The Malta Independent 1 October 2023, Sunday
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Environmental NGOs lose 14-year battle over 2006 building zones extension

Thursday, 22 July 2021, 20:44 Last update: about 3 years ago

A court has rejected a bid by four environmental NGOs and a number of landowners to challenge a decision exempting the release of large parcels of land for development, from a strategic environmental assessment.

Flimkien Għal Ambjent Aħjar, Friends of the Earth, the Ramblers Association and Graffitti together with a large number of landowners had filed the action for judicial review against the then Minister for Environment and Rural Affairs, the Planning Authority (MEPA at the time) and individual members of the audit team which took the decision.

The dispute concerns the 2006 partial revision of the Structure Plan, days after a three-member audit team chaired by the ministry’s permanent secretary Christopher Ciantar, and with lawyer Simone Borg and economist Jacques Sciberras as members, had concluded that the SEA was not feasible.

The NGOs told the court this exemption was in breach of the EU Strategic Environmental Assessment (SEA) Directive, making an environmental assessment mandatory in respect of any plans submitted to parliament after July 2004.

Under that law, in the case of plans originating before July 2004 but which were formally presented to parliament after July 21, 2006, Member States could decide on a case by case basis whether abiding by the SEA Directive was “feasible and inform the public of their decision.”
The applicants argued that the approval of the process in the absence of a SEA had to be annulled and no further development permits in the affected areas should be approved.

In a lengthy judgment handed down 14 years after the case was filed, Madam Justice Joanne Vella Cuschieri rejected the applicants’ case.

The court, however appealed to the authorities to use their good sense when judging development applications in areas of historical and environmental value.

Having seen the evidence, the judge ruled that there was no doubt that work on the local plans’ preparation had started well before 2006, technically stretching back to 1991.

Although the scheme was only referred to as a rationalisation process in the final stages of the local plan preparations, the court said it was not a stand-alone exercise and pointed out that the audit team had explained that no new requests had been added other than those originally submitted during the consultation process.

Observing that the groundwork had started long before July 2004 and had been at a very advanced stage by the time the SEA Directive came into effect, and seeing that the partial structure plan review was not in the strategic phase, the team had decided against the carrying out of an SEA.

In its judgment the court ruled that these considerations “were and are factually just.”

The applicants’ claim that the requests to MEPA and the review process had commenced just months before 2006 was not supported by the evidence, said the court, highlighting the fact that the volume of work entailed in such a process could not have been completed in a few months.

The audit team’s decision in favour of an exemption was legally justified, said the court, which said it was comforted by the European Commission’s decision in March 2010 in which it was held that the there was insufficient evidence to show that the local plan and the rationalisation were two distinct processes.

Former Environment Minister George Pullicino had testified at length in the proceedings, telling the court that “rationalisation was an ongoing process” and that the country could not rely on temporary schemes any longer.

A Cabinet memo setting criteria for inclusion of particular areas was issued after it was noted that thousands of applications to MEPA were being handled using varying criteria.

MEPA had received some 5,200 applications for inclusion in the local plans and the government of the day wanted to impose “one yardstick for each application, equally applicable to all,” Pullicino told the court.

The court also disagreed with the argument made by NGOs and other applicants to the effect that they lacked other legal avenues to challenge the rationalisation process.

The judge highlighted that each area released for development was subjected to a ‘planning control application’ that was open to objections and yet many of the parties in the case had not utlitised this means. The court said it could not make good for such a shortcoming on their part.

She said that releasing a zone for development did not automatically imply that requests for development would necessarily be approved, especially when the area involved agricultural land and archaeological sites.

The judge observed that requests for development had in fact been refused in areas of Mosta and Ta’ Brag at Mellieħa where objections had been raised.

In a closing barb, the court said that owners who truly had the environmental and historical value of such areas at heart, and “not merely the depreciation in value of their property,” should “make good use of legal tools to register their objections.”

The costs of the case were ordered to be borne by the plaintiffs.


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