Transport Malta consider resumption of shelved plans

Additional reporting by Tim Attard Montalto

The controversial TEN-T Xemxija bypass may soon become a reality, as predicted by the traffic impact assessment for the Gemxija development, a project by Kuwaiti developers Al Massaleh and Maltese contractors JPM Brothers (better known as the Montebello brothers).

The bypass project, co-funded by the EU, was shelved because of a clear conflict with sites of scientific and agricultural importance in Manikata and Mellieha. However, following this week's controversial approval of the Mistra Villa redevelopment, the Xemxija TEN-T road comprising the widening of the rural road at Ta' Pennellu, and the construction of a new tunnel from Xemxija to Mellieha could soon be resuscitated.

The project's approval signals yet another defeat for the environmental lobby and also indicates the political muscle in planning decisions, with a number of stakeholders seemingly being swayed by the economic case.

Construction developers JPM Brothers, who hold 42.4% of Gemxija Crown Limited, were donors for the political campaign of former finance minister Tonio Fenech: the same minister touted as having been asked to intervene in the difficult sale of one of their properties, the derelict Jerma Hotel in Marsaskala.

Din l-Art Helwa president Simone Mizzi has said: "When these big developments are granted, there is always a political decision behind them that facilitates matters. There was one in 2009 and there was one now, otherwise glossing over the country's laws blatantly as they have done with Mistra would not be allowed," Mizzi said.

Transport Malta revoked its objections to the development the 774-apartment project at the former Mistra Village site, because the impact on traffic flows in the often gridlocked Xemxija Hill will not be as bad as envisaged in the original plans which proposed the construction of 992 units.

The Xemxija bypass would have an enormous impact on the rural environment in the north of Malta, which also benefits from substantial EU funding. But the approval of the Mistra project makes the construction of the new bypass even more necessary.

Original plans show that the road would partly utilise an already established route starting from Triq Ghajn Tuffieha to Xemxija Road, to Mizieb across the Pwales Valley and close to the agricultural areas of Ta' Gannaru and l-Imbordin. It then connects to the 545m tunnel under the Xaghra ta' l-Ghansar ridge, and a small flyover bridge up to the existing Mellieha Road.

Transport Malta's U-turn

Despite clear warnings by Transport Malta in 2007 that the traffic situation is unsustainable, this week the MEPA case officer report recommended the approval of the project, even though the traffic situation at Xemxija Hill has not improved since the Malta Environment and Planning Authority issued an outline permit for the project.

The Opposition's representative on the MEPA board, Ryan Callus, clearly disagreed with Transport Malta's U-turn and in comments to MaltaToday, the MP said the Traffic Impact Statement clearly stated that the Xemxija Hill already experiences significant traffic problems and that the roundabout fails without the traffic from the proposal.

"This means that an additional load would only increase waiting times and traffic congestion. Even the Halcrow report, commissioned years ago, had stated that Xemxija Hill is already overloaded with traffic and cannot support an increase. For some reason, Transport Malta dropped its initial objections, which clearly contradict these two studies."

In 2007, in the Traffic Impact Statement (TIS) commissioned by Transport Malta, MEPA was warned, "any additional load, particularly by the scale of the project, would exacerbate the present traffic situation".

The report, carried out by an independent Traffic Impact Consultant, advised MEPA that traffic problems were already present at certain times of day and that these would persist with or without the re-development of Mistra Village.

However, while acknowledging that the development of a 15-floor mega development being proposed on the Xenia ridge in Mistra, TM chief James Piscopo said that "the proposed changes to the development would not result in any increase the traffic impact in the area compared with the original development proposal".

The new plans envisage six rectangular blocks to rise to a maximum of 12 floors from street level and 13 floors from the internal pedestrian level. The development will include 744 new units and a 1,800m2 retail area, which includes a supermarket.

In 2009, MEPA approved an outline permit for four boomerang blocks rising to 15 floors (992 units). The downscaling of the project is deemed to improve views from Selmun and Mistra valley, but is still expected to have a dramatic impact on the landscape.

Speaking to MaltaToday, Piscopo  explained that the MEPA case officer's report on the outline development application had concluded that the TIS report clearly indicated a problem which had been gathering momentum for years.

The report held that the link to Mellieha, the North and Gozo went through Xemxija Hill, "and the current flows are already indicative of the mounting pressures on this particular stretch of arterial road ... One may argue at this point that this would be sufficient reason to put on hold the Mistra Village Redevelopment until such time that there is a realistic time-frame for the new by-pass."

Piscopo also pointed out that the 2007 report made it clear that problems at Xemxija Hill will continue to exist and to increase in direct proportion "to the increase in the use of the private car as the preferred means of transport, regardless of the addition of 1,000 new residential units having access from this stretch of road".

The report had concluded that "in the absence of an alternative by-pass, in order to alleviate the strain on the existing transportation route, the draconian measure par excellence would be to halt all development in Xemxija and Mellieha altogether," and said that the Mistra Village redevelopment underlined the level of urgency with which the TEN-T Xemxija bypass needed to be tackled.

The TIS report had suggested that by granting the outline permit for the Mistra Village project "and indeed any permission for major or minor projects both in Xemxija and Mellieha, the TEN-T Xemxija bypass will definitely become a top priority on the national transportation agenda".

Piscopo added that following MEPA's decision to issue an Outline Development Permission, Transport Malta had issued its first 'No Objection' in December 2012, when he was still the Labour Party's CEO.

He said this decision was on the basis that the "extent of the development being proposed did not exceed that which had been originally approved in the Outline Development Permit".

Piscopo, who was appointed at the helm of TM following the March election, added that on 13 August 2013, the authority "confirmed its position of 'No objection' to the development application (as previously stated on 3 December 2012) on the grounds that the proposed changes to the development would not result in any increase the traffic impact in the area compared with the original development proposal".

"In fact, the proposed changes will result in a downscaling of the development which would also significantly reduce the traffic impact of the development in the roads in the surrounding area," he stressed.

However, when asked whether the new project will have an effect on the traffic flow between St Paul's Bay and Mellieha, Piscopo admitted that "this development, as with all major developments in Xemxija and Mellieha, will have an impact on traffic flows between St Paul's Bay and Mellieha".

Controversial plans for the area included a tunnel beneath Manikata and the surrounding virgin land and the widening of the road at Ghadira, Mellieha were shelved by the previous administrations following strong opposition to parts of the EU funded TEN-T network project.

He added that TM is examining all of the sections of the strategic TEN-T road network and focusing particularly on the missing links and traffic bottlenecks which have not yet been addressed, as part of a broader national transport strategy through the development of a national transport model, including the link between St Paul's Bay and Ta' Pinellu, Mellieha.

Asked whether he was advocating the revival of the shelved Manikata TEN-T tunnel project, Nationalist MP Ryan Callus said that following the approval of the Mistra re-development the completion of the Xemxija by-pass "is not only necessary but mandatory. There is no way this country can depend on a one-lane road to cross over to its northern region, even more so when this is brought to a bottleneck consisting of a roundabout situated at the entrance of a 700 unit development. This government has no option".

The Opposition MP who on Thursday presented a motion for the lowering of the 15-floor building during the MEPA hearing, said that he was surprised that his motion was voted down.

"The motion I put forward for the MEPA board members to consider included a downsizing of the project to make it respect better the current skyline and the current contours of the present buildings. It was a proposal aimed at safeguarding the viewpoints as seen from a number of locations. Now that the project will not be downsized, these viewpoints, particularly that seen from the Mistra road, will be negatively effected."

He said the Environment Impact Assessment consultants, who classified it as a major residual impact, confirmed this.

"Whilst I acknowledged the efforts made by the developers towards the downsizing of the project by 20%, this was clearly not sufficient to mitigate the impacts. Had my motion been accepted, the decision would have been deferred by 30 days, giving time for the developers to amend their plans. In that event, I am sure that we would today have a project which would be more respectful of its surroundings."

His motion was supported by Timothy Gambin, Victor Axiak, Alex Vella and Paul Apap Bologna, while the other nine members of the board, including the government's representative Joseph Sammut, voted against.

Asked why the opposition had proposed these changes after voting in favour of the outline permit five years ago, Callus said that all the members present for the hearing in June 2008 voted in favour.

"The vote on the outline permit is one based on principle. The outline permit gives a general guidance to a proposed development, but the final designs may defer due to other considerations undertaken throughout the process towards full development. In fact, the original proposal was scaled down by 20% to that as approved in the outline."

He explained that the outline permit gives certain rights to the applicant but by the time the project would reach a full development hearing, certain parameters on the ground might have changed throughout the process, which may take years.

"It is for this reason that outline permits were removed under the past administration's MEPA reform. It is worrying that this government is contemplating introducing them again," Callus said.

PN president refutes conflict of interest

Callus's motion was backed and discussed by the Opposition, and the MP said that the PN Parliamentary Group discussed the matter in detail. Callus noted that the PN's position was to present a motion for the downsizing of the project to respect the skyline and ease the traffic problem in the area brought about by the development.

However, the PN executive council president, Ann Fenech was present for the MEPA hearing representing the applicant, Gemxija Crown Limited, where she argued that the Kuwaiti-controlled group did everything according to law and complied with every condition of the outline permit.

Speaking to MaltaToday, Fenech said she did not feel there was a conflict of interest between her role within the party and as a legal representative of the developer.

Fenech explained that she had been representing the company since December 2010 and insisted that the MEPA decision was solely based on the law and not on any other subjective opinion, such as the aesthetic or design values.

She said the developer had done more than was required by the outline permit while pointing out that the permit is an "acquired right" and had the permit been withdrawn it would have exposed MEPA to damages. 

"The company had a legitimate right to be granted a permit after it carried out the changes required by the outline permit and I was there representing the company," Fenech said.

Asked whether she agreed with the motion presented by the PN representative, Ryan Callus, the party president, said that the MP is not a lawyer and was looking at the project from a different perspective.

"This had nothing to do with design which is completely subjective. The decision was about respecting the rule of law which has nothing to do with subjectivity."

The good, the bad and the ugly

The approval of the 774-apartment project on the former Mistra Village site, signalled another defeat for activists and residents who opposed the project, however environmentalists are hoping that the controversial decision will raise more awareness and lead to stricter regulations, and their application. The approval of the mega-project in Mistra also brings into question the political influence behind the decision taken by MEPA.

Din l-Art Helwa executive president Simone Mizzi said, "When these big developments are granted, there is always a political decision behind them that facilitates matters. There was one in 2009 and there was one now, otherwise glossing over the country's laws so blatantly as they have done with Mistra would not be allowed."

Yet, Mizzi has not given up on protecting the environment and insisted that the MEPA Board remains independent and free "to take these decisions as shown by the five very honourable board members that were led by their own sense of moral responsibility and code of ethics. I salute them and wish there were more men like them around".

Moreover, Mizzi said that DLH's opposition to the project was consistent with the stand the NGO had taken in 2008, when it had flagged irregular and incomplete proceedings in the outline permit granted in 2008.

The NGO holds that the approval of the outline development permit, granted in 2008, was done in the absence of important and relevant information and should be annulled.  

DLH invoked Article 77 of the Environment and Planning Act 2010 claiming irregular process and 'Error on the Face of a Record', a procedure permitted by the Environment and Planning Act. DLH has also requested David Pace, the Environment and Planning Commissioner at the National Ombudsman's Office to carry out an investigation into the process which the organisation maintains was incomplete, dubious and misleading.

During this week's MEPA hearing, the authority's chairman Vince Cassar announced that the board had declined a plea from DLH to revoke the outline permit in view of Article 77.

Former MEPA board member Philip Manduca on behalf of Din l-Art Helwa asked the chairman to reveal the reasons behind the rejection, however, Cassar stated he was not obliged to do so.

"Our request to the Environment and Planning Commission in the Office of the Ombudsman is still pending and we await his response.  His findings may cast more light onto whether Mr Cassar's decision that our request to invoke 77 was legally unjustifiable. Our legal advisors felt it was otherwise DLH would not have done it," Mizzi said.

However, Mizzi feels the effort has raised great awareness and the public is outraged. She insisted that by invoking Article 77, DLH "exposed the incomplete, misleading and irregular proceedings that led to the Outline Permit being granted in May 2009. It showed too, that it should not be just NGOs championing the Environment. We have a Ministry for the Environment to do that".

She drew a parallel with the controversy surrounding the vandalism of the Mnajdra Temples in 2001 when, after public indignation, the Cultural Heritage Act was born as a result.

Mizzi expressed hope that the Strategic Plan for Sustainable Development and the new Structure Plan will be fast tracked to show government does have intentions to protect the environment.

"So far from government we have only seen facilitation of a proliferation of construction. Where there are laws they have been flaunted, compounding the irregularities of the past, as seen in the Mistra case. Where there are building illegalities, they have been or will be condoned. Where there are no policies facilitating building, such as in the countryside, they are being created."

She added that a Style Guidance Board should be established to decide whether buildings are to be considered acceptable and fulfill Parliamentary Secretary Michael Farrugia's "wish that no more box like structures are built, a wish we also share most wholeheartedly".

The Mistra permit was based on the requirements of the Local Plan specifying that any departure from the Floor Area Ratio has to be justified by a building of high quality and top calibre design. 

"Who is there to judge this?" said Mizzi. "The MEPA Board had to take the responsibility that the new design does fulfill these criteria because we currently still do not have such a board despite the Kamra Tal Periti pushing for this for years."

In the name of economic growth...

Undoubtedly, the MEPA board and other protagonists in the decision making process, must have come under some kind of pressure to weigh up the environmental costs as opposed to the economic benefits of the Mistra redevelopment.

The Kuwaiti-Maltese company behind the development have gone to great lengths, and at a great cost, to satisfy the obligations set by the outline permit and a rejection would have dealt the company a massive financial blow.

Apart from the Transport Malta U-turn, the St Paul's Bay local council also seem to have had second thoughts on the project.

Originally, the council, then led by a PN majority, had objected to the application. However, the new Labour mayor Mario Salerno, who was seen at the MEPA office on Thursday, failed to show up when called upon to substantiate his council's objection.

Asked to explain his absence, Salerno told MaltaToday that nobody ever told him anything about this project and was absent because of other engagements.

He claimed that the project was followed from its inception by Oliver Mallia, a councillor and acting curator of the underground World War II flourmill at Mistra.

Salerno explained that Mallia attended all the meetings on this project, including Thursday's board meeting, where he remained for the whole session.

"The meeting at MEPA started almost one hour late and at three thirty I had a very important meeting with the fishermen at the ministry. I stayed at the MEPA board meeting till 4pm and I could not stay longer as I had to be elsewhere."

While explaining that Mallia informed him of the board decision at 5pm, Salerno said: "I can vouch that nobody ever told me anything about this project. In fact, I attended the board meeting because Mr Mallia had requested me to accompany him."