Twenty reasons against MEPA’s demerger

On 3 July 2015, government decided to turn the clock backward and propose the separation of the planning and environment protection functions within MEPA, to create two new separate and distinct authorities – the Planning Authority and the Malta Environment Authority. 

Back in 2002, the Cultural Heritage Act was enacted to fuse the then government Department for the Protection of the Environment with the Planning Authority, in the creation of MEPA. 

When the Planning Authority was established in 1992, the law created the Planning Appeals Board to review MEPA’s decisions. The Environment and Development Planning Act 2010 re-designated the Board as the Environment and Planning Review Tribunal.

Apart from the creation of the PA and the creation of the Malta Environment Authority, a third bill will re-establish the current Environment and Planning Review Tribunal. All these three bills are intended to replace one single law – the Environment and Development Planning Act, 2010.

If this measure was for the better, I would have had no valid reason to complain; but if this measure is for the worst, as I view it to be, than I remain with no other alternative but to voice my reservations at the enactment of these three Bills hoping that they will be duly addressed.

First, the new laws do away completely with codification. It makes life easier for everybody to find the law in one single enactment and makes it possible for better interaction between the institutions. What is the added benefit of having three distinct laws when they could have easily been integrated into one? The reasoning escapes my comprehension.

Second: it is unclear why the Prime Minister is being given further powers than he already enjoys. Is it not enough that the 1997, 2001 and 2010 laws on environment and planning have erased completely MEPA’s autonomy to make it totally subservient to the government of the day? In 1992, the PN established an independent Planning Authority. Yet, as time went by, it began to suffer from a deliberate and ongoing erosion of autonomy in favour of government.

Today MEPA is nothing more than a glorified government department when compared to the independent status it originally enjoyed in 1992. The amendments of 1997 under Labour and those of 2001 and 2010 under a Nationalist administration all contributed to curtail MEPA’s independence. The worst thing to have in planning is politicians putting their finger in the pie, to dictate who is to be granted a development permission or not – irrespective of the law, plans and policies. What needs to be avoided is rule by political partisan diktat instead of rule under the law.

Third, in 1992 the Planning Appeals Board was presided by a lawyer and composed of a person versed in planning, and another person. Up to 2010 the practice had always been to appoint two architects as they were versed in planning. Then the Planning Appeals Board was restyled as the Environment and Planning Review Tribunal and its composition was changed: it was now presided by a planner with a lawyer and a person versed in the environment as its members. The new Bill on the Environment and Planning Review Tribunal does not clearly and unequivocally set out the composition of the Tribunal. One has to arrive at its composition through a process of deduction. It appears that it will be composed of a lawyer as chairman, an expert in environmental law and an expert in planning law.

The Tribunal will have three lawyers with no planners, nor environmentalists as members. However, the Tribunal will in the future be assisted by experts. This is a wrong move as it will contribute only to increase expenses to parties who appear before it and delay the decision making process.

The new Tribunal should instead be constituted with two chambers: a Development Planning Chamber and an Environment Protection Chamber. The Development Planning Chamber should be presided by three full-timers: an advocate versed in development planning as chairperson and two persons versed in planning as members. No expert would need to be appointed as the planners are themselves experts in planning.

 In so far as the Environment Protection Chamber is concerned, it should be presided by a full-time environmental lawyer and two full-time environmentalists. The appointment should be for a single period of seven years, non-renewable.

The panels of the Tribunal should be distributed as follows: a panel of advocates versed in development planning law; a panel of advocates versed in environmental law; a panel of planners; and a panel of environmentalists. Otherwise, if the current set-up is retained, the members of the Tribunal will have to rely on expert evidence and, at the end of the day, it will be the experts – not the Tribunal – who will decide the matter bearing in mind that much of the business transacted by the Tribunal is mainly technical not legal. 

Fourth, the decision of the EPRT should continue to be final on a point of fact but subject to an appeal to the Court of Appeal on a point of law. The law however fails to delineate the exact difference between a point of law and a point of fact. As time passed by, this distinction was blurred by court pronouncements: at first the Court of Appeal, Superior Competence, gave a correct and restrictive interpretation to the term ‘point of law’ but the Court of Appeal, Inferior Competence abandoned previous case law in favour of a wider approach as to what constitutes a point of law.

A point of law should be defined narrowly in the Development Planning Act as the interpretation of a legal provision and should not include the application of the law to the facts at issue or the interpretation of a plan or policy.

Fifth, the Court of Appeal should be presided by three judges. With development projects that can run into the millions of euros, such a responsibility should not be shouldered by one judge. Moreover, it should be made clear that the judge should at no point threat, let alone, order that a development permission be issued, because appeals’ court proceedings should be of judicial review. 

Sixth, under the proposed law, the members of the Planning Appeals Board and the EPRT will be appointed by the Prime Minister rather than by the President of Malta, even if acting in accordance with the advice of the minister responsible for planning. How can the Prime Minister, who is responsible for the proper execution of all government development projects, not entertain a huge conflict of interest when selecting the chairperson and members of the Tribunal (or when advising the President of Malta as to their removal from office)?

Seventh, the proposed law entrusts the Prime Minister with designating the categories of cases to be assigned to each panel. Once again, such function should not devolve upon a party to proceedings before the Tribunal (the Prime Minister) who lacks impartiality, neutrality and independence but to the President of Malta acting on her own deliberate judgment. 

Eighth, the proposed law allows the staff of the Tribunal’s Secretariat to be appointed by the Prime Minister rather than the tribunal secretary. What was the reason for changing this provision which has served the test of time during the last 23 years? Why should the Prime Minister establish the functions of the Tribunal’s registry when, during the last 23 years, such function has been ably performed by the Tribunal’s Secretary under the direction of the Tribunal?

The Bill does not seem to distinguish between a government department and a quasi-judicial tribunal. These measures are undoubtedly regressive and take the clock back to the time when the government was absolute: it was in 1972 that the learned Judge Maurice Caruana Curran put the doctrine of the dual personality of the state to rest in peace. Yet the Tribunal’s Bill will resuscitate this doctrine. In a modern and progressive democracy, decentralisation should be the rule of the day and not concentration of powers in the hands of the Prime Minister.

Ninth, in article 9(2) of the Tribunal’s Bill, the law lists the principles of good administrative behaviour contained in article 3(1) of the Administrative Justice Act. One asks: is there a need to list these principles in the Tribunal’s law when these are already listed elsewhere? This convoluted style of legislative drafting leaves much to be desired. 

Tenth, whilst under the current law it is Parliament which determines the legal and judicial representation of the Tribunal, now it is the Prime Minister – a prime developer par excellence – who will do so. Has not the drafter of the Bill heard of the term ‘conflict of interest’? This provision is incomprehensible – yet it’s there!

Eleventh, clause 45 of the Tribunal’s Bill states that the funds accrued from penalties to the tribunal should be assigned to the Planning Authority, a constant party before the Tribunal. Why should this be so when the Tribunal’s operation is, correctly, financed by the Consolidated Fund and not by the Planning Authority? Should the Tribunal subsidise a party appearing before it? Would there not be a conflict of interest? Would it not affect the Tribunal’s objectivity, impartiality, neutrality and independence from the Planning Authority? Such funds should undoubtedly accrue into the Consolidated Fund.

Twelfth, the chairperson and members of the Tribunal may be removed by the President acting on the advice of the Prime Minister. No judicial or impartial inquiry follows the alleged misbehaviour of a Tribunal member. No due process of law exists for Tribunal members. If the Prime Minister is not satisfied by a decision delivered by the Tribunal, he will simply remove Tribunal members on the ground of misbehaviour. After all, the Prime Minister may argue, as King Louis XIV did, that l’etat c’est moi! 

Thirteenth, the call-in procedure introduced in 2001 and retained in the Development Planning Bill lacks transparency. In terms of this procedure, Cabinet may overrule the recommendation of the EPRT even if the said Tribunal has correctly applied the law, plans and policies. Cabinet should not have the power to act outside the law.

The rule of law requires that even Cabinet abides by the law. If a decision has to be taken in the national interest which contravenes plans and policies such a decision should be adopted by resolution of the House of Representatives during a public sitting and not by Cabinet. In this way, everything is done above board and whatever decision is reached it will be taken in public and the reasons therefor are also known by everybody. 

Fourteenth, the lack of transparency is evident in clause 36(2)(d) of the Development Planning Bill where the two members appointed by the Malta Environment Authority on the Planning Authority’s Executive Council are not permanent members and do not participate in all the meetings of the Executive Council. They are indeed second class members! That the new Planning Authority will sit in the Minister’s lap and its Executive Council members act as the Minister’s servile stooges is well evidenced by a number of provisions in the Development Planning Bill. Clause 38(2), for instance, requires them to exercise any of their functions after consulting with the Minister. As though this provision was not enough to have a subservient lackey Planning Authority, to rub it in that the Executive Council members are the Minister’s puppets, clause 41 then provides that ‘The Executive Council shall, out of its own motion, but after consultation with the Minister, or if so requested by the Minister, make a plan or a policy on any matter relating to development planning. (2) The Executive Council may also, either out of its own motion, but after consultation with the Minister, or if so requested by the Minister, review a plan or a policy which is already in force.’ The Executive Council enjoys no autonomy at all.

Fifteenth, certain core functions of MEPA which cater both for planning and the environment will be replicated, with substantial additional costs to government coffers, simply because of an ill-conceived demerger. Each authority will have its own CEO, administrative, professional and technical staff, enforcement section… I consider this unwarranted expense to constitute an extravagant dissipation of financial resources. Has the Government, seriously, costed the expenses by way of recurrent expenditure that this far-fetched electoral pledge will cost to government coffers?

Sixteenth, the office of Planning Mediator introduced in 2001 but never implemented by the Nationalist government, has been completely removed. With three lawyers in the EPRT and no technical experts, it makes more sense in the new regime to retain the office of Planning Mediator, which would cut down on appeals, reduce costs and expedite proceedings. 

Seventeenth, why does clause 4(3) of the Tribunal’s law state that in the absence of the chairperson, the deputy chairperson shall perform the functions of the chairperson? Does this mean that the Tribunal may invariably hold its sittings or decide appeals in the complete absence of the chairperson? This is quite an astonishing provision for a quasi-judicial tribunal. 

Eighteenth, it is of paramount importance that the members of the Planning Authority are appointed by a two-thirds resolution of the House of Representative. It should be made a criminal offence for any member of the executive and MP, to attempt to interfere in or influence the outcome of the development permission decision making process. Nineteenth. Environmental NGOs should be given an automatic right to appeal before the Tribunal from all decisions of the Planning Authority and the Malta Environment Authority without having to show juridical interest. They should not be requested to pay any appeal fee or to submit objections to a development project in order to appeal. If Environment NGOs are not empowered to keep in check the Planning Authority and the Malta Environment Authority who will? Moreover, environmental NGOs should be copied with all decisions taken by the said Authorities and any time period to appeal such decision should run in their regard from the day when the NGOs would have received the Authorities’ decision. The environmental NGOs should designate one person as the recipient of the said decisions. The minutes of both Authorities should be uploaded on their respective websites and all meetings of both Authorities should be held in public except when they are transacting confidential business as defined by law.

Twentieth. Why does the Environment Authority have ‘Malta’ in its title whilst the Planning Authority does not? Will the EA serve Malta’s interests but the PA will not? Would not Environment Protection Authority serve as a better designation? Or is the word ‘protection’ purposely being left out of the nomenclature?

In a new law to regulate development planning and the environment, I would have expected more emphasis on environment protection, more autonomy and independence from government, more transparency and accountability in the operation of that law, by far very much less government interference in the decision making process, more rights given to environmental NGOs who have the interest of the environment at their heart, and, overall, a more robust supervisory function to Parliament.

The three Bills in question do not meet this test and that is why I consider the current law, notwithstanding its manifold deficiencies, to be by far better than the proposed three Bills. 

Prof. Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta