Robert Musumeci

The demerger of the former Malta Environment and Planning Authority (Mepa) took place on April 4 after Parliament legislated to that effect in December 2015. Primarily, Mepa’s demerger must be seen in the context of Labour’s pledge to transform the Environment Directorate within Mepa to an autonomous authority while aiming towards a more simplified planning framework.

Consequent to the ‘demerger’, the ‘planning regime’ is now regulated by a new Planning Authority which would also handle building and sanitary legislation once the Minister so directs. The Environment and Resources Authority was concurrently set up ‘to protect the environment and assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner’. Further, the new legislation provides for the setting up of an Environment and Planning Review Tribunal under separate legislation – the Environment and Planning Review Tribunal Act – whose precise mandate is to hear and determine appeals from decisions taken by both authorities.

At this juncture, one is entitled to ask: was the change a step in the right direction? Here are some observations:

The environment regulator (the Environment and Resources Authority) – now being an autonomous authority, is represented directly on the policymaking organ, the executive council, thus having a final say in the formulation of planning policies for the very first time. Previously, the role of the environment directorate was strictly limited to forwarding recommendations to the Mepa board, which was in turn not obliged to rely on such advice.

Additionally, the environment regulator is also represented on the Planning Board whose role is to take decisions concerning planning applications. Previously, the role of the environment directorate was likewise limited to filing recommendations during the application process without a say whatsoever in eventual planning decisions.

Any person may lodge a request to the Planning Authority, asking for the revocation of a permit

For the first time, should it feel aggrieved by the outcome of a decision concerning a planning application, the Environment and Resources Authority enjoys a locus standi to appeal any such decision before an independent tribunal (the Environment and Planning Review Tribunal). Under the previous legislation, the environment directorate was a priori precluded to lodge an appeal against a planning decision running counter to any of its recommendations.

The environment regulator – the Environment and Resources Authority – shall now be formally consulted during the processing of each and every planning application, not being a summary application. Before, it was up to the case officer to decide whether a case should be referred to the environment directorate for a reaction. The period within which the public may lodge an objection with regards to a planning application has now been extended to 30 days (from 20).

A substantial number of works which previously qualified as a development notification order are now subject to the summary framework, whereby the public is informed of the applicant’s intention to carry out such works. (For example these include neighbouring excavations) Now, any John citizen may register his interest and consequently appeal the decision. Previously, this was not possible since notification orders are exempted from the need to subject the application to public consultation.

Any person may lodge a request to the Planning Authority, asking for the revocation of a permit once it is shown that such permit was issued fraudulently or on the basis of misleading information. Previously, when such a request was made, it was up to Mepa to decide whether to refer the said request for a formal decision. Under the new law, the Planning Authority is legally bound to grant a public hearing and take a decision in the presence of both applicant and the person making the request following any such request.

After having regard to the above observations, the reader should be in a better position to decide whether the demerger was a step in the right direction.

Robert Musumeci is a consultant to the PM’s office on planning law and the Lands reform.

Ryan Callus

The Mepa Board as we knew it, apart from its weekly meeting to decide on planning applications, was tasked with drafting policy matters, determine planning control applications (the planning of streets and their alignment), recommend areas which deserve ecological protection and historical buildings of value which deserve scheduling. Given that the new Planning Act has delegated such decisions to the executive council, the persons selected to form part of the latter would determine whether such decisions are decided upon in a transparent, correct and just manner. In fact, this is the weakest link of the Planning Authority, and it has started to show already. The notorious legal notice taxing shop owners who have signs on their façade larger than an area which has been set ridiculously low (pretty much everyone) and the prohibition of political billboards is one such case. Under the previous Mepa law, such issues would have been debated by the Mepa board, composed of members, which represent environmental NGOs and the Opposition.

This is no longer the case, and the government has failed on two counts. Firstly, it approved a planning law that establishes a powerful executive council which lacks a wide representation essential at ensuring balance and transparency. Secondly, it has appointed persons on the executive council who are one with the Labour Party. There is no other way of describing the composition of the new executive council: it is a Labour Party club.

This is the perfect recipe to the shenanigans we have seen with the legal notice for shop signs and billboards. Indeed, you reap what you sow. The Labour government has opted for secrecy when appointing Labour lackeys on the now powerful executive council, but this will come at a price.

The Mepa split has undoubtedly relegated the environment to second division

The Nationalist Party has successfully managed to keep its political billboards following a court decision in reaction to the sudden change in regulations proposed. However, not everyone has the means and strength to challenge regulations in a court of law, on planning matters which are debated behind closed doors, by individuals who it is unclear whether their primary allegiance is towards the Labour Party, rather than the nation.

This is indeed sad news for all who believe in the independence of the authorities. In my first encounter with then newly elected Parliamentary Secretary Deborah Schembri, I had appealed that she establishes an authority which is independent from politicians in its decision-making. It is evident that this is her first failure.

The Opposition had proposed during the debate on the new planning law that high-ranking pubic officials, such as the executive chairperson of the Planning Authority, undergo scrutiny by Parliament’s standing committee on environment and development planning. This was unfortunately shot down by the government, citing the excuse that it would eventually introduce the proposal across the board. We are now in the fourth year of this legislature, and the Labour Party has failed to keep to this promise, which itself proposed to the electorate.

The Mepa split has undoubtedly relegated the environment to second division. With one representative for the eNGOs together with the environment authority chairman, the environment stands no chance of ever being fairly represented with two against 13. Now that the environment authority has become an external consultee, its weight in determining the outcome of the case officer report has diminished considerably, if existent at all.

The Environment Authority board, on the other hand, includes a number of respected professionals which augurs well for the determination of pollution prevention and control permit applications which are detrimental to public health and safety. Its effectiveness and independence are yet to be assessed in light of future decisions. Thus far we have had a situation where the Planning Authority is clearly in bed with the Labour government. The Mepa split has compounded this even further, adding a duvet over the bed to hide away any sense of transparency and independence. This will equate to unfairness between different applicants, and a detriment to access to public information, essential to environmental decisions.

Ryan Callus is a spokesperson for Environment, Lands, Planning and Infrastructure.

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