New Portomaso lagoon: how Tumas got its permit on appeal

The Malta Environment and Planning Authority's new 'part-time' appeals tribunal, appointed by the new Labour government in July, has issued a permit for the Tumas Group to construct 46 villas on an artificial lagoon at Portomaso.

The MEPA board had turned down the controversial extension to Portomaso on 26 April 2012, after chairman Austin Walker used his casting vote. The board members had been tied with six votes in favour and six against, after a four-hour debate held at the Mediterranean Conference Centre. On that occasion, Labour's representative on the MEPA board, Roderick Galdes - today Parliamentary Secretary for Animal Welfare and Agriculture - had voted in favour of the project.

The new appeals tribunal that decided to overturn the MEPA board decision is composed of Labour candidate and lawyer Simon Micallef Stafrace, architect and newly appointed Freeport chairman Robert Sarsero, and MEPA official Martin Saliba.

At both stages, the main bone of contention was a clause in the previous Portomaso permit of 1995, which stated that no further extension or development could be carried out in the area. Subsequently, this ecological zone was identified on the approved plans and a permit condition imposed to keep the site development-free.

Following the approval of the Portomaso permit in 1995, a notice was put on the site which is now earmarked for development stating that, "as part of the Hilton Site Development Project, the site within this wall is being sealed off for the protection of important ecological species during project construction and will be opened to the public... any inconvenience is regretted".

The Tribunal based its decision on the argument that the permit condition had been superseded by the local plan approved by the Nationalist government in 2006, which permitted development on the site in question, thus accepting the argument made by the legal representatives of George Fenech's Tumas Group, who argued that the local plan approved 10 years later included this particular site as suitable for development.

The new appeals board has effectively revoked the 2012 decision and ordered MEPA to issue the controversial permit within 30 days.

The area in question, described as the "southern ecological zone", was deemed important mainly because of the populations of Sphenopus divaricatus (Wedgefoot Grass) and Anthemis urvilleana (Maltese Sea Chamomile) that were recorded within this zone. The 1995 environmental impact statement had suggested that the area containing Wedgefoot Grass might qualify for Level 2 protection as an Area of Ecological Importance.

But subsequent ecological surveys have shown that the plant has mysteriously disappeared from the area.

The Tumas Group also forms part of Gem Holdings, a joint venture with the Gasan Group, which acts as the Maltese partner in the Electrogas consortium that will construct Malta's new 200MW LNG-powered power plant.

Local plan supersedes permit condition

In 2012 the board chaired by Austin Walker gave three reasons for not issuing the permit. The first reason given was that the development goes against a condition imposed in previous permits that no further extensions/enlargements to the Portomaso Project should be allowed.

It also declared that the application would result in overdevelopment of the site, that it impinges on a site earmarked as an ecological area and that it would impinge of the entrenchment wall, which is scheduled as Grade 1 building meriting maximum protection.

It also insisted that that there are a number of illegalities on site, which should be remedied before any permit is issued.

In the appeal, the lawyers representing the developer argued that the permit condition stipulating no further development at Portomaso was superseded by the local plan, which came in place after the permit was issued.

They also argued that it was MEPA itself which had repudiated this condition by issuing other permits allowing various extensions to the project in other parts of the site.

The developers pointed out that the Local Plan Interpretation document states clearly that "the local plan automatically superseded all previously approved policies, plans and other planning instruments which are in conflict with the local plan".

But lawyer Ian Spiteri Bailey, who represented the objectors, shot down this claim.

This is because the same local plan interpretation document invoked by the developers also states "all planning applications which have been decided prior to 2006 shall be considered as prevailing over the provisions of the local plan". 

This means that MEPA cannot overrule an already issued permit on the basis of subsequent changes to the local plan.

On his part, MEPA lawyer Anthony De Geatano insisted that the condition imposed on the original permit was binding because the original permit viewed the development of the Portomaso complex in a holistic manner.

"This clearly meant that the Authority had ruled out any further extensions from the start and this formed part of the principle of the development."

But in its sentence, the tribunal gave more credence to the developer's argument.

"It is evident that although in the original permit the site was not to be developed, the local plan had clearly allowed the site to be developed."

The tribunal concluded that the local plan automatically supersedes all previously approved plans.

It also upheld the developer's argument that MEPA had not imposed the same condition against further extensions to project in other cases envisaging applications for development on another part of the site.

The developer's lawyers pointed out that the density being proposed for the lagoon project of 46 two-storey villas was less than envisioned in the local plan.

But the MEPA lawyer also dismissed the appellant's argument that the proposal is "a small scale development", arguing that 46 apartments will cover a footprint exceeding 6,400 is not a small one. 

"The excavations involved will obliterate the open area designated as an ecological zone."

Moreover, although the proposed apartments will cover a lower level than the entrenchment wall, the proposal will distort completely the setting of the historical feature, as it will introduce heavy urbanisation just in front of it.

Development approved despite illegalities

MEPA lawyer Anthony De Geatano also argued that although the illegalities (the illegal construction of boathouses at the entrance of marina and the irregular construction of a clubhouse) may not be on the same location of the proposed development they form part of the Portomaso complex and fall within the total control of the applicant. "Hence the authority was correct to refuse the application on the basis of the illegalities on site."

According to law MEPA cannot issue a permit on a site, which includes illegalities, which have not been sanctioned. In this case, the illegalities are still present on the site.

On their part, the developer's lawyers argued that the applicant has a pending planning application to sanction these illegalities presented in 1999. The developers argued that the enforcement covered another site of Portomaso.

"It is not reasonable in the context of a project like Portomaso, which is effectively a small town, no development is allowed on the entire site because of an illegality in another part of it."

Curiously, the Appeal's Tribunal backed the developers' arguments despite the fact that the illegalities on the Portomaso site have never been sanctioned. With regards to these existing illegalities on site, the board accepted the developers' argument that it cannot stop development on the entire site if there is an illegality on a small part of the site. 

The reason given by the board is that "the proposed development does not in any way affect the enforcement of the enforcement order" and that the site affected by the development includes no illegalities.

How a plant became extinct

The developers pointed out that the zone designated as a "southern ecological zone" had never been scheduled by MEPA in the same way as the same Authority had scheduled the Qalliet rock pools. MEPA had only asked the developers to close this area so that experts can monitor the presence of the wedgefoot grass.

Curiously, they also quote consultant Adrian Mallia saying that "originally this plant was identified in a passage which was closed off to protect this habitat. Unfortunately due to this closing off of this site, the plant became extinct". This declaration in itself raises more doubts on the mysterious disappearance of the plants in question.

The Portomoso saga

The planning controversy revolved around a permit condition imposed when the outline permit for the Portomaso development was issued in 1996 which states that "no extensions/enlargements of this development, its individual elements or any related development within or outside the site will be permitted".

The original permit was issued amidst environmental objections as well as protests against the breach allowed in the 18th century entrenchment wall and objections on the way public land was handed out to the developer.

In fact, the entire area was leased by the state to the developers for a measly Lm191,000 until 2014, and eventually sold to the developers for Lm800,000 in 2006.

In 1997, in a report presented to government, Parliamentary Ombudsman Joe Sammut concluded that the government "failed to use its negotiating powers to maximise the benefits to be derived from the deal".

He also recommended changes to law to ensure that any similar deals in the future are approved in parliament. Sammut intervened in the case following a hunger strike by a number of environmental activists, and his intervention proved crucial in subsequent changes to the law, obliging government to seek parliament's consent before passing public land to private interests.

Following the approval of the Portomaso permit in 1995, a notice was put on the site which is now earmarked for the lagoon development stating that the site within this wall is being sealed off for the protection of important ecological species during project construction and will be opened to the public.

But in 2006, changes were made to the local plan which identified the site earmarked as a protected ecological zone as one suitable for development. It was this change which ultimately gave the appeals board the legal argument to allow the development.

It was only in 2008 that the developers presented an application to develop the site.  But it was clear that the application faced a number of planning objections.

In 2009, MEPA's own Forward Planning Unit concluded that since the Portomaso area is already overdeveloped, no development should be allowed on this site.

Although the case officer report recommended approval of the project on the basis of the changes made to the local plan in 2006 also reveals a number of inconsistencies in the way the local plan was amended.

For example, it refers to correspondence in which MEPA's Local Planning Unit states that it remains "unclear" why the site was not scheduled as an ecological zone in the local plan issued in 2006, which instead earmarked the site for development.

The LPU concluded that "the interpretation of the relevant policies... leave some latitude for interpretation".

Ultimately, it was this latitude for interpretation which saved the day for Tumas Group.

While recommending the development for approval, the case officer report issued before the 2012 decision confirms that the intention of the original permit for the Portomaso development was to keep this area development-free.

It even cites minutes of MEPA's Executive Committee held on 8 October 2009 which state that "the conditions in the outline and the full development permits for the Portomaso project indicate that the aim of the deciding bodies has been to limit the development to no more than what was approved at the time" and to "retain the area outside the wall as free from development".

MEPA's Forward Planning Unit concluded that from a landscape and townscape point of view, it is desirable to leave the site undeveloped so that the existing coastal stretches remain open and green to the benefit of the public.

"In synthesis, therefore, we recommend that the site remains undeveloped."

The MEPA unit also states that the fact the location shows signs of overdevelopment is a central planning issue and proposed capping of the development to what exists at present.

"The general lack of public open space in the locality is an important issue. This shortage of public open space will be exacerbated if the proposed development is granted. This point assumes greater importance when one considers that the site is on the coast."

Labour appoints new tribunal

The fate of the ecological zone now earmarked for 46 villas, was sealed by the new appeal's tribunal appointed by the new Labour government in July.

The Portomaso application was one of 740 pending cases have been transferred from the jurisdiction of the Malta Environment and Planning Authority's full-time appeals tribunal appointed in 2011 to the new part-time tribunal recently appointed by the new Labour government.

The government justified the creation of the new board, claiming that a backlog of cases has been accumulated over the past few years.

Known as Tribunal B, the panel appointed by the new government is chaired by planner and MEPA official Martin Saliba and includes Freeport chairman Robert Sarsero, a practicing architect and part owner of Arkea Projects and Main Properties Ltd, and Labour candidate and lawyer Simon Micallef Stafrace.

The original panel's workload was limited to concluding those cases, which are in their final stages.

The Environment and Planning Review Tribunal has the last say in appeals presented against decisions taken by the MEPA boards and commissions.

The new panel appointed last month will therefore have the ultimate say over a number of controversial pending cases.

The new part-time board complements an existing board composed of architect Chris Falzon as chairperson, Dr Ramon Rossignaud and architect Jevon Vella, who were engaged on a full-time basis for four years by MEPA in 2011.

Tribunal A's responsibility will now be that of concluding those cases where the hearings have been finalised and where a decision is pending.

In 2011, MEPA announced that the board was contracted on a full-time basis "to further enhance the efficiency and consistency of MEPA's decision-making process" and to avoid "conflicts of interest".

Under the new board, however, the members are being appointed on a part-time basis and will be able to continue exercising their professions. However, they will be expected to abstain from any case in which they may have a conflict of interest, which they will have to declare.

In such cases, where a board member has to abstain from a particular case, the Tribunal members can be replaced by the newly appointed 'substitute members' on the new board.