[ANALYSIS] How watertight is Simon Busuttil’s ODZ plan?

In a nutshell, the Nationalist Party’s proposal is for “major projects of national importance” to have to pass through the full planning process, before parliament is convened to vote on their approval. The Planning Authority will make a “recommendation” to parliament on whether such a project should be approved or not. But the final decision will be taken by parliament through a two-thirds majority.

The snag is that as, declared by Simon Busuttil, to avoid a deadlock by a potentially disruptive opposition, a simple majority would still be enough for approval of a project after two consecutive failures to secure a two-thirds majority. 

The proposal is still not cast in stone and the PN is currently testing the waters before announcing its policies in an environmental policy to be presented by the end of this year.

Presently the final decision on projects outside development zones (ODZ) is taken by the Planning Authority board – whose majority is directly appointed by the government of the day – following a recommendation by the PA’s planning directorate, which includes the planning experts.  

Busuttil says he wants to shift the final decision on ODZ projects from “government to parliament”, suggesting an additional safeguard for ODZ land by complementing the planning process with an additional layer of scrutiny by democratically elected representatives.

But the proposal has been criticised for taking the power away from “experts” and putting the final say in the hands of elected politicians.

Environmental groups have largely welcomed the procedure, seeing it as an additional safeguard, but they have expressed reservations on aspects of the procedure proposed.

Decisions by technocrats, appointees or elected MPs?

Prime Minister Joseph Muscat shot down the proposal, arguing that “he didn’t want politicians to decide on such projects, as this should be left in the hands of experts”.

He also described the system as a “recipe for corruption”.

In reality decisions are presently not taken by experts, but by a board composed mostly of government appointees.  

Similar criticism was made by Green Party Alternattiva Demokratika deputy chairperson Carmel Cacopardo, who in his blog insisted that experts should take decisions and that parliament is not “competent” to take a final decision related to ODZ development or technical issues such as the relocation of petrol stations or extensions to firework factories.  

This view contrasted with that of AD’s former chairperson and Sliema local councillor Michael Briguglio, who views parliamentary approval of projects by a two-thirds majority as an “additional safeguard” if the vote in parliament is taken after the conclusion of the full planning process and limited to those projects already approved by the PA.

Curiously it was AD in its 2013 manifesto which had first proposed a “political” mechanism through which citizens would have a say on projects affecting their communities through local referenda, following the conclusion of the planning process.

But AD went on to say that in cases involving “infrastructural projects of national importance”, parliament, which represents the “community on a national level” should have the final say after addressing the concerns of the local community expressed in these “local referenda”.

If the PN’s proposal is implemented, environmental impact assessments, consultations with various authorities and bodies and recommendations by experts and directorates will still take place. 

In this sense parliament will not replace the role of experts in the planning process. The two-thirds majority proposal would reinforce the idea of the ODZ as a common good, which will only be ceded for development after the achievement of a wide consensus in the country’s democratically elected institution.  

But the final decision would not be taken by the PA Board, which apart from government representatives includes one representative of NGOs and the local council affected by the particular development. 

A question of definition

So the PN’s proposal raises two main issues, one of definition and one of procedure.

The PN has not specified – other than ‘major projects of national importance’ – what type of application would require the two-thirds majority. In this sense the PN’s proposal is still half-baked. Defining which projects have national importance or not may prove tricky and surely deserve a clear definition.

One possible yardstick suggested by Front Harsien ODZ is that projects deemed to require an EIA should require a two-thirds majority in parliament after being approved by the PA.

People may ask ‘why not ban all ODZ development’ instead of creating a new procedure for having proposals approved? The snag is that some developments, say petrol stations or fireworks factories, are by their nature preferably located away from residential areas, while other developments like hotels already exist ODZ.

Surely one cannot expect all ODZ applications to be discussed in parliament as these include hundreds of minor applications related to agriculture or minor developments in rural hamlets. They also include private developments, hotel extensions, relocated petrol pumps away from urban areas, fireworks factory extensions and even solar farms.

What surely would count as projects of national importance are those related to the national infrastructure, such as roads, sewage treatment plants, landfills, and energy infrastructure.

Even the Malta Developers Association agrees that the proposal is vague. “While we understand the motivations behind the proposal… we suggest that a study be conducted of the PN proposal following wide consultation with all those who are interested.”

But how would such a definition apply to private projects dubbed “national” by the present government, such as the educational institution proposed at Zonqor by Sadeen group?

NGO Din l-Art Helwa seems the keenest on parliamentary scrutiny of all planning applications and not just large projects, because all ODZ permits involve a violation or a change of a development boundary. “In principle these should be approved by Parliament,” the NGO says. 

Din l-Art Helwa has proposed that all prospective ODZ permits should be sent to the Parliamentary Committee for Planning and the Environment for final endorsement, as this would add a level of scrutiny to ODZ development.

A question of procedure

The PN says that such projects would be forwarded, after the planning process, to the parliamentary committee for planning. But various pertinent questions on procedural issues were raised on Twitter by architect and government consultant Robert Musumeci.  

These include whether a case officer’s report would be concluded before the parliamentary vote, whether there will be the option of an appeal following a refusal by parliament, and whether the PA would be taking a vote before the application is discussed in parliament.

Environmental NGOs who welcomed the gist of the PN proposals, expressed concern on Busuttil’s suggestion that a simple majority would still prevail ultimately on such a vote. And one of the risks is that a project which cannot be approved by the PA in view of existing policies, could end up being pushed for approval by the party in government in the final third vote by a simple majority: that would mean disregarding a negative recommendation by the PA and two successive failures to secure a two-thirds majority.

Flimkien Ghal Ambjent Ahjar has expressed reservations on this aspect. “Allowing it to be debated three times, with the last ballot a simple majority vote, would open the door to permitting unacceptable projects. The concept of ‘national interest’ is to be scrupulously established to avoid the mistakes of the past,” it said.

On its part, Front Harsien ODZ proposed that parliament should only vote on applications which have been approved by the PA, while refused applications should not even be referred to parliament.  In this way parliament would never be in a position to approve development which the PA would never have approved in the first place.

Reforming SPED

Perhaps more significant than the two-thirds majority proposal is the PN’s commitment to review the Strategic Plan for the Environment and Planning (SPED) and remove its current ambiguity on ODZ applications.

The proof of the pudding will be in the eating. Musumeci has asked whether PN will re-introduce the abolished Sixth Schedule that made it illegal for the PA to sanction illegalities in the ODZ. Environmentalists would welcome such a commitment, but it could alienate those who stand to gain from regularising such buildings.

Simon Busuttil has also ambiguously hinted at “a policy to improve urban environment in order to reduce pressures on ODZ land” while rejecting Marlene Farrugia’s call for a moratorium on high-rise projects. This may be an indication that the PN is warming up to the developers’ lobby by endorsing high-rise developments and repeating Jospeh Muscat’s mantra that such projects are the only alternative to ODZ developments.

Dangling the ODZ carrot

Also pertinent and justified is the call made by Busuttil on the government to conclude the revision of local plans before the next election, to avoid dangling the carrot of changes in building heights and ODZ boundaries in secret to particular individuals before the general election.

The government has hinted it intends to swap public land in the development zone with private land which is presently ODZ. In this way public land with limited development potential would be included in the ODZ while private land with vast potential for development would be added to the development zone.

Busuttil has rightly expressed his fear that by dragging on the process commenced in 2013 to after the election, the government is raising the fear of pre-electoral deals with certain individuals who want their land included in the next ODZ reshuffle.

One sure safeguard against a repetition of the 2006 extension of building boundaries – one of the PN’s worst mistakes for which Busuttil made a generic apology – may well be that of applying the two-thirds majority rule to any such extension, thus clipping the wings of any future government from committing the same mistake.