Part of forfeited guarantee reinstated

WasteServ Limited obtained a planning permission for ‘the construction of an autoclave as an ancillary to the Marsa Thermal Treatment Facility (MTTF)’ following an application lodged with the then Malta Environment and Planning Authority (the MEPA) in 2011.

The proposal contemplated the introduction of a pre-treatment facility for animal tissue waste prior to it being incinerated. Eventually, the permission was issued after the MEPA found that the proposal was expected to improve operational efficiency and create a back-up facility for the treatment of animal tissue waste.

More so, the MEPA thought that the proposed treatment would be more efficient than thermal treatment. The facility occupies about four tumoli of land and is designed to treat approximately 11,224 tonnes of animal by-products each year. This permission was subject to a bank guarantee of €50,000 with a view to ensure that a construction management plan is submitted within six months once the permit is issued.

Subsequently, the applicant proceeded with the works without submitting a construction management plan. Consequently, the MEPA forfeited part of the guarantee to the amount of €25,000. 

In reaction, the applicant appealed the decision before the Environment and Planning Review Tribunal, insisting that the project in question was co-funded by the European Regional Development Fund ERDF 2007 to 2013, under which the funds would only be released on condition that the works are undertaken within the stipulated time frames.

The applicant explained that the project had to be executed within only 12 months, adding that ‘all the people involved were focused on the finalization of the design, construction and finishing of the project so that Malta will be able to disburse all the allocated funds related to the above mentioned project.’

Even so, the applicant contended that the late submission of the construction management plan ‘should not be considered as a disrespectful approach but a genuine oversight.’ Moreover, the applicant highlighted that the Planning Authority was in actual fact ‘fully aware of the progress of the works’ since a commencement notice was duly submitted and a concurrent request was made to establish the official alignment. Concluding, the applicant asked the Tribunal to reassess the entire situation in the light of the above circumstances.

In reply, the Authority maintained that it was correct to forfeit the bank guarantee since WasteServ was aware of its obligations arising from the permit conditions. The Authority pointed out to the Tribunal that the applicant had submitted the construction management plan seven months after the works were completed.

In its assessment, the Tribunal observed that the Construction Management Plan was indeed submitted after the works had been carried out. Having said that, the Tribunal held that the applicant had lodged a commencement notice. Notwithstanding the MEPA being aware that works had commenced, the applicant was not issued with a stop order.

Against this background, the Tribunal felt that the forfeited amount should be reduced to €10,000.

[email protected]

 Dr Musumeci is a perit and a Doctor of Laws with an interest in development planning law