The Office of the Ombudsman has found that Parliamentary Secretary Ian Borg employed a “devious method” of applying for a development permit for a property in Rabat when the development application listed his father and a project manager as the property’s owners instead of Dr Borg himself, who is the actual owner. 

The Ombudsman’s report also found that the Development Permit Application Report (DPAR) drawn up by a Malta Environment and Planning Authority case officer contained a “series of omissions and variation in the text” that “cannot be put down to human error but point to a deliberate attempt to remove the one remaining obstacle potentially blocking approval of the application”.

The report, seen by The Malta Independent on Sunday, also finds that with a dubious change to the classification of part of the plot being developed by the junior minister in Rabat’s picturesque Santa Katerina valley: “the Mepa removed the one possible reason – and a very strong one – for refusing the proposal, thereby facilitating its approval”.

The report highlights that in the DPAR for Dr Borg’s application, Mepa had omitted the fact that the development would entail the take-up of ‘fresh land’, while the authority had previously “fought tooth and nail” to refuse a development application by another individual in 2012 on the same plot because Mepa policies prevented the use of the very same ‘fresh land’.

The Ombudsman’s report also found that: “This grave error on the part of the Mepa should be sufficient to justify the review of the permit and reassess the application in the same manner as in PA 1637/12 [the permit application by another individual on the site that had been refused].”

Overall, the Office of the Ombudsman found that the complaint investigated, which was filed by a private citizen – that policies were incorrectly applied in the processing of Dr Borg’s development application – is “justified”, with the Ombudsman noting that, “The Mepa had just refused an application [PA 1637/12] on part of the site. One of the main reasons for the refusal was the taking up of fresh land which was not permitted in Category 3 settlements.”

“The Mepa then proceeded to process a similar request [that of Dr Borg filed two years later, in 2014 when serving as a junior minister] albeit on a larger site but which totally incorporated the site in PA 1637/12.”

Moreover, when listing out the site history in Dr Borg’s DPAR, the Ombudsman found that Mepa had made no reference whatsoever to the refusal of the previous application on account of the take-up of fresh land.

The Ombudsman notes in the report that in the DPAR for Dr Borg’s application, “No mention is made of the taking up of fresh land, which was flagged emphatically as the main breach of policy in PA 1673/12. A simple ‘cut and paste’ action would have included this reference.”

Nor was that plot even mentioned in the descriptive text of the DPAR on Dr Borg’s application. Instead, according to the report, “the site is invariably described as an existing building”.

The Ombudsman’s report, drawn up by Commissioner for Environment and Planning David Pace, was referred to at a press conference at the Office of the Ombudsman on Friday but few details were given. This newspaper has since got hold of the report, which the Office of the Ombudsman has now passed on to the Permanent Commission Against Corruption “for any action the Commission may deem fit to take with its ongoing investigation in this case”.

Borg’s ‘devious method’ in permit application

The report confirms that the development application for the property owned by Dr Borg contained a “technical error” in that the applicants – Dr Borg’s father and project manager – incorrectly stated that they were the property’s actual owners. The Ombudsman also finds that, “It is strange that Dr Borg chose a somewhat devious method to file the application when all he wanted was for third parties to act on his behalf.”

The matter relates to the fact that on the Mepa development application form, Dr Borg is not listed as the property’s owner.  Instead, Dr Borg’s father Louis and his project manager Renald Azzopardi are listed as the property’s owners. The report notes that Dr Borg had acquired the property by means of two deeds dated 13 January 2014 and 16 May 2014. 

When contacted by the Office of the Ombudsman to state whether he was aware that an application had been filed by a person who was not the owner, Dr Borg confirmed that he was the property’s owner.  According to the report, Dr Borg explained to the Office of the Ombudsman that because of his heavy work schedule, he had engaged Mr Azzopardi as a project manager to submit the application with the understanding that he was also responsible to follow up on correspondence with Mepa and to communicate with the architect responsible for the project.

According to the report, Dr Borg explained that he had been constrained to engage a third party because communications with Mepa usually carried deadlines that he would find difficult to respect given his heavy workload.

The report also notes that Dr Borg explained he had instructed Mr Azzopardi to notify his father, Louis Borg, “for the same reason, since his father was acting as his agent and he wanted him to be notified of any correspondence in his absence”.

Dr Borg also told the Ombudsman that he “could have asked his father to act as the owner within the parameters of the law, and that matters relating to ownership lie outside the remit of Mepa”.

The Ombudsman’s report goes on to list the multiple ways in which Dr Borg could have “attained his stated objectives by having both Mr Azzopardi and his father apply on his behalf, and indicate that they were not the owners of the property”.

The report adds, “As applicants they would have been kept in contact with the Mepa throughout the process and the permit would have been issued in their name on behalf of Dr Borg.”

As such, the Ombudsman found it “strange that Dr Borg chose a somewhat devious method to file the application when all he wanted was for third parties to act on his behalf during the processing of the application”.

 

Deliberate and grave error on the part of Mepa

The main issue, according to the Ombudsman’s report, centres on the dubious application of Mepa policies when Dr Borg’s permit was granted, “more so since an application submitted in 2012 by the previous owner had been refused, fuelling allegations that permit PA 2708/14 [that of Dr Borg] was therefore issued irregularly”.

In a comparison of the assessments carried out by Mepa on both applications – that which was refused and that which was granted – the Office of the Ombudsman notes that Dr Borg’s 2014 application had said that the previous 2012 application had been refused because “the relative building did not satisfy the minimum required footprint of 50 square metres” and because “it was also in conflict with Sanitary Laws and Regulations”. 

These requirements, coincidentally, do not apply to Dr Borg’s application.

But more importantly, the main aspect on which the 2012 application had been refused and which does apply to Dr Borg’s application had been omitted from the DPAR on Dr Borg’s application: the take-up of fresh land, which the Ombudsman identifies as the “core issue” at stake.

As the report explains, “No mention is made [in Dr Borg’s case] of the taking up of fresh land, which was flagged emphatically as the main breach of policy in PA 1673/12.  A simple ‘cut and paste’ action would have included this reference.”

The fact that this same plot of fresh land that both applications had proposed swallowing up had been used to deny the 2012 application but had been completely omitted by Mepa in Dr Borg’s 2014 application was called into serious question.

As the Ombudsman’s report details, “The Mepa fought tooth and nail to emphasise the classification of this plot [during the 2012 permit application process], including in the appeals procedures against this refusal.”

But in Dr Borg’s 2014 application, the Ombudsman notes, “the development proposal, the site description and the proposal discussion invariably mentions a building. There is no mention of this plot of ‘fresh land’, even though its area was incorporated into the footprint of the site.

“The crux of the matter is that the definition of ‘fresh land’ which was applied to PA 1673/12 was not applied to the same plot in PA 2708/14.

“Had this definition been applied, then PA 2708/14 [Dr Borg’s application] would have been refused since it included the taking up of fresh land.”

The report adds, “A direct comparison of both proposals shows that they are identical in both cases, the demolition of the existing building in a Category 3 settlement, and its replacement by a new development are being proposed. The open space in both cases is already surrounded on three sides by buildings, even if in PA 1637/12 the lower corner did not as yet form part of the development. Therefore the classification according to Policy NWRS 4 (North West Local Plan) should have been applied equally in both cases.

“By changing the qualification in PA 2708/14, the Mepa facilitated the approval of the proposal when it had strongly objected to identical development on the same site because this plot was classified as fresh land. There was no change in policy in the intervening period between the refusal of PA 1637/12 and the submission of PA 2708/14 which justified this change of classification.”

 

What’s next?

The report has now been handed over to the Permanent Commission Against Corruption for any action it may deem fit to take. Due to the fact that both the Office of the Ombudsman and the Permanent Commission Against Corruption were investigating similar complaints, meetings were held with the respective chairmen to coordinate progress and define the parameters of the respective investigations.

As a result, it was agreed that the Office of the Ombudsman would issue a report covering aspects of procedures and application of policy, while the Commission would investigate matters dealing with responsibility and shortcomings, if any, of the persons concerned.

PN leader calls on PM to take action

PN leader Simon Busuttil today referred to The Malta Independent "shocking" story on PS Ian Borg and called on the Prime Minister to take action and not simply do nothing about the situation. Dr Busuttil was speaking during a PN conference held this morning at the PN headquarters, where a number of "good governnance" proposals were unveiled by his party.

Mepa says it acted correctly

In a statement, the Malta Environment and Planning Authority (MEPA) said it is concerned that a report by the Commissioner for the Environment and Planning has been selectively leaked without MEPA's comments which show that there was no wrongdoing by the authority. 

The statement reads:  “MEPA will not issue the full report out of prudence. However some points need to be clear from the outset.

The application was in actual fact the correct and legitimate method to file such an application.

The adjacent permit that was approved in 2010 and issued in 2012 whereby the Environment and Planning Tribunal through PA 6928/05 approved an identical development.

The circumstances between PA 1637/12 and PA 2708/14 are indeed different and that these differences had a material bearing on the application. The Commissioner has conveniently not quoted PA 6928/05 as this is identical to PA 2708/14.

Through case law it has been established that if the issues are identical MEPA is obliged to take cognisance of the other permits that have been issued.  MEPA has in actual fact quoted a number of decisions of the Court of Appeal.  

There was no wrongdoing on the part of MEPA or any other party in the matter with regards to the planning application.”

 

 

 

Also see:

http://www.independent.com.mt/articles/2015-07-05/local-news/Two-weights-two-measures-Ian-Borg-granted-permit-as-similar-proposals-in-same-area-rejected-6736138357

and

http://www.independent.com.mt/articles/2015-07-19/local-news/Ian-Borg-s-Santa-Katerina-exploits-Family-incensed-as-PS-buys-land-from-mentally-ill-father-6736139117