Downscaling of Mistra project was made before election

No attempt was made to downscale the controversial 774-apartment Mistra project by the present board of the Malta Environment and Planning Authority.

Moreover, a request by NGOs for the revocation of an outline permit issued in 2008 was discussed and turned down by the MEPA board in a behind-closed-doors meeting held on the eve of the public hearing after the authority had asked for legal advice.

A spokesperson for the Authority confirmed that the downscaling of the project from 992 to 774 apartments dates back to 2012 before the new board chaired by architect Vince Cassar was appointed following the general election. 

This means that both the outline permit for a 992-apartment project and the subsequent reduction to 774 took place under the previous administration.

A spokesperson for MEPA claims that the new board was aware of and satisfied with the fact that the Planning Directorate had undertaken "extensive negotiations" with the applicant to reduce the overall impact of the project.

"These negotiations led to a reduction of approximately 20% of the project's total residential ground floor area when compared with what had been granted in the 2008 outline permit."

Despite this satisfaction with the work of the planning directorate, five MEPA board members had actually voted in favour of a motion presented during last month's public hearing to further reduce the height of the project. But the rest of the board members attending the meeting outvoted the motion presented by Ryan Callus, who represents the PN Opposition on the board.

Asked by MaltaToday whether the board had any legal advice against a further downscale of the project from the 774 apartments agreed in 2012, a spokesperson for MEPA argued that "an applicant in possession of an outline development permit has vested rights". In this case the outline permit gave the applicant the right to construct 992 residential units.

"The Board, in granting the full development permit, was satisfied that the applicant, following negotiations with the Planning Directorate, chose to downsize the project and not capitalize on all the building rights he acquired following the granting of the outline permit."

Legal advice against revoking permit

The MEPA spokesperson also insisted that MEPA had legal advice against heeding the request made by Din l-Art Helwa to revoke the original permit issued in 2008.

During the public meeting MEPA chairman Vince Cassar outrightly rejected the environmental NGOs call for the revocation of the outline permit saying there was no basis for their call.

Asked by representatives of Din l-Art Helwa and Flimkien Ghal Ambjent Ahjar to explain his decision, Cassar refused and said that he had already decided about this.

But a spokesperson for MEPA now explains that following the request made for revocation of the 2008 permit by Din l-Art Helwa, the Planning Directorate assessed the request with MEPA's legal advisor prior and presented a report MEPA Board's consideration.

"On 30 October 2013, the MEPA Board discussed and agreed with the conclusions presented by the Planning Directorate and the legal advisor that there were no grounds to proceed for the revocation of the outline permit in line with Article 77 of the Environment and Development Planning Act," the MEPA spokesperson confirmed.

The local plan only permits a four-storey development in the area and 8 stories if a still-to-be-approved policy on Floor Area Ratios, which explicitly bans high rise developments on ridges like the one on Mistra is applied.

The only deviation from this was only foreseen for "a noteworthy urban and architectural design of the highest calibre" which "provides the highest quality in architectural form and details".

But the MEPA spokesperson made it clear that a permit cannot be revoked, for the simple reason that a project deviates from an approved policy.

MEPA can only revoke a permit in cases when a permit is issued on the basis of an "error on the face of a record". This reason was given to revoke two politically charged permits one for a disco in Mistra in 2008 and another for farmhouse in Bahrija in 2009. 

In both cases, the permit was revoked because the board failed to take into account the Natura 2000 status of the sites.

But MEPA contends that it had no such option in this case.

"Even if there had to be an apparent departure from approved policies and plans, this would still not constitute an error on the face of the record, if the board had consciously taken the decision based on a factual case office report." 

According to MEPA, an error on the face of the record would have occurred if the case officer report had stated that the eight floors were not being exceeded, and thus would not have been factual.

In fact, the present board is now defending the argumentation of the previous board chaired by Austin Walker in 2008.

The MEPA spokesperson insists that while the local plan policy (NWSP 25) restricted the height limitation to four floors it allowed a maximum height equivalent to eight floors plus penthouse through the FAR policy.

The MEPA spokesperson acknowledged that the policy only foresaw "slight departures" but points out that in the outline permit issued in 2008, the four blocks stepped up from six floors from lower street level to a maximum of eight floors on the upper street levels.

"The only departure from this maximum height was within the centre of the site were at two specific points a height of 11 floors was being allowed."

The authority's spokesperson also claims that the height issue was also discussed at length by the MEPA Board in 2008 "whereby it was confirmed that the proposed levels are totally in line with the Local Plan policy governing the site".

Asked whether MEPA had considered the cumulative impact of the project including the transport situation and the need for a new road passing from the most pristine areas in the island the MEPA spokesperson replied that the impact was carefully studied and considered when in 2008 when the MEPA Board decided that an outline development permit was to be granted on this site. Moreover, during the processing of the full development application Transport Malta notified MEPA that it had no objection to the project.