Government’s appeal against former rector’s winery extension declared null

The government’s unprecedented appeal against the Planning Authority’s approval of a winery extension proposed by former university rector Juanito Camilleri has been declared null.

The decision to nullify the appeal in the case instituted by the Attorney General against the Planning Authority, was taken by the PA’s Environment and Review Tribunal. 

In the appeal the AG was contesting the decision taken by the Planning Authority’s highest board against revoking a permit issued by a lower board in June 2016 for a 600 square metre extension to the winery. 

The new planning law grants the government the right to appeal against any planning decision, even in cases where it did not express an interest by presenting objections during the processing of the application. 

But the Tribunal decided that this provision does not apply to cases related to the revocation of planning permits.

The Tribunal was composed of planner Martin Saliba, lawyer Simon Micallef Stafrace and architect Robert Sarsero.

The law limits appeals in such cases to the developer who had his permit revoked or the person making the request to revoke the permit. In this case the request to revoke Camilleri’s permit was made by the PA’s Planning Directorate. The request was later turned down by the PA board.

The decision was taken after Camilleri’s lawyers challenged the validity of the AG’s appeal against the Planning Authority, insisting that when the government appeals against the decision taken by another organ of the state, it should only do so when it has a direct  interest in the case. 

They also pointed out that the government’s representative on the PA board, Labour MP Joe Sammut had voted in favour of the decision not to revoke the permit.

Unprecedented appeal

The appeal against the winery’s approval was the first ever presented by a public authority against a decision taken by the Planning Authority, thanks to the power granted to the attorney general in the new planning law approved last year. The Planning Authority had approved scores of permits deemed by case officers to be in breach of policy. Subsequently the Environment and Resources Authority, under pressure by environmentalists, also appealed a decision against high-rise towers in Sliema. 

The law states that the “Attorney General on behalf of the Government and any department, agency, authority or other body corporate wholly owned by the Government”, shall always be deemed for all intents and purposes of law to be “an interested third party” with the power of appealing planning decisions. But no reference to this power is made in the part of the law which deals with the revocation of permits.

The development of the two-storey winery was originally approved in 2012. But in June the PA approved a permit to extend the basement from the 253 square metres approved in 2008 to 860 square metres.    

The extended winery, located in the Ta’ Betta estates in Ta’ Bur il-Kbir, which cover 40,000 square metres of land, is set to produce 30,000 bottles of wine a year. The company has been ceritified as organic since 2009.   

The land on which the winery was approved was used by the previous owner as a place where he used to dump unsold produce.   

The rural policy approved in 2014 clearly states that ODZ wineries should be restricted to 200 square metres and a basement. The policy states that the area of the basement should not count as part of the total floor area but the policy also defines a basement as “an additional floor under the building’s footprint”. 

The case officer argued that the winery as approved in 2012 already exceeded this limit and that the proposed basement went beyond not just the footprint of the existing building but also the approved paved area. Therefore he concluded that the permit could not be issued. 

But the Agriculture Advisory Committee confirmed the genuine agricultural need for the new development.  

Elizabeth Ellul, who chaired the commission which issued the permit, was not present when the approval decision was taken on 8 June. She declared that she would have voted against the permit at the meeting during which the board imposed the condition through which Camilleri will have to plant three Gharghar trees on site and donate 100 indigenous trees to be planted on a public site. 

In August the Planning Board decided not to revoke this permit. 

The Planning Directorate and the PA’s legal office had called on the authority to investigate whether the permit can be revoked, not due to any shortcoming on the part of Juanito Camilleri but due to a procedural error by the three members of the board who took the decision. 

The winery extension was approved in a single sitting by two votes against one despite the negative recommendation of the case officer. 

According to a legal notice issued in 2016, in cases where a majority of board members intend voting against the advice of the case officer, the decision has to be put off to another sitting. “It is apparent that a procedural error was made when the commission overturned the recommendation in its first sitting,” a document presented by the directorate states. 

But to revoke the permit the PA would require evidence that this “error” had “a material bearing” on the issue of the permit. This would have required the PA to prove that “had the correct information been available at the time of the decision, the decision would have been different”.  

At the end of the meeting Juanito Camilleri threw his arms into the air in relief as the Planning Authority refused to revoke the permit issued to him for the extension of the winery. Board members argued that it would have been unfair to punish Camilleri for a mistake made by the members of the Planning Commission. 

“Revoking this permit would be a travesty of justice,” Camilleri told the PA board which turned down the revocation. 

His lawyer, Ian Stafrace, accused the authority of having led Camilleri on by issuing a permit that it knew was likely to be revoked shortly after, having been aware of the error when the permit was issued.