Updated | Court halts DB project: Planning permit revoked

The massive DB project at the former ITS site in St George's Bay has hit a major snag after the appeals court ruled today that the planning permit granted in September last year is null and void.

Judge Mark Chetcuti ruled that planning board member Matthew Pace had a conflict of interest because of his involevement in real estate when he voted on the project.

The court was deciding on an appeal filed by local councils and several environment groups against a decision by the Environment and Planning Review Tribunal that had ruled in favour of the permit.

"The court... revokes the tribunal's decision and considers the planning board's decision of 20 September 2018, in these cricumstances, to be null and void," Chetcuti ruled.

Pembroke residents protested against the DB project last year

This means that the PA decision to grant the DB Group a planning permit no longer holds and the PA will have to reconsider the case.

In her first reaction after the ruling, lawyer Claire Bonello, who was one of the lawyers filing the appeal on behalf of the local councils and several organisation, said this was a victory for all those who opposed the project.

The court said that Matthew Pace had a specific impediment, aimed at a particular project in which he had a monetary interest, “which if not actual was certainly potential and this in a realistic, not hypothetical way”.

Pace could not decide on a project in which he had such a potential interest in its approval. This led to a lack of “subjective impartiality” on Pace’s part, said the court.

The court said it was surprised at the way the tribunal had tackled the issue. "The project is an enormous one with enormous financial repercussions... [and] is treated so lightly by those who have the duty to avoid creating an obstacle to a just decision and perceptions of bias," Chetcuti ruled.

Lawyers Claire Bonello, Malcolm Mifsud, Cedric Mifsud and Ian Vella Galea appeared for the plaintiffs.

Background to the case

The lawsuit was made possible by a crowdfunding initiative last October, when over €26,000 were raised to cover legal expenses for actions against the project. This led to an appeal against the decision taken on 20 September by the Planning Board.

After three months of hearings, the planning appeals tribunal gave the go ahead for the DB Project but Transport Malta had to confirm within 30 days that the road network will cater for the additional traffic before a final compliance certificate is issued to the project.

The developer was also instructed to create an additional 270 square metres of public open space and reduce the height of the tower by 10m, and that of the hotel by 8m.

But the tribunal had turned down other objections by the appellants including that of an alleged conflict of interest of PA board member Matthew Pace.

Matthew Pace’s conflict

The appellants questioned the compatibility between financial services broker Matthew Pace’s interest as a co-owner in the Swieqi branch of property agents Remax, which was advertising apartments in the project.

They also questioned the overall suitability of Pace to serve on the board when he had a direct and clear interest in an activity, which may conflict with his position in a board that has quasi-judicial powers.

The activists argued that this should have disqualified him from serving on the planning board of which he has been a member since 2013.

But the tribunal dismissed these claims, arguing that “other members of the board had publicly expressed how they would be voting” – adding that it is these members who may have had a conflict of interest.

They also referred to “proof” submitted by Pace that advertising for the apartments was done by different estate agents. On the basis of this the Tribunal concluded that the fact “that Pace had an interest in one of these agencies did not put in doubt his impartiality or create a conflict of interest.”

It was here that the tribunal hinted that the argument that this member should not vote in such circumstances “can be extended to the NGO representative whose public agenda is always declared”.

It also extended the argument to party representatives arguing that the argument can be stretched to projects located in the districts they represent”.

The tribunal also noted that the law itself dictated that independent members of the board should be chosen for their knowledge and experience in various areas including commerce and industry, cultural heritage and participation in civil society organisations.

“If taken to an extreme the argument of the appellants would create a situation of permanent conflict of interests for everyone,” the tribunal had ruled.

After this decision, the Pembroke, St Julian’s and Swieqi councils, Moviment Graffitti, Flimkien għal Ambjent Aħjar, Din l-Art Ħelwa and Friends of the Earth Malta and nine residents filed an appeal in the law courts asking for a judicial review of the tribunal's decision.

It is this court decision that was decreed today.

The project

The €300 million City Centre project, which includes a 37-storey tower and 17-storey hotel, was approved in September 2018 despite an unprecedented 4,500 objections from the public, local councils and NGOs.

The project is earmarked on the site that used to house the former tourism school. Controversy surrounded the granting of the ITS public land to the DB Group in 2017 for a premium of €15 million spread over seven years.

The government would have also raked in €23.4 million from redeemed leases when the residential apartment are sold.

NGOs, local councils and residents react

Residents, NGOs and three Local Councils welcomed the positive news that the permit for the "abusive speculation" at St George's Bay by DB Group on the site of the former ITS building has been revoked by the Court of Appeal, in response to a legal challenge filed by them.

The Court of Appeal found that Planning Board member Matthew Pace was in a position of conflict of interest, with his real estate franchise selling parts of the development before the permit was even granted. This led to the Planning Board's decision of 20 September 2018 to be annulled, and the permit revoked.

In a joint statement, the NGOs said that "this has been a long case, from the first core group meetings with concerned residents, to the public meeting to discuss the way forward with the wider community, to the Planning Board meeting which had to change venue due to the unprecedented interest, and then on to the Environmental and Planning Review Tribunal, where we appealed the Planning Board's decision, and then to the Court of Appeal."

They thanked the people from all over Malta and Gozo who responded to their call for crowd funding.

"The residents of Pembroke who, with great courage, spoke truth to power, stood up and made their voice heard, are the real protagonists in this fight. When they saw their quality of life and health threatened, their prospects for a peaceful future buried alive, they did not back down, despite facing very discouraging odds. We also acknowledge the crucial contribution of the three Local Councils – Pembroke, St. Julian’s and Swieqi – that put aside partisan interests and fought for the wellbeing of their communities," they said.