Development from minuscule alterations to existing buildings to large-scale

Development is a crucial and unavoidable process
that takes place within every country. A development may range from minuscule
alterations to existing buildings to large-scale projects such as the
construction of skyscrapers or power stations. It is imperative that there is a
body corporate that regulates and monitors these developments to ensure that
they are sustainable, safe, relevant and carried out in the most efficient way
possible.

 

 

Article 3, of the Development Planning Act,
Chapter 356 of the Laws of Malta, in an Act promulgated in 1992, the very first
Planning Authority was established1. In an act promulgated in
2016, by virtue of Article 5 of the Development Planning Act of the Laws of
Malta, the Planning Authority was amended and split into 2; the Planning
Authority and the Environmental and Resources Authority. This Article clearly
stated that; ‘There is hereby established an authority, to be known as the
Planning Authority, hereinafter referred to as the Authority, which shall
consist of the Executive Council and the Planning Board2. This new Administrative
body was entrusted with the responsibilities and tasks that the previous
Administrative body, the Malta Environment Planning Authority, had been
executing from the year 2000 up until the year 2016. However, there was a revolutionary
change made to MEPA in 2016. Whereas before environmental matters where the
responsibility of a single department within MEPA, as a result of a significant
increase in environmental pressure, sustainable development began to attract
more attention, and with it greater importance. Consequently, within this new
and improved Administrative body, an advanced and separate authority was
established, the Environmental Resources Authority. This meant that from
2016, all environmental matters are the responsibility of an independent and
separate Authority. The purpose of this Authority is to protect the
environment, ensure that development is sustainable and ensure that
developments work towards providing a sustainable standard living to those
individuals residing in the Maltese Islands. Some of the responsibilities of
the Environmental and Resources Authority include; policy-making at a national
level, regulating environmental negotiations on an international scale3 as well as acting as a
statuary consultee during the application process of permits.

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In an article published
on the 23rd of August 2015, the church commissions expressed, in
relation to the split of MEPA, how this new and independent authority will have
‘no teeth, not even a jaw’. The scope of the demerge of MEPA was that the
Planning Authority would be regulated by the Development Planning Act, whereas the
Environmental and Resources Authority would be subject to the Environmental
Protection Act. This new authority was constituted by virtue of article 6 of
Chapter 549 of the Laws of Malta, which states; here is
hereby established an authority, to be known as the Environment and Resources
Authority, which shall consist of not less than eight and not more than ten
members, of whom one shall be the Chairperson of the Authority4.

Article 8 of Chapter 549 dictates the roles and the functions that the
Environmental and Resources authority is obliged carry out throughout its
existence. From the year 2016 to present date there are and abundance of
examples that are contradictory to the statement made by the Church Commission
that derive from the powers and position that the ERA has and practical
examples from case law. There are also certain circumstances that validate the
statement made by the Church Commission due to the lack of power that the ERA
possesses in certain situations and due to the lack of power it has been
granted by legislation.

 

As seen in Article 6 of Chapter 552
of the Laws of Malta, the Planning Authority consists of an Executive Council and
a Planning Board. The Executive Council is responsible for the formulation and
implementation of policies, approval and refusal of applications, it also has
the capacity to discontinue orders, issue scheduling orders and devises plans
and policies such as local plans5.

The Environmental and Resources Authority forms part of the Executive Council
as it has a representative within the council. This means that it has the power
to object any decision or policy that is taken or formulated by the Executive
Council. When meetings are held to discuss important matters regarding policies
and scheduling the representative is, without fail, always summoned to be
present. This is a clear indication that the ERA, is in fact, not toothless as
it has been granted the power to be included in the day to day operations of
the Executive Council and attend meetings. Another reason as to why this
Authority is not toothless is that no other statutory entity, such as the
Tourism Authority or the superintendent for cultural heritage, has a
representative within the Executive Council. This shows how the ERA has a much
larger threshold than the other statutory entities. The ERA also has a
representative on the Planning Board, which is responsible for decision making.

The fact that the ERA has a seat on the Planning Board as well is a clear
indication of its power, as it is involved in the decision-making process
within the Planning Authority. It can be noted that the ERA is not toothless as
it is the sole entity that is represented in both the Executive Council and the
Planning Board. The ERA is included in application process, which is the step
prior to the issuing of permits. By law, during the application process, there
are 11 statutory consultees that must be consulted with at this stage. The case
officer is obliged to refer the applications to every single one of these
consultees and number 3 of the 11 consultees is the Environmental and Resources
Authority. From a different point of view, this may be seen as a lack of power
and control, as the ERA is merely a consultee and their objections are not
binding. Legislation constituted that the ERA simply plays a consultative role
in the decision-making process and as a result this authority may be considered
toothless, as their opinion and advice provided during the decision-making
process may be simply disregarded6.

This may be considered as a disproportionate balance of powers between the ERA
and the PA, because in terms of the decision-making process, the PA possess a
greater amount of power than the ERA; the Planning Authority has the final say,
whereas the ERA may only influence the decisions.

 

In an article published on the 1st
of August 2017, Michael Briguglio expresses his dismay in relation to the
strength of the ERA. He believes that they are ‘understaffed’ and
‘under-resourced’. Naturally, if an Administrative body does not have enough
man-power or resources it will not have enough power or capacity to function
smoothly and efficiently7.

If the ERA does not have the same amount of resources and work force as the
planning authority, it gives rise to a disproportionate balance of power and as
a result the Planning Authority is automatically more powerful. When comparing
the assets and the man power of these two authorities, one may conclude that
yes, the ERA, is in fact toothless as it is the ‘weaker’ of the two.

 

Article 3 of Chapter 551 of the Laws
of Malta establishes and regulates the Environmental and Planning Review
Tribunal8.

The role of the EPRT (Environmental and Planning Review Tribunal) is to review
the decisions taken by the Planning Authority and the Environmental and
Resources Authority. This tribunal is impartial and separate from the two
authorities. The ERA has the power to appeal against and challenge the
decisions of the Planning Authority, indicating that it does have the power and
the ‘jaw’ to oppose the administrative body. In the case of the Sliema
Townsquare Development, appeals where filed by many organizations (FFA, Din
L-Art Helwa), one of them being the ERA, against the high-rise project that had
approved by the Planning authority. The Planning Authority filed a preliminary
plea as in the eyes of the Planning Authority, there was a conflict of interest
due to the fact that the Environmental and Resources Authority formed part of
the Planning Board. The Planning Authority thought it to be wrong that the ERA
appealed against the decision-made and insisted that the ERA should not be a
party in the case.  The Tribunal decided
that it is relevant for the ERA to remain a party in the case despite the fact
that it forms part of the Planning Board. The fact that the Tribunal authorized
the ERA to remain a party in the case illustrates how the ERA has enough power
to oppose the permits issued by the Planning Authority, even after they are
approved. The ERA is involved in the application process due to its role as a
statuary consultee, it is involved in the issuing of permits, and also has the
power to appeal against the Planning Authority in regard to decisions taken by
the Planning Board, all this contradicts the statement made by the Church
Commission, stating the ERA is ‘toothless’.  The ERA only appealed once against the
Planning Authority, this is because it does not have enough legal ground to
appeal against the decisions made by the Planning Authority. This is a clear
indication that the ERA does not have enough power and is the weaker authority.

A solution may be giving the ERA veto power in the case of ODZ’s developments
and other unsustainable developments.

 

 

The ERA is responsible for issuing
permits in 3 main areas; waste management, natural and industrial permits. This
is done in order to protect the environment from any consequences that may
arise due to developments. Industrial permits deal with a number of issues and
General Building Rules, Environmental Permits and other Permits that concern
industrial developments9.

The Nature permits are devised in order to preserve natural heritage as well as
a list of species of flora and fauna and finally, Waste Management permits are
issued to ensure efficient and environmentally friendly discarding of waste10.

Due to the fact that the ERA controls and regulates these 3 areas of
development, without the intervention of the Planning Authority, it can be
concluded that their power stretches beyond their role within the Executive Council
and the Planning board.

 

The ERA is responsible for
environmental negotiations and relations on an international scale. In 2017,
the ERA along with 6 other countries, will be participating in an EU project,
in order to better implement and execute national policy in regards to landfill
management. This shows that the ERA’s power is not simply on a national level
but it is also exercised on an international level. This operation is regulated
and controlled solely by the ERA, which indicates that it is far from being
toothless, as it has the power to be part of international policies as well as
implement and regulate these policies on a national level

 

In terms of developments taking place in outside development
zones, the Environmental and Resources Authority does not seem to have enough
power or authority to object or put a stop to unsustainable developments in
these areas. In an article published in the times of Malta in July 2017,
Bertrand Borg expressed how ODZ developments will continue to take place unless
the ERA is granted veto power. A permit was approved by the Planning Authority
for a new Petrol Station in an outside development zone in Burmarrad11,
despite the fact that the ERA chairman’s vote against this development. The ERA
stated that the project was “unacceptable
from an environmental point of view”. The permit was approved anyway, which is
a clear indication that the ERA, in cases like these is, in fact, toothless as
it does not possess veto power to null the development. Another article
surfaced the fact that a large number of permits were issued in outside
development zones from as early as 2016, the year the new and improved Planning
Authority was set up. These permits were all approved despite the ERA’s
objections. It can be noted that in actual fact, the ERA has more of a
consultative role, as its objections to these developments were not at all
taken into consideration and were ignored. The Commissioner for Environment and
Planning David Pace expressed his concern regarding the unbalanced distribution
of power between the ERA and the PA12.

This unequal balance of powers is made clear in an article published in the
Malta Today, where statistically speaking, there was an increase of 74% of ODZ
permits granted by the Planning Authority 74% when compared to the amount
granted in the previous year13.

The ERA was set up in 2016 in order to safeguard the environment and provide a
sustainable level of living, but in this case, it does not seem to be effective
or efficient as permits are being granted to developers against the will of the
ERA. This gives rise to the question; Should the ERA have veto power? If there
continues to be a significant increase in the approval of ODZ permits on a
yearly basis, then yes it may be wise for the ERA to have veto power in terms
of the approval of permits. In this way, the ERA will have the power to refuse
any permit that poses a threat to the environment and is contrary to its goals
and mission. At the end of 2017, the Planning application for a petrol station
in Marsaskala in an ODZ was approved in spite of the opposition of the ERA. It was
made apparent by the ERA that the development would have negative consequences
on the environment however they were still ignored. This is a very clear indication
that the ERA is toothless and has no power against the what seems to be
stronger authority14.

 

The demerge of MEPA resulted
in the establishment of the ERA. Given that it is still relatively new, there
is room for improvements and further developments within the Authority.

Throughout its existence it has exercised the power that it has been granted by
legislation in order to work towards sustainable development. However, there
are still aspects where it falters. A few solutions are; for the ERA to have
veto power when permits are approved ODZ’s, it should be provided more
resources and increase its manpower as well as legally binding decisions it the
application process rather than simply being a consultee.

 

1Justiceservices.gov.mt. (2017). Cite a Website – Cite
This For Me. online Available at: http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom=8826
Accessed 1 Dec. 2017.

 

2 Justiceservices.gov.mt.

(2017). Cite a Website – Cite This For Me. online Available at:
http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom=12451=1
Accessed 2 Dec. 2017.

 

3 Era.org.mt. (2017). Who
we are. online Available at: https://era.org.mt/en/Pages/who-we-are.aspx
Accessed 1 Dec. 2017

 

4  Justiceservices.gov.mt.

(2017). Cite a Website – Cite This For Me. online Available at: http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom=12446=1
Accessed 3 Dec. 2017.

 

5 MEPA. (2017). MEPA –
Access to Information. online Available at:
https://www.pa.org.mt/en/access-to-information Accessed 4 Dec. 2017.

 

6 Independent.com.mt.

(2017). Environment Ombudsman stresses need for ERA to be given veto
powers on development applications – The Malta Independent. online
Available at:
http://www.independent.com.mt/articles/2017-07-28/local-news/ERA-should-have-power-to-veto-development-applications-Environment-Ombudsman-says-6736177137
Accessed 3 Dec. 2017

.

7 Independent.com.mt.

(2017). The Planning Authority has failed – Michael Briguglio – The
Malta Independent. online Available at: http://www.independent.com.mt/articles/2017-08-01/local-news/The-Planning-Authority-has-failed-Michael-Briguglio-6736177294
Accessed 4 Dec. 2017.

 

  8
Justiceservices.gov.mt. (2017). Cite a Website – Cite This For Me.

online Available at: http://www.justiceservices.gov.mt/DownloadDocument.aspx?app=lom=12446=1
Accessed 3 Dec. 2017.

 

 

9 Era.org.mt. (2017). Industrial Permitting.

online Available at:
https://era.org.mt/en/Pages/Environmental-Permitting.aspx Accessed 3 Dec. 2017.

 

10 Eracms.gov.mt. (2017). Environmental
Permitting Services. online Available at:
https://eracms.gov.mt/en/Pages/Environmental-Permitting-Services.aspx Accessed
3 Dec. 2017

 

11 Ltd, A. (2017). New
fuel station on virgin agricultural land approved. online Times of Malta.

Available at:
https://www.timesofmalta.com/articles/view/20170720/local/new-fuel-station-on-virgin-agricultural-land-approved.653718
Accessed 3 Dec. 2017.

 

12 Ltd, A. (2017). ODZ
sprawl will continue unless laws are changed, says Environment Commissioner.

online Times of Malta. Available at:
https://www.timesofmalta.com/articles/view/20170728/local/odz-sprawl-will-continue-as-long-as-era-toothless-says-environment.654315
Accessed 5 Dec. 2017.

 

13Anon, (2017). online Available at:
http://www.maltatoday.com.mt/environment/townscapes/76148/odz_permits_already_up_by_74_over_last_year
– .Wi6O0LT81Z0 Accessed 3 Dec. 2017.

 

14 Independent.com.mt. (2018). PA approves fuel station application on ODZ land in
Marsascala – The Malta Independent. online Available at:
http://www.independent.com.mt/articles/2017-12-22/local-news/PA-approves-fuel-station-application-on-ODZ-land-in-Marsascala-6736182899
Accessed 9 Jan. 2018.

 

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