Wednesday, 5 March 2008

DPA amendments – can they save our countryside? An excellent article by Catherine Polidano

Originally published in Malta Today Midweek Wednesday, 05 March 2008

DPA amendments – can they save our countryside?

Catherine Polidano

10th March 2004, 5.30pm. I’m tired. It’s been a long day. I should be having dinner and birthday cake with my family. Instead, I attend a meeting about an application to build a waste sorting plant in Wied Garnaw. Many other Santa Lucija residents do the same.
In theory, ordinary citizens need not worry about this application. The Structure Plan does not permit waste sorting plants in Wied Garnaw, which is outside the development zone (ODZ). And for MEPA to consider an ODZ development not permitted by the Structure Plan, the applicant must submit evidence as to why the proposed development cannot be undertaken within the development zone. The waste sorting plant applicant has not submitted this evidence.
But in reality, MEPA considers all ODZ applications it receives – whether these comply with the Structure Plan or not. In the last three years, MEPA permitted over 2,500 ODZ developments. These include permits for developments not allowed by the Structure Plan such as a printing press and soft-drink warehouses in Wied Garnaw.
Since MEPA and its political masters cannot be relied upon to protect the Maltese countryside, ordinary citizens are compelled to step in and act as environmental watchdogs. They are having to sacrifice personal time and money to scrutinise MEPA files and documents, attend meetings, write press releases, and organise awareness activities. At times, they have to take leave from work to attend MEPA hearings.
As MEPA’s watchdog, you must scrutinise an average of 7,000 development applications every year. Luckily for Wied Garnaw, the sacrifices of the ordinary citizen and environmental NGOs have paid off – MEPA has rejected the waste sorting plant application. It also rejected subsequent applications to build four workshops and a mega residential complex in Wied Garnaw. Missing my birthday cake back in 2004 proved worthwhile.
Unfortunately, each rejection brings only temporary respite. This is because the current Development Planning Act (DPA) empowers rejected would-be developers to request a reconsideration of their application. In the last three years, MEPA reconsidered over 850 ODZ applications it had originally rejected and granted a permit to more than half of them. Reconsideration does appear to weaken MEPA’s resistance to ODZ development.
And if reconsideration doesn’t go the developers’ way, there’s always the appeal. The Wied Garnaw waste plant application was reconsidered and rejected yet again. It is currently stuck in the appeals process – and so are the citizen objectors, who have to attend appeal hearing after appeal hearing as the case keeps getting adjourned.
Many developers try to twist MEPA’s arm differently: they develop first and apply for sanctioning later. Currently there are over 6,600 illegal developments bearing a MEPA enforcement notice. 42 per cent of these are ODZ illegal developments.
There is supposedly a penalty for developers who ignore an enforcement notice, but MEPA has rarely imposed it. Instead, MEPA often gives way to such cowboy developers. In 2007, MEPA “closed” 449 enforcement cases. Of these, 328 were sanctioned. Cowboy tactics work!
What can stop the destruction of Malta’s remaining green areas? What will release ordinary citizens from being MEPA watchdogs? Four fundamental legislative changes are needed: first, stop MEPA considering ODZ applications that do not comply with the Structure Plan; second, remove developers’ right to seek reconsideration; third, remove MEPA’s power to sanction illegal ODZ developments; and fourth, stop MEPA board members, namely architects, from working both for MEPA and its clients.
A week before parliament was suspended due to the upcoming national election, Government published a long-promised bill amending the Development Planning Act. Does the bill deliver the needed changes?
The bill deals a blow to ODZ illegal development. It proposes that MEPA “dismiss forthwith” applications to sanction illegal ODZ developments that were started after May 2007 and bear an enforcement notice.
But this proposal contains two loopholes. Firstly, it lets all pre-May 2007 illegal developments – over 6,000 of them – off the hook. Secondly, MEPA may still sanction post-May 2007 illegal developments if they are not ODZ or do not bear an enforcement notice.
At the very least, MEPA should be obliged to dismiss forthwith all ODZ sanctioning applications – regardless of when the developments were carried out, and whether or not they bear an enforcement notice.
Commendably, the bill also eliminates a legal loophole in the hearing of ODZ appeals. To date, ODZ developments which receive a MEPA permit have been allowed to proceed even if an appeal against this development would be initiated. The bill proposes that the Appeals Board may suspend the permit for up to three months, if an ordinary citizen appeals against it.
Additionally, the bill enhances citizens’ participation in the drafting of subsidiary plans. It also allows citizens extra time – twenty working days rather than the current two weeks – to register objections to development applications.
Ordinary citizens appreciate the greater opportunity to object to development applications. But citizens would rather not have to do so in the first place. And this is where the bill falls short. It does not stop MEPA from considering ODZ applications which do not comply with the Structure Plan.
To tackle the root problem behind ODZ destruction, a two-phase application processing system needs to be entrenched in the Development Planning Act. This system would oblige MEPA to first check whether a proposed ODZ development is permitted by the Structure Plan and, if not, whether the applicant has submitted valid reasons why it cannot be located within the development zone. Those that fail this test would be rejected outright. Only those that pass would be eligible to a full screening process.
The bill doesn’t even stop MEPA from reconsidering ODZ applications. The right to reconsideration needs to be removed, not only for ODZ but for all development applications. After all, this right does not exist in the judicial system. If you’re not content with a court decision, you may appeal. But you cannot ask the court to hear your case all over again!
Neither does the bill try to stem the abuse that may arise because some MEPA board members, namely architects, are currently allowed to serve two masters. New legal provisions should prohibit MEPA board members from concurrently working for MEPA clients. The remuneration given to MEPA board members should understandably be raised to reflect this exclusive work commitment.
In my ordinary citizen’s eyes, the bill proposed on the eve of dissolving Parliament stems some of the ODZ bleeding, but it does not outlaw the infliction of fresh ODZ wounds. It increases the opportunity for citizen participation but it does not remove the root deficiencies which compel the citizen to be a 24/7 MEPA watchdog.
And on the eve of going to the polls I ask: which political party pledges to resolve the legislative deficiencies at the root of our countryside’s destruction? Ordinary citizens await the answer.

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