Pjani Lokali tal-lastku

Meta l-Pjani Lokali kienu approvati, kien l-ewwel darba li f’Malta sar attentat biex ikun regolat l-iżvilupp fuq livell lokali bis-serjetà. Il-ħtieġa kienet ilha tinħass is-snin. L-ippjanar għall-użu tal-art b’mod professjonali, f’Malta, beda fl-1989 bil-proċess iwassal għall-ħolqien tal-Awtorità tal-Ippjanar.

Għall-bidu, kif jispjega b’mod ċar fil-pjan ta’ struttura, kien ippjanat li jkun hemm 24 pjan lokali għall-Malta u Għawdex, imma imbagħad spiċċajna b’sebgħa. Ħames Pjani Lokali kienu approvati fl-2006, bit-tnejn l-oħra jkunu approvati iktar kmieni: dak dwar il-Bajja ta’ Marsaxlokk fl-1995 u dak dwar il-Port il-Kbir fl-2002.

Meta l-pjani lokali kienu mfassla, oriġinalment għall-konsultazzjoni pubblika, kienu meqjusa bħala restrittivi għax ftit kienu jħallu lok għal diskrezzjoni. Sa dakinnhar ħadd ma kien għadu fassal il-politika dwar l-użu tal-art b’mod hekk ċar, b’mod li jnaqqas il-lok għall-abbuż kif ukoll il-poter assolut vestit f’persuna waħda:il-politku. Dakinnhar kien hemm resistenza konsiderevoli li l-affarijiet isiru b’dan il-mod. Dan jispjega għaliex dawn il-pjani lokali damu ħafna ma saru. Hija ukoll ir-raġuni li wasslet għal dak li nirreferu għalih bħala l-eżerċizzju ta’ razzjonalizzazzjoni li bħala riżultat tiegħu meded kbar ta’ art, madwar żewġ miljun metru kwadru, fil-parti l-kbira art agrikola, fl-2006, kienu ddikjarati mill-Parlament bħala li tajbin għall-iżvilupp.

Il-pjani lokali huma essenzjalment dokumenti miktuba li fihom hemm spjegata l-politika lokali dwar l-użu tal-art flimkien ma mapep li jillustraw din il-politika. Tul is-snin dawn il-pjani lokali ġew ikkumplimentati b’dokumenti oħra dwar materji speċifiċi. Kważi kollha b’ċertu ammont ta’ kontroversja marbuta magħhom. Dwar dawn ktibt diversi drabi f’dawn il-paġni.

F’Jannar 2013, wara perjodu ta’ konsultazzjoni kif trid il-liġi, l-Awtorità tal-Ippjanar kellha f’idejha dokument ieħor li kien approvat: nirreferu għalih bħala l-politka tal-flessibilità. Huwa intitolat : Partial Review of Subsidiary Plans: General Policy relating to Regeneration/Consolidation initiatives. L-iżviluppaturi (u l-periti tagħhom) flimkien mal-Awtorità tal-Ippjanar jinterpretaw dan id-dokument bħala li jagħtihom mano libera biex jiddeċiedu dwar liema huma dawk il-partijiet tal-Pjani Lokali li għandhom jinjoraw.
Sfortunatament uffiċjali tal-Awtorità tal-Ippjanar, spiss wisq, jaġixxu qieshom għandhom xi dritt divin li jiddeċiedu dwar liema huma dawk ir-regoli tal-ippjanar li għandhom japplikaw u liema huma dawk li għandhom jinjoraw.

Kaz speċifiku qam quddiem il-Bord tal-Awtorità tal-Ippjanar iktar kmieni din il-ġimgħa dwar żvilupp propost fuq biċċa art kbira fil-Mellieħa. Il-Pjan Lokali tal-Majjistral jipprovdi li ma jistgħux jinbnew lukandi fiż-żona residenzjali fejn hemm din l-art. Imma l-uffiċjali tad-Direttorat tal-Ippjanar, friski daqs ħassa, jirreferu għall-politika dwar il-flessibilità bl-addoċċ u jirrakkomandaw li l-lukanda proposta hi aċċettabbli. .

L-applikazzjoni tal-politika dwar il-flessibilità fl-ippjanar hi limitata mill-kundizzjonijiet fid-dokument imsemmi iktar il-fuq. Il-limitazzjoni prinċipali hi li l-flessibilità ma tistax tmur kontra l-linja ġenerali stabilita fil-Pjani Lokali. Għax il-politika dwar l-ippjanar għandha tkun flessibli imma mhux tkun tal-lastku!

Numru ta’ deċiżjonijiet li ħadet l-Awtorità tal-Ippjanar ibbażati fuq din l-interpretazzjoni skorretta tal-politika tal-flessibilità kienu kkontestati fit-Tribunal ta’ Reviżjoni għall-Ambjent u l-Ippjanar u fil-Qrati u kienu mħassra. Fid-dawl ta’ dawn id-deċiżjonijiet, jiena ma nistax nifhem kif l-Awtorità tal-Ippjanar ma tikkoreġix il-posizzjoni tagħha.

Inizzjalment l-applikazzjoni inkorretta tal-politika tal-flessibilità fl-ippjanar tal-użu tal-art setgħet titqies bħala żball. Imma meta dan l-iżball jibqa’ jkun repetut ma jibqax żball iżda jsir abbuż ta’ poter li għandu jkun indirizzat immedjatament.

Ippubblikat fuq Illum : il-Ħadd 3 ta’ Marzu 2019

The elasticity of the Local Plans

The Local Plans currently in force, when they were approved, were a first serious attempt in these islands to regulate development at a local level. The need had been felt for far too long. Professional land use planning in Malta started in earnest in 1989 with the process leading to the setting up of the Planning Authority.

Originally, as clearly explained in the Structure Plan, it was planned to have 24 local plans for the Maltese Islands, but we ended up with just seven. Five local plans were approved in 2006, with the other two having been approved earlier: the Marsaxlokk Bay Local Plan in 1995 and the Grand Harbour Local Plan in 2002.

When the local plans were originally drafted for public consultation they were considered as highly restrictive. It was then unheard of to clearly define policy, reducing loopholes and absolute power vested in one person, the politician. There was then considerable resistance to such a course of action. This is the major reason for the long gestation period of these plans. It is also the reason which led to what is known as the rationalisation exercise as a result of which large stretches of land, around two million square metres, mostly agricultural land, was in 2006 declared by Parliament as suitable for development.

Local plans are essentially written statements containing local land use policies and policy maps illustrating the said policies. Over the years the local plans have been buttressed by supplementary guidance with specific policy documents containing a varying degree of controversy, about which I have written extensively in these columns over the years.

In January 2013, after the statutory consultation period, planning policy acquired an additional document, commonly referred to as the flexibility policy. It is entitled: Partial Review of Subsidiary Plans: General Policy relating to Regeneration/Consolidation initiatives. Developers (and their architects) as well as the Planning Authority tend to interpret this policy document as giving them a free hand in determining the extent to which they may depart from provisions of the Local Plans.

Unfortunately, Planning Authority officials tend to assume too often that they have some God-given right to decide which planning policies to apply and which to ignore.

A specific case came before the Planning Authority Board earlier this week relative to a large site in Mellieħa. The North West Local Plan provides that no new hotels can be developed in the residential area of which this site forms part. Yet, invoking the above-quoted flexibility policy officials at the Planning Directorate did not bat an eyelid and recommended that the proposed hotel was acceptable development.

Application of the planning flexibility policy is limited by the conditions set out in the policy, primarily that the general thrust or direction given by specific policies in the Local Plan is not to be superseded. Planning policy may be flexible but it should certainly not be elastic!

A number of decisions taken by the Planning Authority based on such an incorrect interpretation of the flexibility policy have been contested in the Environment and Planning Review Tribunal as well as in Court and were reversed. Faced with such decisions I fail to understand why the Planning Authority does not correct its ways.

Initially the incorrect application of the planning flexibility policy could have been considered as a case of wrongful interpretation of policy. Repetition can only be construed as an abuse of authority and should be dealt with accordingly.

published in The Malta Independent on Sunday – 3 March 2019

One size fits all

I have heard from reliable sources that government through MEPA is considering doing away with all seven Local Plans and substituting them with just three.

The Local Plans currently in effect are the following : Marsaxlokk Bay (1995), Grand Harbour (2002), North West (2006), Central Malta (2006), North Harbour (2006), South Malta (2006),  Gozo and Comino (2006).

The Structure Plan had envisaged the preparation of 24 Local Plans as well as Plans covering Rural Conservation Areas.

The Local Plans mentioned in the Structure Plan were the following :

1. Valletta/Floriana

2. The Three Cities of Vittoriosa, Senglea, and Cospicua

3. Sliema, Gzira, and Ta’ Xbiex

4. St. Julians, San Gwann, and Pembroke

5. Msida, Pieta, and Gwardamangia

6. Marsa, Qormi, Hamrun, and Santa Venera

7. Birkirkara and the Three Villages of Lija, Balzan, and Attard

8. Paola, Tarxien, and Santa Lucia

9. Kalkara, Rinella, and Xghajra

10. Zabbar and Fgura

11. Luqa, Gudja, Ghaxaq, Mqabba, Kirkop, and Qrendi

12. Marsaxlokk Bay and its vicinity including Marsaxlokk and Birzebbugia

13. Zejtun, Marsascala, and St. Thomas Bay

14. Zurrieq and Safi

15. Siggiewi and Zebbug

16. Rabat, Mdina, and Dingli

17. Mosta, Naxxar, Gharghur, and Burmarrad

18. St. Paul’s Bay, Bugibba, Qawra, and Mellieha

19. Victoria and Fontana

20. Qala, Ghajnsielem, and Mgarr

21. Xaghra and Nadur

22. Xewkija and Sannat

23. Kercem, San Lawrenz, Munxar, and Xlendi

24. Gharb, Ghasri, Zebbug, and Marsalforn

It is clear that the proposal in the Structure Plan, which was not adhered to, intended the micro-managing of development through having the proposed Local Plans focusing on a relatively small area. The resulting policies would have been site specific and not of a general nature. Unfortunately this was not done as the only Local Plan which covers a small area is that related to Marsaxlokk Bay.

It defeats the purpose for which Local Plans are intended if they cover a large area.  By their very nature Local Plans are intended to cover a small area and consequently to address the potential development in such areas through appropriate policies which may need to be and generally are specific to the area. The policies adopted for one area are not necessarily applicable to another. Hence the need for “local” plans

The revision of the Local Plans is the ideal opportunity to get things done right.

But will they?

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