Tables turned on NGOs’ representative to absolve realtor on Planning Authority board

In its recent decision upholding the permit for the 38-storey tower high rise in Pembroke while imposing a number of conditions including an increase in open space provision and a 10-metre reduction in height, the EPRT dismissed arguments by the appellants that board members Matthew Pace and Clayton Bartolo should have recused themselves from the vote due to a conflict of interest.

The appellants questioned the compatibility between financial services broker Matthew Pace’s interest as a co-owner in the Swieqi branch of property agents Remax, which was advertising apartments in the projects.

They also questioned the overall suitability of Pace to serve on the board when he has as a direct and clear interest in an activity which may conflict with his position in a board which has quasi-judicial powers, arguing that this should have disqualified him from serving on the board of which he has been a member since 2013.

Matthew Pace (left) is the owner of Zenith Financial Services, formerly MFSP Financial

But the tribunal dismissed these claims, arguing that “other members of the board had publicly expressed how they would be voting” – adding that it is these members who may have had a conflict of interest (“dawn mhux talli kellhom kunflitt ta’ interess!”).

They also referred to “proof” submitted by Pace that advertising for the apartments was done by different estate agents. On the basis of this the Tribunal concluded that the fact “that Pace had an interest in one of these agencies did not put in doubt his impartiality or create a conflict of interest.”

It was here that the Tribunal hinted that the argument that this member should not vote in such circumstances “can be extended to the NGO representative whose public agenda is always declared.” It also extended the argument to party representatives arguing that the argument can be stretched to projects located in the districts they represent.”

The Tribunal also noted that the law itself dictated that independent members of the board should be chosen for their knowledge and experience in various areas including commerce and industry, cultural heritage and participation in civil society organisations.

“If taken to an extreme the argument of the appellants would mean create a situation of permanent conflict of interests for everyone.” The Tribunal concluded that in order to establish a conflict of interest “each case has to be taken independently of any other case” and each alleged conflict must be examed “in a realistic way to avoid absurdities.”

The appellants had also insisted that government representative Clayton Bartolo should have declared his father’s and uncle’s ownership in a watersports company which operates in the Tunnynet complex, owned by DB group chairman Silvio Debono, and should have “recused” himself from participating in the decision.

In its decision the Tribunal curtly dismissed this argument by saying: “With all due respect these persons are distinct from Clayton Bartolo and one cannot presume that this would lead to impartiality simply because of this fact.”

The Tribunal also dismissed the argument that Bartolo was impartial because of an activity organised on his behalf in the DB group’s Seabank Hotel in May 2017, before Bartolo was appointed to the PA’s planning board.

“It is a well-known fact that all politicians organise activities in their own district. This does not lead to the extremities of a conflict of interest. It was one in many activities. There is an element of interpretation. This fact is not one which leads to a potential for impartiality or incorrect behaviour. The link in this case is too casual and distant.”

When MaltaToday flagged the potential conflict of interest, Bartolo had insisted that he was under no obligation to declare interests by close family members. “I have no financial interest in the company, which has existed since 1985 before I was even born, and the company involved simply rents its premises from Tunnynet and does not receive any payments from it”.

The appellants also argued that the PA’s approval was also vitiated by the PA’s executive chairman’s decision to fly in board member Jacqueline Gili on a private jet to participate in the vote, at the expense of €8,750 paid by the PA. The appellants referred to Gili’s poor record in attending previous board meetings.

The Tribunal concluded that it could not understand how Gili’s presence in the meeting resulted in any impartiality. “It is ideal that board members should be present for every board meeting… But if this is not the case it does not mean they are impartial when they attend.”