The Malta Independent on Sunday
Should objections trump policies? eNGO lawyer says most representations are ignored
● ‘Permit given to the site, not to Portelli: development can still take place’
Over 90 per cent of objections made concerning development permissions are ignored by the Planning Authority (PA) Board, according to lawyer and environmentalist Claire Bonello, who represents some environmental NGOs.
A recent court judgement, however, notes that objections, or as they are legally known, representations, made in response to the publication of the development proposal, should not distract from the plans and policies, despite the law not being as straightforward.
Speaking to The Malta Independent on Sunday about the latest controversial Qala permit approval, Bonello said that although objections are made, permits are still being approved. She provided the example of the ITS project, were over 4,000 objections were made and yet the project was still approved by the PA.
This followed a statement made by the Qala Local Council that it would be appealing the PA’s decision in favour of the construction of a villa on rural land in the locality. According to the law, however, the local council cannot file an appeal on this project, as it is not an objector in the permit application process stage.
When confronted with this, Qala Mayor Paul Buttigieg noted that the council had objected to a previous application in the area, some eight or nine years before, and it assumed that it would still be listed as an objector with the PA.
The council admitted it would not be able to appeal the decision, but added that it would be working with Bonello, who is a registered objector.
Bonello also confirmed that NGOs would be filing an appeal and noted there was another legal procedure that could be applied to have the permit revoked. She would not comment further on this, not to jeopardise the case, she said.
She noted, however, that the Qala Local Council would be involved in the appeal process. Bonello also said that the council had been fighting the proposed yacht marina development at Ħondoq for 15 years.
Permit given to the site, not to Portelli – development can still take place
Following widespread outrage, Gozitan developer, Joseph Portelli said he was renouncing the permit to build a countryside villa in Qala.
Bonello explained that the “so-called renunciation” by the developer was not a legal concept, since the permit given did not pertain to the owner, but the site itself. Portelli could, for example, sell the site and the new owner could still make use of the permit, Bonello explained.
“Appealing is the only way,” she continued, adding that the developer was unlikely to ask for a revocation, while the PA could not revoke a permit. “It is up to the NGOs and third parties to fight this,” she said.
“Similar applications are approved every week,” Bonello noted, “and most go largely unobserved.” Local councils and NGOs could not keep up with them all, she added. “While publications are made in the Government Gazette, NGOs do not have enough resources to monitor them all the time, especially in the case of small-scale applications.”
“The Qala Local Council, perhaps incorrectly, assumed that the site was safe given that a previous application was turned down,” Bonello said. “However, every time a local council or a NGO fails to object, they are taken to task.”
“The onus should not be on the NGOs,” she continued, adding that they should not be expected to be on the lookout all the time.
Bonello also noted that the Environment Resources Authority (ERA) and the Superintendence of Cultural Heritage (SCH) often objected to appalling applications, but the PA “does not care.”
“This is the death of ODZ by a thousand cuts,” Bonello said.
Should objections take priority in planning permit applications?
Although Bonello said that policies had not been regarded when considering the ITS site application, Prime Minister Joseph Muscat has confirmed that in the case of the Qala development, all the rules and legislation that followed the 2014 policy reform were followed.
Muscat also added that the PA was insensitive in its decision to allow Qala ruins to be turned into a villa.
According to the PA website, for the Qala project, objections were filed for this development, yet the PA Board still approved the permission. So, the question remains, should objections take priority when the application follows plans and policies?
According to the Development Planning Act, the board “shall have regard to:” plans, policies, the same law, other material considerations, including surrounding legal commitments, environmental, aesthetic and sanitary considerations, which the Planning Board may deem relevant, representations (objections), as well as representations and recommendations made by boards, committees and consultees in response to notifications of applications.
While the law does not give any particular priority to plans, policies or objections, that should be regarded, the courts have noted otherwise.
In a recent judgement, in May 2019, the Court of Appeal said that the emphasis should remain on the observance of the law, plans and policies, and that other material considerations should be regarded.
These material considerations should not alone distract from the law, plans and policies which apply, but only compliment them. They should not distract, replace or go against them, the court said.
It continued to say that should it be the other way round, the board, tribunal, and even the courts, would have a fictitious power and unbridled discretion or control; that the plans, policies and law could be just guidelines, subject to the interpretation of the person evaluating the application.
This did not provide the legal certainty necessary in a democracy that every application would be evaluated in the first instance following the laws, plans and policies, the Court noted, save for certain exceptions which it goes on to specify.