Court chides MEPA tribunal for failure to enforce policies

The Malta Environment and Planning Authority’s Environment and Review Tribunal has been rebuked by Mr Justice Mark Chetcuti for not sticking to its role, that of enforcing policies.

Mr Justice Chetcuti was referring to a decision by the Tribunal for its latest controversial decision, in which the MEPA appeals tribunal in December revoked a previous decision not to issue a permit for a quarry in the picturesque Wied Moqbol valley, taken by MEPA in 2005 and by a different appeals board four years later in 2009.

The original application, first turned down in 2005, was for the relocation of a quarry from Hagar Qim to Wied Moqbol in Hal Far.

The site at Wied Moqbol in Zurrieq is designated by the South Malta Local Plan as an agricultural area. The policy clearly states: “MEPA will continue to protect agricultural land from all types of inappropriate development. Within agricultural areas, as indicated on the relevant Environmental Constraints Maps, only buildings, structures and uses essential to the needs of agriculture will be permitted”.

Moreover the nearby Wied Moqbol is designated as a Special Area of Conservation of International Importance under the Natura 2000 programme in view of the importance of the species as well as archaeological remains found there.

An appeal against this decision by Charles Fenech was also rejected by an appeals board in 2009, but the sentence was overturned by the law courts for procedural reasons.

The law courts did not call for the approval of the permit but accepted Fenech’s appeal because the appeals board in its 2009 decision had not given the developers the opportunity to present their views on the application of the policy which justified the refusal of the permit.

In its new decision, the new MEPA appeals tribunal recognized that the development would result in the “loss of rural characteristics” like rubble walls and trees. But it also concluded that the impact on agriculture was temporary as the quarry can be rehabilitated after the stone resource is exhausted.

It also observed that the development is compensated by the rehabilitation of quarries in the vicinity of the Hagar Qim monuments. “This means that the development will not result in the loss of agricultural land,” the tribunal argued.

The tribunal which issued the controversial permit is composed of Labour candidate and lawyer Simon Micallef Stafrace, Freeport chairman and private architect Robert Sarsero and planner Martin Saliba.

But Mr Justice Chetcuti has lambasted the decision.

“Instead of applying policy as it is obliged to do, or at most referring to other policies which may be adopted, the tribunal chose to base its decision on other considerations, such as the value of agriculture,” the judge said.

The court also made it clear that the tribunal can only make an interpretation of a policy when the same policy allows room for interpretation.

But in this case the policy included in the local plan designating the area as an agricultural zone was not open to any such interpretation.

The court argued that a tribunal could not use its arbitrary power to change the designation of a site included in the local plan.