The owners of Portomaso have accused the Malta Environment and Planning Authority board of “shifting the goalposts” and changing the reasons why it refused to grant a permit for 46 bungalows.
Ray Fenech, director of the Tumas Group, filed a judicial protest against the planning authority board accusing it of changing the justification it had given him for refusing the permit for his project, violating his fundamental rights in the process.
In April, the planning authority had turned down an application to build a car park and 46 bungalows overlooking the Portomaso lagoon over a dilapidated area of about 7,500 square metres at the end of Spinola Road in St Julians.
During a four-hour long debate, lawyers argued over a condition listed in the original 1996 permit for the Portomaso complex, which said there would be no further development or extensions to the project. The application was refused after the chairman used his casting vote.
Immediately after chairman Austin Walker cast his vote, Mr Fenech had insisted on being given a reason for refusal to “avoid any surprises later”.
Mr Walker said the permit was refused because of the condition listed in the 1996 permit and “illegalities” on the site.
Mr Fenech asked the other board members to confirm this, which they did.
However, “surprisingly”, when Mr Fenech asked for the minutes of the meeting, the reasons for refusal included a third point: that the application would lead to “overdevelopment” and “impinge on a site earmarked for an ecological area and also that the development would impinge on an entrenchment wall that is scheduled as Grade 1”.
The planning authority was asked to correct the minutes in a way that “faithfully reflects” what was said during the hearing, including the reasons of refusal Mr Fenech was given.
However, Mepa said that the third point was linked to the board’s reasoning that it could not approve the project because of the condition listed in the 1996 permit.
“It is evident that the authority is admitting that what was reported in the minutes, and the final decision, did not reflect what was said in the meeting,” the judicial protest said.
The planning authority was justifying its behaviour in a “cowardly” way by trying to say that the “extra wording” was an explanation, it added.
The condition was not linked in any way to “overdevelopment” and “entrenchment wall” as these were distinct and separate planning issues.
The minutes of the hearing and the final decision had to reflect what was said and it was “unacceptable” that these were changed, creating a serious prejudice towards the applicant, Mr Fenech said in his judicial protest.
The authority acted “abusively” and beyond its legal powers and was damaging his fundamental rights, Mr Fenech said.
The judicial protest was signed by lawyers Joseph Vella and Karl Briffa.