MEPA leaves no stone unturned

Alfred E. Baldacchino's Blog

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Mepa leaves no stone unturned

Alfred E. Baldacchino

 The illegally extended road on Comino. Photo: Matthew Mirabelli

The illegally extended road on Comino. Photo: Matthew Mirabelli

Times of Malta lately reported the construction of a dirt and concrete road on Comino, an island with barely half a dozen residents and an EU Natura 2000 site.

The Malta Environment and Planning Authority, which is the Competent Authority for the EU environment acquis, thus also for Natura 2000 sites, was quick to show its surprise and lack of awareness of the matter.

It immediately issued an enforcement notice on the Commissioner of Land, on the grounds that Comino is government land. Pontius Pilate would have envied this. Incidentally, the Commissioner of Land falls within the portfolio of the Prime Minster.

Natura 2000 sites are sites listed according to important habitat types in the EU Habitats Directive. On accession, each member state has to declare such sites, and once approved…

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Snippets from AD’s electoral manifesto: (21) Biodiversity

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The following extract is taken verbatim from Chapter 14 of AD’s Electoral Manifesto

Biodiversity.

Biodiversity is not exclusively concerned with bird protection but on our interaction with the eco-system.

Alternattiva Demokratika shall focus on the need for the complete cessation of spring hunting as well as in ensuring that Malta’s EU accession commitments on the halting of bird trapping are honoured.

It is necessary that zones identified for protection under the provisions of the EU Habitats Directive are well managed. In particular it is necessary that Il-Buskett is no longer considered and utilised as a garden. The status of Il-Buskett as a Special Area of Conservation should be respected, something which is currently ignored.

Valley protection is also necessary. This has to be done within the context of a clear and holistic plan to rehabilitate valleys in such a manner that their resident biodiversity is respected and invasive species introduced throughout the years are removed.

L-Estratt segwenti hu mehud kelma b’kelma mill-Kapitlu 14 tal-Manifest Elettorali ta’ Alternattiva Demokratika

Bijodiversità.

Il-bijodiversità mhix kif inħarsu lejn l-għasafar u l-ħarsien tagħhom biss iżda dwar l-interazzjoni tagħna mal-ekosistema.

Alternattiva Demokratika taħdem biex tkun eliminata darba għal dejjem il-kaċċa tal-għasafar fir-rebbiegħa kif ukoll biex l-obbligi li Malta assumiet bis-sħubija fl-Unjoni Ewropea li l-insib spiċċa darba għal dejjem ikun onorat.

Huwa neċessarju li jkun mħarsa sewwa iż-żoni li Malta identifikat għall-protezzjoni taħt il-provedimenti tad-Direttiva tal UE dwar il-habitats. Fost oħrajn wasal iż-żmien li l-Buskett ma jibqax meqjus bħal ġnien u ma jibqax ikun sfruttat bħala tali. L-istatus tal-Buskett ta’ Żona Speċjali ta’ Konservazzjoni huwa meħtieġ illi jiġi osservat, ħaġa li fil-preżentement mhix issir.

Huwa neċessarju ukoll illi l-widien ikunu mħarsa. Dan għandu jsir billi fil-kuntest ta’ pjan ċar u olistiku jkunu riabilitati l-widien b’mod li tkun rispettata l-bijodiversità ta’ ġo fihom u jkunu ukoll eliminati l-ispeċi invażivi li ġew introdotti tul is-snin.

Mental Gymnastics at MEPA

Over the past two years, three special areas of conservation were in the news: Mistra (Spin Valley disco), Baħrija Valley and, now, Dwejra. Next in the news will be the White Rocks sports development, bordering Pembroke.

The Director for Environment Protection at the Malta Environment and Planning Authority is on record as saying that an SAC should not be “a keep-out zone”. To my knowledge, no one has made such an assertion. It is, however, to be underlined that permissible activities in and around SACs are limited in terms of the EU Habitats Directive.

Decisions of the Environment Protection Directorate relative to SACs need to be adequately motivated. This is unfortunately not always apparent. What is also very clear at this stage is that the Environment Protection Directorate seems to have been kept out of the process leading to the original decision on the use of the Dwejra site, only to be pushed onto the frontline at the eleventh hour when a damage limitation exercise was embarked upon.

The Habitats Directive is very clear. As a rule, it permits activities on and in the vicinity of SACs only if these activities are required for the purpose of managing the site. Other activities may also be permitted but when this is the case they are subject to stringent procedures and conditions.

The Habitats Directive (transposed into Maltese legislation by Legal Notice 311 of 2006) may permit an activity in or in the vicinity of an SAC provided the Environment Protection Directorate determines it is not detrimental to the site either on its own or cumulatively with other activities.

However, in so determining, the Environment Protection Directorate has to carefully consider the proposed activity and correlate it to all the characteristics of the SAC. In particular, it should also consider what is known as the “corridor effect”. That is, whether an activity in or outside an SAC is likely to have an impact on any area of the SAC or another protected area in the vicinity, say a marine conservation area as is the case in Dwejra.

An SAC should be considered as a whole and should not be parcelled into areas where activity is permissible and others where it is not, as Mepa seems to be suggesting. Malta cannot go on with declaring areas to be SACs only to subsequently commence mental gymnastics in order to invent exceptions whenever the need to justify something crops up.

Analysing statements made after the Dwejra saga, it is clear Mepa failed to do the above. By stating the site was “bare rock”, worse still, by stating there is no eco-system to protect (even if this absurd statement was later retracted), Mepa in my view abdicated its responsibilities as the competent authority entrusted by the EU to act on its behalf to manage SACs, which are today part of an EU Natura 2000 network.

At least two parallel investigations are under way. One by the Mepa audit officer, the other by independent experts to scientifically examine and report on any impacts on the site as a result of the permit issued by Mepa.

So far, the applicant (Fire and Blood Productions) and the sub-contractor have been censured for not observing the permit conditions imposed by Mepa. However, no official comment as to whether Mepa overstepped its brief in issuing the Dwejra permit has yet been made. This I submit is the primary pending matter as, in my view, Mepa should never have authorised the placing of sand at Dwejra.

Earlier this year, in an article entitled Land Speculation At White Rocks (July 7) I had written about another SAC, that at Pembroke. The proposal there does not involve the temporary placing of sand but the development of a sports complex in an area which is very close to the Pembroke SAC. In view of conflicting information it is not yet clear how and to what extent this proposal impacts the Pembroke SAC.

After considering the manner in which SACs have been mismanaged by Mepa in Mistra, Baħrija, Dwejra and, now, possibly Pembroke it is legitimate to ask why the government has bothered to declare them as areas worthy of protection.

It is clear so far the government is only interested in paying lip service to such issues and, subsequently, to engage in mental gymnastics to justify anything.

As stated by Parliamentary Secretary Mario de Marco (The Cost Of Decisions That Count, The Times, November 27) one should not use this serious incident to discount the validity of a number of environmental initiatives. However, if the government wants to be taken seriously on environmental issues it must put its house in order. Unfortunately, this does not seem to be a priority.

 

Published in The Times of Malta, Saturday December 4, 2010

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

Land Speculation at White Rocks

Having first class sports facilities in Malta is an objective which everyone shares. Hence the point at issue, in my view, is not whether a sports complex should be developed but how this can be done and the manner in which it should be financed.

The government has opted for direct negotiations with the selected partners. Was it right in directly selecting the proposed developers and negotiating away from the spotlight of tendering rules and procedures which a normal democratic society imposes?

My view is that the method of selection clearly indicates the government’s disdain for transparency and accountability, even if the final deal will eventually be presented for Parliament’s approval. Removing the major part of the process from the continuous scrutiny of the public institutions set up purposely for their examination, is a clear indication of what could lie in store. Comments have already surfaced as to the ethical credentials of those selected as partners.

An eventual agreement will consist of two elements: the provision of the sports facilities and a prime site residential development consisting of around 300 residential units. The second element is intended to finance the first, the land being made available by the taxpayer through publicly-owned land.

Three documents need to be examined in order to identify the applicable parameters and the considerations to be made.

The first document of relevance is the Development Brief for the White Rocks site issued by the then Planning Authority in 1995. Even if then the proposed development was for an “upmarket tourism project” the development parameters drawn up are of extreme relevance to today’s discussion.

The site, the brief informs us, has a total area of 36.9 hectares. This is subdivided into three zones. Zone 1, having an area of 38 per cent of the total, consists of the existing holiday complex and its facilities. Zone 2 (39 per cent of the area) consists of a mixed garigue and rocky coastline, including the marine environment and archaeological resources. Zone 3 (23 per cent of the area) consists of agricultural land.

The 1995 brief laid out that only Zone 1 was to be released for development. The brief identified one exception: an underground structure in Zone 2 which was to be rehabilitated and in respect of which no extension of its footprint was to be considered.

The second document of relevance to the White Rocks site is the North Harbour Local Plan approved in August 2006. This document, in addition to ignoring any development potential of the White Rocks site, defines it as a “green wedge”. Now, to my mind this means that no development is permissible on the site.

The third document of relevance is the Habitats Directive of the EU applicable to these islands as of May 2004. Zone 1 of the White Rocks site is adjacent to a Special Area of Conservation (SAC) which has been so declared by Malta and approved by the EU Commission. This spills over into Zone 2 described above.

Now the only development permissible in SACs is that which is necessary for the management of the site. The Habitats Directive further lays down that activities on sites adjacent to SACs are restricted too, such that they serve as a buffer zone and are not the indirect cause of damage to the said SACs.

If the above parameters are adhered to, it is not at all clear which sports facilities can be developed on the White Rocks site. Given that Zone 1 covers 38 per cent of the total area, the space is limited both in terms of area as well as in terms of potential for the development of sports facilities. This would leave unanswered questions as to where the 300 projected residential units intended as payment for services rendered by the developing consortium are to be built.

One hopes that in planning the development of the sports complex the limits identified in the 1995 development brief will not be ignored.

Given the development parameters established in 1995, to which one must now add the responsibilities derived from the EU Habitats Directive of the European Union, it is doubtful whether the White Rocks site is suitable for development as a sports complex of the extent indicated by the Prime Minister and other government spokesmen.

Furthermore, it is neither possible nor acceptable to develop 300 residential units on the site to settle the costs of this development.

This is just land speculation in its crudest form. In an overdeveloped Malta the least one expects is a government engaging in speculative development in order to settle its bills and simultaneously claiming that the environment is one of its main policy pillars!

One wonders whose advice government is listening to. At times it seems that it has retained its Xagħra l-Ħamra advisors: those that had convinced it to promote a golf course without having first understood its environmental implications. Governments never learn.

published in The Times of Malta, July 3, 2010

Baħrija Hysterics

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The on-going debate about the Baħrija Farmhouse to-be is at times verging on the hysterical, on both sides of the debate.

There are two opposing views : the first is that which essentially does not want any development Outside the Development Zone (ODZ). Dr Gonzi’s statement that “ODZ is ODZ” encapsulates this view. The second view is that the development of property is in itself an enhancement and should be encouraged, ignoring the “small irritations” like endemic flora and fauna. After all, it is argued, private property is just that private. You can (or should be able) to do whatever you like, it is argued !

I do not subscribe to either of the two views.

In fact the MEPA reform document published by government is slightly more realistic, advocating as it does the careful examination of all policies and the weeding out of those which are unnecessary or undesirable. Obviously the debate as to which of the existing policies needs to be changed is a pleasure yet to come and I will limit this contribution to the policies as existing today.

Maltese planning policies are flexible but unfortunately they are interpreted very rigidly. As such whilst development ODZ is a more delicate operation than building within the development zone Maltese planning policies permit development outside the development zone in particular circumstances which are well defined. This is as it should be.

Whilst the layman’s point of departure in considering whether to apply for a development permit such as that at the Baħrija valley (Wied Marcia) is understandably the existence on site of a structure (or even one close by) even if it is one in a state of dilapidation, the professional proceeds otherwise.

The point of departure of the professional is the fact that the site in Wied Marcia lies in a valley which is an Area of Ecological Importance (Grade 1) and a Special Area of Conservation. In addition it is afforded protection in terms of the Structure Plan which prohibits development in valleys.

Decisions in respect of other ODZ sites are not necessarily relevant as each ODZ site has to be dealt with on its own merits in view of the fact that in many cases site specific policies are applicable.

The above is in simple language the Scerri Baħrija case. It could have easily been avoided as the rules are clear.

TEN-T : The Għadira Nodes

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published Saturday 27 December 2008

by Carmel Cacopardo

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Two important points have to be borne in mind while searching for a solution to upgrade the Ten-T (Trans-European Transport Network) road link at Ghadira Bay, Mellieha.

Firstly, all identified solutions will have an environmental impact. Secondly, in order that the public discussion be fruitful all information must be freely available.

The stakeholders are not just NGOs and specific economic operators. The whole community is the stakeholder. Stakeholders require information not just from the perceived interested parties but more so from the public authorities that are vested with authority to defend the community’s interests.

A number of reports have been made public. Some have been quoted selectively. Others are still under wraps.

BCEOM (French engineering consultants), in its 2004 report entitled Feasibility And Environmental Impact Studies For Transport Infrastructure Projects In Malta – Final Feasibility Study Report and AIS Environmental Limited, in its 2005 report entitled Proposed Review Of Ghadira Road Options, identify the upgrading of the existing road along the beach as the preferred option.[vide also 1 and 2]

Since then a number of proposals have been publicised. These revolve around two possibilities: the retention of the existing road with modifications or the construction of an alternative road to the south of the Nature Reserve and the Danish Village.

Preliminary appraisal of environmental impacts has been drawn up and on its basis the authorities have issued opinions that have not yet been made public. These indicate the detailed studies that have yet to be carried out in order to arrive at a definite decision.

In particular, it is to be noted that the AIS report dated November 2005 states (pages 2 and 3) that BCEOM had rejected the tunnel design beyond the Danish Village, which would have reclassified the beach front route as a local road.

These proposals were rejected by BCEOM on the basis of “excessive and unpredictable costs”. In addition, the AIS report emphasises that “Mepa had rejected the tunnel options on environmental grounds because the area in question is classified as a Special Area of Conservation (SAC)”.

The AIS report further states that subsequent to the above-indicated Mepa rejection, ADT reassessed the situation and proposed three options, two focusing on the existing road and the third being a new road incorporating a tunnel and bridge through the garigue (an SAC) south of the Danish Village, which, like the SAC-protected Nature Reserve, has been officially approved by the EU and forms part of Natura 2000.

It is within this context that Mepa has requested a “holistic preliminary assessment of the impacts arising from the various options that ADT is now considering”. Mepa has requested a number of studies related to beach dynamics, ecology, agriculture, geology, geomorphology and hydrology, archaeology and others. These studies were requested way back in 2005 and none has to date seen the light of day, notwithstanding that everyone seems to be in a hurry! These studies, if properly carried out, are of fundamental importance in determining the manner in which the Ghadira Ten-T link is to proceed, if at all!

Various statements have been made in the past weeks. The most conspicuous were those related to the sandy beach. It is by now clear that these have originated (without scientific justification) from a consultant commissioned by one of the economic operators in Ghadira Bay and were intended to reinforce his proposal for a beach concession as a result of a possible re-routing of the Ghadira road.

Within this context it was highly unethical for the Ministry of Transport to invite the said consultant to sit alongside the ministry’s officials in a recent meeting with NGOs and the press. The ministry’s subsequent declaration that it would oppose proposals for beach concessions in the area can only be interpreted as an attempt to correct its ethical short-sightedness!

A further important statement was made last week by nature itself. The sea level temporarily rose to the road level, thereby reinforcing arguments already brought forward that the existing road during the winter months is doubling up as a coastal defence to the Nature Reserve, which, being sited on former salt pans is partly below sea-level.

At this point in the debate, matters are slightly less nebulous than they were in the beginning. The declaration by the Minister for the Environment that all the required studies will be carried out is welcome.

However, such a declaration risks being viewed as a cheap attempt at damage control unless an explanation is forthcoming as to why these studies have not yet been finalised notwithstanding that they were requested by Mepa way back in 2005!

It is clear that, until recently, some thought that these studies could be dispensed with only to realise at the 11th hour that the environmental lobby is vigilant and will keep insisting that the government, through its various agencies, should shoulder its responsibilities!