‘Money talks’. But people can shout louder | Claire Bonello

Environmentalists have recently won a few important battles in their struggle against over-development; but as lawyer/activist CLAIRE BONELLO warns, it will take a serious systemic overhaul of the planning system to ‘win the war’

Claire Bonello
Claire Bonello

It has, on the whole, been a good week for environmental activism. First there was the withdrawal – by the applicants themselves - of a controversial ferry terminal project at Balluta bay; later, the Court of Appeal overturned a PA permit for a waterpolo pitch in Marsascala. You were involved in both those cases: so first of all, how do you interpret those victories?

The two cases you mention are actually very different results: although they do emanate from the same sort of pressure by NGOs and the general public alike.

In the Balluta pontoon case, we had the developers themselves reacting to concerted and constant opposition from residents and activists, by withdrawing the application on their own initiative. That is a positive sign, which indicates that public pressure does work… even if only in the short-term.

On the other hand, the Appeals Court judgment - which revoked the Marsascala waterpolo pitch permit – was an entirely different ballgame. Here, we had a case where a permit was actually granted; but after objectors filed an appeal – first with the planning tribunal, and subsequently with the Court of Appeal – the ruling found in their favour, on the basis of a wrong interpretation of the law by the tribunal.

Unlike the Balluta case, then, that was actually a legal victory: which overturned an existing development permit on legal grounds. But it still stemmed from the same source: that is, the constant vigilance and work of NGOs, and the general public.

So unfortunately, what this means in practice is that: if NGOs, and individual members of the public, do not object to these applications, on a case-by-case basis… if they are not hawk-eyed, and constantly on the look-out, 24/7, for abuses; and if they do not constantly appeal against unlawful PA decisions, at their own considerable cost… none of those ‘victories’, as you call them, would even be possible…

What you seem to be suggesting is that, while public pressure has been successful in certain cases, the system itself hasn’t changed at all. This also seems to be borne out by other recent PA decisions: such as a recent permit to demolish a historical Gozo farmhouse, against objections by all heritage watchdogs….

That is exactly what I am suggesting. No, the system hasn’t changed at all. It is still geared up only for the churning out of development permits, come what may… overriding all environmental or heritage concerns – not to mention opposition by residents and local councils – in the process.

And the demolition of that Gozo farmhouse is a classic example of this, in practice. It illustrates precisely how ‘wrong’ the system is; and how horrendous is results really are.

It is also a good example of what objectors are actually up against. For in a preceding application, the Superintendent of Cultural Heritage had insisted on the preservation of that farmhouse; and the PA’s initial decision was, in fact, to refuse the permit.

But what happened was that – while the appeal against that first decision was still underway – there was another application, to develop the same site, that went by unnoticed. And unfortunately, the demolition was approved, on the basis of this second application…

That is precisely the kind of unfair situation we very often find ourselves in. The only ‘successes’ that can ever be achieved, are those cases where there is constant opposition, and vigilance, by objectors. But realistically speaking, this situation cannot go on much longer. NGOs, and individual citizens, are strapped for cash and resources; there are limits to their time and energy.

Besides: it is the responsibility of the Planning Authority, and the Planning Tribunal, to respect and enforce those laws, plans and policies which militate for the safeguarding of our natural and cultural heritage. So why should they be forced to live up to those responsibilities, only by NGOs and residents who end up wasting so much their own precious time, and resources, on never-ending appeals?

It is really quite exhausting; and it shouldn’t have to be this way. There are already laws and policies in place; it shouldn’t have to fall to the general public, to insist on them being enforced…

But are those laws and policies really enough to protect Malta’s urban and natural environment? The Gozo farmhouse case was not the only time when objections by the SHC, or the ERA, were ignored. Do you agree with the argument that these entities should be given a ‘bigger say’ – possibly, even a ‘final say’ – in the planning process?

I am very cautious about advocating for the right of veto, to be wielded by any one particular authority or another. It has, for example, already been suggested that ERA should be able to veto individual planning applications, on environmental grounds.

However, I don’t see that as a solution at all. For one thing, it depends entirely on the ERA itself being ‘up to scratch’, so to speak. But as past experience also illustrates: the ERA cannot always be trusted to take the right decision.

One recent example was the application to redevelop a disused explosives factory – the Pulvich factory in Dingli – as a tourism complex. Despite the fact that there was effectively going to be a small village, in a Natura 2000 site… ERA found nothing wrong with that. And let’s face it: ERA often finds nothing wrong, with the take-up of vast swathes of agricultural land for – among other things – increased roadworks. And it hasn’t been a shining example of environmental protection in other areas, too… for instance, the uprooting of trees.

So I would be very cautious about granting the same authority the ‘power of veto’, in such cases.

However, it is also true that the expert opinion of the Superintendence of Cultural Heritage is often completely ignored; the same goes even for those cases where the ERA does object; and where the Agricultural Advisory Committee issues a negative opinion.

This is, in fact, how the system tends to work in practice: we have all these ‘expert consultees’, who have to ‘give their opinion’ on any given application… but when their opinion is adverse, the Planning Commission, or Planning Board, simply steamrolls ahead, and grants the permit regardless….

Clearly, there is something very, very wrong with that system.  It is not intended to be a ‘contemplative’ system; it is not a ‘careful’ system; and it is very evidently not concerned with environmental or heritage protection, or anything like that.

It’s basically just a ‘permit-factory’: nothing more, nothing less.

Coming back to that ‘good news’ I mentioned earlier: so far, it seems to be limited only to Malta. Gozo, on the other hand, has witnessed a veritable explosion of highly questionable development permits… to the extent that all its local councils have now combined to resist the further ‘destruction’ (in their own words) of that island.  Why do you think is the situation is so different in Gozo?  Why does public pressure not yield the same results?

I think the answer to that question, boils down to the issue of who is actually applying for all these mega-projects. It is all very clear: there have even been outspoken statements, to the effect that ‘meetings’ and ‘discussions’ take place between certain developers – or, to be more precise: a certain developer – and politicians, the Planning Authority, etc.

Another issue, however – which may not be specific to Gozo; but it does happen a lot there – is that certain practices by developers make it very difficult to keep an eye on what’s actually going on. For instance: what looks like a single huge project, would actually be fragmented into several different applications, for different (on paper) plots of land. This allows developers to evade scrutiny; sometimes, to the extent of avoiding having to undertake an Environmental Impact Assessment…

In these cases, there might be objections by ERA, or the SHC; but the Planning Authority usually just steamrolls ahead… without finding any tenuous excuse to approve those projects. Even then: there might be an appeal – always depending on whether objectors (including local councils) were vigilant enough to keep track of all those applications; and able to fight them legally, at an expense which runs into thousands and thousands of euros - but then, the Appeals Tribunal does not suspend the development, while the appeal is ongoing.

So what often happens is that the developer simply extends, and delays, the appeals process for as long as it takes to actually complete the construction. At which point: there is no way that the resulting development will ever be demolished…

In a nutshell, then: the entire system is geared against objectors; and to facilitate the regularization of illegal development. And this has been pointed out to the Environment Minister many, many times.

So we’re either going to face the facts; accept that this system is grossly unfair; and amend the law accordingly… or else, we can simply prance about, and have talks about ‘prettifying buildings’, and tinkering with ‘aesthetic policies’: and all sorts of other ‘greenwash’ initiatives that do not actually have any effect on the landscape, or the environment, at all.

Because if there is one issue that needs to be addressed, before any other: it is our policy regarding the take-up of land… urbanization, and the loss of agricultural, or ODZ, land. Once again, Gozo is a prime example of this. Just today, in fact, there was a newspaper article claiming that Gozo is becoming ‘Malta’s Benidorm’. 

I agree with that assessment. Unless something is done, with urgency, to stop the Planning Commission from authorizing this myriad of patchwork applications for development in ODZ… then yes: I am afraid that Gozo really will be turned into ‘Malta’s Benidorm’…

Nonetheless, the fact that so many people are now objecting, does suggest that there has been a groundswell change in public attitudes (if not, admittedly, in government policy). Are you optimistic, then, that this popular movement might usher in the changes you are fighting for?

I cannot predict the future, if that’s what you’re asking; what I can say, however, is that I meet people on a regular basis; and from my own experience, it seems to me that people are finally realizing that this is an all-pervasive problem. In other words, a problem that doesn’t affect only the ‘touristy areas’ – Sliema, St Julians, Bugibba, etc. – which, in any case, have already been ‘ruined’.

That was the sensation, until a few years ago: that yes, overdevelopment was a massive problem… but a problem which was confined, so to speak, only to certain areas. The underlying assumption, however, was that certain other areas would not be affected at all…  that there would always be corners of Malta and Gozo that would be safeguarded; that would remain untouched forever.

But that is no longer the case today. Now, everyone can see that it is happening everywhere. It is happening all over Gozo; it is happening in places like Naxxar… and Rabat… and Dingli… there is, in fact, no part of the Maltese islands that can be considered ‘safe’ from development anymore.

And this, ultimately, is the realization that is now dawning on people – especially in the last two years. That ‘no place is safe’: which also means that the people’s peace of mind is not ‘safe’, either…

But to answer you more directly, regarding whether I am optimistic or not: I would certainly advise against any ‘defeatist’, or ‘fatalistic’, attitudes... along the lines that ‘money talks’; that there are always going to be ‘brown envelopes’ changing hands behind the scenes; and that therefore, we should simply all resign ourselves to the situation, without a fight.

Don’t get me wrong; I am very concerned about ‘brown envelopes changing hands’… and I have no doubt whatsoever that money really does ‘talk’, in the end.

But however loudly ‘money talks’… the fact remains that we can shout louder.