Six takeaways from the DB court judgment

It was a strongly-worded judgment that revoked the permit for the DB high rise project in Pembroke.

But Mr Justice Mark Chetcuti not only reprimanded planning board member Mathew Pace for not recusing himself, he also rapped the Environment and Planning Review Tribunal for being “complacent”.

The ruling also casts a shadow on whether the application can be considered again by the same planning board which approved it last year.

These are the six salient points that emerge from this judgment.

1. Matthew Pace had a conflict of interest because he stood to gain financially from the project.

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 projects.

In the original appeal before the Environment and Planning Review Tribunal, Pace was exonerated. The tribunal noted that advertising 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”.

Mr Justice Mark Chetcuti disagreed insisting that Matthew Pace’s conflict of interest transpired from his potential financial interest in the success of the DB project.

This is because together with his partners in Remax he  stood to gain from commissions from the sale of a part of the development, which the firm had advertised.

The judgment directly refers to the testimony of Remax Director Michael Bonello who said that any agent who sells a property included in the agency’s data base is entitled to a commission even if he was not directly involved in its advertising.

Irrespective of how small this interest was in comparison to the size of the project, “the public perception is that his personal interest conditioned his vote” and in the eyes of the public he appeared biased due to the simple association made between his vote and the sale of apartments in the same project.

In this way he was not fulfilling the expectation of “neutrality” expected from him in his role as a board member. 

2. Pace’s involvement in real estate does not automatically preclude him from serving on the planning board.

The appellants questioned the overall suitability of Pace to serve on the board when he has as a direct and clear interest in an activity which may conflict with his position in a board that has quasi-judicial powers, arguing that this should have disqualified him from serving on the board of which he has been a member since 2013. 

In his judgment, Mr Justice Chetcuti disagreed that Pace was precluded from serving as a board member because of his involvement in the real estate sector.

The judge insisted that Matthew Pace was precluded from participating in a vote on a project in which he had a pecuniary interest.

3. Board members should not express themselves on projects before voting.

In exonerating Pace, the review tribunal had noted that everyone was aware of the controversial nature of the project and that individual board members had opinions on it.

Moreover, it argued that the board was composed “of persons whose partiality is declared” to the extent that they represent different sectors. 

In its judgment, the court made it clear that Pace’s conflict had nothing to do with the opinions expressed by other board members. Not only did Pace never express himself on the project before the board meeting but his conflict resulted from his financial interest in Remax.

But the court was also clear in saying that “any declaration made by board members on how they will be voting casts a dark shadow on the impartiality and seriousness expected of PA board members”.

The judgment states that whenever board members express an opinion on the project they should “recuse” themselves from voting.  

The judge also clarified that the ban on board members expressing themselves before voting does not preclude them from presenting arguments and asking questions before voting.

4. NGO, party and sectoral representatives have no conflict if the groups they represent pronounce themselves on a project.

In its decision the tribunal had tried to turn the tables on the NGO representatives, arguing that “other members of the board had publicly expressed how they would be voting”. It added that it is these members who may have had a conflict of interest. The tribunal rebutted the appellants’ argument that Pace should not serve in the board arguing that this argument “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”.  

But in his sentence the judge made it clear that while individual board members are precluded from declaring how they will be voting, the organisations they represent are not precluded from doing so.

“The entities nominating board members are free to express themselves but the board member should always act independently” and decide on the merits of the case.

In rebutting the tribunal’s argument, the judge insisted that the composition of the PA, including the representative of environmental NGOs, is meant to ensure that a project is investigated from different angles.  

5. The Judge has reprimanded the Environment and Planning Tribunal for “complacency” towards “lack of impartiality”.

Not only does the court judgment describe the tribunal’s decision to exonerate Pace as “ill thought” and “hasty” but it also describes it as one contributing to “a perception of complacency towards the lack of impartiality on the PA board”.

The judge also expressed surprise 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”. 

6. All PA board members are invited to reconsider their position on the basis of this judgment.

The judgment proposes itself as “a guide to PA members on the basis of which they consider whether their position is tenable” in any future vote on the same project.

He also asks them to take in consideration the fact that they have already expressed themselves on the project when the project is brought back for a board decision. 

In his sentence the judge does not directly call on board members to recuse themselves in view of the fact that they have already voted on it.

But by inviting board members to consider their tenability in view of their previous vote, the sentence may make it difficult for the present board to reconsider the application without risking more legal litigation in the future.