A controversial law exempting construction on hospital grounds from an environmental impact study may land Malta in trouble with the European Commission.
“The Environmental Impact Assessment directive is one of the EU laws most enforced by the Commission to keep member states in check on the environment,” a planning expert has told the Times of Malta.
“It is very unlikely that such a breach of EU law will be overlooked by the Commission, so consequences are to be expected,” said the expert, who did not wish to be named.
He explained that the principle of the EIA directive was that any project that might have an environmental impact had to be screened to verify if an EIA was needed.
A high proportion of cases before the European Court of Justice concerned alleged breaches of this directive.
“The EU guidance document on the EIA directive lists numerous cases in which the European Court of Justice came down heavy on member states for not adhering to these guidelines,” he said.
He also pointed out the ECJ has repeatedly ruled there could be no automatic exemption from EIA screening, even for projects which do not require a full development permit but only a notification, as in the case now of the hospitals.
As a result, the government could be on a collision course with Brussels, he said.
It is defending its decision by pointing out that construction at the airport and military installations were also covered by a simple Development Notification Order (DNO).
Such examples include the Lufthansa Technik hangar in Ħal Farruġ and the concrete structure at the maritime base in Haywharf, where no development permit was required.
‘Consequences from the Commission are expected’
However, the planning law expert said that in both cases the EIA regulations had not been amended to exclude such developments from EIA requirements.
He also expressed concern that the law through which hospital developments no longer require planning permission, but simply a DNO, should have been enacted following a consultation process.
The first legal notices – published on the eve of the feast of Santa Marija – initially said these controversial changes had been made in consultation with the planning authority.
It is very unlikely that such a breach will be overlooked
The exemptions raised eyebrows in the wake of ongoing talks with a Singaporean investor over proposed private medical facilities at St Luke’s Hospital and in Gozo.
Then, a week later last Friday, a new clause, described as “a correction” by a government spokes-man, was issued: the words “after consultation with the Malta Environment and Planning Authority” were deleted from the preamble of the legal notices.
The government has downplayed these concerns, insisting the changes are perfectly legal.
But the expert said this was not according to established procedures laid down in the Environment and Planning Act.
In 2010 the law was amended so that the public consultation process adopted for new environmental regulations would also apply to changes being proposed for planning regulations, he said.
The only exception would be in case of an emergency order, such as an urgent transposition of an EU directive. In this case, however, no such justification was cited by the minister when these changes were announced.
“Article 62(1) is an entrenchment of the principles of the Aarhus convention which stresses the importance of public consultation on environmental issues.”
Government defends exemptions
A government spokesman said the law regulating planning development in Malta, enacted by a previous administration, contained provisions through which the government could facilitate projects of national importance.
“Having inherited a hospital too small for our country’s needs… this government is committed to delivering a leap in the quality of service by increasing the number of beds, in line with the EU average, by expanding hospitals,” the spokesman said. He said these changes were aimed at accelerating the planning process of developments within hospital grounds which had already been designated for medical use by Mepa.
Development legislation provided for regulations that could be issued after consultation with the relevant authority and for other regulations that did not require this, he added.
“Regulations related to healthcare development – within the perimeters of hospitals already designated by Mepa for medical use – fall under the second category,” the spokesman said.
Therefore the inclusion of the words “after consultation with Mepa” in the relevant notices was a publishing mistake and a technical correction to this effect was made. According to the spokesman, such corrections in the field of legal drafting were not a rare occurrence. He insisted that the procedure adopted was in line with present legal frameworks.
However, questions on the legality of these changes with respect to EU law remained unanswered.
The new regulations will apply to Mater Dei, St Luke’s, St Vincent de Paul, Mount Carmel and the Gozo General Hospital.