Nadur cemetery appeal turned down

MEPA's Environment and Planning Review Tribunal's decision turning down an appeal against a permit for the controversial Nadur cemetery stands, out as a text book lesson for developers facing an appeal by third parties.

The appeal has been turned down simply because in 2012 MEPA had approved an amended application on the same site and nobody had bothered to file an appeal against the second approval while the appeal against the original decision was still pending.

This meant that the original permit issued in 2007 had been superseded by the amended permit issued in 2011 in a way which precluded the Review Tribunal from annulling the first the permit.

The cemetery was opposed by farmers' in the area who deplored the contamination of the natural springs in the area. 

Evidence had been presented showing that spring water had turned milky white after construction works started.

This means that MEPA's Review Tribunal failed to address the merits of the case basing its decision on a procedural twist.

On March 15 the Planning Appeals Board has turned down an appeal presented by Nature Trust against the controversial approval of a cemetery approved by MEPA in 2006.

The reason given for turning down the appeal was because that an amended permit had superseded the original permit.

"The permit issued in May 2007 has been superseded by the permit issued in July 2012, which incorporates development on the entire site... as it included modifications and alterations."

The freshwater at Għajn Qasab provides the livelihood of these farmers cultivating approximately 5,000 citrus trees and vegetable patches below these springs.

In 2006, the Malta Environment and Planning Authority approved a 600 grave cemetery, at the very heart of the site despite objections by farmers who feared the contamination of these natural springs.

The permit, issued against all technical advice, saw the excavation with heavy machinery of the site above the springs, destroying historical techniques dating back to the knights, shattering bell-shaped wells that stored water, cutting off one of the valley springs and causing damage to the others.

In August 2008, when excavations commenced, the farmers requested a prohibitory injunction.

The court expert, whose expertise was contested by the farmers, stated that in his opinion "the construction of the cemetery will not have any detrimental effect on the quality or quantity of spring water that is used by farmers".

However, farmers' affidavits to Mepa testified to "considerable spring deviations, resulting in a two-third loss in spring water irrigation, loss of farmland dedicated to vegetable cultivation, the purchase of second-class bowser-delivered water, less citrus yields, and the shrivelling of numerous citrus trees".

This, they said, all adding up to a decline in their livelihoods. They also testified that during last year's rainy season dust and cement turned the spring water milky due to the savage excavations above the springs.

In March 2011 Mepa issued an enforcement notice as the developer abusively violated the permit conditions.

But subsequently the parish priest presented an amended application, which was approved in 2012.

A report presented by hydrologist Marco Cremona noted "the very evident deterioration" of the quality of the farmers' water sources after the commencement of excavation works to make way for the cemetery.

"There is no doubt in my mind that the contamination is linked to the excavation and construction works at the cemetery, not least because the site of the cemetery lies just upstream of the farmers' springs.

"Moreover, the fact that the contamination increases (to a level that even becomes visible to the untrained eye) immediately after a rain event also shows that there is a direct and immediate hydraulic connection between the site of the cemetery and the farmers' water supply," Cremona said.

The farmers appealed against the permit but the applicant continued with the excavations "at his own risk".

The decision taken by MEPA's Review Tribunal effectively puts an end to the saga ensuring that the cemetery will be developed.