[ANALYSIS] Why Muscat is wrong in shifting blame from politicians to the PA

On Sunday Prime Minister Joseph Muscat criticised the Planning Authority for being “insensitive” in approving the transformation of the Qala ruins into a villa with swimming pool.

“People were justly enraged over the decision, myself included, because they could not understand how such a decision could be taken.

It was technically correct because the permit followed the legislation and the application ticked all the marks on the checklist, but then this means that the 2014 reform itself was illogical,” Muscat said.

Although developer Joseph Portelli has announced that he will be voluntarily renouncing the permit, people are still asking why the PA board members approved the permit.

Here are five reasons why Muscat is wrong in absolving his government from responsibility by attributing the full blame on the PA, whose members where appointed by him and which is enacting policies embraced by his government.

1. PA’s political appointees voted against the case officer’s advice

It is the PA’s planning directorate, the technocratic arm of the PA which is composed of case officer and their supervisors, which determines whether planning applications conform to policy or not. In this case the directorate was recommending the refusal of this application. In its deliberations the directorate concluded that the application did not conform to policy.

The chairman of the PA’s planning commission Elizabeth Ellul disagreed and indicated her intention to approve this permit. Subsequently the case was taken away from her and delegated to the planning board.

2. The government representative voted in favour

Labour MP Clayton Bartolo voted in favour of this application, simply observing that photographic images indicated that the building in question was a dwelling. Subsequently he explained that he was bound to vote according to policy, in this case the rural policy development guidelines of 2014, which according to Bartolo should be reformed as soon as possible.

But Bartolo completely ignored the case officer’s report which recommended refusal having based itself on the court’s reinterpretation of the RPDG.

3. All political appointees sitting on the board voted in favour

The board members who voted in favour of the project included Jacqueline Gili, a director in the Contracts Department, Simone Mousu, a director for Policy Development in the Justice Ministry, and Deborah Busuttil a member of the Transport Malta board. It is extremely unlikely that political appointees representing government ministries did not consult with their employer before voting. The other “independent board” members appointed by the government, namely Joseph Brincat, Alfred Pule, Duncan Mifsud and Karl Attard also voted in favour. None of them made any attempt to justify their vote during the board meeting. In fact they rarely participate in any discussion.

As often happens, the only people who contributed to the discussion were PA board chairman Vince Cassar and ERA chairman Victor Axiak. Deputy chairman Elizabeth Ellul also remained silent but had made her opinions clear on previous sittings of the planning commission she chairs.

4. The RPDG were reinterpreted by the law courts

The 2014 rural policy development guidelines were reinterpreted by the law courts in a way which excludes redevelopment of ruins which lost their roofs by 1978.

So the board had the perfect justification to turn down the permit.

The permit was assessed according to article 6.2A of the controversial rural policy, which allows the redevelopment of countryside ruins into dwellings if proof of previous residence is presented. In this case the proof consisted in the death certificate of a certain Grazia Mifsud dating back to 1921.

But although similar proof was accepted in similar cases, in this case the planning directorate made direct reference to a court judgement which reinterpreted the policy in a way that buildings can only be transformed into dwellings if still habitable in 1978.

In this case the building already appeared to be roofless in aerial photos dating 40 years back. Planning Board chairman Vince Cassar forcefully argued that the permit had to be assessed according to the court’s decision. Lawyer Ian Stafrace (a former MEPA chief executive officer) defended the developer’s application and accused the PA of lack of consistency, citing cases approved in breach of the court decree.

But he did not question the validity of the court sentence.

5. The policy itself was approved by politicians and its negative impact has been known for years

The rural policy was devised in 2014 by the newly elected Labour government. The negative impacts of this policy have been documented in several reports by MaltaToday since 2015.

These showed a pattern through which new countryside dwellings are approved instead of piles of rubble or roofless structures on the basis of references in old electoral registers, sometimes issued prior to WWII and in one case before WWI.

One permit issued on an old structure in Binġemma Road in Mġarr was issued on the basis of a declaration by a pensioner living in Australia who “distantly remembered” his uncle inhabiting the buildings between 1954 and 1960.

Muscat now gives the impression that the PA was deliberately slowing down the government from reforming the policy, noting that Infrastructure Minister had told him that he had already asked for a changeover a year ago.

The policy reform, which will have to include three, separate, six-week-long public consultations, was only launched last week. It is expected to take another year.

The reform of the controversial policy has been in the offing since 2017 following findings of a MaltaToday probe which showed that ERA had been ignored by the PA in 69% of approved ODZ applications. A ministerial board tasked with investigating the 2014 policy was than appointed. Another committee appointed by the PA started discussing the reform of this policy in April 2018. More than a year later “the meetings of this committee were still ongoing”.

But irrespective of how bad the current policy is, in this case the planning board still had enough ammunition to turn down the permit.

Gozitan developer Joseph Portelli

Explainer

How the rural policy has opened floodgates for countryside development

With ordinary structures with no vernacular values, owners have to prove past residential use in order to apply for their demolition and redevelopment. Policy 6.2.A, which was applied in the Qala case, specifically allows the “rehabilitation and change of use of architectural historical or vernacular interest” allowing their transformation into dwellings.

The policy allows the construction of a dwelling (even if the former use was not residential), provided the existing building to be converted has a minimum area 100sq.m. In the Qala case, the proposal did not qualify for a new residential use because the internal floor area was 21sq.m.
But the same policy further specifies that a converted building can be used for a use that is already legally established. Therefore, the developers presented a death certificate indicating that Grazia Mifsud was found in an unnumbered room in Ta’ Muxi in August 1921. In this case doubts were still expressed with regards to the evidence of past ownership as other evidence was produced from parish archives showing that Mifsud lived near the Qala church, not in Ta’ Muxi.

But this was not the reason cited by the Planning Directorate to turn down the permit. The main reason was a decision taken by the PA’s Environment and Planning Review Tribunal confirmed by the law courtsm, which clearly states that country ruins can only be turned in to dwellings if these were habitable in 1978.

How the Law Courts re-interpreted the RPDG

The courts now say that past residential use of a building can only be legally established if the residential use is visible on the 1978 aerial photographs. The court’s decision was based on the definition of the same policy’s glossary, according to which ‘legally established’ refers “to any intervention, including land-use change and land reclamation covered by a development permission or that which is visible on the 1978 aerial photographs.”

The court sentence in question was triggered by an appeal against the approval of a 180sq.m terraced house instead of “rural ruins” in Kercem in Gozo. The development was green-lit in a Special Area of Conservation instead of a pile of rubble. The proof of previous residence consisted in the electoral register of 1902 and the superimposition of an 1898 map with recent aerial photography, which showed that the building mentioned in the electoral register “coincided with the ruins present on site today”.

On 17 January 2019 the permit was revoked by the PA’s review tribunal, because the residential use in question was not visible in the aerial photos of 1978. The decision was later confirmed by Judge Mark Chetcuti on 20 March 2019.

Although the original permit had already been revoked by the review tribunal, the PA still approved changes to the original permit on 27 March 2019. Awkwardly, even the case officer was recommending approval in this case.

Subsequently an appeal was presented by the same objectors, who challenged the permit because they had not been informed of the PA sitting despite being registered objectors. The appeal was shot down because the appellants had failed to proof their case.

But the appeal did not address the other claim made by the appellants namely that that “any other application which seeks or sought to amend the original permit was null, since it seeks to amend something that does not exist”.