Bill No. 143 of 2025 also introduces two coordinated reforms to the Development Planning Act (Cap. 552): first, a revised definition of the term “owner” in Article 2; and second, refined procedural requirements for submitting development applications under Article 71(4)–(5). Though formally distinct, these two reforms are conceptually interdependent. Together, they ensure that development permissions may only be initiated by those who possess, or who are expressly delegated, a valid legal interest in the land. In doing so, the Bill reinscribes private law discipline into a system that has historically drifted towards procedural fictions and speculative entitlements.
- Redefining “Owner” in Article 2
Current law (Cap. 552, Article 2):
“”owner” means –
(a) a person who in his own right or as a duly authorised agent for another, is entitled to receive the rent of the land or, where the land is not let, would be so entitled if it were let, but does not include a person who holds the land under title of an agricultural lease;
(b) where the land is subject to usufruct, the bare owner or the usufructuary;
(c) an emphyteuta;
(d) any one of the co-owners of the land on which development takes place;
(e) any one of the spouses, where the land to which the development relates forms part of the community of acquests;
(f) the director or directors of the company duly authorised to appear and represent the company which owns the land to which the development relates.”
As proposed in Bill No. 143, current Paragraph (a) is to be deleted and replaced with:
“the owner or a person who has been duly authorised by the owner of the land to act on their behalf in relation to such land”
From the above, it follows that the current definition of “owner” under Article 2 of Cap. 552 already extends well beyond traditional notions of title. This statutory fiction has long been confirmed by the courts. For example, in Filomena Attard vs Planning Authority et (Appell 48/2018), the Court of Appeal ruled that an enfitewta, acting alone and without consent from co-owners or titleholders, could qualify as an “owner” for planning purposes:
“Dan l-iżvilupp qed jintalab mill-enfitewta li għal fini tal-artikolu 2 jitqies bħala sid għal fini ta’ applikazzjoni ta’ żvilupp… din il-Qorti tqis li l-enfitewta… ma għandux bżonn ta’ ebda kunsens… dan minħabba l-intenzjoni ċara tal-leġiżlatur biż-żieda ta’ dan is-subinċiż illi kull persuna msemmija fl-artikolu 2 jitqiesu sid bla ebda kwalifika ulterjuri.”
[This development is being requested by the emphyteuta who, for the purposes of Article 2, is considered an owner for the purpose of applying for development permission… this Court considers that the emphyteuta, also deemed an owner, does not need any consent from other proprietors or co-owners of the site… this is due to the legislator’s clear intention, through the inclusion of this subparagraph, that all persons listed in Article 2 are to be treated as owners without further qualification.]
The difference with the proposed Bill is that, currently, the definition of ‘owner’ specifically includes a person who is “entitled to receive the rent of the land or, where the land is not let, would be so entitled if it were let” albeit such language creates a legally incoherent fiction whereby potential rent-receivers—who may lack any real rights (iura in re). In other words, individuals with only contingent or contractual interests are in a position to apply for development permission, even in the absence of the true owner’s consent or knowledge.
Clause 2(c) of the Bill now replaces paragraph (a) under the definition of ‘owner’ as follows:
“(a) the owner or a person who has been duly authorised by the owner of the land to act on their behalf in relation to such land.”
This redefinition excludes persons with vague economic interests. Yet, it affirms rather than disrupts existing private law mechanisms since it anchors eligibility in legal title or verifiable delegation by permitting applications by persons acting under a valid mandatum or prestanome arrangement—well-known and doctrinally established forms of civil law representation.
2. Application Procedures under Article 71(4): From Declaration to Demonstration
Current law (Cap. 552, Article 71(4)–(5)):
“(4) An applicant for development permission shall declare to the Authority that:
(i) he is the owner of the site or that he has notified the owner of his intention to apply by registered letter of which a copy has been received by the Authority and that the owner has granted his consent to submit an application; or
(ii) he is authorised to carry out such proposed development under any other law or through an agreement with the owner.
(5) Where:
(i) the applicant is the Government of Malta, or any department, agency, authority or other body corporate wholly owned by the Government; or
(ii) the applicant is not the owner of the site, but he holds the site under title of agricultural lease, or holds the premises under a title of lease and he is carrying out the works under a scheme of a Government entity, the applicant must still notify the owner of his intention to apply by registered letter of which a copy has been received by the Authority, but need not certify that the owner has granted his consent to such a proposal.”
As proposed in Bill No. 143 of 2025, Clause 3(a):
“Article 71 of the principal Act shall be amended as follows:
(a) sub-articles (4), (5) and (6) shall be substituted by the following new sub-articles:
(4) An applicant who submits an application for development permission shall submit a declaration to the Authority confirming that:
(a) he qualifies as the owner of the site; or
(b) he is 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) he has obtained the consent of the owner of the site and is able to provide evidence of such consent upon request by the Authority.
(5) An applicant who submits an application for development permission shall not be required to comply with the consent formalities set out in sub-article (4) where:
(a) the applicant is the Government or a department, agency, authority, or other body corporate wholly owned by the Government; or
(b) the applicant is not the owner of the site but holds the site under a title of agricultural lease.”
Here, the definitional reform in Article 2 directly interacts with, and refines, the evidentiary requirements under Article 71(4). As currently drafted, the law permits an applicant to declare that:
“(i) he is the owner of the site, or has notified the owner and obtained their consent; or
(ii) he is authorised to carry out development under some other law or through an agreement with the owner.”
The phrase “declare that…”, as used in the current Act, was introduced to replace the earlier and more burdensome requirement to “certify that…”, following judicial criticism in Antony Falzon vs L-Awtorità tal-Ippjanar (Appell 31/2019). In Falzon, the Court had held:
“L-Awtorità u t-Tribunal… jqisu li l-kelma ‘jiċċertifika’ tfisser biss ‘dikjarazzjoni’… Dan mhux il-kliem tal-liġi… l-Awtorità għandha tqis jekk din il-prova tikkostitwixxix l-element neċessarju tat-titolu ta’ sid prima facie kif jitlob l-artikolu 2.”
[The Authority and the Tribunal interpret the word ‘certify’ as merely a declaration… This is not the language of the law… The Authority must assess whether the submitted evidence establishes the prima facie elements of title as required by Article 2.]
While Bill No. 143 does not revert to the term “certify”, it retains the word “declare”, albeit in a more structured context. As we have seen, the proposed provision requires that the applicant:
“submit a declaration to the Authority confirming that:
(a) he qualifies as the owner; or
(b) he is duly authorised…; or
(c) he has obtained the consent of the owner… and is able to provide evidence of such consent upon request.”
Thus, whether the term used is “declare” or “certify”, the essential development lies in the continuing obligation to demonstrate a legally recognisable basis for the application if and when challenged. The formulation does not render the requirement purely formal or self-referential.
That said, nothing in the Bill suggests that the Authority is to be transformed into a civil court. As repeatedly held by the courts, the Planning Authority is not required to adjudicate ownership disputes. However, as clarified in Robert u Josianne Dimech vs L-Awtorità tal-Ippjanar (Appell 29/2023), the Authority must nonetheless assess what is fattibbli—that is, feasible—in cases where the applicant’s title is contested or unclear:
“Il-kwistjoni pero hi differenti meta l-partijiet mhix konkordi fuq it-titolu… f’dan il-każ l-Awtorità hi libera li tiddeċiedi x’inhu fattibbli…”
[The issue is different when the parties are not in agreement on title… in such a case, the Authority is free to decide what is feasible…]
The Bill thus imposes a soft evidentiary obligation that reinforces the Authority’s gatekeeping role without inviting it into substantive property litigation. It encourages applicants to proceed with transparency and ensures that landowners are not blindsided by development applications pursued without valid authorisation.
- Narrowing Exemptions under Article 71(5)
A further, and equally significant, reform appears in the revised Article 71(5), which regulates exceptions to the general requirement for landowner consent. The current version of Article 71(5) exempts not only public authorities, but also private lessees acting under government schemes:
“Where… (ii) the applicant is not the owner… but he holds the site under title of agricultural lease, or holds the premises under a title of lease and he is carrying out the works under a scheme of a Government entity… [he] need not certify that the owner has granted his consent.”
This broad exemption created a legal grey zone. It allowed lessees in state-sponsored housing or regeneration schemes to bypass ownership verification altogether—sometimes without the knowledge of the titleholder—provided a registered letter was sent. This regulatory leniency posed risks to private property rights and encouraged development applications based on participation in policy initiatives rather than actual legal title.
Bill No. 143 eliminates this overbreadth. The new Article 71(5) provides that consent formalities under Article 71(4) do not apply only where:
“(a) the applicant is the Government or a department, agency, authority, or other body corporate wholly owned by the Government; or
(b) the applicant is not the owner… but holds the site under a title of agricultural lease.”
The contrast is stark.
As thing stand, Article 71(5) narrows the list of exceptions to the general requirement that a development applicant must obtain the landowner’s consent. Indeed, under the current legal framework, Article 71(5) exempts not only public authorities but also private individuals who hold the site under a lease and are participating in a government scheme. In such cases, the applicant is merely required to notify the landowner via registered letter, but need not obtain or certify the landowner’s consent. With Bill No. 143, applicants operating under a scheme of a government entity must now obtain and be able to demonstrate the landowner’s consent.
Yet the statutory exemption for agricultural lessees under Article 71(5) is retained under Bill No. 143. As drafted, the law will continue to provide that agricultural tenants may submit development applications without obtaining the landowner’s consent. On its face, this exemption is absolute and applies irrespective of whether the landowner is private or public. That said, this legislative protection is effectively nullified in cases involving public land. The contradiction stems from Planning Authority Circular 2/16, issued in April 2016, which imposes a procedural requirement that is nowhere found in the Act itself.
Paragraph 3 of Circular 2/16 states unequivocally:
“Applications for proposals on Government property should not only include a copy of the ‘Applicant’s Notification to Owner’… but should also be accompanied by a clearance from the Government Property Division, stating that it finds no objection in principle to the submission of an application on the site in question… Applications… submitted without such a clearance will be considered as incomplete. All such applications… shall be suspended… [and if no clearance is submitted] the Authority shall refuse the application in terms of Article 71(4)… stating that the applicant is not authorised to apply.”
This internal circular dating back to 2016 effectively introduced a mandatory consent requirement for public land—even in cases involving agricultural lessees who, under the express terms of Article 71(5), are meant to be exempt. It is a clear contradiction: the law says consent is not required, but the circular says it is, and it elevates an administrative precondition to the status of a statutory gatekeeping device. Worse still, it authorises automatic refusal of applications lacking the “no objection in principle“—a term invented by the circular itself. The Authority even purports to ground these refusals in Article 71(4), thus distorting the very clause from which agricultural lessees are, by law, exempt.
Thus, unless Circular 2/16 is judicially invalidated, the exemption retained in Article 71(5) will remain illusory in cases involving public land, with agricultural tenants made to rely not on law, but on the goodwill of a landowning public authority. The broader implication of all this is that the legal privilege afforded to agricultural lessees collapses entirely when the Government is the landowner, with internal administrative instructions overriding the statute.
The contradiction remains unresolved even under the current text of Bill No. 143, which continues to list agricultural lessees as exempt from consent obligations, without distinguishing between public and private landownership.
