Article 72(5) of the current Development Planning Act states the following:

“Any permission still in force shall automatically pass on to the new owners of the development.”

Bill No. 143 seeks to modify the said Article 72(5) as follows:

“Any permission that remains in force shall attach to the site to which it relates and shall be deemed to enure for the benefit of the lawful owner or owners thereof. The applicant may make use of such permission, provided that he or she has obtained the necessary consent from the owner or owners of the site in accordance with applicable principles of civil law.”

Article 72(5) of the current Development Planning Act is drafted as a transfer provision: it regulates what happens when ownership changes, ensuring that a valid permission “automatically passes” to the “new owners of the development.” Where there is no change of ownership, however, the statute is silent on the identity of the permit’s legal “holder.” This silence is not academic — it raises a fundamental question: between the applicant and the landowner, who is deemed to be the beneficiary of the permission while ownership remains unchanged?

If the applicant and the landowner are the same person, the position is straightforward: the permission is both in the applicant’s name and tied to their proprietary interest. But where the applicant is a different person — for example, a tenant, developer, or project manager authorised to file the application — the statute gives no express guidance. In practice, the Planning Authority treats the named applicant as the “holder” for procedural purposes: notices, commencement approvals, and compliance conditions are addressed to them. Yet, at the same time, the permission is territorially and substantively tied to the land; it cannot be exercised without physical access and control, which in civil law terms belong to the owner.

The result is a duality: the applicant holds the administrative locus standi to interact with the Authority and satisfy permit conditions, but the landowner holds the civil power to allow or prevent actual implementation. Naturally, this arrangement works in harmony when the applicant and owner are aligned, but it is legally fragile if relations sour. Under the current wording, there is no statutory requirement for continuing owner consent after the permit is issued, leaving a non-owner applicant potentially in possession of an “implementable” permit that cannot, in fact, be implemented without risking a civil law breach.

Of course, this conundrum resolves itself when ownership changes, since the statutory mechanism under Article 72(5) makes it clear that the successor in title acquires the benefit of the permit, and the original applicant — if not also the new owner — effectively falls out of the equation. Thus, in cases where the property is transferred by donation, or where ownership passes automatically through succession upon death, the law operates so that the new owner steps into the position of beneficiary, while the applicant, if different, is “out of the game”.

The Bill No. 143  rewrites this principle entirely.

Instead of passing to “the new owners of the development,” the permission now “attaches to the site to which it relates” and “shall be deemed to enure for the benefit of the lawful owner or owners thereof.” The benefit is therefore tied to the site itself, not to the transfer of a development. Moreover, it introduces an explicit requirement: a non-owner applicant can only “make use” of the permission if they obtain “necessary consent” from the owner(s), in accordance with civil law.

This is not simply a change in drafting. It is a redefinition of the legal nature of a planning permission — from a benefit that follows ownership of the works to a right that is embedded in the land as such.

The first doctrinal implication is that the Bill expressly situates planning permissions within the category of rights in rem. Under Maltese civil law, certain advantages attach to property and bind successors automatically, regardless of who holds the title at a given moment. By stating that the permission “attaches to the site” and “enures” to the lawful owner(s), the Bill adopts language that aligns with the civil law tradition.

Thus, the amended wording of Article 72(5)  incorporates two defining features of a real right — attachment to the land, in that it is linked to the site rather than to a specific individual, and transferability with the land, in that it follows the property upon change of ownership. This notion of a legal authorisation adhering to the land and passing with it upon transfer recalls the Roman law concept of servitutes praediorum, “real burdens” that benefited one property and bound whoever owned the servient tenement (Hansmann & Mattei, 1998). Bill 143 therefore seeks to ensure that a planning permit forms part of the land’s legal status, endures through successive ownerships, and is not extinguished by the mere transfer of title (van Erp & Zimmermann, 2024).

This mirrors the position in Italian planning law, where under permesso di costruire the authorisation is considered an attribute of the property, not the person who applied for it [see: Testo Unico dell’Edilizia (D.P.R. 6 giugno 2001, n. 380), Art. 11(2)]. It is also consistent with French law, where a permis de construire “est attaché au terrain” and benefits successive owners, even if the original applicant no longer has an interest [see: Code de l’Urbanisme, Art. L421-1 and L424-1].

The amendment also avoids conflating public law and private law spheres. Planning law determines whether a development is permissible in regulatory terms, but it does not confer the property rights necessary to carry it out. This separation is also clear in English law, where planning permission “does not grant any right to enter or carry out works on the land without the consent of the owner” [see: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 141 (HL)].

The amended approach also finds parallels elsewhere. In British Columbia, a development permit “runs with the land” but can only be acted upon by someone with sufficient property rights [see: British Columbia Local Government Act, RSBC 2015, c. 1, s. 491].

This dual requirement — site-based attachment plus proof of authority to act — is also found in Australian planning systems, where development consents attach to the land but do not override the need for property owner agreement [see: Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, 2015), Ch. 12].

 

Bibliography

  •  Hansmann, H., & Mattei, U. (1998) – you directly cite this for servitutes praediorum.
  •  van Erp, S., & Zimmermann, K. (2024) – directly cited on the structural similarity to real rights.
  •  Codice Civile. Art. 832 – relevant to your “rights in rem” discussion.
  •  Code de l’Urbanisme (France), Art. L421-1 and L424-1 – directly referenced for permis de construire.
  •  Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 141 (HL) – directly cited for the English position.
  •  British Columbia Local Government Act, RSBC 2015, c. 1, s. 491 – directly cited.
  •  Australian Law Reform Commission (2015), ALRC Report 129 – directly cited.
  •  Maltese Civil Code, Cap. 16, Arts. 320–325 – directly referenced in the broader property law context