New laws will allow government to appeal against planning decisions

The new planning laws currently being discussed in parliament will give the Attorney General and any “department, agency, authority or other body corporate wholly owned by the government”, the right to appeal against planning decisions which are not to their liking.

Presently only applicants aggrieved by a decision of the Malta Environment and Planning Authority, and persons or entities who had registered their written objections against a planning application, can lodge an appeal with the Environment and Planning Review Tribunal.

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

The new law regulating the work of the Environment and Planning Review Tribunal considers the attorney general acting on behalf of the government or any department, agency and authority as an “interested third party”, even in cases where these entities did not present any written submissions when the case was being heard by the Planning Authority.

According to the law an interested third party has a right to address the Tribunal and may be requested by the parties to the appeal to give evidence in the appeal proceedings. Unless the Tribunal decides otherwise, such an interested third party may be present during all the sittings of the Tribunal.

Moreover, the law also specifies that interested third parties (a definition which now includes the government) do not have to prove that they have a “juridical interest” in the appeal. Interested third parties can appeal if they “submit reasoned grounds based on environmental and, or planning considerations to justify their appeal”.

But government authorities, which had been consulted during the processing of an application, can only appeal if they had objected to the application or if they had proposed conditions for its approval. 

This means that government authorities like the newly formed Environment Authority and others like the Superintendence for Cultural Heritage, which are regularly consulted by the Planning Authority when applications are processed, will be able to appeal against permits, in cases where they had either objected to the development proposed or had proposed conditions which were not upheld by the planning board.  On the other hand government entities which were not consulted by the Planning Authority will be able to appeal in any case.

In the past days Environment Minister Leo Brincat has underlined the fact that the law will enable the Malta Environment Authority to appeal against decisions taken by the planning board. Presently the Environment Protection Directorate cannot appeal decisions taken by the MEPA, of which it forms an integral part. But the new law also paves the way for the government to appeal against any decision which was not to its liking, including permits turned down by the Planning Board.

Environmental NGOs are also considered to be an “interested party” in those cases where an appeal is presented against an application subjected to an Environmental Impact Assessment. This will give NGOs an automatic right to appeal against the approval of major projects. Presently NGOs can only appeal in cases where they were registered as objectors. 

Tribunal to be appointed by PM

While the previous legislation specified that the members of the Environment and Planning Review Tribunal are to be appointed by the President on the advice of the Prime Minister, the new law simply states that members of the tribunal are to be appointed by the Prime Minister.

The President’s role was symbolic because constitutionally the President cannot over rule the advice of the Prime Minister. 

But the involvement of the President underlined the quasi-judicial nature and the independence of the tribunal. 

In fact judges are also appointed by the President of Malta acting in accordance with the advice of the Prime Minister.

Moreover while previously members of the tribunal were eligible for reappointment after four years in office, the new law specifies that they are not. According to the new law the secretary and the administrative secretariat are also to be appointed by the Prime Minister.

Part-time tribunals

One of the matters which remains unregulated by the law is whether members of the tribunal can do other jobs while serving on it.

The Malta Environment and Planning Authority presently has two appeal boards, one “full time” board appointed by the previous government in 2011, whose term will expire in a few months, and a “part- time” board, whose members are lawyer and Labour candidate Simon Micallef Stafrace, Freeport chairman and architect Robert Sarsero and planner Martin Saliba.

The members of the original board were architect Chris Falzon, Dr Ramon Rossignaud and architect Jevon Vella. They were engaged on a full-time basis for four years by MEPA in 2011.

Back then, 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. 

But neither the law approved in 2010 nor the new law specifies whether board members should be appointed on a full time or part time basis. 

Robert Sarsero, a member of the panel appointed in 2013, regularly represents clients in applications presented to MEPA. This is because he and other new members of the tribunal were appointed on a part-time basis and members are allowed continue exercising their professions.

However, they are 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. These include Dr Andy Ellul, a lawyer who made a testimonial for Parliamentary Secretary Michael Farrugia before the last election, and architects Claude Mallia and Ludovico Micallef, a vice-president of the Malta Football Association. The government had justified the creation of the new board due to the incumbent Tribunal’s backlog.

The new board has taken a number of controversial decisions, including the approval of 48 villas at Portomaso, which had been rejected by the MEPA in 2012.

FAQs

What is the SPED?

The SPED, Strategic Plan for the Environment and Development, is a policy document meant to guide planning and environmental decisions till 2020 and will replace the Structure Plan approved in 1992.

What is the difference between SPED and the Structure Plan it replaces?

The Structure Plan consisted of enforceable and concrete policies. Unlike its predecessor, the SPED is more like a declaration of principles. Thousands of permits have been turned down since 1992 because these were in breach of Structure Plan policies, which included concrete policies like those calling for demolition of illegal coastal development and the public ownership of the coastline. 

How was the SPED formulated?

In  2012 a consultation document explaining the aims of the SPED was issued for discussion, with the aim to later produce a document with specific policies like the Structure Plan. 

But after the change of government a decision was taken to use the consultation document as the basis of the new policy while including a number of commitments for a number of projects not mentioned in the 2012 document. These include the development of an airstrip, a cruise liner terminal and a yacht marina in Gozo and tourism development on “previously developed land in Comino”. It also refers to the need of a framework for the “spatial planning” of land reclamation” and to agri-tourism in the countryside.

What does the SPED say about ODZ development?

The SPED enshrines a sequential approach through which vacant land should only be considered for development after the re-use of existing buildings is considered. But new clauses added by the government in June state that development may be permitted in outside development zones where no other feasible alternative exists in urban areas. It also states that projects of a “sustainable” nature can be permitted in ODZ land “as a last resort where it is essential for the achievement of sustainable development”.

After the SPED what laws are now being discussed in parliament?

The three laws being discussed are meant to set up two authorities, namely a planning and an environmental authority, and a tribunal to hear appeals against both.

Why does the government want to split MEPA?

The Labour party has an electoral mandate to split the environmental and planning aspects of MEPA as this proposal was part of its manifesto. Labour promised that by doing so it would ensure the environment would no longer play second fiddle to planning. But for the past two years during which MEPA has approved 14 new policies, MEPA’s Environment Directorate was left headless and in a state of disorientation. 

What will change after the split?

People will get a permit from the Planning Board in which the Environmental Authority will have one representative among 14. As regards individual permits the Planning Authority will consult the Malta Environment Authority in the same way it consults  with the Malta Tourism Authority and other entities.

Planning policies will be drafted by the Planning Authority’s executive committee, which will include two representatives of the Environment Authority. The Environment Authority will enact its own policies on themes like waste and air quality, thus beefing up Environment Minister Leo Brincat’s portfolio. What will be lost is the daily synergy between planning and environmental experts. But for the first time the environment will have its own authority.