According to a recent report in The Malta Independent on Sunday, the Office of the Ombudsman concluded that a permit issued on a site owned by Parliamentary Secretary Ian Borg is surrounded by a "series of omissions". The Commissioner found that "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'. Following the publication of the story, the Leader of the Opposition described the situation as "shocking" and suggested that he should resign.
For certain, the Ombudsman's report is correct on two counts. In the first place, a planning application was indeed submitted with regard to part of the same site back in 2012 and eventually refused. However, note that the 2012 application relates to part of the site featuring a smaller existing building than the one shown in Borg's application. Secondly, it is true that the application under dispute entails the "roofing" of a small walled open space. Having said that, the rest of the report appears to contain a series of omissions which, to say the least, warrant an explanation.
First, the Ombudsman failed to pinpoint that Borg's application carries different planning merits. Why is that? As I said, the 2012 application concerned the redevelopment of an existing building having an external footprint of approximately 40 square metres whereas in the case of Borg's application, the existing building features a larger footprint equivalent to circa 100 square metres. Why is this so relevant? According to current planning policies, specifically policy NWRS3 of the North West Local Plan, only those buildings having an area of at least 50 square metres may be considered for the purpose of redevelopment. It follows that the 2012 application was thus excluded a priori from further assessment since the area of the existing building totalled 40 square metres, whereas in Borg's case, the building satisfied the 50 square metres criterion since the relative site boundaries were increased. Why did the Commissioner make no reference to the fact that the 2012 application did not satisfy the 50 square metre rule? Why did the Commissioner omit such an important point, giving the impression that Borg received unequal treatment?
Secondly, the Ombudsman, for some odd reason, ignored the fact that the Planning Appeals Board issued a permit for a development on three floors on an adjacent site, which permit bears reference PA 6928/05. Consequently, Borg's development would visually seal the resulting blank party walls. Such a consideration constitutes a "material consideration" at law. Why was no mention made to this effect in the Commissioner's report? Are decision organs still legally bound to have regard to "material considerations" in terms of Article 69 of the Mepa Act?
Thirdly, the Ombudsman asserts that Borg's application constitutes a new development and hence not entitled to occupy uncommitted land, despite the Planning Appeals Board having given a different policy interpretation with respect to the adjacent site. In contrast, Mepa asserted that Borg's proposal is tantamount to "redevelopment" since it entails the replacement of an existing structure. Ultimately, the role of Mepa's decision-making bodies is to interpret policies and their decisions are subject to an appeal. What is so improper in having the Ombudsman and the Mepa or the Appeals Board sharing contrasting views?
Sure enough, the Environment Commissioner, an architect himself, was in private practice until a couple of years ago like me. Undoubtedly, he is aware that decision assessments are conditioned by policy interpretation. By way of example, a quick search in my archives (which lists all approved planning applications by type since 1994) revealed that on 24th November 2004, the then Planning Appeals Board approved an application bearing reference PA 931/01 consisting of "an extension to a residence to form a garage" in the Outside Development Zone of Ghaxaq, despite having been refused by the Mepa at first instance on grounds of policy. In fact, the appealed decision indicated inter alia that the proposal violated ODZ policies, specifically Structure Plan policies SET 11, SET 12 and Par. 7.6 of the Structure Plan, which in turn provided that garage development in ODZ was not considered acceptable on 'fresh land'. My records also show that the architect fought "tooth and nail" before the Planning Appeals Board and, thanks to him, his client was eventually awarded the permit even though the proposal occupied 'fresh land'. Rightly so, the Planning Appeals Board held that the design was tantamount to an end of scheme solution and ordered the Mepa to issue the permit on "fresh land". Anything wrong with that? Absolutely not! In Borg's case the design is tantamount to an "infill" solution rather than an "end of development solution", but both considerations are "materially" sound in terms of planning law.
Incidentally, the architect entrusted with the mentioned Ghaxaq application happened to be the author of Borg's "damning" report. But that I guess is a mere coincidence.
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Mr Musumeci is an architect and a government consultant on planning procedures