Delimara għall-Kabinett

Sirna nafu illi l-Ministru tal-Ambjent (jiġifieri Lawrence Gonzi) iddeċieda illi l-appell li l-Kunsill Lokali ta’ Marsaxlokk ippreżenta dwar il-permess li jikkonċerna l-estensjoni tal-Power Station ta’ Delimara għandu jkun deċiż mill-Kabinett u mhux mill-Bord tal-Appell dwar l-Ippjanar.

Din m’hiex proċedura komuni u ftit li xejn ġiet użata fil-passat.

Sal-lum hi proċedura regolata mill-artiklu 15A tal-Att dwar l-Ippjanar ta’ l-Iżvilupp li ġie introdott  9 snin ilu permezz tal-Att XXI tal-2001 bl-emendi li kien introduċa George Pullicino, dakinhar Segretarju Parlamentari responsabli mill-Awtorita’ tal-Ippjanar (l-ambjent kien għandu ma żdiedx mar-responsabbiltajiet tagħha).

Din il-proċedura tagħti d-dritt lill-Gvern li jirreferi appell għal deċiżjoni mill-Kabinett wara li l-Bord tal-Appell dwar l-Ippjanar ikun ġabar il-provi w iffinaliza rakkomandazzjoni dwar il-kaz meta :

1)      l-applikant ikun Dipartiment tal-Gvern jew korp imwaqqaf b’liġi u

2)      l-applikazzjoni kollha sinifikat strateġiku, jkollha x’taqsam mas-sigurta’ nazzjonali, teffettwa l-interessi ta’ xi Gvernijiet oħra jew tirrikjedi studju tal-impatt ambjentali.

Din il-proċedura fiha innifisha ma fiha xejn ħażin u naħseb li teżisti f’diversi pajjiżi oħra ukoll. Id-diffikulta m’hiex għalhekk fid-dover tal-Kabinett li jieħu deċiżjoni imma l-fatt li f’Malta l-Gvern sa l-istadju tal-appell diġa huwa mdaħħal sa għonqu fid-deċiżjoni.

Kif ?  forsi jistaqsu uħud.

Il-membri kollha tal-Bord tal-MEPA li ddeċidew il-każ huma kollha appuntati mill-Gvern. L-ebda wieħed minnhom ma kien kritiku la ta’ din l-applikazzjoni u l-anqas ta’ kwalunkwe’ applikazzjoni oħra li ssottometta l-Gvern jew xi entita’ oħra tiegħu. B‘żieda ma dan, il-każ kien wieħed ikkargat b’deċiżjonijiet politiċi li dwarhom mhux dejjem kien hemm spjegazzjoni li tikkonvinċi. L-iktar importanti fosthom it-tibdil fir-regolamenti dwar x’tip ta’ emissjonijiet huma permissibli. Żid l-involviment tal-Lehmayer International bħala konsulenti tal-Enemalta minkejja li l-Bank Dinji poġġihom fuq il-Black List minħabba korruzzjoni ippruvata.

Fid-dawl ta’ dan kollu l-proċedura użata għalkemm skond il-liġi tista’ tkun inġusta.

Nawgura lill-Kunsill ta’ Marsaxlokk li appella mid-deċiżjoni tal-estensjoni tal-Power Station f’Delimara illi jsib soluzzjoni li biha jkun jista’ jsemma’ leħnu b’mod effettiv.

More Voodoo Planning

The proposed Mepa legislation fails to address basic issues bedevilling land use planning and environment protection. It is basically a consolidation of current legislation with some amendments. Important provisions in the Environment Protection Act, such as reference to the National Commission for Sustainable Development, are being repealed. While acknowledging that they may crop up in other legislation, the government has not to date publicly indicated its intentions.

After almost two years of consultations I expected something quite different. There has been no attempt at ensuring that appointees to the Mepa board are at least conversant with planning and environmental issues. If past appointments are any indication of what to expect we will have more voodoo planners. Appointing one Mepa board member from an environmental NGO area of influence will not solve anything. We have been there before with the appointee resigning after a few weeks.

Appointment of architects to boards and commissions is no guarantee that Mepa will function within current policy and legislation. Censurable decisions have been taken by DCCs chaired by architects. Some resigned their posts as a result.

There will always be those who err. In addition to human error, some will err as a result of incompetence and others as a result of pressures applied. In the past, some members of the DCC and the Mepa board have taken up the practice of voodoo planning: discarding their role of applying policy, opting instead to create it.

This is the result of not being aware of their role and not being familiar with planning and environmental policy.

Voodoo planning is also a reaction to pressures applied or perceived in the so-called closed-door meetings. Mepa’s executive committee, for example, has developed the role of advising DCCs as to the manner of deciding particular applications. This unacceptable intrusion into the DCCs competence does not feature in the proposed legislation. It is to date left unregulated.

Through its Select Committee, Parliament should develop the role of a permanent monitor: a spotlight focused on Mepa. It should also have a role in screening the government’s nominees to the Mepa board and DCCs, which screening can be carried out through subjecting such nominees to public hearings. Such hearings can weed out most undesirable appointees. Those with a glaring conflict of interest and those whose only qualification is their political allegiance would be the first casualties. A system through which Parliament’s Select Committee screens potential appointees can also nudge the government into discarding the tradition as a result of which competent individuals not close to the government of the day are not considered for appointment.

MPs should not be able to decide specific planning or environmental applications. Hence, I query whether Parliament should continue appointing two of its members to sit as voting members of the Mepa board. MPs would fulfil their role as representatives of the community much better if they develop Parliament’s monitoring role. Parliaments in other jurisdictions function very effectively in this manner.

Up till 2002, the government was still considering the setting up of a separate authority dealing exclusively with the environment and had, in fact, commissioned and received draft legislation on the subject.

The issue of having two separate authorities, one dealing with land use planning and the other with environmental protection, is not one of principle. It is rather one of ensuring that the environment protection function is not stifled as has been done to date. The environment protection voice has been continuously suffocated, available resources withheld or diverted, with appointments to sensitive environment posts being dished out to persons whose competence and experience was in other fields, primarily land use planning. Coupled with the appointment of boards and commissions insensitive to environmental issues, these attitudes have led to the current state of affairs.

If the government persists in its policy of retaining the environment protection function within Mepa, the least it can do is to embark on recruiting qualified personnel at all levels, thereby reversing the accumulated negative legacy. This includes the need to appoint more members of the Mepa board equipped with a suitable knowledge of environmental protection issues.

A positive aspect of the proposed reform is that the government has re-dimensioned its role in forward planning. While rightly affirming that policy decisions are the role of the politician, Mepa’s role in policy formulation has been retained. In addition, the Ombudsman’s comments on fine-tuning of the consultation process as explained in his report dated April 2007, titled The Duty To Consult And The Right To Be Consulted, have been taken on board.

Land use planning and environmental protection will always be controversial. These are surely not the paths to popularity. Parliament needs to take a more active role as an overseer. While the government has a role in leading the way, Parliament has the duty to ensure that the country’s resources are used in a sustainable manner, holding the government to account in the process.

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.

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.