Judge rules against NGOs over conflict of interest claims in DB project permit

A court has rejected claims of conflict of interest made by several organisations against officials involved in the DB Group permit for its City Centre project.

Mr Justice Mark Chetcuti, presiding over the Court of Appeal, threw out the objections against the chair of the Environment and Resources Authority, a consultant involved in the environmental impact assessment, and a member of the tribunal that had rejected an appeal filed by the same organisations against the Planning Authority’s decision to grant a permit.

The City Centre project was approved in 2018 and will see the construction of two residential towers and a five-star Hard Rock Hotel on the site that formerly housed the Institute for Tourism Studies. Local councils, residents and environmental organisations had protested against the project, which they claimed will overshadow the Pembroke community and create traffic congestion in the area.

The project also proved controversial over the manner by which government transferred the ITS land to the DB Group.

In his ruling, Chetcuti shot down claims that ERA chair Victor Axiak had a conflict of interest when deciding on the EIA because he had already pronounced himself in favour of the project.

Axiak had been on the first PA board that granted a permit to the DB Group for its St George’s Bay project. This permit was subsequently withdrawn after a decision by the Environment and Review Tribunal.

When the project, in its re-dimensioned form came up for a second consideration, ERA requested an adjournment of the EIA. Objectors claimed Axiak should not have pronounced himself at that stage having already voted in favour of the project in its previous incarnation.

But the judge noted that during the public meeting held by ERA on the EIA nobody had raised this concern or objected to Axiak’s presence. Indeed, not one single objection was raised.

“It is this court’s understanding that this [non-objection] militates against the arguments made by the appellants because it suggests that the appellants felt aggrieved with the presence of Prof. Axiak on the board only because of the outcome of the evaluation process and not because they believed that a reasonable observer could have been concerned about Prof. Axiak’s impartiality,” Chetcuti said.

However, he also ruled that the complaint was unjustified because ERA was only deciding on an update of the EIA that had already been done.

The judge also shot down a claim that engineer Marco Cremona, who had been roped in as one of the consultants for the EIA – he was engaged with another consultant to study the project’s impact on Għar Ħarq Ħamiem – could not be impartial because of a conflict of interest.

The appellants produced newspaper articles showing that in the past Cremona had worked on a research project to recycle waste water and a hotel belonging to the DB Group had collaborated with him. The project eventually never materialised because the health authorities did not acquiesce.

But the judge refused the argument that Cremona’s past relationship amounted to a conflict of interest. The court ruled that it did not result that Cremona had any personal financial gain from the City Centre project and noted that no objections had been raised against Cremona when it was known that he formed part of the EIA process.

The third ruling concerned Alexander Zammit, a member of the tribunal, who NGOs claimed had a conflict of interest on the basis that he was a Planning Authority employee on unpaid leave.

Chetcuti ruled that Zammit’s employment with the PA had ended before he presided on the tribunal that dealt with the appeal, and noted that the PA itself was not a party to the appeals process.

The judge said the NGOs’ claim that Zammit had a conflict of interest was “manifestly unfounded”.

The court refused the three objections, ordered the appellants to pay the costs and the case to continue being heard on its merits.

The appeal was filed by seven NGOs, including Moviment Graffitti and Friends of the Earth, and seven residents, including independent candidate Arnold Cassola.