Appeal on DB project: high-rise decision vitiated by conflicts of interest

Two cases of alleged conflict of interest for the Planning Authority board members Matthew Pace and Labour MP Clayton Bartolo feature among 18 reasons presented in an appeal against the approval of the DB group’s 38-storey tower in Pembroke.

The appeal has been filed by 17 appellants which include residents, NGOs and three local councils – Pembroke, St Julian’s and Swieqi.

The appellants insist that Clayton Bartolo should have declared his father’s and uncle’s ownership in a watersports company which operates in the Tunnynet complex, owned by DB group chairman Silvio Debono, and should have “recused” himself from participating in the decision.

They refer to the code of ethics applicable to all public officers, which defines a conflict of interest as one where a public officer has “sufficient personal or private interest” which may “be perceived” to influence him in the exercise of his or her duties. The code of ethics obliges public officers to declare any such conflict to their superiors.

MaltaToday flagged the potential conflict of interest, but Bartolo had insisted that he was under no obligation to declare interests by close family members. “I have no financial interest in the company, which has existed since 1985 before I was even born, and the company involved simply rents its premises from Tunnynet and does not receive any payments from it,” the MP had said.

The appellants questioned Bartolo’s impartiality due to a political activity connected to his electoral campaign held in the DB group’s Seabank Hotel in May 2017, before Bartolo was appointed to the PA’s planning board.

The appellants have also questioned the compatibility between financial services broker Matthew Pace’s interest as a co-owner in the Swieqi branch of property agents Remax, and his membership in the planning board. His failure to declare this interest is also being deemed to be in breach of the code of ethics for public officers.

They said Pace, who owns Zenith (formerly MSFP) financial service, “has a direct and clear interest in an activity which may conflict with his position in a board which has quasi-judicial powers,” and said the conflict should have disqualified him from serving on the board of which he has been a member since 2013.

The appellants added that the PA’s approval was also vitiated by the PA’s executive chairman’s decision to fly in board member Jacqueline Gili on a private jet to participate in the vote, at the expense of €8,750 paid by the PA.

The appellants expressed serious doubts on whether “this was a simple exercise to ensure the votes of all those in favour of the project.” The appellants expressed doubts whether Gili had “informed herself sufficiently the application”, after noting that she was absent during an informal board meeting held on 6 September during which board members were briefed about the application, adding that she had arrived late to the meeting when the final decision was made, missing part of presentation.

The decision taken by the board was also vitiated by the “chimerical” consideration of a tunnel which is being presented as the only way to mitigate the project’s massive traffic impact. Transport Malta itself has declared that “this could be replaced by other measures.”

“This means that the public lacks any certainty whether the tunnel will take place or not,” the appellants said, referring to the fact that a letter sent by the government failed to give any timeframes for the development. “We cannot understand how the board took a decision on such a major project when so far the impacts of the proposed infrastructure to mitigate one of its major impacts have not even been assessed.”

The project could also be in breach of the Floor Area Ratio Policy which regulates tall buildings, and which specifically states that developers should “contribute to the costs” of any measures “to remedy shortcomings in local capacity to accommodate demands generated by the development.”

In an apparent breach of this policy, the board failed to impose a condition obliging the developer to contribute financially to the construction of the new tunnel.

The FAR policy also precludes the development of apartments which are less than 150sq.m in size from high-rise developments. Yet according to the appellants 35% of the apartments on offer in the DB development are smaller than the stipulated size and 16 have a size of just 110sq.m. The same policy also bans developments which result in excessive shading on residential areas.