Vacant properties and solar rights

Parliamentary Secretary Michael Farrugia has announced that MEPA  will be launching the process which ought to lead to a revision of all seven Local Plans.

The Environment and Development Planning Act 2010 provides for such a revision which in the view of many is long overdue. The difference of opinion will arise when the nature of the revisions to be put in place are announced.

It is obvious that the proposals for revision will result from the process of consultation just launched. But it is also pretty obvious that the direction which government would like such revisions to take  is one which encourages the construction industry. This is where we part company.

Any environmentalist worth his salt is aware that the unbridled development encouraged during the past years has resulted in a large stock of vacant residential properties. It is estimated that this is well in excess of 70,000 and still rising, even though at a reduced rate.

This glut of vacant residential properties should be the primary motivation directing those seeking the way forward for the seven Local Plans.

It is in view of Malta’s small size that as a Nation we cannot afford to take up more land for building development. We should rather seek to maximize the use of the building stock already in hand. This signifies that revised Local Plans should restrict additional development of virgin land. This can be done by reversing the rationalisation exercise carried out in 2006, by declaring a moratorium on large scale residential development and by reducing permissible heights to what they were in 2006.

The revised Local Plans should focus on the utilisiation of the existing building stock, with an emphasis on rehabilitation and redevelopment where necessary.

The revised Local Plans must also protect solar rights. This aim can be achieved through discarding the increased permissible building heights introduced  in 2006 as well as by subjecting the possible  development of penthouses to the solar rights of residents in the same residential block.

Reducing the potential for development means that the building construction industry would reduce its activity to a sustainable level. It will require help to pursue such a road. This would be the first step which should not be postponed. The revision of the Local Plans is the optimum time for such a step: to commence the restructuring of the building industry.

Greening the Constitution

Alternattiva Demokratika – The Green Party –  is in agreement that 50 years after its adoption Malta’s Constitution needs to be updated.  However such an exercise, as emphasised in AD’s 2013 electoral manifesto, should be carried out with the direct involvement of civil society. The Constitution belongs to all of us.

There are a number of issues which require careful consideration. In AD’s 2013 electoral manifesto at least fourteen such issues are identified. They vary in scope from electoral reform to widening the issues in respect of which discrimination is prohibited, by including protection from discrimination on the basis of sexual orientation. AD also proposes the introduction of a Constitutional provision in favour of a balanced budget, thereby ensuring that government is forced to discard budget deficits and consequently to control the spiralling public debt.

One very important issue is the need to entrench environmental rights and duties in the Constitution. The proposed Constitutional Convention, supported by AD, should aim at Greening the Constitution. That is, it should aim at addressing environmental rights and duties such that they are spelled out in unequivocal terms.  Environmental rights and duties should as a minimum be spelled out as clearly as property rights in the Constitution. They are worthy of protection just as the rights of individual persons.

Article 9 of the Constitution very briefly states that “The State shall safeguard the landscape and the historical and artistic patrimony of the nation.”  Further, in article 21 of the Constitution we are informed that this (and other safeguards) “shall not be enforceable in a Court” but that this (safeguard) shall be “fundamental to the governance of the country” and that it shall be the aim of the State to apply it in making laws.

It is not conducive to good governance to first declare adherence to specifc safeguards, but then specifically excluding the Courts from ensuring that such safeguards are being observed.

The strategy of announcing principles but then not providing the legislative framework for their implementation was also taken up in environmental legislation. In fact articles 3 and 4 of the 2010 Environment and Development Planning Act  announce a whole list of sound environmental principles. However  in article 5 of the same Act it is then stated that these cannot be enforced in a Court of Law!

When I had the opportunity of discussing the Environment and Development Planning Bill with Mario de Marco (then Parliamentary Secretary responsible for Tourism and the Environment) I had proposed on behalf of the Greens that the declarations  in articles 3 and 4 of the Bill should not be just guiding principles. They ought to be made enforceable by our Courts subject to the introduction of  a suitable transition. Unfortunately Dr de Marco did not take up the Greens proposal.

As things stand today, article 3 of the Environment and Development Planning Act announces very pompously that the government,  as well as every person in Malta, has the duty to protect the environment. Furthermore it is announced that we are duty bound to assist in the taking of preventive and remedial measures to protect the environment and manage resources in a sustainable manner.

Article 4 goes further:  it  states that government is responsible towards present and future generations.  It then goes on to list ten principles which should guide government in its endeavours.  Integrating environmental concerns in decisions on socio-economic and other policies is first on the list. Addressing pollution and environmental degradation through the implementation of the polluter pays principle and the precautionary principle follows immediately after.  Cooperation with other governments and entities enshrines the maxim of “think global, act local” as Malta both affects and is affected by environmental impacts wherever they occur.  The fourth guiding principle is the need to disseminate environmental information whilst the fifth one underlines the need of research as a basic requirement of sound environment policy.  The waste management hierarchy is referred to in the sixth principle followed immediately by underlining the requirement to safeguard biological diversity and combatting all forms of pollution.  Article 4 ends by emphasising that the environment is the common heritage and common concern of mankind and underlines the need to provide incentives leading to a higher level of environmental protection.

Proclaiming guiding principles in our Constitution and environmental legislation is not enough. Our Courts should be empowered in order that they are able to ensure that these principles are actually translated into concrete action.   Government should be compelled to act on the basis of Maltese legislation as otherwise it will only act on environmental issues when and if forced to by the European Union as was evidenced in the past nine years.

Greening the Constitution by extending existing environmental provisions and ensuring that they can be implemented will certainly be one of the objectives of the Greens in the forthcoming Constitutional Convention.

published in the Times of Malta 18 May 2013