A stinking amnesty

It smells


The planning amnesty which Parliamentary Secretary Deborah Schembri launched last week to regularise development illegalities that cannot be addressed through a proper application of planning policies is a throwback to the Stone Age of land use planning in Malta.

While land use planning in Malta has been and  always will be the most controversial of activities of public bodies, it has to be stated that, since 1992, the Planning Authority (warts and all) has developed into the most transparent government authority. It could be much more transparent but no one in his right senses doubts that, to date, it still surpasses all the other government departments and authorities in issues of transparency.

Applications for the issuance of a development permit are publicised through a site notice and on the Planning Authority website, as well as in the Malta Government Gazette. On the Planning Authority website one can also examine the exact proposal, as all the drawings submitted can be viewed online. On the basis of this available  information, it is possible to submit to the Planning Authority observations about – and objections to – the development proposal , which observations and objections have to be addressed when the final report on the particular application is drawn up recommending approval or refusal of the development proposal.

To date there is one exception, commonly referred to as the DNO  (Development Notification Order) application which is a fast-track application process. Generally, this type of application is non-controversial and involves minor or straightforward applications. However, recently the Planning Authority considered that it was advisable to reduce the number of cases to which the DNO process applies, thereby widening the number of proposals for development which are subject to public consultation.

Legal Notice 285 of 2016, published under the authority of Parliamentary Secretary Deborah Schembri, stands in stark contrast to all this and stinks. Entitled Regularisation of Existing Development Regulations 2016, these regulations establish the procedures to be followed in order to regularise existing development illegalities. We have to thank Dr Schembri for small mercies, as she excluded illegal ODZ developments from the regularisation process. However, she did not consider it appropriate to similarly exclude illegal developments in UCAs (Urban Conservation Areas) or illegalities concerning scheduled or protected properties.

Nor is there a distinction between minor illegalities and major illegalities. Had the proposed regularisation process sought to sanction minor illegalities, matters would have been substantially different and most probably the proposal would have been acceptable. This would be so even though most of the minor illegalities would most probably not require an amnesty. Most can easily be dealt with within the parameters of existing policies and regulations. These cases of minor illegalities are, in fact, the perfect camouflage for the major illegalities.

To ensure that this camouflage works as planned, Legal Notice 285 of 2016 makes short shrift of the transparency process by ensuring that it is not applicable to applications for the regularisation of illegal developments. The legal notice, in its regulation 5, emphasises only one exception, which is those cases where an illegal development was subject to an enforcement order. In such cases where an enforcement order would have been issued “following the submission of a formal complaint by third parties” the said third parties will be informed that an application has been submitted for the regularisation of the illegalities and they will be given the opportunity to be considered “interested parties”.

In all other cases, contrary to the provisions of the Development Planning Act of 2016, no one has the right to be considered an interested party. This can be stated with certainty as being a specific objective in view of the fact the regulation 3 of Legal Notice clearly spells out its objectives, which are: “to lay down procedures by which any person may request the regularisation of an existing irregular development.”

The legal notice makes no provision either for access to information about the proposals submitted or on the timeframe for submissions of observations and/or objections by interested third parties other than by the solitary exception referred to previously.

This is the state of affairs which led four environmental NGOs – Flimkien għal Ambjent Aħjar, Din l-Art Ħelwa, Friends of the Earth (Malta) and Ramblers Association – to submit in Court a judicial protest in which they insisted that the government cannot ignore the transparency provisions of the Development Planning Act 2016 when considering whether to regularise illegal development. These applications have to be publicised and the public has a right to scrutinise them as well as submit comments and objections when they consider these to be appropriate.

There is only one simple question to ask: why this stink?

published in The Malta Independent on Sunday – 4 September 2016

My watch at the Audit Office

My watch at the Audit Office of the Malta Environment and Planning Authority came to an abrupt end some five years ago in circumstances which were then described as being a direct threat from Mepa to the independence of its Audit Officer.

The resulting public controversy saw the Ombudsman’s intervention in the summer of 2007 with his well-articulated solution to develop his office as the base for functions such as those of the Mepa Audit Office. As a result of their being based at the Ombudsman’s Office, these functions would be guaranteed the protection of that office: the best way of ensuring the office holder’s independence.

It was a bold step which unfortunately took five years to implement. It is only now that the first steps leading to the migration of the Mepa Audit Office functions to the Ombudsman’s Office have been initiated.

At this point it is pertinent to highlight some of the achievements of the Mepa Audit Office, which notwithstanding its independence being constantly threatened in its first four years of existence, still managed to deliver.

I state that the Audit Office’s independence was threatened during the first four years of its existence purposely, as when Minister George Pullicino and his sidekick, then Mepa chairman Andrew Calleja, relinquished their hold on Mepa in 2008, in this respect matters slowly drifted back to normality.

The Mepa Audit Office faced an uphill battle. During the period 2004-8, Mepa opposed the basic rules of decent governance. It continuously objected to informing complainants of the conclusions of investigations, which conclusions were based on facts unearthed generally from the authority’s files but at times also as a result of interviewing Mepa staff.

The Audit Officer considered that communicating the conclusions of investigations to complainants was essential in order that they would be in a position to understand the reasons justifying or otherwise the complaints submitted.

On my watch the Mepa Audit Office carried out a large number of investigations. Some concerned hot topics of the day and made it to the front pages of various newspapers and at times headline news on local TV stations.

I single out one very important investigation which illustrates the manner of operation of Mepa.

The investigation took a cue from a report in The Times entitled Tensioned Structure Raises Winemaker’s Ire, published on January 27, 2006. This investigation was in effect an inquiry focusing on the chairman, Mr Calleja, and his method of operation.

It resulted that on a specific site a number of notifications in terms of the Development Notification Order were refused for reasons which were detailed in the respective files. Subsequently other notifications were submitted on the same site, these being approved!

The investigation revealed that the case officer had been given specific instructions on how to deal with the notifications under consideration after the prospective developer had a meeting with the Mepa chairman accompanied by other Mepa officials (report 2006-031 dated March 13, 2006). Mr Calleja lost his cool and considered the report of the Audit Office as an “unwarranted intrusion in administrative measures adopted by Mepa”.

In addition, 25 days after the report was issued, on April 7, 2006, the Environment Minister had a meeting with the Audit Officer. During this meeting the minister informed the Audit Officer that he had instructed Mepa that my contract of employment, which was to expire later in the month, was not to be renewed.

In a letter dated April 11, 2006, the Audit Officer explained to the minister in writing how his action was a direct threat to the independence of the Audit Office:

“Your action would seriously undermine the independence of the Audit Office… Unfortunately since its inception the Audit Office has met with, at best, lukewarm support from the chairman and in certain cases outright hostility. If the post of audit officer was to depend on the goodwill of the chairman or the minister, than its role would be superfluous and its work can effectively be carried out by the personal staff of the minister.”

The audit officer concluded his letter by tendering his resignation.

The minister’s instructions were later withdrawn, as late in April 2006 my contract of employment was renewed for one year.

Twelve months later more drastic action was taken.

In 2007 the renewal of the Audit Officer’s appointment, which required approval by Parliament’s Select Committee, was delayed until such time that my contract had expired.

As no audit officer was then in office no request could be submitted for my contract’s renewal. He could only request my reinstatement when his appointment was renewed.But this was ignored.

This is the sequence of events which led to the migration of the Audit Office function from Mepa to the Ombudsman’s Office.

It was essential to ensure the independence of the office-holder at all times.

Published in The Times of Malta Saturday August 18, 2012