Article 85 of the current Development Act is worded as follows:
“(1) The Minister may, acting in accordance with the provisions of article 84, make regulations for the better carrying out of the provisions of this Act and may in particular by such regulations appoint the Authority or any person or body to be the designated authority for the purposes of any international obligation to which Malta may be a party.
(2) Without prejudice to the generality of the provisions of sub-article (1), such regulations may, in particular:
(a) prescribe the charges and fees that may be levied by the Authority for services rendered by it under this Act, or in respect of any matter for which it is considered that a fee should be payable;
(b) provide for the procedure to be applied by the Authority and the applicant before and after the submission of an application under this Act, as well as fees chargeable therefor, as well as the procedures to be used by the applicant and the Authority in the processing of the said application, including, but not limited to, the advertising, communication and vetting of the said application, and the general conditions under which the Authority may require the giving of financial guarantees or the provision of assurance to make good for any damage that may be caused;
(c) prescribe what type of information held by the Authority shall be accessible to the public, as well as to establish the procedure concerning access thereto and the relative fees to be paid to obtain copies of such information;
(d) give effect to any international treaty or instrument, including directives, regulations and decisions, relating to any matter governed by this Act to which Malta may from time to time be a party or subject to, and to set up structures and make other provisions for the implementation thereof;
(e) provide for any matter relating to planning and development and sanitary or other activities affecting land or sea, including policy requirements relating to construction, demolition and alteration works, as well as any other matter relating thereto, taking account of all relevant considerations, including safety, aesthetics, health and environment;
(f) prescribe the manner in which Development Permission Fees or other charges, contributions or fees made under this Act or under regulations made under this Act are to be established, made, reviewed, collected, utilised or otherwise dealt with;
(g) in relation to confiscation of objects used for, or in connection with anything contrary to the provisions of this Act or any regulations issued thereunder and related matters:
(i) establish the circumstances where such objects can be confiscated and establish the relative procedure for their confiscation and disposal;
(ii) authorise and regulate clamping, towing, removal and storage by the Authority of any object used for or in connection with anything contrary to the provisions of this Act or any regulation issued thereunder;
(iii) exclude the Authority from any liability, other than liability for gross negligence, incurred in connection with the execution of its duties under the said regulations;
(iv) provide for the disposal of such objects when the said objects are not claimed by their owners within such time as may be prescribed;
(v) establish fees payable to the Authority for the removal of clamps, for towing, for the storage of such objects and for the auction or other form of disposal of such objects;
(vi) establish offences and the relative punishments in relation to matters referred to in sub-paragraphs (i) to (v);
(h) specify the type of illegal activity the provisions of articles 101 and 103 shall apply to and establish the relative penalty;
(i) amend, substitute, add to or otherwise alter anything contained in the Schedules to this Act;
(j) prescribe regulations for any other purpose for which regulations are authorised or required to be made;
(k) prescribe the form of any notice, order or other document authorised or required by this Act to be made, served or given;
(l) regulate how any notice or communication to or from the Authority which in terms of this Act shall be in writing, may be made in electronic form;
(m) provide that any person who acts in contravention of any regulation under this Act shall be guilty of an offence against this article, and establishing such penalty, being a penalty not greater than a fine (multa) of two hundred and forty thousand euro (€240,000) or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment, to which any person so guilty may be liable:
Provided that such regulations may provide that a person, who, having been sentenced for an offence against the same regulation by a judgement which has become absolute, commits a further offence against the same regulation within such time as may be prescribed, shall be liable to pay a higher fine (multa), not exceeding double the fine (multa) which would otherwise have been inflicted, and for the purpose of this proviso the maximum fine that may be established by such regulations shall be four hundred and eighty thousand euro (€480,000):
Provided further that such fine shall in all cases be due to the Government as a civil debt, and that where the person guilty of the offence is a director, secretary or manager of a body corporate for the economic benefit of whom the offence was committed, such body corporate shall be liable in solidum with the offender for the payment of the said civil debt;
(n) prescribe any other matter that is to be or may be prescribed under this Act.”
Meanwhile, Bill No. 143 is proposing the following changed to Article 85(2)
“(2) Without prejudice to the generality of the provisions of sub-article (1), such regulations may, in particular:
(a) to (m) — [same wording as in current law, including fines in (m)];
(n) prescribe regulations establishing the procedures, criteria, and conditions under which existing illegal developments or structures may be assessed, regulated, or otherwise addressed by the Authority;
(o) prescribe any other matter that is to be or may be prescribed under this Act.”
It is important to note at the outset that sub-article (1) of Article 85 remains entirely untouched by the Bill. The Minister’s overarching, general authority “to make regulations for the better carrying out of the provisions of this Act” is preserved verbatim, as is the specific ability to appoint a designated authority for the purposes of any international obligation to which Malta may be a party. The legislative choice to leave sub-article (1) intact is significant: it confirms that the Government regards the present breadth and structure of the general regulation-making power as adequate, and that the perceived need for amendment lies specifically in clarifying and extending the detailed, enumerated powers in sub-article (2). In doctrinal terms, the ratio of the reform is not to disturb the general delegation of rule-making authority, but to sharpen the contours of particular delegated powers within it.
Meanwhile, the amendment of Article 85 of the Development Planning Act by Bill No. 143 envisages the insertion of two new sub-paragraphs, (n) and (o). Elsewhere, sub-article (2) continues to provide a non-exhaustive catalogue of subject-matters on which regulations may be made, ranging from the fixing of fees and procedural requirements to the confiscation of objects and the establishment of criminal penalties.
Before the amendment, paragraph (n) of sub-article (2) served as a residuary clause, allowing the Minister to “prescribe any other matter that is to be or may be prescribed under this Act.” Bill No. 143 recasts this residuary power into a newly lettered paragraph (o), preserving its breadth but shifting its position in the sequence. In its place, a newly formulated paragraph (n) is inserted, conferring a specific, targeted power to “prescribe regulations establishing the procedures, criteria, and conditions under which existing illegal developments or structures may be assessed, regulated, or otherwise addressed by the Authority.”
This textual change is, in form, deceptively modest: the addition of a single, targeted item in a list of delegated powers. In substance, however, it represents a legislative acknowledgement that the management of entrenched illegalities constitutes a sui generis function within the architecture of planning control — one requiring its own explicit legal foundation. The choice to delineate this power in primary legislation signals that the legislature regards it as qualitatively distinct from the ordinary regulation of development or the general capacity to regularise.
That said, it is pertinent to recall that the existing statutory framework, most notably Article 101, already provides for the “regularisation” of certain unlawful developments. Regularisation is a retrospective act of legalisation: it culminates in the grant of a development permission that is deemed to have effect ab initio, thereby extinguishing the illegality and placing the development on the same juridical footing as if permission had been granted in the first instance. Once regularised, the development is covered by planning permission and is no longer vulnerable to enforcement action, and any prior notices are discharged.
Meanwhile, paragraph (n) as proposed in Bill No. 143 (“… prescribe regulations establishing the procedures, criteria, and conditions under which existing illegal developments or structures may be assessed, regulated, or otherwise addressed by the Authority”) constitutes the statutory gateway for what is, in practical terms, a concessionary mechanism for managing certain entrenched illegal developments albeit the term concession does not appear in the text itself. Rather, paragraph (n) is framed in general terms, empowering the Minister to regulate the procedures, criteria, and conditions by which illegal developments may be “assessed, regulated, or otherwise addressed.” This absence of express nomenclature necessitates careful doctrinal interpretation, particularly when distinguishing this mechanism from other instruments — such as regularisation under Article 101 — which are explicitly defined in the Act.
The contemporaneously published Concession in Respect of Existing Illegal Development Regulations, 2025 — clearly intended for promulgation under paragraph (n) — illustrates the operation of this enabling power. The scheme is confined to developments demonstrably in existence by 2024, thereby excluding ongoing or recent breaches, and it removes from scope sensitive categories such as Level 1 Areas of Ecological Importance, Class A archaeological sites, and Grade 1 scheduled buildings. Applications must be prepared by a perit and accompanied by detailed plans, photographic surveys, and documentary proof. Notably, the regulations introduce a “Place Quality” assessment, empowering the refusal of concessions where the development fails to integrate acceptably into its aesthetic, environmental, or spatial context. The process is procedurally formalised: validation of applications, calculation and payment of concession fees (90% directed to the Development Planning Fund), technical recommendation by the Executive Chairperson, and a decision by the Planning Board with stated reasons for any departure from the recommendation. Conditions — including remedial works — may be imposed, and concessions may be revoked if further illegal development occurs. Appeals lie to the Environment and Planning Review Tribunal.
A concession thus constitutes a regime of controlled toleration: the underlying illegality persists as a matter of law, yet its practical effects are managed within a structured regulatory framework. The enabling basis for such an instrument is provided by paragraph (n) of Bill No. 143, which empowers the Minister, through the enactment of subsidiary legislation, to establish the requisite procedures, criteria, and conditions for its operation.
