Toothless environment authority was overruled 61 times in five weeks

A MaltaToday probe has revealed that the Environment and Resources Authority, the authority demerged from the planning authority under Labour’s planning reform, has been overruled by the dominant PA on 61 of its objections to the planning permits for developments outside development zones (ODZ) over five weeks between 1 November and 6 December.

The total of 88 ODZ developments approved consisted of minor developments such as the development of new agricultural stores, the regularisation of illegally built rural structures, the redevelopment or extension of farmhouses, and swimming pools and ancillary farm developments. 

During this period, the PA turned down 37 of these ODZ applications (30%).

The ERA, which is consulted over each of these applications, sent detailed memos on each case, in some of them objecting to the “piecemeal approach to development” which sees owners of farmhouses applying for more development once an initial permit is issued.

The ERA also repeatedly refers to the “malpractice” of developers who first build and then ask to sanction.

And it has expressed its concern on the proliferation of agricultural stores, sometimes expressing concern that these could be serving other purposes.

In 41 cases tested by MaltaToday, the Environment Planning Commission – which takes decisions on a day-to-day basis – also overruled the Planning Directorate itself, which issues a negative or a positive recommendation for each permit.

In many cases this means that the EPC came up with a different interpretation of policy to that of the case officer, the official entrusted to assess each planning application according to the same policies. In some cases, the decision was reversed after the applicant accepted to address the concerns raised in the case officer’s report by revising plans.

In 26 cases, developments turned down by both the ERA and the Planning Directorate, were also turned down by the EPC. In only one case did it deny a permit recommended for approval by the case officer on which the ERA had also objected. Sources at the PA attributed the growing chasm between the ERA’s decisions and the PA’s decisions, to the rural policy approved in 2014. 

The policy opened up the rural countryside to a variety of new developments according to guidelines that allow ODZ construction.

A Planning Directorate employee who spoke on condition of anonymity explained that the ERA, whose duty is to assess applications from an environmental perspective, continues to object to the negative impacts of the developments allowed by the rural policy. Case officers have their hands tied as they have to abide by existing policies. 

“Even when some case officers do their best to strictly apply policies with regard to ODZ developments, the EPC may still interpret policies differently, in a few cases even more strictly, but in a larger number of cases more liberally.”

In 41 of the cases assessed by MaltaToday, the EPC overruled the case officer’s recommendation for refusal, and issued a permit. And in two cases where a favourable recommendation was given by the case officer, the EPC also overruled and the permit was rejected.

While in some of these cases the concerns raised by the case officer were addressed through changes to plans, in other cases the development was approved because the EPC interpreted policies in a different way. Whenever the EPC overrules the case officer, it has to state its reasons for doing so. Moreover whenever the EPC intends to approve a permit against the recommendation of the case officer, the meeting has to be postponed to another sitting. 

‘Each case must be seen on its merits’ – CEO

Asked by MaltaToday on the large number of cases approved by the Planning Authority despite the objection of the ERA, Executive Chairman Johann Buttigieg insisted each case had to be analysed on its own merits, and to see the EPC’s reasons to approve the permits.

Among the reasons cited by Buttigieg why the ERA’s advice is sometimes overruled, are planning commitments in the area where the development is proposed and the fact that some of the developments proposed are in accord with policies. “The advantage of the present system is that the ERA now has the power to appeal against any decision taken by the PA,” he says of one of the reforms enacted in the new planning law.

Johann Buttigieg: room for improvement for the rural policy guidelines

Neither the ERA, nor the planning directorate are the organs with the final say. It is the EPC that takes the final decision after assessing each permit according to its merits.

But Buttigieg categorically disagrees with giving the ERA the power to veto these ODZ applications, pointing out that other bodies – including the Planning Directorate and the Superintendence for Cultural Heritage – do not have a veto. “What we need is a healthy democratic system based on checks and balances.”

Buttigieg said he sees room for improvement in the rural policy approved in 2014, which sees the ERA objecting to many developments approved under this policy. “I believe policies should be revised from time to time as loopholes are identified from experience… But it is utopian to expect any system to be totally free of loopholes.”

The PA is revising the rural policy with regard to stables, to ensure such buildings are not used for other purposes such as residential. Buttigieg also said he is inviting NGOs and developers for discussions on the policy that allows the reconstruction of ruins of abandoned buildings – some of which are mere piles of rubble. 

Buttigieg recognised that although most permits issued by the EPC involve minor developments, these create new commitments in ODZ areas and a significant impact. “We had a situation where the authority was repeatedly saying no to some people, and yes to others in a very arbitrary way. In the past we had a complicated set of rules which led to injustices. Today we have more clear rules which are applied fairly to everyone.” 

“I am aware that the ERA would like a revision of the rural policy,” Buttigieg added. “I see no problem with this, as I believe that some aspects of this policy need to be reformed. But one also should keep in mind that any reform must also be discussed at a political level.”

‘We cannot appeal every decision’ – Victor Axiak 

On his part, ERA chairman Victor Axiak has described the situation as “unfortunate” with regard to the approval of permits in spite of objections by the ERA. 

“Whenever the ERA objects to permits it does not do so capriciously. We always give our justifications for our objections. It may be the case that our objections are not being understood or that these are not given priority over other considerations.”

Prof. Victor Axiak: ‘it is impossible to appeal against every decision taken by the PA’

He pointed out that although the ERA has the power to appeal decisions taken by the PA, it is impossible to appeal against every decision taken by the PA.

Axiak said that in a number of cases the problem is not the policy itself, but its interpretation. “Even from my experience as a PA board member I have experienced cases where my interpretation was completely different from that given by the PA.”

How a permit is issued

The Environment Planning Commission, chaired by architect Elizabeth Ellul – author of the 2014 guidelines regulating ODZ development – issues most permits.

The other members are architect Simon Saliba, and architect Mariello Spiteri. Biologist Charles F Grech is a ‘supplementary member’. 

In cases involving permits for major projects, it is the Planning Board that takes the decision.

Before a permit is issued, the PA consults with the Environment and Resources Authority, the Superintendence for Cultural Heritage and other statutory bodies. In the case of agricultural development the Agriculture Advisory Committee also screens applications. But none of these authorities has any power to block decisions taken by the EPC.

Before the board meeting, the Planning Directorate – case officers – assesses each permit with regard to existing policies and regulations and issues a recommendation either for approval or rejection.

Whenever the EPC intends to overrule the case officer’s recommendation, the discussion is postponed to another sitting to ensure that the case officer issues new permit conditions. 

Case study: Wardija ridge

A permit issued on Monday approved the erection of a new building instead of an older one at Wardija ridge in St Paul’s Bay – including the construction of a pool and boundary walls.

A permit to transform the older building into a dwelling with a pool on a paved area had already been approved in 2012.

In its memo the ERA now noted that the pool would be built on garigue habitat. It expressed concern that “once initial permission is granted further extensions and ancillary facilities follow, which alter the site’s agricultural context.”

In this case, while the ERA objected to the development, it was still recommended for approval by the case officer, and subsequently approved in the EPC by two votes against one, with biologist Charles Grech voting against.

The EPC had initially postponed the decision over doubts on the demolition of the original building. But a permit was finally issued after the architect verified that the building set for demolition is not a “vernacular one”.