Updated - Adds FAA reaction - Two planning authority board members, known for their passion for heritage and the environment, have defended their decision to vote in favour of a permit allowing apartments to be built in the garden of a 19th century Għaxaq villa.
Thankfully, throughout my life I have always attempted to leave illegal and irresponsible decisions to others
Giovanni Bonello, a former judge on the European Court of Human Rights who has a keen interest in Maltese heritage, and Philip Manduca, a lawyer with strong pro-environment views, were among the board members to vote in favour of the project.
They argue that once the project had an outline permit, which was granted before they became board members, the developer had a legal right to the full development permit.
Last week the Malta Environment and Planning Authority’s board granted a full development permit for the building of three blocks of flats, each two storeys high, in part of the garden of Villa Mekrech in Għaxaq.
The villa and its gardens were listed last month on the insistence of environment NGO Flimkien għal Ambjent Aħjar but the scheduling left out that part of the garden on which there was an outline permit, issued in 2008.
After the full development permit was issued, FAA expressed its disappointment that it had been approved by the majority of members, including Dr Bonello and Dr Manduca, who had been appointed to represent the interests of heritage.
FAA said the development would set a precedent and compromised the heritage value of the rest of the villa.
But Dr Bonello and Dr Manduca explained they could not ignore the fact that the developer had an outline permit which gave him legal rights.
“Had I voted against the issue of the permit, I would, firstly, have violated the law that obliged Mepa to issue the full development permit,” Dr Bonello said.
“Secondly, I would have violated the legal rights of the applicant acquired under the outline permit. Thirdly, I would have exposed Mepa to a massive action for damages, which, ultimately the Maltese taxpayer, not some NGO, would have had to fork out.”
He added: “I believed I should have done none of the three. Thankfully, throughout my life I have always attempted to leave illegal and irresponsible decisions to others. Should I be sorry to have disappointed those who expected me to act illegally and irresponsibly?”
Dr Manduca said: “Once an outline permit had already been granted, our decision was to see that the full permit was in line with what was given and that it respected the area,” he said.
In fact, he said, board members ensured no services could be placed on the roof to safeguard the visual integrity of the townhouse and its gardens.
So is there no way out once an online permit has been granted?
Mepa’s CEO Ian Stafrace said an outline permit was a permit and “that’s the problem”.
“This was one of the reasons why the outline has been removed (through the Mepa reform),” he said. Although new permits no longer fall under this system, the outline permits granted before the 2010 reform are still being processed.
Dr Stafrace said that when someone had an outline permit, they had the “legitimate expectation” that the full permit would be approved and this was backed by jurisprudence.
“We’re a public authority and have to work correctly according to the rule of law,” he said, adding that Mepa had scheduled the villa and its formal gardens to protect them after the outline permit was issued.
FAA REACTION
In a reaction, Flimkien ghal Ambjent Ahjar said that what Drs Bonello and Manduca failed to mention was that Mepa had established a precedent of overturnings of granted permits, the most memorable one being the case of the development in Transfiguration Avenue, Lija, where the proposed building would have encroached upon the views of the Lija Belvedere. In this case, the developer had not only an outline, but a full permit, which Mepa revoked.
"In last week’s Ghaxaq hearing, FAA drew the Board members’ attention to the solution spelled out in the Mepa Case Officer’s report which states that Mepa’s “Heritage Protection Unit considers that implementing the outline permit would have a negative impact on the amenity and heritage value of the enclave and that reports have been received that mature trees have been destroyed. In this regard application should be referred to the Enforcement Unit to investigate this complaint and in case of confirmation the outline permission becomes invalid as the condition requiring prior permission to uproot trees can never be complied with and proposal needs to be assessed afresh.”
"FAA then produced photographic evidence that proved the on-going destruction of trees on this site which therefore invalidated the permit. At a point when the Mepa Board Members had the chance to reverse the destiny of the unique Villa Mekrech garden and save it for posterity, they chose to ignore this evidence and vote in favour of its destruction. The least one would expect was that Drs Bonello and Manduca would insist on deferring the decision until this matter could be properly investigated," FAA said.
The NGO said that while the article (above) consistently refered to the rights of the developer, it overlooked the rights of the community which were enshrined in the Local Plan, and which were violated when the Mepa DCC board issued the Outline permit, contravening ten regulations and ignoring the fact that the villa and its entire gardens were indicated as a protected enclave being scheduled.
"FAA asks what disciplinary measures are to be taken against the members of the board who issued this abusive permit."
The FAA also urged Mepa Board members with an interest in protecting heritage to join it in calling on Mepa to revoke this permit.