Ombudsman’s inquiry that exposed planning duplicity in Ian Borg case

It was a plot of undeveloped land in the Santa Katerina hamlet of Rabat where the Malta Environment and Planning Authority had refused a permit to Kevin Bugeja to construct a new dwelling instead of an old farmhouse.

Fast forward one year, and that same land was acquired by the young parliamentary secretary, Ian Borg. But this time around, no reference to the refusal of Bugeja’s permit was made in the case officer’s report assessing Borg’s application to develop two dwellings on the same site.

Borg was in fact granted a permit, that should have been refused, because the local plan for small hamlets like these does not permit new developments that take up “fresh land, notwithstanding the location of the site in relation to existing buildings”.

The local plan also says MEPA must “seriously curtail the taking up of fresh land for buildings for the creation of new dwelling units, which increase densities and activity in the settlement”.

But it was the same case officer, Mariella Haber, who dealt with both Borg’s (approved) application and the (rejected) application on the same land by Bugeja the year earlier. Only that no mention of this part of the local plan policy was found in her report assessing Borg’s application, after having used it as ground to refuse a permit only a year before.

All it needed was a “simple cut and paste” exercise, the planning ombudsman David Pace noted in his own-initiative report into the Borg permit.

In the first application that was refused a permit, the take-up of “fresh land” was noted, while the case report for Borg’s application did not even refer to the undeveloped land still forming part of the application.

“The crux of the matter is that the definition of fresh land applied in the first permit which was not approved, was not applied in Borg’s permit,” the ombudsman noted, leading him to the conclusion that this omission was not down to human error but a “deliberate attempt to remove the one remaining obstacle blocking approval of the application”.

Case officer Haber has defended herself, insisting that while in the first case the undeveloped plot earmarked for construction was considered to be “back land”, in the second case it was considered as a “back yard”, the result of a reconfiguration of the site.

But the ombudsman has reiterated that the local plan simply bans the uptake of new land in rural hamlets “notwithstanding the location of the site in relation to existing buildings”.

A tale of two permits

Originally, in February 2013, MEPA turned down Kevin Bugeja’s application to redevelop part of the building occupying a footprint of 35 square metres, to make way for one dwelling over a floor space of 243 sq.m.

The development was turned down because of the impact on the rural landscape, the uptake of undeveloped land, and because the local plan ruled out any redevelopment on sites with a footprint of less than 50 sq.m.

What Borg did was to apply for two dwellings on a 95 sq.m. land parcel footprint, fulfilling the policy criteria limiting redevelopment to sites over 50 square metres.

The end result was that while the rejected application doubled the built-up footprint from 35 to 70 sq.m. to make way for one dwelling of 243 square metres over two storeys, Borg’s application increased the built-up footprint from the existing 95 sq.m. to 150 sq.m: meaning the application finally approved by MEPA involved the take-up of more land than the one it rejected in 2013, specifically a total floor space of 489 sq.m. that comprises a basement and two dwellings. The policy specifies that residential units replacing an old building in a hamlet should not be larger than 200 square meters. In this case the policy was interpreted to allow two residential units.

How Borg evaded scrutiny

Curiously, Borg’s application to “demolish existing substandard structures with no rural value and construct two residential dwellings” was filed by Renald Azzopardi, who was listed as the site manager on the site notice.

Azzopardi could have still applied on Borg’s behalf and declare that he was not the owner of the land in question. “It is strange that Borg chose a somewhat devious method to file the application when all he wanted was for third parties to apply on his behalf during the processing of the application,” the ombudsman said in the report.

The ombudsman concludes that the incorrect declaration of ownership on the application amounted to a “technical error”, but which on its own did not warrant a reassessment of the application.

Borg told the ombudsman that he asked Azzopardi to apply on his behalf because of his “heavy work schedule”. But now he gives the media another reason for his omission: that applying in his own name would have given the public the impression that the permit was issued because of his position in government.

“I am convinced that if I were to put the property on my name, you would be saying that the permit was issued because of that,” he told the media, somewhat reminiscent of the case of former PN president Victor Scerri (Bahrija) and former MP Jeffrey Pullicino Orlando (Mistra), both of whom were excoriated in the Labour media for not declaring their names in controversial developments under the Gonzi administration. Ironically Robert Musumeci, the government's advisor now defending Borg's actions, was heavily criticised by environmental NGOs for his role as architect in the redevelopement of Victor Scerri's farmhouse on a Natura 2000 site.

But by not declaring his name Borg avoided the extra degree of scrutiny which should be accorded to applications presented by office holders in a democratic society.

The property had been sold to him by its 17 owners – an elderly widow, her 14 surviving children and the two children of another daughter who has since died – back in May 2014, and his planning application was filed in June. An appeal against a refusal on part of the land was curiously withdrawn a few weeks before the new application was presented.

Heritage watchdog had objected

Since the local plan states that any replacement building had to enhance the rural character of the hamlet and have a high quality design, the case officer concluded that the proposed building was “comparable” to adjacent buildings.

But her opinion contrasted with that of the Natural Heritage Advisory Panel (NHAP), which objected to the development, noting that the small rural hamlet was being turned “into a modern apartment style settlement”. It deemed the development excessive in both mass and density, and in violation of the local plan.

In its reaction to the Ombudsman’s decision, MEPA invoked a 2010 permit issued in the same hamlet, claiming it was abiding by case law, a principle sanctioned by the law courts on various planning appeals. 

Environmental NGOs rebutting MEPA’s statement objected to this reasoning, saying bad decisions from the past should not be invoked to perpetuate wrongdoing. “If, as feared, the new MEPA demerger law that grants permits according to existing commitment is to be based on abusive cases, then planning is truly bankrupt, both morally and technically,” they said.

MEPA in fact failed to say that the permit cited as a precedent for Borg’s development, had been initially refused and then only granted on appeal, which is why the NHAP said that it would have recommended refusal had it been consulted at the appeals stage of this 2010 permit.

In fact, the permit was approved by the appeals tribunal for entirely different reasons than those approving Borg’s development: the derelict farmhouse on Borg’s land was not worthy of preservation, but in the case cited by MEPA the issue centred on the preservation of the existing building.

That’s why earlier in 2008, MEPA’s then ‘development control commission’ had refused Francis Falzon’s application, because it argued that the farmhouse should not be demolished. The refusal was overturned when the appeals tribunal concluded that the building was not worthy of being retained and could be demolished. By overturning the refusal, the appeals tribunal ended up approving a permit that probably breached planning policies, creating a nasty precedent for over-development in this rural hamlet.