Planning reform: the dilemma of separation

To separate or not?

The major thrust of Labour's reform of The Malta Environment and Planning Authority concerns the separation of the planning and environmental arms of MEPA by setting up two different authorities catering for each respective function. Moreover, the resources authority, which is presently in charge of energy regulation, oil exploration and resources like water, will be amalgamated with the new Environment Authority.

But when it comes to the issue of building permits, it will be the new Authority for Sustainable Planning, which will call the shots by issuing permits.

One of the advantages of separating the two authorities is that it will elevate the environmental division of MEPA to the status of an autonomous authority. 

One of the constant complaints of staff working in the Environment Protection Directorate is that the environmental aspect was completely subjugated to the planning aspect of MEPA.

But the risk of separating the environment aspect from the planning process is that the former could be isolated in a ghetto, with its influence on the planning process limited to a single vote on the board of the planning authority.

Moreover, the environment directorate could end up simply migrating from the offices of the Malta Environment and Planning Authority to the offices of the Malta Resources Authority.

While Labour's proposal strengthens the link between the environment and energy and resource regulation, it potentially weakens the link between the environment and spatial planning. Thus, while one would expect the move to strengthen the Environment's authority in monitoring ground water extraction and air quality, it could weaken the environmental dimension in one of the most thorny issues in Malta: land use.

Moreover, it remains unclear what role the new Environmental Authority will have in the formulation of land use policies and local plans.

The implications of separation

The implications of separation were studied in a thorough report authored by Martin Scicluna on behalf of the Today Policy Institute in April 2008.

The report notes that the decision to concentrate the roles of development planning and environmental protection into one structure has been questioned and that a number of people have advocated that the two should be 'de-merged', leaving a separate, free-standing planning authority and an environmental protection agency.

But the report concluded that the current organisational set up carries significant advantages.

'While there is inevitably a creative tension between development planning, on the one hand, and environmental protection, on the other, to separate the two functions into two free-standing entities would undermine the need for close communication and coordination between the two halves of the same problem on matters of common concern.'

Throughout the past years, environmental NGOs have generally favoured a separation between the two entities. But the lack of detail in Labour's proposal has caused a degree of alarm. Astrid Vella from Flimkien Ghall Ambjent Ahjar welcomed the separation but asked: "Is this new environment authority only going to have one vote on the MEPA planning board, which could leave it in an even weaker situation than it is presently?"

On the other hand Michael Falzon, the minister who set up the Planning Authority, has been a long time advocate of separation. The decision to turn the Planning Authority into the Malta Environment and Planning Authority was taken by Minister George Pullicino in 2003.

"I believe that planning is a multidisciplinary area which needs the input of experts from different sectors including the environment. By putting the environment in a privileged position, the end result could be lopsided," Falzon said in an interview with this newspaper in 2006.

Developers have also been largely favourable to Labour's proposal to separate the two bodies, thus raising the question: how will Labour manage to pay homage to both developers and environmentalists once in government? Clearly the decision to host separate meetings with both lobbies on the same day instead of one meeting with all stakeholders suggests that Labour could be talking two different languages.

The status quo

At present MEPA is composed of three main directorates; one responsible for the environment, one responsible for planning and one responsible for enforcement. 

With regards to permits the Environment Protection Directorate is consulted on any permit, which has an environmental impact and also assesses whether any impacts of the proposed development require further studies.

The EPD's recommendations are included in a case officer report prepared by the Planning Directorate, which issues the final recommendation.

Effectively, the EPD does not have any veto over planning decisions, but its opinions and advice is sought throughout the planning process.

Ultimately decisions are taken either by the MEPA board which is entirely composed of government appointees or by the full time Environment and Planning commissions.  The board also includes a representative of the government and a representative of the opposition.

Therefore decisions depend on who is actually appointed on the boards. Members of the present board range from bureaucrats representing government departments who generally tow the official line and more independent minded members like Giovanni Bonello who has established a credible track record. Over the past five years, decisions have become less unanimous and there have even been cases like that of the proposed Portomaso development and the Gaffarena petrol station where the politicians sitting on the board were outvoted by a majority of board members.

Apart from proposing a representation of environmental NGOs on the board, Labour has said nothing about changing the way these boards are appointed or composed. 

The alternative solution

In the past, Alternattiva Demokratika had advocated a separation of the two functions of MEPA because the environment protection function of MEPA is continuously over-ruled by those bent on development at all costs. But even back then, AD had proposed that the new environmental authority would have had the power to over rule the planning authority in the issue of permits.

But now, instead of separating the two authorities as proposed by Labour, AD is proposing that MEPA and the Malta Resources Authority (MRA) are brought together in a single "consolidated" authority.

In this new authority the environmental function would be central in a way that the Planning Directorate will be taking a secondary role. 

What is unclear in AD's proposal is how this change will take place, considering that at present the Environmental Directorate has mostly an advisory role, with the   Planning Directorate issuing the final recommendation whether to approve or turn down a development.

But AD's proposal ensures that the environmental aspect will be central to both spatial planning and energy and water policy.

In fact AD is on the same wavelength as Labour in proposing the amalgamation of the MRA with the authority responsible for the environmental protection. According to AD this will eliminate existing duplication and will thus lead to a better utilisation of resources as well as trained staff currently on the books at MEPA and MRA.

Appointments on the board

So far, AD is also the only party to propose a change in the way MEPA board members are appointed although Labour is committed to allow ENGOs to choose their own representative.  At present it is the government who chooses a person from an ENGO background.

In its programme AD proposes that all board members appointed by government should be subjected to parliamentary scrutiny.

In this way parliament would be in a position to consider whether to give its consent after its Select Committee examines in a public hearing the proposed candidates. Every candidate would be examined in public on his orher experience and qualifications relative to the proposed post.

Civil society involvement

With reference to the representation of civil society sitting on the Board of the Authority, AD is proposing that nominations should come directly from the affected bodies. There should be less public officers and more representatives of civil society in the consolidated authority.

Similarly Labour is also proposing that environmental NGOs should choose their own representative on the board.

But this raises a major difficulty for the ENGOs involved as these could end up being co-opted in the institutional framework.  It is also questionable how any government can define what constitutes an ENGO or not.  Moreover it would also be difficult to reconcile the views of different ENGOs which might have different priorities and views on different issues.  For example Din l-Art Helwa and FAA had very different views on the city gate project. 

So far the only example of an NGO member sitting on the MEPA board was that of Nature Trust's Vince Attard who ended up voting in favour of the sanctioning of boathouses in Dwejra a few weeks before the 2008 election.

One of the innovative proposals made by Labour is the institution of a fund which will be set up for environmental groups, which they can tap to finance research on projects they will want to object to. If enacted this proposal will create a greater level playing field between developers and NGOs who have to rely on voluntary and lack the resources to pay experts.

Labour is also proposing that local councils affected by certain development projects will be given a vote on the planning board when those projects come up for decision. 

AD goes further in this, proposing local referenda on planning issues affecting these localities.  These will only take place if a pre-identified number of registered voters make a request for a referendum or when such a call is made by the Local Council on behalf of the community.

A project will only be submitted for the community's consideration in a referendum after all the relative studies would have been concluded as well after the said studies would have been available for a reasonable time for all those wishing to peruse them.

One major difficulty in such cases would arise if the interests of local communities conflict with overriding national interests.

In fact even AD says that in the case of infrastructural projects of national importance it will be possible for Parliament to intervene and take a final decision after ascertaining that the objections of the local community have been addressed.

Planning amnesties

Both major parties have pronounced themselves in favour of a scheme to regularise past irregularities. 

In its electoral manifesto the PN argues that an existing scheme to regularise courtyards build in breach of regulations should be extended to all illegal buildings constructed before the MEPA reform but only if these do not constitute "an environmental blemish" and cause no harm to third parties.

It is not clear whether the PN's commitment goes beyond a legal notice issued during the week aimed at regularising minor irregularities like encroachments on pavements and court yards.

It is not clear what criteria will be applied to determine whether a building is an environmental blemish or not.  Owners of the regularised developments will also have to pay a fine paid to the local council.  Similarly, Labour will extend regularisation scheme for illegalities, especially related to sanitary laws.  But the use of the word "especially" suggests that the scheme will not be limited to developments in breach of sanitary laws.

When asked, both Gonzi and Muscat have made it clear that while these measures were not specifically aimed for the illegal boathouses in Armier, they did not exclude regularising this development in the future.

While Gonzi has stood by the commitments made by the PN before the 2008 election to transfer public land to a company owned by the squatters, Muscat evaded this issue by saying that a "reasonable and just solution" has to be found.

On this issue AD is the only party calling for the demolition of this illegal development.

Both major parties are also vague when they say that they will increase the kind of developments, which can be approved through a sheer development notification, failing to specify what developments they have in mind.

The PN is also proposing that with the exception of scheduled buildings, MEPA would limit its role to the exterior appearance of buildings and thus people will no longer have to apply for permits for minor internal alterations.

Where PN and PL agree:

1. Amnesty for past planning irregularities.

2. Renewal of permits beyond present five years.

3. More minor developments will fall under the notification system.

4. Compliance certificates to be issued by architects who will be assuming professional responsibility.

PL's blueprint for MEPA

PL wants two separate authorities one for the environment and resources and another for planning. Permits will be issued by the Planning Authority while the new environment and resources authority for environment will have one vote on the planning authority's board presently composed of 15 members.

PN's blueprint for MEPA

Same as today, with Environment Directorate remaining an integral part of the Malta Environment and Planning Authority with a consultative role alongside the Planning Directorate which issues recommendation to the MEPA board or the two Environment and Planning Commissions in which neither directorate is represented and which has the final say on permits.

AD's blueprint for MEPA

AD wants one authority comprehending the Planning arm, the environmental arm and the Resources Authority. In the consolidated authority the environmental function should be central and should lead the Planning Directorate to take a secondary role.