PA appeals tribunal problems are systemic

During his Workers’ Day address, Prime Minister Robert Abela gave us a pretty sizeable hint about a piece of planning reform which the government is cooking up.

Abela questioned whether it “makes sense – if it ever did,” that Malta’s planning laws allow construction developments to start works on a project when that same project is still being contested by an appeal in a tribunal or in court.

Abela said that the country needs to start discussing this change to come up with a system which is just but which cannot be “sabotaged.”

Just this year the court revoked three major permits: Foreign Minister Ian Borg’s pool was declared illegal for a second time, the five-storey Pencil Development in Santa Luċija was stopped and the permit for the five-star hotel at Saqqajja Hill was revoked.

In light of these judgments, The Malta Independent on Sunday contacted the president of the Kamra Tal-Periti (Chamber of Architects and Civil Engineers) architect Andre Pizzuto and ADPD chairperson Carmel Cacopardo, who is also an architect by profession, asking why a high number of cases are going before the Court of Appeal.

“The PA has not been applying the law correctly,” Pizzuto replied.

“When it takes a decision there are a number of things it is required to consider by law and it is not (doing so), which is why it has been losing the cases. It is not assessing the planning applications in the best possible manner.”

Pizzuto said that these cases do not surprise him, as this has been something that the Kamra Tal-Periti has been saying for quite some time now.

Giving a slightly different response, Cacopardo said: “The issue is not that the court is changing the decisions of the PA, it is changing the decisions of the tribunal… This means that the tribunal is incorrectly interpreting planning law. The tribunal is giving too many incorrect interpretations of the law.”

Cacopardo noted that it is normal that some decisions taken by the PA are incorrect, but the tribunal should be there as the first safety feature against incorrect decisions. However, what is worrying is that a large number of cases are going before the court.

“Fortunately, the court is going into detail and giving a number of decisions, some of which are very tough.”

Earlier this week, Andre Callus from Moviment Graffitti also told The Malta Independent that the tribunal has been “misapplying the law” for not suspending construction developments when an appeal has been filed against the permit.

“The tribunal is a farce. This tribunal is not a tribunal at all, these are just people appointed by the government on the basis of other interests and they do not decide in an independent way,” Callus said.

Based on this, the matter goes beyond simply not allowing construction to take place while the development is subject to appeal. That would indeed be a good – and very obvious – start, but it is quite clear that reform is needed to actually ensure that the tribunal handling these appeals in the first place acts in accordance with the law.

One must question why the EPRT is consistently overruled by the law courts. Should it have to come down to activists, who have to go through considerable hoops and expenses to take a case up to court in order for the correct decision to be taken?

It shouldn’t, but that is today’s situation. The problems in the tribunal are clearly systemic.

What compounds the matter further is that by the time the courts consider the appeal, and if they do ultimately decide against the development – generally speaking it is already half built.

Perhaps the courts should consider being more aggressive in their sentences: if the court rules that a development should not have been accepted and therefore built, then it should have no problem to determine that the same – now illegally built – building should be dropped back down.

The irony also isn’t lost when considering that for many years, it was Robert Abela himself who was the Planning Authority’s legal consultant at a not insignificant cost to the taxpayer. How has it taken him this long, then, to note that the current situation doesn’t make sense?

This aside, however, we must now wait to see what shape the discussion which Abela has said should happen will take.