Planning for ‘modern justice’: What does it even mean?

Two bills have been tabled in Parliament. Bill 143 proposes a series of abhorrent amendments to the existing Development Planning Act, the principal legislation governing development. The proposed Bill 144, on the other hand, will completely replace the existing Environment and Planning Review Tribunal Act which presently governs the procedure for appealing against decisions taken by the Planning Authority. 

This article is not a comprehensive analysis of the proposed bills. It is just an overview of the bills, highlighting a few salient points that expose the spirit and some of the machinations that motivated their drafting. What is terribly clear is that these legislative ‘reforms’ of development planning in Malta are not designed to improve the quality of our lives or that of our built and natural environment. 

Bill 143 

The objects and reasons for these amendments are cited on the last page of the bill: “…These reforms seek to improve legal certainty, and ensure more coherent and efficient planning processes.” Nothing could be further from the truth. 

This bill, if passed, will allow the Planning Authority, its commissions, board and even its case officers to operate with total disregard for any established policies. The bill proposes that the persons representing these entities “may justify a departure based on spatial, architectural, or contextual considerations” from all existing policies. These three subjective considerations will determine the shape of our built environment. How these three subjective considerations could improve legal certainty and ensure a more coherent planning process is inconceivable, for most. In actual fact there will be no certainty at all, for most, because decisions will be increasingly influenced by commission or board members’ biases, moods and spatial abilities. 

It may best be left to the reader’s imagination or experience to speculate what whimsical, absurd or outrageous justifications the PA entities may conjure up to approve a particular development application. Of course, even now, it all depends on the integrity and competence of the appointed members of the commissions and boards. During a recent PA Commission hearing to decide on the construction of a five-storey apartment block located, literally, along the rubble wall-lined border of an Urban Conservation Area, objections were  made about the negative impact that the proposed block would have on the centuries-old UCA gardens and village houses that it would tower over. One of the (architect) members of the commission suggested, quite rightly too, that the elevation overlooking the UCA should be modified to mitigate the impact. This member then went on to suggest to the applicant’s architect that this mitigation could be achieved by having the window openings that overlooked the UCA… arched! 

One of the amendments proposes the dismantling of the hierarchy of policies that presently gives some form of structure and surety—the latter usually through the Court of Appeals sentences—to the planning process and decision making. When certain policies are conflicting, this established hierarchy governs the priority that must be attached to the policies. The local plans, for example, which take precedence over many other policies, quite clearly indicate the configuration and use of the built and natural environment. This critical aspect will be lost. 

Another amendment proposes that minor modifications will include adjustments to the alignment of roads or buildings as set out in a local plan and the introduction or alteration of zoning designations within the local plan, including ‘changes to height limitations and land use classifications’. This will allow the PA to unilaterally change established heights and uses for any site in Malta and Gozo, within or outside development zones and without having to resort to any local plans or other policies. 

Together, these amendments will ensure that the PA is no longer restrained by any policy or held accountable for any decisions taken. In effect, the amendments will also wipe out any grounds to appeal any of the PA’s decisions. 

One of the amendments suggests that the minister may reinstate the validity of a permit after it has expired, with no conditions attached. The proponents of the bills tried to give the impression that this was already done during the COVID period. However, the automatic renewal or extension of a permit, at that time, was only applied to permissions that had not yet expired. Clearly, there exists an expired permit that would have significant ramifications and benefits for some if reactivated. 

Other objects of this bill are “…to enhance procedural fairness, transparency and consistency in planning decisions.” The following words are to be deleted from the existing act “…unless a draft of the said regulations has been issued for public consultation…”. This requires no explanation; so much for transparency. And as for “consistency in planning decisions”, they will surely be consistently unpredictable. 

Bill 144 

This bill will determine how appeals against decisions taken by the PA will be processed and determined. Presently, appeals must first be made to the Environment and Planning Review Tribunal (EPRT), composed of three persons—including at least one lawyer—appointed by the prime minister. Decisions taken by the EPRT can be further appealed in the Court of Appeals. The same process has been adopted in the newly proposed bill but with a major difference that threatens to undermine the rule of law and democratic process. Sentences delivered by the judges on the Court of Appeal, will be sent back to the EPRT to deliver a fresh decision! The separation of powers between the executive and judiciary will be severely blurred, undermining the very foundations of our Constitution. The EPRT decisions will take precedence over the Appeals Court, further repressing and stifling citizens’ access to justice. 

There are a number of other serious shortcomings with this new act. Not least is the proposal to fine appellants €5,000 for any appeals made which the EPRT deems to be vexatious or frivolous. Furthermore, “…the decision of the Tribunal shall be final without any remedy before the Court of Appeal.” Should Bill 143 pass, all appeals could be regarded as frivolous. 

The objects and reasons for Bill 144 are “…to re-establish the Environment and Planning Review Tribunal as a truly independent and impartial adjudicator… this Bill provides… for wide corrective powers to ensure effective and modern justice.” 

Is this an admission that the present tribunal is not “a truly independent and impartial adjudicator”? The chairperson of one of the existing tribunals was a case officer for the PA for many years and is still an employee of the PA. This predicament has caused numerous issues and delays in the processing of appeals due to the conflicts of interests arising from the chairperson’s previous involvement in the actual processing of planning applications. The bill, however, proposes shortening the time allowed for third parties to appeal decisions from 30 days from the publication of the decision—which typically took an extra few weeks to publish—to 20 days from the day the decision is taken. Is this a “corrective power”? 

And, prime minister, what is “modern justice”?