The Planning Authority and its “principles”

Searching through the Strategic Plan for Environment and Development (SPED), the term “principle” is not found in any shape or form. We are slightly luckier if we conduct a similar search in the Development Planning Act (DPA) of 2016: there are three references to principles – guiding principles – which should be observed by the Maltese state in promoting a “comprehensive, sustainable, land use planning system”.

These guiding principles are briefly explained in article 3 of the 2016 DPA. Their objective is to enhance the quality of life for the benefit of present and future generations and is qualified by the standard Brundtland quote from her UN report Our Common Future: ” ………without compromising the ability of future generations to meet their own needs.” That means that sustainability is included in the actual wording of the 2016 DPA. Actually, as we are all aware, this is lip-service in its worst form, because in real life we know full well that Malta’s Planning Authority does not seek the benefit of either the present or future generations.

Article 3 of the 2016 DPA lists various measures which need to be taken. They are specific and range from the need “to preserve, use and develop land and sea for this and future generations”, to ensuring that “planning policies are unambiguous”. Then Article 4 of the 2016 DPA states that we cannot go to a Court of Law to directly enforce the principles announced in the previous article, but, it is underlined that these principles are of a fundamental nature and have to be employed in the interpretation of planning law and policies.

This begs the question as to what extent the Planning Authority, as government’s land use planning agent, observes these basic principles and, in particular, whether the various planning policies in use are actually meant to enhance the quality of life of present and future generations.

There have been various political declarations that land use planning should be more friendly to developers, obviously assisting them to “make hay while the sun shines”. The developers, we are repeatedly told, need to be assured of reasonable expectations, as, poor fellows, they have to earn a living – even if this is at the expense of our quality of life.

As an example, may I ask to what extent is, for example, the Fuel Service Station Policy compatible with the basic principles that the Planning Authority is obliged to apply? In recent weeks I have written extensively about the matter because, to me, it is crystal clear that this Policy is not in any way compatible with the Planning Authority’s basic principles. In neither its present form, nor in the slightly diluted format proposed by the Environment and Resources Authority, does the Fuel Service Stations Policy respect the basic principles enshrined in the 2016 DPA.

The government knows this because, as far back as last September, it announced that “shortly” a public consultation exercise would commence on the manner of implementing a policy to ban cars having an internal combustion engine from being used on our roads.

After almost eight months, this “shortly” to be announced public consultation has still not commenced. The announcement that the public consultation would be announced “shortly” was not made by a new Minister, enthusiastic and overwhelmed by a difficult portfolio; it was made by Prime Minister Joseph Muscat in one of his Sunday sermons – the one delivered at the Rialto Bormla on 10 September 2017.

If we will not have cars on our roads running on petrol or diesel “shortly” why does the Planning Authority consider it necessary to permit more fuel service stations? It is certainly not in the interest of future generations.

The Planning Authority is entrusted to defend the interests of future generations. In my opinion it has failed in observing its brief as it has lost sight of its basic principles.

Published on the Malta Independent on Sunday : 22 April 2018

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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

Townsquare high-rise: an internal development

townsquare site

 

The public hearing by the Planning Authority prior to a decision regarding the issuing of the development permit for the Townsquare high-rise project was held on Thursday. The discussion was essentially channelled towards applying existing planning policy and explaining the conclusions of studies mostly carried out some eight years ago. However, as I submitted during this hearing, the proposal for the Townsquare high-rise project infringes existing planning policy.

It is known that the Floor Area Ratio Policy establishes that for a site to be considered for the development of tall buildings it needs to be surrounded by streets on four sides. In fact the expression “completely detached urban block” is used (paragraph 5.3) in the document  entitled A Planning Policy Guide on the Use and the Applicability of the Floor Area Ratio (FAR).

It is clear that, when drawing up the Development Permit Application Report, the Planning Authority case officer adopted a very wide interpretation of the term “road” without realising that the context required a strict literal interpretation.  A  member of the Planning Authority even considered it appropriate to reply to my submissions by reading out to me the definition of the term “road” as contained in section 2 of the 2016 Development Planning Act.  I was informed – in open session – by this over-enthusiastic member of the Planning Authority that the term “road” means “any road, whether public or private, and includes any street, square, court, alley, lane, bridge, footway, passage or quay, whether thoroughfare or not”.

This bright spark is probably unaware that this definition is preceded by the words “unless the context otherwise requires”. This necessarily leads to the consideration as to what is meant by a  “detached urban block” and,  in particular, whether the creation of footpaths large or small on the Townsquare site itself serves to create such “a detached urban block”.

Various doubts were expressed at the voting stage by 6 out of the 13 members of the Planning Authority present for Thursday’s sitting, leading them to vote against the approval of the development of the Townsquare project, even though the Executive Chairman considered that he had to declare in open session that the proposal (in his opinion) did not in any way infringe the Floor Area Ratio policy. Unfortunately, however, no substantial discussion took place on whether the requirement of having “a detached urban block” as the site for the proposed high-rise was being observed.

The open space around the Townsquare high-rise is a result of the 50 per cent maximum site coverage determined by the Floor Area Ratio Policy. It is an integral part of the project and consequently does not serve to detach the project from the surrounding urban blocks. In fact, this open space borders the backyards of the bordering residential properties on all sides.

The proposed development at Townsquare can be said to have an elevation on only one street, Qui- Si-Sana Seafront, due to the development of the first part of the Townsquare project some years ago. It is shielded by other third party buildings on Hughes Hallet Street, Tignè Street and Tower Road.

Access to the proposed development will be through Qui-Si-Sana Lane, Tignè Street (next to the Union Club) and a small opening between third party property onto Hughes Hallet Street in addition to the reserved point of access on Qui-Si-Sana Seafront. There is no way that this can be construed as being “a detached urban block” but rather as an internal development primarily contained by third party development.

This is just one of many reasons on the basis of which the request of a development permit for the Townsquare high-rise should have been refused by the Planning Authority. Together with various other reasons, this can be a suitable basis for contesting the decision through the submission of an appeal to overturn it.