Our Development Planning Act grants the Minister responsible for the Planning Authority with the power to create subsidiary legislation, including that of introducing regulations enabling the sanctioning of past illegalities. Indeed, Article 101(1) provides the following:
‘(1) Notwithstanding any other provisions of this Act, any person has the right to request the Authority to regularise development which could be regularised under regulations issued by the Minister under this Act, in accordance with procedures established by it and subject to its procedures.’
This provision is very straightforward. The expression “Notwithstanding other provisions of this Act” shows that such regulations don’t appear to rely on any criteria when choosing which illegal developments can be regularized – meaning regularization under such schemes may be much faster and simpler compared with typical sanctioning requests required to conform with policy.
Indeed Subsidiary Legislation 552.26 (Regularisation Of Existing Development Regulations), first introduced via Legal Notice 285 of 2016, was met with considerable doubt from some quarters and received mixed responses.
The truth, however, is that, as thing currently stand, these regulations are useful only when an irregular development:
(a) takes place all or entirely within a Development Zone;
(b) is located entirely within the boundaries of Category 1 Rural Settlements as delineated in Local Plans;
(c) is located partially within a Development Zone but partially extending outside it; or
(d) is already covered by a Category B concession issued pursuant to the Eighth Schedule of Chapter 504.
Opposition lawmakers have recently raised objections to the latest amendments envisaged in Legal Notice 96 of 2023 and moved a Parliamentary motion.
From what I can gather, after seeing the contents of the motion, their argument is not exactly what has been reported in the media.
As a matter of fact, the Opposition is claiming that decisions regarding what should qualify under regularization should not rest solely with the Minister – rather, this responsibility should lie with the Parliamentary Committee responsible for planning affairs.
There are two key takeaways from this.
First and foremost, it should be clear that the Opposition is not opposed to taking an easy route when it comes to sanctioning issues – it is not saying that the whole idea of regularization should be abolished.
Second, it would have made more sense for the Opposition to propose an amendment to Article 101 with a view to limit the discretionary power of the Minister instead of moving a motion directing him to do something which wasn’t legally required in the first place.