This coming Thursday, the Mepa board is due to consider an application to construct 46 new apartments in an area that has been designated a protected ecological zone, objectors are claiming.

The area where the proposed development is to be built is beyond the Cavalieri Hotel next to the second of the Portomaso Marina’s three basins and on either side of the scheduled coastal entrenchment built by the Order of St John in 1761.

The objectors claim that the extension, even though a later change limited the height proposed, will negate the entire context of the wall, which was built as a defensive wall both against the sea and also against invaders. With this wall located in the middle of the development, the entire context will be lost.

The wall had already been controversially breached to create the marina and a recent application by Westin to construct a car park next to another section of the wall faced huge problems and conditions at Mepa prior to being allowed.

But even more seriously, the objectors point out that the original development permits for the Portomaso project included a condition that no extension or enlargement of the development would be permitted.

Mepa issued two outline development permits for the building work, in July 1995 and February 1996. The last condition in both permits stated: “No extensions/enlargements of this development, its individual elements or any related development within or outside the site will be permitted. Any proposals for the alterations to the approved plans will only be considered if they contribute to an improvement in the design and quality of the project and all such alterations will require the approval of the Planning Authority.”

When the full development permit was issued on 19 June 1996 and again on 17 February 1998 (with regard to Phase 2), the condition was made even more categorical: “No extensions or enlargements of this development, its individual elements or any related development will be permitted.”

However, the Development Planning Application Report (DPAR), which will be discussed on Thursday, glosses over and explains away this blanket condition and recommends approval by the board.

To begin with, the objectors say, the application should have been thrown out in the first instance due to the conditions imposed on the original Outline and Full Development Permits.

But instead of throwing the application out, the Planning Directorate sought guidance from the Local Planning Unit (LPU) and its interpretation of the developers’ proposals with respect to the local plan.

But the LPU reply stated clearly that “the intention of the original permits for the Portomaso development was to retain the area outside the wall as free from development”.

Through this reply, LPU showed that the Environmental Impact Assessment (EIA) carried out with the original permits had identified the area outside the wall as being an area of ecological importance. In fact, the quayside apartments proposed at that time were removed from the proposals when the DPAR made it a condition of the permits.

Subsequently, in permits PA1270/05 and PA 5448/95 (the outline development permits) and PA 5867/95 and PA 4854/96 (the full development permits), the approved plans show no development outside the wall (fuori le mura) and show, the objectors say, that the intention of the original permits was to retain the area outside the wall free from development.

Besides, the LPU interpretation of the 2006 local plan published after the Portomaso permits had been issued and the project constructed, stated that the only direct reference in the local plan relating to the development that can or cannot take place on the site is indicated on map PV2, which shows the entire site of the residential development as being built behind the wall. It also shows the area in front of the wall in a definite pink colour. LPU noted that the area marked pink was to “retain existing heights and density” and that “as densities are measurable in relation to a specific site, the logical interpretation of this proviso is that, therefore, for the whole site marked in pink there should not be any increase in development floor space over and above what exists at present because otherwise the density would be increased”.

LPU also noted that with reference to the original permits that proposed quay-side apartments outside the wall proposed in the original outline permit application PA 1270/95, the Planning Directorate had recommended in its DPAR that these apartments must be removed and the drawings amended accordingly. The DPAR stated that “these apartments are located adjacent to a proposed ecological zone and a potential level 2 AEI and SSI, with considerable potential for damage during construction and harmful effects following completion. These units will also provide an unacceptable visual impact in an area normally without development.”

LPU thus stated that in PA 1270/95 and all subsequent permits for Portomaso, no developments outside the wall had been approved. “These permits indicate that the intention of the original permits for the Portomaso development was to retain the area outside the wall as free from development… From a landscape and townscape point of view, it is desirable to leave the site undeveloped so that the existing coastal stretches remain open and green to the benefit of the public. In synthesis, therefore, we recommend that the site of PA 4096/08 remain undeveloped.”

In a meeting held on 8 October 2009, the Mepa Executive Committee had stated: “The conditions in the outline and the full development permits for the Portomaso project indicate that the aim of the deciding bodies has been to limit the development to no more than what was approved at the time.”

But after the applicant made some changes to the development proposals by reducing one floor on part of the development in an effort to seek a ‘no objection’ from the Cultural Heritage Advisory Committee (CHAC), the Planning Directorate again consulted LPU. This, the objectors say, is highly unusual as no changes had been made in the 2006 local plan relating to issues of density or other policies related to the site after the Planning Directorate’s earlier consultation with LPU.

Even here, LPU clearly restated its position: “The arguments posited in minute 145 are quite clear… It is agreed that there remain uncertainties in interpretation given that the relevant policies and their cross-reference to related graphics leave some interpretation latitude. If for a moment, the case history of the applications on the Portomaso site is left aside, interpretation of the actual policy can be construed in ways which may lead to conclusions different from those in minute 145.”

LPU then considered a number of questions that could lead to different interpretations but nevertheless concluded that “the relevant application falls in an area shaded in pink, is covered by policy NHPV 08 and has a note – to retain existing heights and densities. This statement leads to the conclusion arrived at in minute 145”.

But the Planning Directorate, strangely, say the objectors, proceeded to interpret the LPU advice as ‘uncertain’ and, notwithstanding the confirmation by the Executive Committee that the “development should be limited up to the wall and no more”, notwithstanding LPU’s reconfirmation of minute 145 that “in synthesis the site of PA 4096/08 should remain undeveloped, notwithstanding that all the original outline and full development permits for Portomaso had included a condition that “no further development or extensions will be allowed at Portomaso”, the Planning Directorate decided that:

‘the site in question is developable for residential use

‘the site in question is designated for residential and low impact uses

‘the site in question is within the Portomaso Complex which is earmarked as Residential Zone; and that

‘the issues and merits arise from the Updated EIA which was also subjected to public consultation.’

The Planning Directorate also sought legal advice on the original conditions.

This legal advice noted that in the Temporary Provisions Scheme [TPS] (1988), the site was designated as a white area. Following the EIA, which was carried out prior to the issue of development permits for Portomaso, the permits included the condition quoted at the beginning of this story. But the legal advice claimed the permits left the site without commitment and requiring further studies.

The legal advice interpreted this part of the condition “any proposals for alterations to the approved plans will only be considered if they contribute to an improvement in the design and quality of the project and all such alterations will require the approval of the Planning Authority” as having been intended to leave open all possibilities for all proposals to be considered by the authority.

The legal advice also pointed out that “the relevant permits were issued before the 2006 local plans which determined the site of the current application as a development zone”.

The objectors say it is unbelievable how the Planning Directorate had stopped here and did not thoroughly and properly check the conditions of the original permits. What it was quoting was only in the Outline Development Permit and it had failed to notice that the Full Development Conditions included an even more stringent condition that “no extension or enlargement of this development, its individual elements or any related development will be permitted”.

The DPAR report also refers to an objection by the Environmental Protection Department after the initial consultation. It also refers to a Natural Heritage Advisory Committee objection “that they could not recommend approval of this application since one of the conditions in the permit … had specified that this particular site should be conserved as an ecological enclave in line with the EIA”.

But the case officer then pointed out that “these referred to the architect’s initial submissions, whereby he was proposing three full floors. Following the downscaling of the proposal by the architect and a clarification meeting with the EPD, the requirements in order to be able to screen for requirement of an EIA update or otherwise were issued”.

The only change has been that while at first the entire ecological area was to be excavated and then covered with the lagoon and three floors of apartments, this was later amended so that the entire ecological area be excavated and then covered with the lagoon and two floors in part, and three floors in the rest.

Finally, PA 5867/95, the full development permit for the marina and the eco-zone site is being referred to with regard to claimed illegalities – the construction of boathouses when these were not included in the approved drawings. Applications with regard to these have been submitted but have never been approved.

Mepa’s practice is that the application cannot be approved until the illegality is removed or sanctioned.

This application has also received more than the usual share of objectors, including those from Flimkien għal Ambjent Aħjar, and various residents.

They point out, inter alia, that the Portomaso sales brochures given to purchasers of apartments did not show a development in this area.

“If approved, it (the original proposal) would involve nearly 100,000 cubic metres of rock excavation translating into about 8,300 truckloads of excavated rock out of the site – around 63 trucks a day for five days a week for six months and after that construction traffic for two and a half years – cranes, concrete ready-mixers, trucks loaded with bricks, massive trailers with steel reinforcement and so on.

“As residents, we do not need to suffer three years of smoke, fumes, dust, noise, trucks bullying us off our own neighbourhood roads and construction nuisance. We do not need to lose the important eco-heritage park envisioned in the original permits. We do not need to lose the bastion walls. We do not need to lose value on our apartments.”

A public consultation, at which many of these objections were aired, was held at the St Julian’s primary school on 12 October 2011.

Ironically, the case officer’s report itself refers to a site notice board declared the presence of important ecological species in the south Ecological Zone, the site earmarked for the proposed development.

The notice board had this text: “As part of the Hilton Site Development Project, the site within this wall is being sealed off for the protection of important ecological species during project construction and will be opened to the public… Any inconvenience is regretted.”