The latest public consultation document on planning law is a meaningless exercise for it does not really address the crux of the problem. It continues to be an exercise in patchwork. There is no real in-depth thought behind this consultation. Hence, it is not the purpose of this contribution to waste reader's time by discussing a futile cosmetic consultation.
Why can't government get it right each time it comes up with a public consultation exercise or a Bill to amend development planning legislation? Why does the government continue to persist in the uglification of Malta and in ruining the Maltese environment? Is it so hard to come up with a proposal that places the interests of the common good of society and the environment first and foremost before the interests of soulless land speculators who are animated only by greed and the destruction of the little environment that remains, and morally corrupt politicians who go out of their way to support and appease developers at all costs, including through unplanned over-development and the destruction of the environment? It seems that the government is not interested to enact a law that suits the public interest but one that makes richer the filthy rich. That appears to be the modern and progressive definition of socialism, a definition that goes beyond my dictionary explanation. Perhaps it is time for me to throw away my Concise Oxford English Dictionary that is no longer serving its purpose!
This article therefore proposes a Planning Authority manifesto for change that should replace government's consultation document.
What should go in a new planning law? To answer this question first a brief survey on the functioning of the Planning Authority is essential. The Planning Authority, when it was established in 1992, did a very good job from a planning (as opposed to permitting) point of view. Development planning was placed on a pedestal, and kept detached from the influence of environment destructive governments. A structure plan was developed and so were local plans and development briefs.
But with the passage of time, with subsequent sustained ministerial interference in the workings of the Permitting Authority by both political parties in government, the appointment of PA chairs and CEOs whose mission was not to uphold the law but to serve the minister who appointed them, and with the change in planning policies to accommodate private interests over the public interest, whether it be in development permission applications or - worse still - in planning control applications - the planning function lost completely its importance and the permitting function assumed full control of, and captured, the Planning Authority. All of a sudden, the Planning Authority became a tool for the destruction of the environment, not for its protection, and this was a fairly easy job because the Environment Protection Authority was not given any veto power on development permission applications that were and are destructive of the environment and the minister responsible for the environment was and continues to be completely conspicuous by her absence in environment protection, or should I say destruction?
In practice, though not in name, the Planning Authority became a Permitting Authority. Today it is more correct to rename it as a 'Permitting Authority' or, to call a spade a spade, the 'Environment Destruction Authority' than a Planning Authority as the planning function has been lost by the wayside. Planning has become subservient to permitting, not the other way round, as originally conceived. This has brought with it a deterioration of standards. Planning is carried out for the common good; permitting is carried out for the individual good. When the latter captures the reigns of the Permitting Authority, then the public interest is the first to suffer and only a few individuals are allowed to pocket the profit. That is why people are complaining of noise pollution, air pollution, over-development, development outside the development zone, incessant works, cranes galore, dust all over the place, inconvenience of all sorts caused by the building industry, etc. So the first measure that has to be implemented is to reprioritise planning over permitting.
Second, as the outside development zone has been reduced to a zone where all possible excuses are conjured up by case officers and the Permitting Authority so that any form of prohibited development can be built there, the law should provide that no development of whatever size and type can take place outside the development zone unless it is approved by a popular referendum. Today, through recourse to information technology, it is easier to organise a referendum without having to spent a million euros or so that is spent in the traditional way of how referenda have been held so far. It should be made a criminal act punishable by at least twelve years of imprisonment for any Permitting Authority officer to authorise development outside the development zone. For a penalty to serve as a deterrent, it should be harsh not like the ludicrous twenty euro fine that is imposed for on the spot fines.
Third, the Permitting Authority needs to start enforcing uninterruptedly the law, something that it has consistently failed to do over the last 34 years. As a matter of fact, the Permitting Authority has two records to boast of: first, it continues to pile up enforcement action without enforcing the law; second, all its permitting function tends to be more pro-development rather than pro-environment. As to the first point one asks: How many pending enforcement actions are there? Five thousand, six thousand? More? Once a year the Permitting Authority organises a big publicity stunt when it demolishes some insignificant illegal structure to give the false impression that it is enforcing the law but during the other 364 days of the year it works with the abusers to fine them and issue them with a permit for the illegality and total disrespect of the law they would have occasioned. Misrule of law at its best whilst condoning illegality! It appears that in recent years the Permitting Authority has given up on this publicity stunt as it has found out that it works out better for it to change policies to accommodate the illegal development and thereby pocket the fines paid to it! The Permitting Authority, on a regular basis, issues amnesties for illegal development that can be regularised through the payment of a fine to itself. Is there here not a conflict of interest? The Authority, therefore, directly benefits from illegality and has no incentive to take direct action as this will prejudice its own money making and self-enrichment process. What an immoral and contorted way of reasoning things out! One therefore understands why there is no rule of law at the Permitting Authority. To obey the law constitutes an unacceptable cost to the Authority. To permit disobedience of the law is a way how to profit financially from illegality whilst appeasing developers and its political masters who continually sustain developers rather than resident associations, environmental NGOs, and local councils.
Fourth, the law needs to be strengthened to ensure that enforcement takes top priority over permitting. No permit of whatever type should ever be issued to sanction an illegal structure or change of use until that structure or use has first been demolished or reverted to the original use. This is because once the Permitting Authority is faced with a fait accompli it finds it difficult not to sanction the illegality. It is a Hobson's choice. Furthermore, the Permitting Authority has a vested interest to sanction the illegality because the proceeds of the fine do not reach government coffers but are retained by it to be spent for its own exclusive use and not necessarily in the public interest as when monies are deposited in government coffers. The Permitting Authority has made a lucrative business out of this immoral sanctioning procedure. The motto that it applies is that if you cannot beat them, join them!
Fifth, conflicts of interest need to be taken seriously. You cannot have a chair of what is supposed, at least on paper, to be an independent body from the Permitting Authority, to be an employee of the same Permitting Authority who - as an employee of that Authority - has to reassess the decisions taken by his or her own boss. What independence is this? It is a situation of complete dependence intended to ensure that no Permitting Authority decision changes. It is a parody of justice, if justice means anything to government and to the Permitting Authority. Imagine, in a court scenario, if the Judge was an employee of one of the parties to a court case. All hell would break loose and that is what should happen. So as to deter conflicts of interest, the law should list in an exhaustive way all forms of conflicts of interest and whoever is found by the courts to have been guilty of a conflict of interest should be imprisoned for a term not less than twelve years. Such penalty would be completely justified once a list of conflicts of interest is published in a law and nobody would thereby be in a position to claim ignorance of the law. Further, all employees and officers of the Permitting Authority should be requested to sign a declaration that they are conversant with the lists of instances of conflicts of interest. We should not allow corrupt persons to continue raping the environment. Our politicians are so much mired in corruption that when they see it, they do not even recognise it!
Sixth, the Auditor General should be tasked to report on an annual basis to the House of Representatives, Attorney General, Commissioner of Police, FIAU, and GRECO (the Council of Europe Group of States Against Corruption), on all the personal assets of all persons involved in decision making at the Permitting Authority and other employees who, though not decision makers, can influence such decisions such as case officers. The FIAU should carry out regular inquiries as to wealth acquired by these persons that is not salary related and if such persons are caught red handed of abuse of office, they should be prosecuted and punished by a term of imprisonment of not less than twelve years.
Seventh, all decision makers in the Permitting Authority should be appointed by the House of Representatives. Their curriculum vitae should be published on the website of the House and before a public hearing takes place any person - including local councils, resident associations and environmental organisations - will have the right to submit written objections to the Speaker. When a decision is taken, the Public Appointments Committee will have to draw up and publish a report to state why it has not taken on board any objection received, should this be the case. It should be within the competence of any person to request judicial review of that decision to ensure that it is above board and not influenced by extraneous considerations or abuse of power.
Eighth, local councils need to have a power to veto any proposed development that is not in the interests of the community. As things stand today, local councils, residents organisations, and NGOs have no say at all in the permitting process. This must change. Residents' interests should be prioritised over developers' interests. The common good must prevail over the individual good. Currently, the situation is the obverse. Further, should councils, organisations, and associations appeal any Permitting Authority decision, they should be exempted of all appeal fees payable before the Environment Planning and Review Tribunal and the Courts of Justice, and each time they win an appeal the Permitting Authority will have to pay, by way of moral damages, a sum of ten thousand euro to the winning council, organisation, or association for the inconvenience caused to them. The Permitting Authority can then levy the said sum personally from the officers who would have taken the wrong decision. This measure introduces an indispensable element of accountability much lacking today. The membership of the decision-making permitting bodies should have at least 40% thereof made up of resident organisations and NGOs. These are more nearer the citizen and can therefore represent better the interests of citizens. There should be no architects and developers or their family members or partners or their employees who sit on any permitting body due to their conflict of interest. The remaining 60% membership should be made up of planners for they are the experts in the field of development planning nominated by the organisation that represents them.
Ninth, so as to ensure that Development Notification Orders and other approvals that are used as an escape route to bypass citizen consultation and participation in the permitting process that today are not decided by the decision-making body of the Permitting Authority, all these permissions, once approved, must be published to allow for a one-month period for objection thereto. If no objection is received then after the expiry of one month from the date of approval, the permission will be issued. If an objection is received, no permission is issued until the decision-making body decides the matter following adequate public consultation.
Tenth, it is important to dissolve the Environment and Planning Review Tribunal (EPRT) that has been mired with conflicts of interest and, instead, allow appeals from the Permitting Authority to be lodged to the Administrative Review Tribunal that guarantees more independence once it is presided by a sitting magistrate. This will ensure that the standards used by this administrative tribunal are upgraded to a judicial standard based on fairness, impartiality, and independence that are constitutionally guaranteed through the presiding magistrate. It will also ensure respect for the rule of law, and political or other forms of interference are eliminated whilst conflicts of interest that plague the whole planning system abolished. That is why government's consultation document that proposes changes to the EPRT is both patchwork and regressive.
Eleventh, it is also imperative that Cabinet does not involve itself in permitting decision making. Hence the provision that was introduced in 2001 by a Nationalist government needs to be repealed (the call-in procedure). Planning decisions should be taken by experts in the field - planners - not by politicians or their lackeys.
Of course, this complete overhaul of planning law is indispensable. It is needed to disempower morally corrupt politicians and morally corrupt public officers from the decision-making process who place individual good over the common good. The government will criticise this manifesto and one cannot expect otherwise when it has a finger in the pie of environmental destruction. But then what do you expect from politicians who have presided over the destruction of the environment in Malta since 1964 to date? In doing so, they will simply confirm that the government is as morally corrupt as all the rest who are involved in the daily rape of the Maltese environment and that it is not only complicit in all this but even satisfied and rubber stamps the outcome.
So far we have got everything wrong in planning. Now everything must change not by proposing sterile changes for the worse as the consultation document is recommending but for the better; we need a radical overhaul on the lines indicated above that will prioritise the common good, human health, human welfare, pollution abatement, and environmental protection over the greed of immoral politicians and developers.
The new principles of law that need to be applied to Planning Law are the precautionary principle, accountability of the decision maker, prohibition of political interference in the decision-making process, decisions to be taken by professional experts in the field, and removal of conflicts of interest. Apart from these, with the proposed absorption of the EPRT into the Administrative Review Tribunal, standards will be strengthened and the common good will begin to prevail over the individual good. Will this ever be achieved? It all depends whether there is one iota of integrity left in Cabinet members.
Kevin Aquilina is Professor of law at the Faculty of Laws, University of Malta