ERA reform: will José Herrera’s mountain deliver a giant... or a mouse?

Malta’s environment minister has announced new laws that will allow the Environment and Resources Authority – a regulator emasculated by the Labour administration – to have the power to “impose environmental conditions” on every project approved by the all-powerful Planning Authority.

José Herrera’s speech specifically referred to the power to impose urban greening initiatives on large projects. Sounds good in an electoral campaign in which Labour seems to be attempting to reach out to the disappointed ‘green’ vote.

But what does this change?

The ERA actually already proposes conditions on development permits, but has no final say in their inclusion in development permits. It does so even when it calls for a permit to be refused outright. Yet in most cases no amount of conditions can alter the simple fact that a piece of land will be covered by cement or a view obliterated.

The ERA’s conditions on development outside development zones – including many small developments to which ERA objects on a regular basis – usually consist of the planting of compensatory trees. Take the major urban project of Townsquare in Sliema, to which the ERA is not objecting as in the case of all high-rise projects: its conditions mainly deal with rainwater run-off, waste management and the storage of hazardous waste during construction.

Making such conditions obligatory and giving the toothless ERA the power to impose urban greening like green walls and roofs, would represent an improvement but hardly one to tip the balance from a PA hell bent on approving permits (which the ERA is powerless to stop).
Indeed, critics will see through the crafty greenwash of development projects, especially when many ordinary citizens complain about poor enforcement. It will simply be more trees of course… but the ERA’s weakness in the planning process will be far from addressed.

The root of the problem

When one of the PA’s planning boards or commissions wants to overturn a recommendation by the planning directorate’s case officer to approve or refuse a project, this automatically results in the postponement of the sitting.

At this point, the board presenting the ‘challenge’ must provide a justification not to abide with the case officer’s recommendation.

But there is no such obligation when it is a recommendation by the Environment and Resources Authority that is being overturned: in fact, the ERA is treated as just any other body that gets consulted by the PA during the application process.

One way of solving this imbalance is by ensuring that a final ERA recommendation has the same weight as the planning directorate’s case officer’s report.

If not beefed up, Herrera’s proposal will simply not limit the PA’s power to issue permits which are contributing to the urban sprawl, Malta’s top environmental problem.

And this falls short of a much more far-reaching proposal by former planning ombudsman David Pace.

In 2016 he called for a reform of planning structures on the back of a MaltaToday probe that revealed the ERA had overruled by the Planning Authority in 69% of cases on planning applications outside development zones (ODZ).

At present, the PA’s decision-making boards can ignore the ERA’s objections and still issue a permit.

But Pace proposed changes that would ensure that applications objected to by ERA, are not approved by the PA unless the grounds for these objections are effectively addressed and the necessary amendments are made to the proposed project.

In 2017, Pace decreed the current state of affairs as one “which does not positively reflect on the ERA’s stature”, saying the depiction of ERA as toothless “is not far from the truth.”

Herrera had already set up an ad hoc board in the wake of the MaltaToday report to investigate the high percentage of cases in which ODZ applications had been approved by PA despite objections by ERA. He then claimed he had been “alarmed” by the findings, and immediately sought the agreement of both authorities to take part in a board.

Subsequently he appointed a ministerial board chaired by the PA’s former Natural Heritage Advisory Committee, Judge Joseph David Camilleri, to investigate this problem and to report back to both authorities and to me “as to why this inequality exists”.

Two years later, it seems that the mountain has given birth to a mouse.