Robert Musumeci
Mepa Bill: Parliament, take note!
Finally, the much-awaited Mepa law reform has been communicated by the government by means of a Bill. Although the proposed law was expected to foster more accountability, regrettably this is not the case. Proposed article 77 (amending article 39A of the Development Planning Act) provides that a valid planning permit may still be revoked by the authority if it results that an omission on the face of the record which offends the law was made by the authority itself during application process. However, it is worrying to note that the proposed law, in particular subsections (4) and (5) of said article, provides that the aggrieved party will not be entitled to any compensation in such eventuality despite the fact that the applicant cannot be held responsible for such omission.
More so, the Bill provides no transitory clause for pending applications, which are affected by changes in planning policies during an active process. In terms of the proposed law, applicants and potential ones who invest in a property and apply for a permit under a set of established regulations will still be left in a quandary. Will such applications be judged according to the previous law in force when the building application was registered with the authority or will they be processed according to the new law, yet to come in force? Surely, we cannot say that the legislator is thinking of enacting retrospectively.
In the same vein, the Bill certainly does not provide for an effective measure to be taken in those instances when policies change after an application is submitted and is affected negatively by such change. This state of affairs leaves much to be desired!
The proposed reform was intended to bring about more transparency, especially in view of what was reported in recent months by the planning auditor, whereby he insisted that applicants should be precluded from meeting decision-makers behind closed doors. However, no concern was ever expressed at the fact that meetings between case officers and decision-makers are held behind closed doors in the absence of the applicant. Should the applicant be put at a disadvantage a priori by not having equality of arms? This is being said because, unfortunately, once again the Bill does not prohibit members of the directorates to discuss planning applications with decision-makers in the absence of the applicant. This grievance should certainly be addressed forthwith in the interests of justice.
The proposed law was set to render a more efficient planning process. It should be highlighted that the liaison officer, whose current role is to iron out shortcomings during the planning process, is nowhere mentioned in the Bill. The proposed law is, nonetheless, suggesting that applicants may appoint a mediator whose role is to act as a reference between the authority and the applicant (now article 39 of the law). Will this service be in place against payment? Consequently, will the post of the existing liaison officer be abolished?
On the subject of efficiency, the Bill (through article IV) enables the authority and the minister to issue legal notices in relation to application timeframes through legal notices subject to public consultation. However, such legal notices have so far not yet been published. It seems that the said regulations are still in the making. Is this the case of putting the cart before the horse?
We were promised that an application (save for ODZ and major projects) will be determined within 12 or 26 weeks. Indeed, these timeframes are already mentioned in the existing law. Yet, a substantial number of planning applications are still not determined in time, notwithstanding the timeframe provided by law. Unless the proposed enabling regulations stipulate that a deemed approval is forthcoming if no decision is given in the stipulated time there is no hope the authority would be rendered more efficient!
The proposed reform was aimed at bringing more consistency in decision-making. This can only be brought about if there is a system of sentencing policy made available to the new decision bodies so that such decision-makers will be able to build on already established case law. Perhaps it is now the right time to introduce the doctrine of precedence. Surely, this would be the best way to deal with the concept of consistency.
It is now up to our members of Parliament to decide whether these recommendations should find solace in this new piece of legislation.
Mr Musumeci is an architect by profession and the mayor of Siġġiewi.
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Robert Caruana
Jan 19th 2010, 17:18
Consistency in planning is achieved through having clear, consistent, non-conflicting policies that leave little leeway for interpretation and do away with loopholes or grey areas that can be exploited by developers or their architects. This is the type of consistency the MEPA reform should be seeking.
Consistency certainly should not mean exploiting misguided past planning decisions (even if taken in good faith) to justify new planning permits that go against MEPA's commitment to ‘implement sustainable development that safeguards the environment’ (MEPA mission statement – http://www.mepa.org.mt). The reform should be directed at eliminating the likelihood of repeating past errors rather than using these as a justification for new planning permits.
philip galea
Jan 19th 2010, 16:51
, the law states that Mepa has to issue a permit within 12 or 26 weeks and he rightfully states that this is not new and that this provision is without a sanction. He suggested a sanction and I agree with him because the reality is that according to current legal doctrine on the subject as well as a decision by the local Plannining appeals Board, the time limits are not considered as mandatory but the provision is merely a best endeavours one . This means that Mepa can procrastinate, sideline an application or frustrate an application and the citizen can do nothing except take the matter to court with a view to order Mepa to act. This means years.
I wrote to the authorities about this and no action was taken to remedy this state of affairs. When the citizen has to file a request or an objection to Mepa , the period is peremptory meaning that one loses all rights if one does not stick to a time limit but not so with Mepa : all periods within which it has to act are merely directional.
He is right when he insists on a sanction for inaction .
Joseph V. Grech
Jan 19th 2010, 13:56
Perit Musumeci ends his article thus: ''The proposed reform was aimed at bringing more consistency in decision-making. This can only be brought about if there is a system of sentencing policy made available to the new decision bodies so that such decision-makers will be able to build on already established case law. Perhaps it is now the right time to introduce the doctrine of precedence...'''
Precedent means ''decision taken as an example or rule for what comes later. Musumeci really means ''precedent'' - no matter!
So Musumeci would like MEPA to decide new applications merely by selecting past decisions (taken in similar applications) and awarding (or refusing) new permits according to such precedent! This would result in Consistency of the worst sort!
If MEPA does that the environment will continue to be raped with the sort of permit that was obtained for the Bahrija scandal which is even today putting us Maltese to shame!
Each application needs to be decided on its own merits. Deciding applications by ''precedent'' will result in further abuse and only help unethical developers - and architects!
MEPA decision making NEEDS TO TURN OVER A NEW LEAF and - possibly - correct past wrong decisions.
Joseph V. Grech
Jan 19th 2010, 12:59
Perit Musumeci should read Article 77 of the proposed Mepa Reform Law very carefully. This DOES NOT provide - as he wrongly states - that ''a valid planning permit may still be revoked by the authority if it results that an omission on the face of the record which offends the law was made BY THE AUTHORITY ITSELF during application process'''. Rather such fraud or negligence would be attributable to the applicant himself (or his architect).
Under these conditions does Musumeci really expect the Authority to compensate the applicant? What cheek!
His declaring that applicant (whom he calls the aggrieved party) ''will not be entitled to any compensation in such eventuality despite the fact that the applicant cannot be held responsible for such omission.'' is ludicrous irresponsibility!
According to him an applicant (and his architect) can present fraudultent - or erratic - plans and not be held responsible and ACCOUNTABLE!
Musumeci omits to say that applicant is entitled to object officially to any decision by Mepa to revoke a permit under Article 77 of the proposed Law - and that this also makes possible the revocation of permits on the ground of Public Safety. How can Musumeci be taken seriously?