of public safety there are no limitations.
Incorrect interpretation or application of laws or policies as well as the interpretation or application of the incorrect laws or policies shall not be deemed to constitute an error on the face of the record.
The Planning Board must be provided with a recommendation on the decision within 100 working days from date of request.
A hearing should be held and where possible the applicant or individual making the request is present and the decision to be given must contain clear reasons.
The Planning Board shall not revoke, modify or re-process a development permission on the basis of fraud, incorrect information or declaration or plan or error on the face of the record unless these errors have a material bearing on the development permission.
An appeal may be filed with the Environment and Planning Review Tribunal, but no compensation may be demanded from the Planning Authority when the reason for said revocation, modification or re-processing of a development permission is based on fraud, incorrect information, declaration or plan, or error on the face of the record or for considerations of public safety.
B. Discontinuance Orders and Damages
A limitation has been set on the damages which may be claimed following a discontinuance order or removal order made in respect of any activity, works, or use, or in respect of any building, plant, equipment, or other structure or object lawfully carried out. Whilst article 56 currently states that compensation is owed for sustained losses, the Bill proposes that the Planning Authority shall be liable to pay compensation solely for the direct costs and expenses reasonably incurred in relation to such activity, works, or use and no compensation is owed in relation to any loss in the value of the land itself. Any benefits derived from aforementioned orders, would be set off with the owed compensation. No compensation is owed if the permission itself allows the Authority to order discontinuance.
C. Scheduled Property
Owners of scheduled property may request descheduling of their property, this right already exists. The current Bill proposes that the Executive Council must give its decision on the said descheduling within 12 months of being in receipt of the application. Moreover, it proposes that no more applications may be submitted for descheduling unless there is a material change of relevant circumstances. Reconsideration following refusal may be requested, in writing and within either 30 days of notification or publication in the Gazette of the scheduling order, whichever comes later and the Executive Council shall decide within 3 months of receipt of such request.
An appeal from a decision of the Council in this regard may be brought forward in front of the Environment and Planning Review Tribunal for a revocation or modification of such decision. It is also proposed that an appeal from scheduling or descheduling of a property or downgrading in protection afforded by scheduling or from a conservation order shall not pause the execution of such orders.
D. Access to Information
A new proviso under article 33 clearly excludes the right to access information or documentation which is not specifically identified under article 33, unless provided for in other regulations or where appropriate at the discretion of the Authority. Effectively this allows the Authority to refuse requests for documentation and information not listed under article 33 and simultaneously increases the importance of the wording of article 33 for whoever is making the request.
It is also being proposed that the list of scheduling orders, including any additions or amendments, are to be published on the Authority’s website, and this in addition to the Government Gazette and the local newspaper.
E. New Powers of the Executive
Various proposed amendments increase the Executive Council’s powers. For instance, over and above regulating the alignment and levelling schemes and their interpretation on site, the Bill now proposes an amendment to article 38, specifically that the Council may introduce alignment for the first time on sites previously without established alignment schemes, without the need for further procedures. The Bill also proposes an introduction of article 51A, empowering the Council to issue circulars from time to time in order to provide guidance, instructions or clarification on the interpretation or application of any provision contained in the applicable laws or policies.
A controversial addition is that the Executive Council, by virtue of article 54, may of its own motion, initiate and carry out a planning control application for minor modifications, which modifications shall include adjustments to the alignment of roads or buildings as set out in a local plan or and the introduction or alteration of zoning designations within the local plan, including changes to height limitations and land use classifications.
The Bill repeals part of the article pertaining to the procedure for making of regulations, specifically where certain regulations had to be issued for public consultation prior to being promulgated.
The Executive Council is also given the power to, at the expense of the owner, order the demolition of a property where such property is in a state of disrepair or constitutes a danger and appeal from such decision, does not pause the order to demolish.
Article 52 currently sets out an order or precedence of plans and policies in case of conflict between such plans and policies. The Bill proposes an added proviso which states that notwithstanding the hierarchy set out in article 51, any earlier document shall be interpreted and applied in alignment with the provisions of the most recently published document in the hierarchy, regardless of their respective position within the hierarchy. Article 52 currently provides that when material conflict exists, the Spatial Strategy should take precedence over the subject plan; the subject plan over the local plan, the local plan over the action plan or management plan, the action plan or the management plans over the development brief and the development brief over other policies as outlined under article 50.
Effectively any new document can trump the hierarchy outlined under article 52 if the new document contains matters provided for in any of the documents listed under article 52. The provision effectively bypasses the need to amend the document at the top of the hierarchy, as a new document will simply take priority in its interpretation.
F. Right of Entry and Enforcement Procedures
If the Bill comes into force, reasonable notice must be given at least forty-eight hours before entry into a property. A new addition also provides that the Executive Council and any authorised officer may employ various methods and technologies for the surveillance, monitoring, and detection of development activities, and the authority to store and maintain data derived from such activities in any format whatsoever when exercising their powers; therefore providing a legal basis for the Authority to process certain data.
The Bill removes the Executive Council’s obligation to affix a stop notice to a prominent position on a development site but adds that interested parties shall be informed of the stop notice per electronic means.
Pursuant to the amendments proposed to article 98, the Executive Council may, if it is satisfied that any order requiring the immediate cessation, prohibition of further work or development, or discontinuation of use, has not been complied with, whether in whole or in part, issue a breach notice and notify it to the owner of the land or on the occupier of the land or on the person responsible for the activity or development in question.
Such breach of notice shall specify the notice that was breached, detail the nature and extent of the breach, prescribe measures to remedy the breach within a time period determined by the Executive Council, and clearly indicate any further action that may be pursued if non-compliance persists, including the imposition of a first time fine where no fine is already applicable, otherwise an increase of the daily fine may be imposed.
Article 100, as proposed, also provides that if any steps or other action, including any discontinuance, stoppage or similar requirement, required to be taken, have not been taken within the specified time, the Executive Council may enter on the land or the area at sea and take such steps or other action as required without any other formalities. This may include the disabling or removal of any equipment, machinery, tools, belongings, vehicles or other objects that may be on site and the carrying out of any works necessary to comply with what is requested in the previously given notice. The assistance of the Police Force, any local council, any department of Government or any agency of Government may be requested.
G. Debt Collection and Fines
Failure to comply with an enforcement notice shall attract a daily fine of not more than two thousand euro (€2000), depending on regulations to come into force.
Prescription of debts owed to the Planning Authority has been extended to ten years from five. Daily fines for persons in default of a court order will also be increased and fines outlined under article 103 are considered a civil debt, to be collected pursuant to article 466 of Chapter 12.
At this stage Bill 143 is yet to be debated in Parliament and awaits a second reading. Given the general reaction received by Government, there is also the possibility that such Bills undergo a public consultation, usually preceding the introduction of a bill to Parliament. Therefore, at this stage it is the current laws which remain applicable.
How Can AE Help
Navigating changes in planning legislation can be complex. At AE Legal, we stay ahead of developments such as Bill 143 to offer clear, practical guidance. Whether you’re a property owner, developer or investor, our team can help you understand how these proposed amendments might impact your projects or rights. Contact us today to schedule a consultation and ensure your plans stay compliant and informed.
