On a scheduled building in Malta, every kind of work needs permission.

One rule governs an art programme in a listed Maltese building. No works of any kind may be carried out in or on a scheduled property without the permission of the Planning Board. The same applies to demolishing, altering or extending it (art. 57(6), Development Planning Act, Chapter 552 of the Laws of Malta). Damaging or destroying any part of a scheduled property counts, in law, as demolishing it.

Published by ArtisDomus, written by Polina Surina.

A second consent sits in a different law, and projects often find it late. The Superintendent of Cultural Heritage must grant a permit before any development or other intervention on immovable cultural property, on property in the national inventory, or on scheduled property (art. 59(1), Cultural Heritage Act, Chapter 445). Planning permission and this permit are separate, and one cannot stand in for the other.

The Development Planning Act covers works on scheduled property, and the Planning Board gives consent. The Cultural Heritage Act covers development and other interventions on cultural property, and the Superintendent of Cultural Heritage gives consent. A project needs both, through two separate applications.

The Superintendent’s permit is the one that shapes an art programme, because of what he can attach to it. He may impose any conditions, heritage obligations or guarantee he considers appropriate (art. 59(3)). He may require the work and its phases to be photographed or otherwise recorded, with reports delivered at times the permit sets (art. 59(4)). He may require all or part of the work to be done under monitoring or supervision (art. 59(5)). He may also require amended plans or method statements (art. 59(6)).

Conservation and restoration need a third consent, and it is often confused with the second. Cultural property may be conserved or restored only with the Superintendent’s prior authorisation and on his conditions, and the owners or those responsible must tell him beforehand (art. 56(1)). The people behind the project must engage warranted conservator-restorers to prepare the documents and to carry out or oversee the works (art. 56(2)). A hotel that treats a ceiling as decoration, and hires a decorator to work on it, breaks this article before the planning file is even opened.

These laws reach further than the word “listed” suggests. Cultural property means movable or immovable property that forms part of the cultural heritage, whoever owns it (art. 2, Chapter 445). Cultural heritage means movable or immovable objects of artistic, architectural, historical, archaeological, ethnographic, palaeontological and geological importance. The list expressly includes groups of buildings and collections of art objects.

The Executive Council prepares a list of areas, buildings, structures and remains of geological, palaeontological, cultural, archaeological, architectural, historical, antiquarian, artistic or landscape importance. A scheduling order places them under conservation (art. 57(1)(a), Chapter 552). The Council may also make conservation orders for all or any of the scheduled property, and such an order may regulate any matter affecting it.

The owner is told in several ways (art. 57(2)). The list appears in the Gazette and in a local newspaper. The Executive Council notifies any one of the owners, and a notice is fixed on site. If no owner is known, or serving notice is not reasonably possible, the notice on site is enough. The notice goes into an index, and the Council keeps a copy of that index at the Land Registry office. For the prescribed fee, it issues a certificate showing whether a particular property is subject to the order.

Run that search before the first drawing. A scheduling order can be valid even when the only notice was the one fixed on site.

An owner may ask for the scheduling of his property to be reconsidered (art. 57(10)). The request goes to the Executive Council in writing within thirty days of notification or of publication in the Gazette, whichever is later. The Council must decide within three months of receiving it, and an appeal lies to the Environment and Planning Review Tribunal (art. 57(11)). An appeal does not suspend the order. This holds for appeals against a scheduling, a descheduling, a downgrading of the protection or a conservation order (art. 57(12)). The order applies while the appeal runs.

One protection survives. A scheduling order or a conservation order cannot harm development lawfully carried out before the Act came into force. Nor can it harm development already granted a development permission under the Act before the order was issued (proviso to art. 57(6)).

The two Acts set no grades for scheduled buildings. Chapter 552 defines scheduled buildings by reference to article 57 and stops there. The closest phrase is “a downgrading in the protection afforded by the scheduling” in article 57(12), which implies levels without defining any. Any grade a project is given comes from administrative practice.

One of the Superintendence’s functions is to advise the Planning Authority, and coordinate with it, on protecting cultural heritage. This covers planning applications for development affecting objects, sites, buildings or landscapes that form part of the cultural heritage (art. 7(5)(g), Chapter 445).

Its own account of the role is wider. The Superintendence describes itself as a designated statutory consultee to the Planning Authority on cultural heritage. It is consulted on all full development applications, and on Development Notification Orders, regularisation applications, dangerous structures and planning control applications. It makes its recommendations and cultural heritage conditions with the Cultural Heritage Advisory Committee, which the Superintendent has chaired since May 2016.

For built heritage, it assesses Restoration and Works Method Statements while the planning application is under consultation. It drafts the development permit conditions, including bank guarantees, and sends them to the Planning Authority. It monitors the works to check they follow the approved method, and it issues General Parameters for submitting a Restoration Method Statement. Movable cultural property has its own application form for proposed conservation or restoration.

Two provisions can change the position after a scheme has started. The Superintendent may recommend to the Planning Authority that sites and buildings be scheduled as cultural property under the Development Planning Act (art. 58, Chapter 445). Chapter 552 goes further when property is at risk (art. 58). An unscheduled property, site or area may be important enough to schedule and at risk of demolition, damage or destruction. In that case the Executive Council may make an emergency conservation order. The order takes effect as soon as it appears in the Gazette. In an urgent case the Executive Chairperson may make it without consulting the other members of the Executive Council.

In practice, an unscheduled building may simply be one nobody has looked at closely yet.

No one may move, export or re-export any cultural property without the Superintendent’s written permission (art. 54(1), Chapter 445). For a hotel the key word is “move”. The rule goes beyond export: rotating works between two properties is a movement.

The Schedule to the Act, made under article 54, sets the charges. A certificate for movement within the EU covers both import and export from any EU State. It carries an administration fee of €65 including VAT, and the express fee is €200 including VAT. A certificate for export or re-export outside the EU covers cultural heritage items over fifty years old. Its fee is 15 per cent of the declared value (ad valorem), or as the Act sets. The same administration and express fees are added. The value is the amount the exporter declares, backed by the acquisition documents. If the Superintendence sees fit, experts fix the amount instead, at the exporter’s cost (art. 54(5)).

The Superintendence asks for the request at least two weeks in advance. Every item proposed for export needs a completed Object ID form, for temporary and permanent requests alike. All requests are vetted and may be refused.

The Superintendent, with the Minister’s approval, has a right of preference on the sale, export, movement, exchange, emphyteutical grant or lease of cultural property (art. 55). He may use it where the property is of high cultural value or faces a potential physical threat. He may also use it where export or movement would take it out of national territory, or to guarantee access to it. He must use it within two months of notice from a party, or of the date he learns of the transaction, whichever is earlier.

For a collection brought into Malta, use article 54(8) before the crates move. It covers cultural property moved or imported into Malta for a temporary exhibition, a temporary loan or sale. The Superintendent may then issue a certificate. By it, the Government gives up, for those objects, its right of preference and its right to prohibit their re-export or movement out of Malta. The certificate runs for ten years from its date and can be renewed. The conditions are strict. The written request must come before the objects are imported or moved into Malta. The Superintendent must examine and register them at the point of entry. They must come with evidence of provenance and title and with documents of the movement, and the certificate must describe them in words and images. The Superintendence’s guidance adds that certifying imported cultural heritage items requires examination at the point of entry and carries a 5 per cent examination fee, ad valorem.

A separate proviso in the same subarticle covers people taking up residence in Malta. For them, the waiver does not extend to objects the Superintendent considers of national importance to Malta.

The offence covers anyone who damages or destroys cultural property wilfully, or through negligence, lack of skill or failure to follow regulations (art. 70(1), Chapter 445). It applies whether or not the property is in any inventory, and even when the offender owns it. It also covers anyone who acts against the Act, its regulations, or the conditions of a licence or permit issued under it. On conviction the penalty is a fine (multa) of at least €2,000 and at most €250,000, or up to six years in prison, or both.

The proviso matters most. Within that maximum, the minimum fine can be no lower than the value of the work needed to put right the effects of the offence. The lowest fine is the repair bill.

The court must also order the offender to remove the causes of the offence and undo anything done without a permit, or to comply with the permit conditions (art. 70(3)). The deadline is at most three months from the judgment. Each day of default adds a further fine of at least €200 and at most €500.

Chapter 552 adds compensation. If scheduled property is demolished in breach of article 57, every person convicted must pay compensation to the Authority (art. 57(9)). The amount is the highest of three: the value of what was destroyed, the cost of restoration or repair, or the financial gain the demolition could bring. The third measure is there to make the offence unprofitable.

Before any of that, two orders can stop a site within a day. The Superintendent may serve a suspension notice, including where restoration breaks the Act or a permit holder fails to comply with it (art. 62). He serves it on the person doing the works or on the owner, and the person served must stop all activity on the work. He may also serve a conservation and protection order (art. 63). He can do so after an infringement, and also for any activity or development where cultural property might be at risk. The order requires anything being done, or planned, to stop. No court may issue a precautionary order or warrant to stop him issuing such an order (art. 63(3)). This is subject to article 46 of the Constitution and article 4 of the European Convention Act.

Finds on site fall under article 61(1). Anyone who discovers cultural property covered by the Act, by accident or otherwise, must tell the Superintendent at once. This includes any object, site or building, and any feature in a building or property. They must leave it in place and stop all work on the site for six working days. On reasonable grounds this can be extended by a further six.

ArtisDomus plans an art programme in a listed Maltese building around the order of the consents. Such programmes fail in one of four places, all of them early.

The usual mistake is the order of work. A programme is designed, priced and submitted, and the heritage consent comes last, though it sets the limits from the start. By then the fixings, the lighting positions and the loan schedule are all decided, and the Superintendent may refuse or rewrite each one as a condition.