In Malta it pays to ignore planning law and policy

planning authority

The planning amnesty announced earlier this week has been in the pipeline for 18 months. In the initial stages of the debate – on 8 February 2015 in an article published in this paper – I had described it as The spoils of environmental crime.

The need to promulgate an amnesty is a political declaration that there has been a failure of good governance. Unfortunately, this is a common occurrence on these islands, where politicians are repeatedly held hostage by various special interest groups. It is has happened with fiscal issues and it is happening with development irregularities.

In 2012,  had through Legal Notice 229 of that year,  the Gonzi-led government introduced a concession related to infringement of sanitary rules in development. On the Planning Authority website, the present amnesty has been labelled as “the new regularisation process”. It is described as a “one-time opportunity to regularise existing unsanctionable non-conformant development located entirely within the development boundaries”. The only practical limitation to the said regularisation is if the said regularisation has an impact on third parties, described as “injury to amenity”. In such instances, the regularisation cannot be proceeded with. However, beyond a general definition of  “amenity” Legal Notice 265 of 2016 entitled Regularisation of Existing Development Regulations 2016 does not  go into any detail on the criteria as to what constitutes “injury to amenity”. This is very worrying as it signifies that third party rights are once more on very shaky grounds, with the Authority deciding each case on its merits.

The proposed regularisation is applicable within the development boundaries. This signifies that no application to regularise development illegalities carried out ODZ can be submitted. However, there are no limitations on the regularisation of illegalities carried out within urban conservation areas and more so on scheduled properties. The Planning Authority is authorised to regularise these irregularities if an application is submitted. It will all depend on the common sense of the individual decision-takers and the inevitable pressures that will be applied to approve most, if not all, of the applications submitted. On the basis of the Planning Authority’s past performance this is very worrying.

This amnesty, like the one before it, sends out one very clear message: it pays not to observe the law and policies. Those who, over the years, have ignored enforcement notices are now being rewarded.

This is ethically reprehensible as, simultaneously, those who have observed planning law and policies are indirectly being punished.  Does anyone seriously believe that after this amnesty there will be an increased observance of planning laws?

In a statement earlier this week, the Chamber of Architects and Civil Engineers  rightly pointed out that “ ………. these regulations will open the door to severe blots in our built landscape, and will serve to promote the laissez faire attitude of certain developers by condoning the provision of a mechanism for illegalities to become legal.”

The regulations promoting this planning amnesty are vague and open to a wide interpretation. This signifies a clear intent at drafting stage to ensure that the enforcement backlog is wiped out. It is, however, still unclear  whether and to what extent third party rights will be protected unless they had reported the illegality to the authority in the first place.

The whole exercise carried out by the authority is clearly drafted with the specific intent of protecting those who have ignored rules and regulations. Instead of observing the law, it is now possible to pay your way around it. This is now official government policy.

At the end of the day, the Maltese government is sending out a clear message: in Malta it pays to ignore planning laws and policies. Wait for the next amnesty when you can cash in the spoils of environmental crime.

published in The Malta Independent on Sunday : 28 August 2016

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The spoils of environmental crime

euros-loads-of-money

A building development amnesty is in the pipeline. It is being handled by MEPA. No one is yet aware as to whether this is a MEPA initiative or else whether MEPA was instructed by the government to prepare a proposal. Nor is anyone aware as to whether there will be any public consultation on the matter. Only one thing is clear: development abuse will be given the green light as long as you can afford to pay for it.

From what is known so far on the proposed amnesty, it will be possible to pay your way around building development policies and regulations: around some of them at least, and subject to some limitations.

We already have rules and regulations which establish minimum standards on how land and buildings can be developed. Land use policies and regulations, as well as sanitary regulations applicable to residential buildings will most probably be the targets of a projected amnesty.

Infringement of land use policies and regulations can take various forms.

Building within a development zone without a permit, while being a serious infringement, does not require an amnesty. Existing legislation already addresses the matter and provides for sanctioning. This would be the case if the development carried out conforms with existing policies and rules and subject to the payment of already established fines. Problems may arise if sanctioning is not possible due to non-observance of height limitation rules or sanitary regulations. Current rules do not permit the sanctioning of buildings not in conformity with existing height limitations. Will the proposed amnesty permit such buildings? If the amnesty does permit the infringement of existing height limitation rules, this would mean that height limitation rules all over the islands might just as well be shredded.

What about non-observance of sanitary regulations? From comments in the media, attributed to the MEPA CEO, this is apparently a major justification for the proposed amnesty. An amnesty was already introduced through Legal Notice 229/2012 in July 2012 permitting variations to the dimensions of yards and the minimum internal height of buildings.  This 2012 amnesty was intended to regularise the position of dwellings whose backyards/internal yards as well as whose internal height were smaller than the required minimum.  The 2012 amnesty was not only about minor infringements. The 2012 amnesty made it possible to regularise variations of up to 35% of the yards’ dimensions. This is substantial, and is not limited to just a few centimetres variation!

The 2012 amnesty was unwarranted. Current legislation already provided sanitary authorities with the tools required to consider variations from sanitary permit conditions. In fact the Code of Police Laws in article 97(1)(p) establishes that when an exemption from the rules relative to the permissible dimensions of yards is being considered by the authorities, it must be ensured that this may be “granted without detriment to the wholesome condition of the house or of other houses in the vicinity”.  This legal guidance inbuilt in our legislation grants the authorities a degree of leeway to sanction variations (even more than those few centimetres variation), but in so doing the authorities must ascertain that the impacts of these variations are contained. In particular, the authorities are duty bound to ensure the protection of third parties when considering exemptions of sanitary rules. Yet even the 2012 amnesty ignored impacts on third parties and rewarded abusers by going beyond the consideration of minor misdemeanours. On the basis of the available information, the newly planned amnesty will follow the same path.

Sanitary rules applicable to dwellings serve the purpose of protecting our health. Appropriately sized yards are intended to ensure adequate ventilation in our homes; a measure intended to guarantee the quality of air indoors. This is essential to ascertain that buildings are habitable. As minor variations in the sizes of yards can already be permitted through these same rules, so what, may I ask, is the purpose of increasing the possibility of variations? Quite obviously, addressing minor variations is not the target of the amnesty as these are already addressed. Apparently, it is planned to target substantial variations which go beyond what the 2012 amnesty addressed.

Reports indicate that the proposed amnesty would also address buildings outside the development zone (ODZ) not covered by a development permit or not built in accordance to a valid development permit. In the past months we have already had the opportunity to discuss the Rural Policy and Design Guidance 2014, which, while consolidating (with amendments) in one document all existing ODZ polices, extended the possibilities of development in rural areas.

Applying an amnesty to areas outside the development zone signifies that it may well be the intention of the amnesty drafters to create another loophole, as a result of which rural land abusively developed in the past would be given the green light. For example, the owners of illegal villas constructed in the ODZ may be rewarded. This would be over and above the controversial development rendered permissible through the Rural Policy and Design Guidance 2014.

Having considered the above, it is legitimate to ask whether ignoring the law and policy regulating land use is a new form of investment in Malta, reaping substantial dividends: the spoils of environmental crime. Apparently, the authorities think that only fools observe the law. The rest can pay their way around regulations and policies.

What is the purpose of having laws establishing standards if the authorities, on a continuous basis, encourage abuse through amnesties and lack of enforcement action?  If the proposed amnesty proceeds as indicated, Malta will be sending out one clear message: it pays to ignore the law. Crime pays, and the state will come to your rescue to ensure that you cash in on your investments.  If the planned amnesty proceeds, the government will be an accomplice in environmental crime.

The Republic of Malta should not to be governed in this manner.

published Sunday 8 February 2015 on The Malta Independent on Sunday

Dealing with Environmental Crime

published July 9, 2011

 In late 2008, the European Union, through a joint decision of the European Parliament and the Council of Ministers, adopted Directive 99/2008 “on the protection of the environment through criminal law”.

Member states had to implement this directive by not later than December 26, 2010. Malta, together with 11 other EU member states, did not comply. As a result, on June 16, the EU Commission issued a warning to all 12 states to comply within two months.

The EU directive on the protection of the environment through criminal law does not create new environment legislation. It aims to consolidate existing laws through harmonising penalties that should be inflicted as well as by ensuring that these penalties are really a deterrent.

Annex A to the directive lists EU legislation (some 70 directives and regulations) subject to this directive’s provisions. This is wide ranging and includes legislation regulating waste, GMOs, air quality, quality of water for human consumption, use of sewage sludge in agriculture, use and transportation of hazardous materials, protection of water from nitrates originating from agriculture, trade in endangered species and many others.

Within EU structures, the Maltese government opposed provisions of the proposed directive. So it is no surprise that this resistance is also reflected in the implementation process. This gives a new significance to the Maltese government’s declarations on the importance the environment has in its political agenda.

During the discussion stage in the EU structures, representatives of the Malta government expressed a view contrary to the harmonisation of sanctions primarily on the basis of the economic disparity across the EU member states.

The impact assessment produced by the EU on the proposed directive had emphasised that, in the EU, there are three areas that organised crime focuses on to the detriment of the environment. These are illicit trade in ozone depleting substances, illicit hazardous waste treatment and disposal and illicit trade in endangered wildlife species. A study entitled Organised Environmental Crime In EU Member States (2003) quoted by the EU impact assessment also states that 73 per cent of researched environmental crime cases involve corporations or corporate-like structures.

Organised environmental crime, which has a turnover of billions of euros in the EU, can have a devastating effect on the economy. There are various examples which we can draw upon. The case of the contaminated mozzarella in the Naples environs in March 2008 is one such example. Organised crime pocketed substantial landfill charges for the handling of toxic and hazardous waste, which was subsequently dumped in areas that were reserved for the grazing of buffalo. The resulting buffalo mozzarella was contaminated with dioxin. The impacts on the mozzarella industry were substantial.

Proof of the operations of the eco-Mafia has also surfaced some time ago when Francesco Fonti, a Mafia turncoat, took the witness stand against the Calabria Mafia. We do recall information given as to the sinking in the Mediterranean of about 42 ships laden with toxic, hazardous and nuclear waste. One of the said ships has been located and identified off the coast of Reggio Calabria.

This network of organised environmental crime is so vast that, at a time, it also dumped toxic, hazardous and nuclear waste in Somalia. The warlords in the Somalia civil war were financed by the eco-Mafia. They supplied them with arms in return for their consent to the dumping of the toxic, hazardous and nuclear waste. Italian journalists (RaiTre) who had tracked down the shipments were shot and murdered in Mogadishu.

The dumping of toxic, hazardous and nuclear waste in the Mediterranean Sea can have very serious impacts on Malta. It contaminates what’s left of fish stocks but also, depending on the location used for dumping, it can impact Malta’s potable water, 60 per cent of which originates from seawater processed by reverse osmosis plants.

Given these serious impacts I would have expected that the Maltese government would be at the forefront in implementing the directive on environmental crime in order to ensure that issues of cross-border organised environmental crime are adequately tackled. It is indeed very unfortunate that the tools which the EU provides so that Malta can protect its real interests are continuously ignored. One cannot help but ask why.

Law firm Hugo Lepage & Partners, in a comparative study commissioned by the EU Commission and entitled Study On Environmental Crime In The 27 Member States (2007), repeatedly identifies penalties for environmental crime in Malta as being at the lower end of the scale in the EU. The message that gets through is that environmental crime is treated lightly in Malta. Malta is not alone in this respect: it enjoys the company of a small number of other countries.

Environmental crime should be punished through penalties that are effective and proportionate to the environmental damage carried out or envisaged. It is in Malta’s interest that this is done expeditiously.

The mauling of Dwejra : an environmental crime

 

Some would have formed the opinion that the basic information on the Dwejra debacle is known to all.

Not quite, I would say.

MEPA issued a permit containing The Consent Conditions relative to a number of sites in Malta and Gozo to be used for filming parts of the tele-serial “Game of Thrones”. One of the sites was at Dwejra Gozo.

Two site specific conditions applicable to Dwejra (conditions 23 and 24 of The Consent Conditions) refer to Areas of Ecological Importance and Sites of Scientific Importance. These are terms used by the Structure Plan to classify the protection afforded to areas of conservation (Structure Plan Policies RCO 1, RCO 2 and RCO 3). Given that the Dwejra site is a Special Area of Conservation I searched and noted that in The Consent Conditions there is no reference whatsoever to Special Areas of Conservation rules and policies, regulated in terms of the Habitats Directive of the EU which was transposed into Maltese law through Legal Notice 311 of 2006 (Flora, Fauna and Natural Habitats Protection Regulations 2006).

This leads to the logical conclusion that the consent issued by MEPA for the use of the Dwejra site to film part of the tele-serial “Game of Thrones” was only processed in terms of land use planning considerations. Environmental considerations are completely absent: they were completely ignored. The Consent Conditions being a written proof  of this.

Planning vs Environment

During the national debate as to whether it made sense to have land use planning and environment protection forming part of the same authority the Gonzi-Demarco duo  always insisted that MEPA dealing with both would lead to having a much better protection of the environment. Coordination, it was said, was the name of the game. In practice we are faced with something else: land use planning considerations are ruling the day and environmental considerations are being continuously sidelined. The Dwejra case being a typical example.

 

The Species Data Form

Dwejra was included as a Nature 2000 site and consequently as a Special Area of Conservation by the European Union at the request of the Maltese Government which also supplied the detailed justification as to why the area should be protected. The scientific reasons justifying the selection of the site as a Special Area of Conservation are available on the Species Data Form which MEPA had submitted to the EU on behalf of the Government of Malta some years back. An electronic copy is available at the EU website.

EU LIFE+  financial support

In 2003, given the importance of the protection afforded to the site the EU through its LIFE+ Fund  supported a conservation project for the area headed by Nature Trust Malta then in partnership with MEPA and WWF Italy. The EU forked out €324,000 of the EU taxpayers’ money.

Permissible Activity

Permissible activity in a Special Area of Conservation (SAC) is a very delicate matter. It is regulated primarily by regulations 18 and 19 of Legal Notice 311 of 2006.

Regulation 18 establishes that a permit is necessary for any activity in an SAC. It also determines who needs to be notified.

Regulation 19 goes in detail and establishes the parameters within which MEPA as the Competent Authority can act. When the consent required is not related to the management of the SAC and it is likely to have a significant effect thereon, MEPA or the applicant is to carry out “an appropriate assessment of the implications of the operation or activity on the site in view of the site’s conservation objectives”.

Legitimate question

After having ascertained, through the assessment, that the integrity of the site is not affected MEPA is required to obtain and take into account “the opinion of the general public and representations made”.  This means that the assessment carried out has to be subject to a public consultation.

In view of the above it is legitimate to ask: was an appropriate assessment carried out? And further, when was this appropriate assessment subjected to the scrutiny of the public in order that representations could be made by the public as well as environmental NGOs?

I am not aware as to whether an appropriate assessment was carried out and hence nor am I aware as to its possible conclusions. However if this assessment was carried out I do not recollect that it was subjected to public consultation.  Nor have any of the environmentalists with whom I have discussed the matter any recollection of this public consultation ever taking place.

The public interest

Regulation 19 of Legal Notice 311/2006 further specifies what is to be done if the appropriate assessment results in negative implications for the SAC site. In such cases MEPA as the Competent Authority may only give its consent to the activity “for imperative reasons of overriding public interest …… of a social or economic nature.”  These reasons are defined as relating to human health, public safety, or beneficial consequences of primary importance for the environment or other reasons which in the opinion of the EU Commission are imperative reasons of overriding public interest.   

The consent must be accompanied by “compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.”  The EU Commission is furthermore to be informed of these compensatory measures taken by the Competent Authority.

MEPA’s responsibilities

To date the public has been informed in detail as to how the conditions of the permit which MEPA issued to Fire and Blood Productions were not observed. The public is aware that Fire and Blood Productions has apologised for the damage caused but shifted the blame onto its Gozitan sub-contractor.

This only explains one small part of the saga. No one has yet commented as to how MEPA has contributed to the debacle when it is crystal clear that it is precluded from issuing a permit for the Dwejra site in terms of the provisions of the Habitats Directive.

MEPA as the Competent Authority has the duty to ensure that the provisions of the Habitat’s Directive of the EU are observed to the letter. As explained above, through its actions MEPA has ignored both the letter and the spirit of the Habitats Directive.

This leads me to conclude that the damage caused to the SAC was not caused just by the Gozitan sub-contractor acting on behalf of Fire and Blood Productions. Through its lack of observance of the provisions of Legal Notice 311/2006 MEPA has made it much easier for damage to be inflicted onto the Dwejra SAC. Instead of protecting the environment the now reformed MEPA has facilitated its damage.

This is an environmental crime for which persons having a name and a surname are directly and personally responsible.                        

Accountability

It is time to translate words into action.

I hope that investigations currently in hand will identify the names of those responsible in order that they may be requested to account for both their actions as well as their inaction which have led to the Dwejra SAC mauling.

In a country where the organs of the state are bursting at the seams with lawyers one may sometimes assume that in Malta the rule of law is strictly observed. Such incidents prove that one is grossly mistaken in making such assumptions.    

Environmental legislation must be adhered to first of all by the state. If the state through its institutions ignores environmental legislation how do we expect Joe Bloggs to respect it?

The EU has given us the tools to hold decision takers to account. This is a reason why a large number of environmentalists voted in favour of Malta’s accession to the EU. It is the only way to save what’s left of our heritage.

Published in the Environment Supplement of  The Malta Independent on Sunday,   November 21, 2010

The eco-threat of the Italian Mafia

 times_of_malta196x703

by Carmel Cacopardo

published September 19, 2009

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The revelation by Francesco Fonti that the Calabria Mafia sank a number of ships in the Mediterranean carrying a cargo of nuclear and toxic waste confirmed what the international environmental non-governmental organisation Greenpeace has been stating for a number of years.

The cargo on board these ships (which could number as many as 42) is of direct concern to Malta. The environmental crime of dumping this toxic and nuclear waste could have already affected (without our knowing) Malta’s water supply as well as the fish we eat and the seawater we swim in.

Whether and to what extent the food chain was contaminated is difficult to ascertain at this stage unless the relevant authorities are in a position to explain whether over the years fish and water (including sea-water) were sampled and tested for chemical contamination. Hopefully, such monitoring, sampling and testing was carried out. At this stage no information is forthcoming as to the type of toxic wastes dumped nor whether the waste dumped is still contained or else whether it has dispersed. The exact location of the dumping and the sea currents prevalent in the area would also be of extreme relevance.

Toxic contamination does not necessarily kill immediately. It may block or distort a number of our natural activities.

In the foreword to the book Our Stolen Future by Theo Colborn, Diane Dumanoski and John Peterson Myers, former US Vice President Al Gore speaks of  “a large and growing body of scientific evidence linking synthetic chemicals to aberrant sexual development and behavioural and reproductive problems. Although much of the evidence these scientific studies review is for animal populations and ecological effects, there are important implications for human health as well”.

Reference to three examples would serve to illustrate the nature of the threats.

President Jimmy Carter on August 7, 1978 had declared a state of emergency at Love Canal. A landfill containing over 21,000 tons of chemical waste dumped in the 1940s and the beginning of the 1950s caused the contamination of residential and educational environments and resulted in miscarriages, birth defects, respiratory ailments and cancer. Fifty-six per cent of children born in the Love Canal environs between 1974 and 1978 had a birth defect. This led the US to enact the Comprehensive Environmental Response Compensation and Liability Act known as the Superfund in the last days of the Carter Presidency.

In early 2008 in Italy it was found that buffalo mozzarella originating from some 83 dairy farms in an area near Naples was tainted with dioxin. The buffalo were grazing in an area of illegal dumps of toxic waste controlled by the Mafia. Dioxin can cause birth defects and organ failure.

On May 31, 1989 a beluga whale was found floating belly up near Pointe-aux-Cenelles close to Quebec, Canada. An autopsy carried out on the whale revealed that it had both a male and a female set of genital organs. It was a hermaphrodite. This was eventually traced to pollution-induced hormone disruption which derailed the beluga whale’s normal course of sexual development. “One cannot rule out,” noted the autopsy report “that pollutants present in the mother’s diet had interfered with hormonal processes (guiding the) normal evolution of the sexual organs of her foetus”. The beluga whale is a mammal like the human being.

The above examples point to the possible consequences of the Mafia eco-threat.

Sixty per cent of our water originates from the sea. Fish roam about the Mediterranean Sea including contaminated areas. Pollution will not respect borders.

All of us would be more at ease if we are informed of the measures being taken by the public authorities to shield us from these threats.

original article at   The Times