Bill No. 143 proposes also to amend the Development Planning Act (Chapter 552) by changing the operative date for defining “illegal development” from 1967 to 1978. The law currently provides that:

“any works on, in, over or under land, carried out after 1967 and not covered by a development permission issued by an authority related to development” are illegal.

Bill 143 proposes the following substitution:

“any works on, in, over or under land, carried out after 1978 and not covered by a development permission issued by an authority related to development.”

Interestingly, this is not just a legislative clean-up; it effectively pushes forward the presumption of legality by 11 years.

However, 1978 is not a novel date—it is already embedded in page 10 of the 2014 Rural Policy and Design Guidance which states:

“Unless specified otherwise in the policy document, the term ‘legally established’ refers to any intervention, including land-use change and land reclamation covered by development permission or that which is visible on the 1978 aerial photographs.”

In that sense, Bill 143 appears to harmonize statute with a subsidiary policy which has remained in force despite the strong criticism. Legal systems facing similar issues have devised clear mechanisms for resolving such ambiguities. In the United Kingdom, Section 171B of the Town and Country Planning Act 1990 states that operational development becomes immune from enforcement if:

“no enforcement action is taken within four years beginning with the date on which the operations were substantially completed.”

This legal principle underpins the issuance of Certificates of Lawfulness, a form of retroactive regularization based on time passage. Malta has no such equivalent. Still, the change from 1967 to 1978 raises burdens of proof that the Planning Authority has left unaddressed.

What I can say is that, according to the UK’s Planning Practice Guidance, once an applicant submits evidence, the authority must disprove it on “the balance of probabilities.”   (vide Lawful Development Certificates, UK Planning Portal)