Meetings Behind Closed Doors

published on November 28, 2009

by Carmel Cacopardo

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The debate on the functioning of the Mepa audit office has identified a number of contentious issues. Foremost among them is whether land use planning decision-makers are entitled to meet behind closed doors with applicants/objectors as part of the process leading to a decision.

Those who insist that Mepa decision-makers are so entitled have clutched to Magistrate Edwina Grima’s decision of October 28, as if it were the proverbial straw. They conveniently ignore however that Magistrate Grima qualified her decision by stating that it is not an examination as to whether the Development Planning Act was observed or not but one as to whether the criminal charges brought forward by the police were proven.

Land use planning is not just about the issuing of development permits. It is an exercise whereby the community decides the manner in which development is permissible, if at all. This signifies that the decision-makers, in arriving at a conclusion, must not only consider the interests of the applicant for a development permit.

The community has the right to be heard at all stages of the decision-making process irrespective of whether it formally submits an objection to a proposal for development. It also has the right to monitor proceedings, in particular as to the information fed into the decision-taking process.

The Development Planning Act (DPA) of 1992 accepts the important role of the community in the decision-making process. Amendments throughout the years have sought to reinforce the procedures through which the community can ensure that the decision-making process is fair and reasonable.

One such procedure is that provided for in sub-section five of section 13 of the DPA. The crucial first words of the said sub-section are fundamental: “The meetings of the commission shall be open to the public.” This important statement is qualified later in the said sub-section by the authorisation to hold deliberations “in private”, that is no one except members of the Development Control Commission (DCC) and its staff can be present.

The members of the DCC have just one function: to sit as members of the commission and decide on applications in respect of which the Director of Planning, through his staff, has submitted recommendations. The DCC members have no role outside the meetings of the DCC in the same manner that a judge or a magistrate has no role outside the courtroom.

The point has been raised by Mepa chairman Austin Walker in an article titled (To Meet Or Not To Meet? (November 10) that it is perfectly legitimate for the decision-maker to seek additional information, which assists him/her in understanding the matter under consideration and, thereby, leading to a decision based on better or more accurate information.

Mr Walker knows that the ends do not justify the means. While I do not quarrel with the objective of seeking additional information where it is considered necessary, this must be carried out in a manner that is consistent with the provisions of both the letter and the spirit of the DPA. That meetings of the DCC must be held in public is fundamental in identifying the correct methods to employ in receiving information. This, to my mind, means that the decision-maker must at all times ensure that there is no direct contact with an interested party outside the formal DCC meetings open to the public. The decision-maker must be aware of the quasi-judicial role he/she is carrying out. Meeting behind closed doors with one of the parties does not contribute to ensuring that impartiality is the order of the day. It encourages the perception of both partiality and the existence of sinister motives irrespective of whether these exist or not.

How can the decision-maker ensure that the information received does not prejudice the interests of the community in general or specific objectors in particular when these are generally not aware of what went on behind closed doors? On the other hand, receipt of additional information during a public session would ensure that the information submitted is subject to public scrutiny. The community has the right to communicate its version, thereby countering, if necessary, the additional information submitted.

In a legal system based on the rule of law this is a principle of natural justice, which, in legal jargon, is referred to as audi alteram partem – listen to the other party. The practice of Mepa decision-makers meeting behind closed doors ignores this basic legal principle enshrined in the provisions of the DPA when it provides that the meetings of the commission have to be held in public.

It was on this basis that reports issued by the Mepa audit office of which I formed part during 2004-7 has continuously emphasised that meetings of Mepa decision-makers with interested parties behind closed doors are illegal.

Dalli għall-Kummissarju ?

J_Dalli

Is-Sunday Times  dalgħodu qaltilna li John Dalli jidher li hu l-favorit biex ikun il-Kummissarju Ewropew li jmiss minn Malta. Mhux ċar iżda s’issa jekk huwiex fi ħsiebu jaċċetta.

Jiena m’għandi l-ebda dubju li John Dalli jekk eventwalment jinħatar jagħmel suċċess mill-ħatra, mhux biss għalih iżda ukoll għall-pajjiż bħalma għamel Joe Borg qablu.

Fil-passat jiena ħdimt mill-viċin ma’ John Dalli kemm meta kien Ministru fis-snin 90 kif ukoll fil-PN. Kont wieħed minn dawk li innominaw lil John Dalli meta iddeċieda li jikkontesta it-tmexxija tal-PN.

Naħseb li l-issue mhiex waħda dwar jekk Dalli huwiex kapaċi jew le. L-anqas ma nagħti importanza lil dak li jgħidu uħud illi Gonzi jħossu skomdu b’Dalli ma saqajh. Iċ-ċavetta naħseb li hi ta’ xorta oħra.

Jekk Dalli eventwalment jinħatar bħala Kummissarju tal-Unjoni Ewropea tinfetah it-triq biex jerġa’ jidħol fil-Parlament Louis Galea. Għax Louis Galea 99% jirbaħ il-bye-election li jkollha ssir fuq is-VI Distrett jekk John Dalli jwarrab mix-xena politika lokali.

Dan il-pass imbagħad jiftah it-triq għar-ritorn ta’ Louis Galea fil-Kabinett fejn m’għandix dubju illi l-kontribut tiegħu huwa meħtieġ. Iktar u iktar meta l-alleati politiċi ta’ Lawrence Gonzi qed jiddgħajfu kontinwament.

Imbagħad ir-reshuffle tal-Kabinett tagħmel iktar sens !

Mistra : Development Planning Act ignored

times_of_malta196x70

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published on November 10, 2009

by Carmel Cacopardo

 

 

A number of correspondents have worked overtime to cloud the issues on the Mistra case.

As a result the focus of the discussion has been the Mepa Audit Officer when it should in reality be whether and to what extent the Development Planning Act permits a resolution of such issues within Mepa itself.

The basic relevant facts of the Mistra case are the following :

1) the Planning Directorate finalised its report (DPAR) recommending the refusal of the Mistra application,

2) those with an interest in having an approval of the application sought the services of the liaison officer, a Mepa employee with specific terms of remit to liaise with the DCC;

3) the liaison officer, instead of applying the procedures established by the Development Planning Act, organised a meeting in which a number of DCC Board members participated;

4) the DCC overturned the decision and approved the issuing of a development permit;

5) the matter was on the eve of a general election made public by the Leader of the Opposition;

6) an investigation was carried out by the Mepa Audit Officer as a result of which the Mepa Board withdrew the permit.

In the discussion as to what went wrong (if at all) during the final stages of the processing of the Mistra application, the correspondents overlooked the fact that the Development Planning Act (DPA) itself provided a clear solution. Article 32A of the DPA (introduced in 2001) provides for the intervention of a planning mediator. An applicant seeking development permission may after the conclusion of the application report by the Director of Planning seek mediation which shall be provided from a panel of planning mediators appointed by the minister responsible for development planning. Obviously the services of a planning mediator will be sought when there is lack of agreement on the contents and/or conclusions of the application report as in the Mistra case.

The planning mediator will after considering the matter express an opinion which is then brought to the attention of the Mepa Board/DCC which is bound to consider it but is not bound by it.

The planning mediators appointed must be qualified in terms of sub-article 32A(2) of the Development Planning Act: they shall be versed in planning or in architecture and civil engineering or in any other discipline relevant to planning. The liaison officer appointed by Mepa is not versed in any of these disciplines. In addition his terms of remit circumvent the provisions of the DPA as they usurp the functions of the planning mediator.

Notwithstanding that eight years have elapsed since Parliament introduced the provision on planning mediation in the DPA, the panel of planning mediators has not to date been appointed. Nor have the relevant regulations on planning mediation been drawn up. Two politicians are directly responsible for this state of affairs: Minister George Pullicino (2001-8) and Prime Minister Lawrence Gonzi (2008- ).

In view of the above, in my opinion the meetings attended by the DCC members behind closed doors to iron out difficulties arising out of the report prepared by the Director of Planning runs counter to the procedure for the resolution of such difficulties established by the DPA itself.

It is very difficult to understand how it is possible to conclude that everything was done above board when all this was ignored.

But then, in this blessed land everything is possible.

Mr Cacopardo is a spokesman on sustainable development of Alternattiva Demokratika and former investigating officer at the Mepa Audit Office.

When Pigs are able to Vote

times_of_malta196x703

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by Carmel Cacopardo

published November 7, 2009

pig

Within the last three months, the law courts have expressed themselves twice on the impact of fireworks in Malta. The first being in late July on whether to stop the display of fireworks from the environs of the Marsa Sports Club. The second was last week on the constitutional application of the Zammit Maempel family relative to the impacts of fireworks on their residence in the area between Birkirkara and San Ġwann.

In the Marsa Sports Club case, the court explained that it had to conclude that the legislative arm of the government had not approved any legislation regulating noise levels to date.

In the Zammit Maempel case, on the other hand, the court underlined that plaintiffs knew all along and prior to taking up residence that the residential property they purchased was situated in an area used for fireworks display for years on end.

It also argued that the state had to seek a balance between the rights of those involved: those organising firework displays on the one hand and those at the receiving end on the other hand.

Earlier this year, in an article entitled The Value Of Silence (February 7) I had pointed out that the provisions of the EU Environmental Noise Directive (END) have not, to date, been implemented in Malta. When these provisions are eventually implemented, a vacuum on noise regulation in Malta would still exist as the directive deals primarily with transport-generated noise.

This vacuum would still require legislative action by the Maltese Parliament.

Other jurisdictions have acted to regulate noise pollution and have introduced legislation for this reason in most areas of modern life.

Fireworks display is known to be a major source of noise pollution during the summer months. Complaints by the public in this respect have been on the increase. Interestingly enough, however, the political parties represented in Parliament have hardly reacted as they are fearful of irritating the fireworks enthusiasts in the different towns and villages all over the islands. This may translate itself into a loss of votes, which they can ill-afford.

In the Zammit Maempel decision by the Constitutional Court there is reference to the expert testimony of ENT physician Alec Lapira who emphasised that impulsive noise levels have a negative effect on auditory health and may be the cause of “permanent hearing disability”. Now this effect on health cannot in my opinion be balanced out with the rights of fireworks enthusiasts to organise and enjoy the displays. Rather, it establishes a duty that the display of fireworks should be carried out in such a manner that health issues are not in any way compromised. If this means that the display of fireworks should be curtailed, then so be it.

An emphasis has been made on the impact of fireworks on humans and their property. Everyone, however, seems to be ignoring the impact of the excessive noise generated by fireworks on animals. Depending on the proximity and intensity of the noise generated, farm animals, pets and wild fauna are all affected negatively by the noise generated.

Also of utmost importance is the chemical composition of fireworks, which, as a result of detonation, form gases and minute solid deposits that may have a negative environmental impact.

The chemicals involved (mainly metal oxides and chlorides) have to be investigated scientifically in order to have a clear picture of the real impacts, if any, which such chemicals have on the quality of air as well as agricultural land and, possibly, on the water table. Such studies and continuous monitoring would establish whether and to what extent EU standards are being adhered to, in particular, those relative to the quality of air, soil and water resources.

Fireworks legislation in Malta is focused on the protection to be afforded to an inhabited area, this being defined as one having a potential residential capacity exceeding 100 human beings. An examination of this argument forms an important part of the Zammit Maempel case. The rural area and the countryside, however, do not feature at all in determining what merits protection.

By directing firework displays to areas classified as uninhabited (including those areas where fewer than 100 human beings live) it stands to reason that Maltese legislation only considers inhabited areas as worthy of protection. Legislation relative to the areas where fireworks can be displayed limits itself to protecting residential property and its occupants provided that this lies within an inhabited area! Sparsely populated areas, such as rural areas and agricultural land and facilities, are not considered worthy of protection. Nor can non-humans complain: they have no right of access to a court of law!

But, then, it is only humans who vote. Pigs, dogs, cats, birds, cows and the rest of the eco-system do not.

That explains it all.