The government's consultant on Mepa reform and planning procedures, Robert Musumeci, has defended Parliamentary Secretary Ian Borg following criticism by the Ombudsman that he was granted Mepa permits for a countryside property after using devious methods.
The Ombudsman report is currently being considered by the Commission Against Corruption. Dr Borg has denied wrongdoing.
In an opinion piece in the Times of Malta, Mr Musumeci said Dr Borg obtained a permit to redevelop a property which is located in a Category 3 settlement in the limits of Rabat.
The 2006 Local Plan, he said, allowed for the redevelopment of existing buildings in such settlements, provided the existing building occupied a footprint of at least 50 square metres.
Mr Musumeci observed that according to the report released by the Ombudsman’s Office, Dr Borg instructed his project manager to submit a planning application on his behalf. Dr Borg said he did this due to his tough working schedule. But was this legal?
"Our Civil Code allows any person to give another the power to do something for him, provided the object of the so-called mandate – in this case the submission of a planning application – is legal. Mandates may also be given verbally and the current Ministerial Code of Ethics places no restriction on the provisions of the Civil Code.
"But can a third party, in this case the mandatory, submit a planning application to the Mepa on behalf of the mandator (site owner)?" Mr Musumeci asked.
The Planning Act, he explained, expressly provides that an agent acting on behalf of an owner is considered as an ‘owner’ for the purpose of planning applications and the applicant in this case acted within the parameters of the law.
Furthermore, the Planning Act did not oblige Dr Borg to disclose his name on the application, as permits are decided regardless of the owner. In fact, no provision to this effect is made in the application form.
Why did the Ombudsman conclude that the “route” chosen by Borg was somewhat “devious”, when it is clear that he followed the provisions of the Planning Act
"More importantly, is there any evidence in the Ombudsman’s report to suggest that any of the above circumstances, even if peripheral to the main planning issues, facilitated the approval? Nothing at all," Mr Musumeci said.
"So, why did the Ombudsman conclude that the “route” chosen by Borg was somewhat “devious”, when it is clear that he followed the provisions of the Planning Act?
"Since when are politicians deprived of their basic civil rights?"
Moreover, he said, the Ombudsman had entered into the merits of Mepa’s decision. Academics, he said, questioned whether the Ombudsman may investigate decision merits, simply because he considers that the body concerned should have reached a different decision to the one it did.
"The Ombudsman is not prohibited from questioning the merits of a planning decision. However, it must be shown that such merits are coupled with maladministration in the exercise of a discretion vested in the authority or agency in question. Acts or omissions likely to fall within the term “maladministration” include faulty procedures, partiality, refusal to answer reasonable questions, failure to mitigate the effects of rigid adherence to the letter of the law and showing bias.
"In this case, the Ombudsman is stating that “a similar application incorporating part of Borg’s plot was refused as it went against Mepa rules”.
The alleged “similar application” dated back to 2012 and involved a building having an area of less than 50m2. The site boundaries in Dr Borg’s application showed a building having an area of some 100m2.
"The Ombudsman missed a very important point – Borg’s application satisfies the minimum 50m2 rule and therefore qualifies for redevelopment in terms of policy NWRS3 of the North West Local Plan whereas the 2012 application, having a built-up area of less than 50m2, did not.
"Why did the Ombudsman omit such an important fact in his report and insist the two applications are similar?" Mr Musumeci asked.
The Ombudsman had also concluded that Mepa “changed the classification of the plot”, adding that Dr Borg’s development would result in the take-up of fresh land, thus running counter to the policies regulating new development in Category 3 settlements.
Since when is “consistency” tantamount to “maladministration?
"In this case, the “fresh land” relates to a small enclosed open space abutting a three-storey blank wall. But the size of the “open space” is hardly the point. For some odd reason, the Ombudsman made no reference to a decision pertaining to the adjacent site, where the Planning Appeals Board established the principle that the replacement of an existing building in Category 3 settlements allows for further land take-up," Mr Musumeci said.
"It follows that the “fresh land” rule quoted by the Ombudsman applies limitedly to “new development”, where the site features a building which is less than 50m2 or no buildings at all. In the case of Borg, the existing building satisfied the 50m2 rule and the enclosed open space abutting the adjacent high party wall could therefore be developed, according to the Appeals Board judgment."
Mepa, he observed, was being challenged for having allegedly committed a “grave error” when it transpired that it was consistent with an Appeals Board decision.
"Since when is “consistency” tantamount to “maladministration?” Dr Musumeci asked.