‘Amateurish and suspicious’ – former MEPA auditor on the resurrection of expired permits

A legal notice which gives developers the opportunity to renew expired permits issued between 2006 and 2008 has been described as an "amateurish" exercise by architect Joe Falzon - a former Auditor at the Malta Environment Planning Authority who repeatedly censured permits issued by the Authority under the previous administration.

"While I understand that the renewal procedure can be simplified to avoid unnecessary bureaucracy, the way this measure has been implemented is amateurish," Falzon told MaltaToday.

Through the new legal notice, developments approved seven years ago which however were never carried out during the next five years during which the permit was valid, can recommence immediately.

Presently, permits are only valid for five years, but the government is now extending the validity of permits issued after the publication of local plans in 2006 to 2014.  This means that permits issued between August 2006 and June 2008 have already expired. 

This means that prior to the issue of the legal notice, these permits were effectively dead as no renewal application can be presented after the expiry of the five-year shelf life of any permit issued by MEPA.

But the new legal notice states that permits, approved on or after 3 August, 2006, which have already expired or are due to expire in the next year, will remain "automatically" operative until 31 March, 2014.

Farrugia described the new legal notice as a "stopgap measure" until new regulations simplifying renewal procedures come into effect. He added that the legal notice is aimed at helping developers who were affected by the economic slowdown in recent years. He justifies the 2006 cut-off date as one coinciding with the coming in force of local plans.

But the former MEPA Auditor - who personally investigated numerous cases issued between 2006 and 2008 - is concerned because a number of these permits where approved in breach of local plans and other policies. 

Falzon is particularly concerned by the automatic renewal of permits issued on the eve of the 2008 general election, a period characterised by the issue of a record number of permits, which cast a dark shadow on MEPA's credibility. 

This was followed by increased vigilance against abusive permits in ODZs after the 2008 general elections as the re-elected PN government embarked on a MEPA reform which included the substitution of part-time boards composed of practicing architects and other professionals with full time commissions.

"I had the chance to investigate a number of permits issued in February 2008 and I found a number of irregularities including cases in which permits were granted despite being in breach of existing policies and local plans."  

According to Falzon, the Authority is now missing out on a golden opportunity to re-examine permits issued in that period. 

"Is this being done to accommodate someone in particular?" Falzon asked, insisting that the lack of transparency in this process is bound to raise doubts on the motive behind such a decision.

According to the government, there is a total of 265 development permits which have expired and for which developers have asked for renewal. These permits, which post-date the 2008 general elections, will get an automatic renewal.

But since the scheme applies to permits which have already expired - some of which date before the 2008 election - there could be more individuals interested in an extension but who have so far not asked for a renewal.

Falzon points out that what is being proposed is not a simplification of the planning procedure to renew permits but a way to resurrect permits, which are legally already extinct.

"We are talking about permits which are no longer valid as these have not been renewed before the expiry of their five-year shelf life. This means that MEPA would have reconsidered these permits from scratch with no obligation whatever to renew the expired permits."

Falzon's major concern is that there could well be a small number of permits issued abusively in the past - particularly in the 2006 to 2008 period before the MEPA reform - which were never carried out but which will be resurrected.

As things stand, existing regulations already make it is very difficult for MEPA not to renew a permit if an application for such a renewal is presented before the five-year period is over. In fact, according to Falzon more than 95% of these permits are automatically renewed.  

Resurrection of refused permits?

A question mark has now been raised on a small number of permits issued after 2006, which have already been denied a renewal by MEPA's decision-making boards.

In these cases the developer had applied for a renewal before the expiry of the five-year period, but subsequently was denied a renewal permit by the Environmental Planning Commission.

The government has confirmed that all permits issued after 2006 are valid, including the permits of owners who had their second application for a renewal turned down by MEPA.

"I can't see the reason why a permit issued after the local plan of August 2006 is or can be refused if it comes up for renewal during a period of time that the same plan is in place. In case such permits for renewal are refused, then something must be really going wrong," parliamentary secretary Michael Farrugia told MaltaToday when asked about this point.

AD deputy chairperson Carmel Cacopardo disagrees warning that "permits which have been subject to the 'normal' procedure for renewal but had the request denied by the Authority's boards will also be renewed," and that "such cases will now be reopened in full defiance of the rule of law".

Although it is extremely rare for MEPA not to issue a renewal for permits if this is submitted before the end of the permit's five-year shelf life, Cacopardo is personally aware of at least one case where an abusive permit issued after 2006 was not renewed by the Authority.

Cacopardo criticises the government for "opting for the law of the jungle" by introducing measures aimed at appeasing developers.

Joe Falzon is also dumbfounded by the application of the new legal notice to permits on which a decision has already been taken against their renewal.

"There must have been exceptional reasons for these permits not to be renewed and it makes no sense to change the goalposts for permits which have already been dismissed by MEPA."

No automatic renewal for ODZ permits

Despite his strong reservations on the recent changes, Falzon agrees with the simplification of procedures for the renewal of permits.

Falzon agrees with the government that bureaucracy in cases of developments located within development schemes and outside Urban Conservation Areas should be simplified through a permitting system similar to that used to approve minor developments through development notifications.

"It makes little sense to rewrite the same case officer report and to have board hearings on cases which are destined for approval."

But the former MEPA auditor insists that the full renewal procedure should remain mandatory for the renewal of permits outside development schemes or within urban conservation areas.

On this point, Falzon is on the same wavelength of the Malta Developers Association, which highlighted the differences between what it had proposed and what was effectively implemented by the new government.

"Among these differences, one would point out that the MDA had clearly excluded permits for sites outside the limits of development, known as ODZ, from the concession for automatic renewals," the Association said in a statement issued on Friday.

Not what we asked for - MDA

In fact, judging by the statement issued by the MDA, the government has gone far beyond what was expected and proposed by the association representing the construction lobby. 

The MDA had limited its request to the renewal of permits issued in the past five years and not to permits dating back to 2006.

The MDA said that although this decision would help several developers who were in doubt as to whether their permits were going to be renewed, there was a difference between it and the MDA's requests. "The MDA's request originated because of a particular situation: a number of developers possessed building permits when the commencement of works was contraindicated in the prevalent negative climate of the property market."

This meant these developers would have ended up starting works simply to avoid the risk of their permits not being renewed.

"The certainty that these permits would be renewed would avoid commencement of works on developments for which developers did not have the necessary resources and good prospects for sale. As a result, it was probable that these developments would not be completed, with the resulting negative impact on the area in which they are situated, as well as being a waste of the country's resources," they said.

With this in mind, MDA said it asked for a one-time concession on permits issued in the past five years (for development on which works had not yet commenced), to be automatically renewed.

"The announced decision does not fulfill all the objectives for which the MDA had made its request because of substantial differences between the MDA proposal and the authorities' decision that, it must be said, was made without any consultation with us," they said.

It's not just about bureaucracy

While seeing a case for simplifying bureaucratic procedures, Falzon warns that there is a sense of logic behind the idea of imposing a five-year shelf life to permits.

"This is aimed at encouraging developers to commence work rather than leave sites in a derelict state for years."

Falzon is also concerned about the impression being given by the government: namely, that the main problem MEPA faces is bureaucratic delays.

He claims that during his term in office he rarely received complaints about delays in issuing permits.

Falzon also points out that in a number of cases it is the developers who cause delays when they fail to submit their plans and other information requested by MEPA in time.

"The greatest amount of complaints I received dealt with third party rights and the inconvenience caused to people by rampant development."

Falzon singles out the latest decision to allow two more storeys on hotels in tourist areas, something that is bound to create more complaints from residents living next to hotels.

Falzon warns that the government should apply Louis XIV warning on appointments: "Every time I appoint someone to a vacant position, I make a hundred unhappy and one ungrateful." 

He applies this 18-century pearl of wisdom to planning, noting that every time the government takes decision to please someone in particular, it risks making a hundred residents unhappy and a couple of ungrateful developers.