Saturday, 7th November 2009
Interpreting the planning law
The Mepa audit officer is of the opinion that meetings between the chairmen of the Development Control Commission and applicants are illegal (November 2). He "... argues that the planning law clearly lays down that all DCC meetings must be held in public". He arrives to this conclusion on the basis of article 15 (5) of the Development Planning Act which states: "The sitting of the board shall be open to the public...".
I am not a legal person. I offer the following opinions on legal interpretation of the Development Planning Act with a good dose of trepidation.
A closer look at the Development Planning Act would reveal that Mepa's auditor is probably incorrect in his interpretation. There are at least two pre-requisites for a "sitting of the board" to take place.
First, the function of the DCC board is to take a decision on any development application (articles 13(2) and article 36 (10) of the DPA). Hence, notwithstanding the presence of board members, a meeting is not a DCC board meeting if there is no specific intent to take decisions on development applications. Second, for a DCC meeting to be held there needs to be at least four out of seven members present (article 13 (4)). In a meeting with an applicant, there are at most two DCC board members. This cannot remotely be considered to be a "sitting of the board" and, therefore, the legal provision relating to the presence of the public does not apply. It becomes a DCC board meeting, according to law, if decisions are taken and if there are at least four members present.
It appears that Mepa has legal advice that is also contrary to the auditor's view. Had Mepa's legal adviser indicated that, in his opinion, such meetings are illegal than certainly Mepa would have taken steps to stop them. This did not happen.
Ultimately, it is a court of law that determines what is legal and what isn't after due process. In its decision on the Mistra case (October 28) the court says (translated from Maltese): "It is therefore apparent that these meetings could be legitimately held and there does not seem to be anything irregular, so much so that the authority established a complaints and liaison officer precisely for this purpose".
From a practical point of view, meetings between the DCC chairman and the applicant (together with his architect) are useful because issues relating to a development application can be discussed and ways sought to improve the proposed development. In truth, it is the responsibility of Mepa's case officer to meet the applicant. In a situation where some Mepa case officers are averse to holding such meetings, meetings of the DCC chairman with the applicant are all the more useful.
There is another instance where Mepa's audit officer gave a legal opinion which, in my opinion, is incorrect. In the recent controversial Baħrija report, he claimed that the first permit issued for the site (PA2835/00) was issued illegally because it was in breach of policy. Yet, he claimed the permit is valid. This is contradictory. How can a permit be issued illegally and still be considered valid?
Planning policies are inherently subject to interpretation. Planning policy is not like laws and regulations; most policies allow for ample room for interpretation to cater for qualitative as well as quantitative criteria. Moreover, the interpretation of planning policy is subject to the specific circumstances of the site and of the proposed development.
When determining whether a permit issued was in breach of policy (and, hence, illegal, according to the audit officer), whose interpretation of policy is one to rely on: that of the director at Mepa, the DCC board, Mepa's main board, the audit officer or a court of law? Who is to decide?
Moreover, article 33 (1) of the DPA requires the DCC to "apply" development plans and planning policies as well as "have regard to any other material considerations...." Who decides the relative weighting to give to planning policy and to other material considerations? Who decides if and when the application of "material considerations" would result in a breach in policy?
On practical grounds, the auditor's approach to planning policy would give rise to a minefield with countless permits being legally challenged on the mere pretext that some comma of some obscure policy is being infringed.
I am not a legal person. It is only with reluctance that I offer my views on legal interpretations of the DPA. The auditor is not a legal person either and it appears he did not get any legal advice on either the Mistra or the Baħrija cases. Yet, he makes bold statements relating to legal interpretations without recognising his limitations on legal matters and irrespective of the view expressed by the court on the Mistra case.
The recent court decision on the Mistra case is more than welcome. I read the court's decision and can only conclude that the ordeal of these two former board members was in vain and that an injustice has been committed against them.
An architect and urban planner, Mr Ebejer is chairman of the Building Industry Consultative Council.
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Comments
You Say:
1) "The constant hostility against MEPA and the doubt which people constantly sow in the minds of people make matters worse." You know very well Mepa does not need me to sow these doubts in thousands of Maltese. It is doing an excellent job of this itself.
2) "If case officers did their job properly". It just happens that out here there are many of us who think that they do, but others do their best to frustrate them. In fact we rarely hear of steps being taken by Mepa against case officers ; but we hear of decisions by DCC's of distinguished architects being withdrawn, and vindicating the case officers' recom-mendations.
My article is about Joe Falzon the auditor and not Joe Falzon the person. Hence, my choice not to refer to him by name.
I confess. I have an interest. As Chairman of BICC and as someone who has been involved in Malta’s planning system for over a decade, I am angry that two persons who had carried out their duties conscientiously as Board members had to go through the ordeal of being falsely accused of wrong-doing and having their names bandied around in the news.
Maybe, if in the years and months leading to the 2008 elections, people were fairer in their criticism of the DCC boards and the Auditor had recognised that he had interpreted the law wrongly, these people would not have passed through this ordeal.
Angry as I am, I can assure you the reasoning as set out in my article is correct.
PS: Over the past few years I did not submit any applications to MEPA . If I did however, that should not preclude me from giving my views on the planning system. After all it is the applicants and the architects who have to deal with the problems which a strait jacketed planning system is imposing on them. So please Mr. Murray, stop trying to shut people up by hinting to “vested interests”
Case officers are afraid to use their discretion in the use of planning policy (and therefore also to hold meetings with applicants) because they are afraid the auditor will chastise them in a report because of some triviality. The auditor has successfully strait-jacketed the planning system by his excessive judgmental approach. The constant hostility against MEPA and the doubt which people (like yourself) constantly sow in the minds of people make matters worse.
If case officers did their job properly (i.e. use their discretion to interpret policies and communicate effectively with applicants) , the need for the DCC chairpersons to meet applicants would be greatly reduced. If and when that happens, one should consider amending the law to prohibit meetings between DCC board members and the applicant.
Case officers are afraid to use their discretion in the use of planning policy (and therefore also to hold meetings with applicants) because they are afraid the auditor will chastise them in a report because of some triviality. The auditor has successfully strait-jacketed the planning system by his excessive judgmental approach. The constant hostility against MEPA and the doubt which people (like yourself) constantly sow in the minds of people make matters worse.
If case officers did their job properly (i.e. use their discretion to interpret policies and communicate effectively with applicants) , the need for the DCC chairpersons to meet applicants would be greatly reduced. If and when that happens, one should consider amending the law to prohibit meetings between DCC board members and the applicant.
The following are the reasons why I think my interpretation of the DPA is correct and the auditor’s interpretation is not (in order of priority)
1. The Court describes meetings of DCC Chairpersons with applicants as legitimate
2. For several years, MEPA's legal advisor was aware of the auditor’s interpretation of the law but evidently his advice to MEPA was different
3. I presented what I believe to be a perfectly plausible interpretation of the DPA in my article. I will be willing to change my view, if and when, someone, preferably a legal person, explains to me where my reasoning is wrong.
4. In his opinion piece of 6 November, the auditor did not even attempt to explain his interpretation of the law to jusitfy his position.
5. The best justification that any of the timesonline commentators could offer is that one needs to consider the spirit and not the letter of the law - evidently an excuse to twist the interpretation of the law to suit one's agenda.
I find his para “From a practical point of view..etc” very unconvincing.
Why would Case Officers refuse to meet an applicant? If they have the responsibility to do so and refuse, then they should be disciplined. But maybe they are afraid that by acceding to this meeting they might be breaking the law, or at least that their action would raise doubts about their integrity? I imagine they have strong reasons, not capricious ones, for being averse to the idea of being party to this kind of meeting.
Couldn't the DCC chairman a) insist with the case officer to meet the applicant in his presence with minutes being taken; b) charge the Case Officer if s/he insists on refusing to comply; c) tackle the issue with ALL the DCC board, the applicant, his architect and the objectors? No, because the law does not so decree! I do not find this reasoning at all reassuring; indeed it could even be just convenient.
'I am not a legal person" it sounded so good you wrote it twice,yet you appear to command some expertise in declaring yourself to be an accredited interpretor person- of the law.Why do you presume that your interpretation of the law,or Mepa's policy and procedure,is either far superior or somehow more pertinent to Mr.FALZON's ,the Mepa Audit Officer you constantly refer too yet do not afford the dignity of being given a name?Colour me cynical if you may but it would appear that your role and current designation has clouded your perception(interpretation) of the law along with possible associated vested interests.