The Malta Independent 18 June 2024, Tuesday
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Greenwashing

Mary Muscat Sunday, 26 March 2023, 08:52 Last update: about 2 years ago

The Santa Lucija judgement, delivered on 15 March, did not just overturn a badly concluded and short-sighted EPRT decision. It gave the power back to ignored residents and interested third parties based entirely on arguments of a legal nature.

It’s also an aspect of access to environmental justice, and hence of the Rule of Law, that is not highlighted enough.

It stated the obvious: that established Planning Authority guidelines, policies, the Local Plan, and the Strategic Plan for the Environment and Development (SPED), together with articles of the planning law (Cap 552) are there to be respected, upheld and implemented. The panel’s methodology and justifications were as skewed as skewed can be.

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And it took the Appeals Court to stonewall the abuse.

There have been several other occasions where people stood up to planning abuse but this judgement made it all the way to the Appeals Court when most cases don’t venture there for reasons such as finances, time, exposure, political consequences, or the feeling of being institutionally bullied.

Even the Kamra tal-Periti has acknowledged this landmark decision, welcoming the need to pull the brake on the downhill momentum of the speculative development trend that predominated the landscape for the past 17 years.

In my personal opinion, it confirmed the need to have an environmental court, as was promised in the Labour Manifesto of 2017 but conveniently removed from the 2022 electoral promises. Now you know why such court never materialised.

I have written at least another three times in this newspaper on the need of an environmental court in Malta and how a three-man panel cannot have the same legal clout. It just cannot do that. A properly structured court is presided by a magistrate or judge, with at least seven and twelve years of legal practice respectively, and who are proven to be impartial in matters of justice. Such a court cannot be replaced by a panel of two persons versed in planning and environmental matters, plus a lawyer with four years of practice. At best, the member of the judiciary can be assisted by planning and environmental connoisseurs, but not the other way round.  

And the panel is chosen by the Prime Minister. Tell that to the Venice Commission. In the meantime, the process of selecting a Magistrate and a Judge has been scrutinised, upgraded  and turned into a series of detailed checks and balances, and rightly so. Due diligence, as should be the standard. There’s a 45 page application that becomes like a mini thesis once completed, and it’s based on a series of personal statements on legal expertise, summary of cases one has presented in court, and cv-style questions that have to be answered in 500 or 1000 words. The applicant is required to attach relevant documents of court decrees, judgements, legal opinions, and any legal publications and lecture or presentation notes delivered. Then there are the bank statements, information regarding any loans on movables and immoveables, and a final sum of assets versus liabilities. That’s besides the interview, held by a board of judicial representatives.

But the EPRT as a tribunal can get away with so much less in terms of scrutiny. The relevant legislation, Cap. 551, simply states that the lawyer sitting in the Tribunal needs to have four years of legal practice. Any track record of expertise, especially that related to environmental and planning matters, is not even hinted at. Pure greenwashing.

And then there are the two members who are non-legal and need to be “well versed in development planning and environmental matters” according to article 4. That’s it. Remember:  they’re chosen by the Prime Minister. It’s amply clear that the selection and appointments have nothing to do with environmental justice, access to it, or the rule of law as much as with political motivation.

This judgement is as damning to the misuse of powers as it can ever be. It chose not to discuss any of the exceptions submitted beyond the first and the second, out of four, because it said that there were enough breaches of a legal nature that were enough for the court to reach its decision. Think about that.

There is no automatic right to develop a piece of land. I’m sure this judgment will have repercussions in other areas of the law, such as the rural leases cases where landowners are using the excuse of developing agricultural land and so terminating leases. 

I have also written about the short-sighted elderly home development application earmarked for Marsaxlokk and the even messier water management plan that the Mosta Local Council is proceeding with. How will this judgement reflect on these projects?

It has also highlighted the unsung risk taken by councillors, minority leaders and mayors in taking specific stands. Remember that next time you vote.

 

 

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