Enforcement: MEPA’s Cinderella?

Borg’s staff presently consists of 29 district planning enforcement officers which have to cover the whole national territory. Up until last week, only two of these are covering Gozo.  These have now been increased to four.

Until last April, these enforcement officers used to report to MEPA’s ‘Gozo office’ but these now report directly to the Enforcement Directorate.

Borg makes it clear that “the staff has to increase.”

He refers to comments describing the Environment Protection Directorate as the ‘Cinderella of the Authority’.

“Plans are already in place to increase the staff in the EPD by another 45… we hardly have that number of employees in all, including the secretaries and management. So that would make us more of a Cinderella.”

What led to the massive backlog of enforcements – some dating to the early and mid-1990s – was the “disjointed” approach to planning enforcement in MEPA during the past years. Borg refers to the lack of communication and synergy that used to exist between two branches responsible for enforcement.

“There was one big branch consisting of district enforcement officers responsible for issuing enforcement notices who had little tools to ensure compliance, other than the issue of Compliance Certificates that are necessary for the provision of water and electricity in new development. Then there was a second branch that consisted of a smaller group of “two or three” officers, who reported to different people, and who were responsible for taking direct action to ensure compliance.

So while enforcement officers continued to issue notices against any illegalities they found, the direct action team lacked the sufficient resources to ensure compliance.

“Enforcing compliance basically rested only on the direct action team, which consisted of just two or three people.” The deterrence effect was hence scant.

Borg’s aim is to shift the focus from simply issuing notices to ensuring compliance.

“The enforcement officer’s job is not that of issuing an enforcement notice but to have the illegality removed.”

Prior to the reform planning, enforcement fell under MEPA’s two directorates, the Planning and the Environment Directorates.

 “Until now, enforcement was part of something else and on certain occasions an after thought.” The creation of a separate directorate will guarantee more focus and should ensure that more resources are allocated to MEPA’s enforcement arm.

Although the first thing that comes to mind regarding enforcement are illegal buildings in the countryside – and there are a number of these too – most of the pending cases consist of minor infringements within urban areas.

According to Borg, around 60% of the 7,000 pending cases are located within development zones and a large chunk consists of minor infringements like having aluminum apertures instead of timber once. 30% of enforcements issued within building schemes comprise minor issues like alteration of facades or internal alterations. Even with regards to illegalities in the ODZ areas, most of these relate to illegal rooms used as stores or garages.

Borg wants to make sure that this backlog does not keep increasing.

As regards new enforcement cases, he wants these to be closed in a reasonable time.

And when it comes to old enforcements, he adopts a pragmatic approach, distinguishing between developments which can be actually removed and those which can’t.

“Should one spend a great amount of energy on trivial matters or things which cannot even be addressed and which happened some a good number of years ago?” he asks.

These would include, for instance, certain sanitary infringements. Borg adds that the enforcement notices issued on such cases only represent the tip of the iceberg because the abuse of sanitary regulations (particularly in the 1970s and 1980s) was “widespread” in localities like Bugibba and Qawra and only a fraction of these have been served with an enforcement notice.

MEPA is now considering a scheme through which certain infringements that cannot be realistically addressed are partially regularised, in a way that present owners can continue using them without worry but would have to abide to the rules in case the building is rebuilt.

There are other similar cases, apart from sanitary ones. For instance, another widespread illegality in many villages is that garages are roofed over 14 courses instead of 12, as was the trend in the ‘70s and ‘80s.

“This is illegal, but are we going to pull down entire buildings simply to lower two courses at the ground floor?”

MEPA is in the process of taking stock of its backlog and the major criteria will be what can be practically addressed and what can’t. But he makes it clear that MEPA will not be closing its eyes to past enforcements which can be addressed and removed.

One substantial change brought about by the MEPA reform is the imposition of daily fines. which can rise up to as much as €50 per day, which is more than €18,000 over a year. 

“The main disadvantage of the previous system was that people had the chance of enjoying their illegality for a number of years before we got to them. With the fines, even if we take long to get to you through direct action there will still be a daily fine accruing. So it will be in your interest to remove the illegality.”

One major difference brought about by these reforms is that people are already perceiving that it is better to remove illegalities themselves than wait to have them removed by MEPA, one of the reasons being that the Authority is giving forward notice of imminent direct action.

“For instance, recently we had a case of an entire ODZ house built over two floors which was taken down by the owner.”

Enforcement Officers are also focusing on ensuring compliance, rather than enforcement. For instance, in 2010 some 200 cases of illegal development were resolved by the district staff after the owners removed the illegalities even prior to the issue of an enforcement notice. “The enforcement officers spoke to the property owners and gave them chance to remove the illegalities.”

And of the 600 enforcements which were issued about 200 further cases were closed after the owners removed the illegality.

Another drawback before the reform was that people could apply to sanction illegal ODZ developments in such a way that the process dragged on for years, with people applying of reconsiderations and appeals. This has changed, as nobody is allowed to sanction substantial ODZ development as well as any illegality in special areas of conservation conducted after May 2008.

While MEPA is encouraging owners to remove the illegalities, direct actions are also on the increase, with 95 such actions carried out in 2009 – more than the amount carried out in the preceding three years together.

In 2010, the number was comparable but there was a very substantial rate of people removing the illegalities themselves after being advised of imminent direct action. There were various cases where direct action operations had to be aborted at the last minute after the Authority realised that the illegality was removed, in the nick of time, by its owner.

Would any sanctioning of boathouse villages send the wrong message on how serious MEPA is on planning enforcement?

Speaking from a purely planning perspective, he makes it clear that any development carried out after 1967 is illegal. This applies also to boathouses, including the major concentrations at Armier and St Thomas Bay.

“1967 is the official cut-off point. In both Armier and St Thomas Bay, there are about a 100 cases which are pre-1967.”

But he also recognises that some “political commitment” seemed to had been taken to introduce schemes to reconsider developments carried out before MEPA was founded in 1992.

“In St Thomas Bay, this would cover nearly all the boathouses. In Armier, there will still be 100 to 150 cases which took place after 1992.”

In this case, he reiterates MEPA Chairman Austin Walker’s view that a “political direction” is required to resolve this issue.

But as demonstrated by a MEPA enforcement action against a boathouse in an open area near the Golden Sands hotel, Armier remains under MEPA’s lens. “While we are still waiting for political action with regards to the old boathouses, no further infringements will be tolerated by MEPA.”

MEPA’s backlog also includes enforcement orders issued against the government’s departments.

In one case, the government’s Cleansing Services Department ignored two enforcement orders issued by MEPA against its illegally developed stores and offices in Corradino.

“Rather than embarrassing for us, the situation is embarrassing for who committed the illegality. Obviously, when a government department is involved, we try to ask them to stop but we expect them to remove it themselves… Legally, we can remove it but it would be preferable if they remove it themselves.”

MEPA gets more than 2,000 reports on planning infringement each year.

“Although we only have 31 people working here… the people out there are our eyes. We are not everywhere and this helps a lot…. NGOs are also helping us a lot.”

What does not help is when reports are filed about illegalities dating back to the ‘80s and ‘70s by people who simply have an axe to grind with a neighbour.”

Borg has been employed with the Authority for the last 18 years, having occupied the role of manager within the development services and enforcement unit in recent years.