After the divorce, planning unbound?

Before the 2013 election, Labour sold its proposal to split MEPA to the NGOs by giving the impression that setting-up a new Malta Environment Authority would no longer subordinate environment to MEPA’s emphasis on planning.

But NGOs today are concerned that the new set-up only further strengthens planning at the expense of the environment, with a balance of powers depends on the integrity and rectitude of those appointed by government to head the new authorities.

So what is at stake?  Government highlights the fact that the Environment Authority will be represented on both the new Planning Board which issues permits and  on the Executive Council which will make policies and run the Planning Authority.

But this is useless if Environmental officers and the authority's technical experts do not have the power to vet and scrutinize every single planning application. The strength of the present Environmental Protection Directorate was that of  nipping applications in the bud from the first day these are proposed.  Unfortunately for the past two years the Directorate was abondoned and left leaderless with MEPA Chairman Vince Cassar serving as acting director. Moreover the strength of EPD was always derived from the legitimacy of its technical experts and not from political appointees who might end up representing the new Authority in the planning boards.  The new law simply puts Environmental Authority at par to Malta Tourism Authority when it comes to consultation on applications. Having a couple of appointed board members does not redress this structural deficit. Although government has an electoral mandate to split mepa, one has to call a spade a spade, the divorce frees planning from the constrains of daily co-existence with environmental experts.

How the system will work

Planning policies will be drafted by an Executive Council, while the Planning Board will issue permits.

The Executive Council will also be responsible for the administration of the authority, institutionalising a strengthening of the CEO’s office after the appointment of Johann Buttigieg.

The new law also says that in the execution of its functions, “the Executive Council shall consult with the Minister.”

The Executive Council will be composed of an executive chairman, appointed by the government; the chairman and deputy chairman of the Planning Board who are also appointed by government; and two members versed in matters related to building construction, health and safety or building services who are also appointed by the government. It will also include two members appointed by the Malta Environment Authority. At first the intention was to limit their participation only to occasions when environmental policies are discussed.  But the government has now committed itself to change this to ensure permanent participation of the Environment Authority's representatives.

At present, policy-making is conducted by the MEPA board whose members are all appointed by government except for a member representing the Opposition. The board also includes a representative of NGOs chosen by government, ensuring that the opposition and NGOs have a limited say in policy-making.

But this will disappear with the passing of the new law.

Major planning permits will be issued by the Planning Board which will also include two MPs from government and Opposition, an NGO representative chosen by government from a list of people proposed by NGOs, a representative of the local council impacted by the proposed application, and one representative of the Malta Environment Authority.

This means that only one of 14 members of the new Planning Board will hail from the Malta Environment Authority.  But the Environment Authority will now have a right to appeal against decisions of the Planning Board in front of the newly set up Review Tribunal.

It remains to be seen whether the physical divorce between the planning and environment authority will result in more or less consultation between the planning and environment divisions. 

The greatest fear of environmentalists is that consultation with the Environment Authority will be relegated to that presently conducted with external bodies like the Malta Tourism Authority  and Transport Malta.

But while presently the Environment Protection Directorate is directly consulted on every application from the start to the end of the process, it is not clear whether this will be the case in the new planning structures, especially in view of the fact that the way permits are issued still has to be determined by a legal notice.

In fact the most radical planning reform, which would see most permits approved without a public hearing, is absent from the law and will be enacted through a legal notice.

The government has already declared its intention to introduce a fast-track procedure to apply for applications which fall within the development zone and are not located in the urban conservation area, which are deemed to comply with present policies.

A consultation document issued in April 2014 proposed a system in which the Planning Directorate will be preparing a recommendation to the Chairman of the Planning Board within two weeks from submission. 

If accepted, the application is validated and permission will be issued and advertised in the press within two weeks from decision by the Chairman.  Although limited to development within development zones, these applications may still have an environmental impact on matters like urban open spaces, air quality and transport issues.

Moreover it remains to be seen how the Environment Authority will scrutinise applications requiring the full planning procedure.

The risk is that while the new Environment Authority will have a right to appeal against decisions taken by the Planning Board in front of a review tribunal whose members are also chosen by government, it may lose its power to influence planning applications in their infancy.

Actually the law is lop sided in giving more power to the Environment authority in the final stage where it can appeal while weakening its power in the initial stages.