Lija’s PN mayor Ian Castaldi-Paris battle with MEPA saw him cross swords with a party colleague and a Magistrate. But while he emerged victorious, Robert Musumeci, Siggiewi mayor and the development's architect, argues for more consistency in MEPA
One of Malta’s smallest councils – composed of just five councillors – has managed to convince MEPA to overturn an outrageous permit which risked dwarfing the Lija belvedere, even if it had the blessing of the Local Plan endorsed by Minister George Pullicino in August 2006. How on earth did the council convince MEPA to change its course?
“As a council, we always believed in what we did. Many told us that we had absolutely no chance of winning. We were aware that the development was sanctioned by a local plan and an approved permit. But we believed that since the development was to take place next to Grade 1 listed building, MEPA could not ignore our plight. We made sure that we use all the proper legal channels because we needed a solid legal basis for our arguments and things started to move.”
According to the mayor, things started to move in the council’s favour after it presented an appeal backed by solid legal and planning arguments.
“We appointed our own lawyer and architect to present our case, and things started moving.”
The first victory for the council was MEPA’s decision to declare a scheduled buffer zone precluding any development exceeding two stories in Transfiguration Avenue.
“This decision gave us a lot of courage.”
But is it fair on the developers to shift the goalposts after they were issued with a permit which abided to the local plan?
“We have no contention with the developers. Our case was against MEPA. It is true that the permit was legally issued. But we always highlighted the point that the local plan contradicted the Structure Plan.”
In their appeal, the Lija Local Council still questioned the legality of the permit, arguing that the Structure Plan already protected Grade 1 properties from visual intrusion. This should have been enough to protect both the tower and its surroundings from the negative impact of three-floor developments.
The mayor is magnanimous in his victory, and praises MEPA for admitting a mistake.
“There is nothing wrong in life to make amends for a mistake. This is what seriousness demands.”
The Lija mayor openly clashed with Siggiewi mayor Robert Musumeci in his capacity as the architect of one of the two developments in Transfiguration Avenue.
“We have been friends since before this issue cropped up, and we form part of the same generation in the same party. Robert takes his profession very seriously. Obviously we were both able to recognise that while he was representing a client, I was representing a locality.”
The Lija mayor even reveals a friendly exchange of emails between the two mayors.
“He sent me an email telling me that he admired me for the way I worked for my locality’s best interests. And I replied telling him that I admire him for the way he defended his clients’ interests as an architect. We both believe in the same principles of honesty and integrity.”
Only last week the Lija council was in the news again after Magistrate Consuelo Scerri Herrera entered the council’s office to file an application to station engines on the site of the demolished villa next to the Belvedere. What happened exactly?
“In the morning a contractor came to the council to ask for a permit for the machines on the site of the demolition. I told him that in these cases we always ask for the presence of a warden until the machines enter the site. The contractor protested claiming that this was not fair. He phoned Carmelo Galea who told him to leave the council. The contractor left without being given a permit.”
After leaving the council’s office at around 11:00am, the mayor received a phone call from his secretary informing him that “Magistrate Scerri Herrera had arrived at the council and that she was saying that she would not leave the office without a permit”.
Castaldi Paris does not mince his words in saying that the presence of a Magistrate in the council office "casts a shadow".
“One could try to hide one’s role. When you are faced by a person in a position of authority, it has a certain weight.”
The mayor immediately left his work duties to face the magistrate.
“I found the magistrate waiting in the secretary’s room and I explained to her why I needed a warden on site… she understood this point.”
When asked by the mayor on what relation she had with the owner of the property she replied that she is “a third floor apartment owner.”
When Castaldi Paris insisted that he needed authorisation from the owner of the site, a procurement was sent by the developer to allow the magistrate to act on his behalf.
“I had my reservations on the procurement as it contained an allegation that we were making ridiculous demands when in fact we were only concerned on the safety of residents. I only insisted on a warden because the site is very near a public garden. Still, I issued the permit to Scerri Herrera and she left the office.”
After the expiry of two years from the approval of local plans, MEPA can once again start revising the local plans. The Lija council has once again taken the initiative by launching its own consultation process asking residents to submit their proposals for a revision of the local plan for their locality.
Castaldi Paris makes it clear that any revision to plans will not shift the goalposts for developers who were already issued with permits or whose applications are still being determined by MEPA.
“We are making it clear that if we propose lowering the building heights in any particular zone, those permits or applications which have been already issued or presented will be respected. In this case our aim will be solely limited to preclude future developments.”
In this way the council aims to prevent two storey villa areas from being transformed into apartment blocks without affecting permits issued in the past two years.
But why use a different yardstick with regards to the two permits issued in Transfiguration Avenue?
“The Belvedere case was a particular one as the two permits affected the integrity of a Grade 1 building. That is why MEPA issued a conservation order. But this case filled us with the enthusiasm to take as look at the entire local plan for our locality.”
“Our priority is to ensure that development in Lija will be uniform, not haphazard.”
Yet back in 2002 MEPA had conducted a public consultation exercise on a draft local plan. The draft local plan itself proposed three-floor development in the area next to the Belvedere. How come nobody complained against this development when it was first proposed to the public?
Castaldi Paris was not mayor at that time, but he is very sceptical on the way this public consultation was conducted in 2002.
“The public at large could not understand the impact of these plans. No effort was made to explain technical details to them.”
In fact, the council even questions the legality of the public consultation issued in 2002 claiming that it should have included photomontages showing the impact of three-storey development on the existing landscape to make the proposed changes comprehensive to non-technical readers.
“People cannot be expected to understand technical issues simply by sending them a letter at home. A proper public consultation should include the use of visuals showing the impact of the changes on views. One need not be an architect to understand changes”
The Lija mayor proposes that consultation on local plans should be conducted on the same scale as the Euro change-over campaign before Malta switched its currency.
But wasn’t Environment Minister George Pullicino, who hails from Castaldi Paris’ party, responsible for the way the local plan was approved in 2006? Is he not to blame for the past planning mishaps, which have created so much trouble for his council?
“I prefer to look forward rather than backward. The beauty of the PN is that it is able to renew itself and make the necessary improvements. It is useless to tell me that the local plan was formulated when Pullicino was Minister. What we are showing is that MEPA is receptive to our proposals.”
Following the decision on the Belvedere, Castaldi Paris is convinced that MEPA will also be receptive to other proposals to change the local plan.
“I have full trust in MEPA, that if we prepare a serious report backing our submissions, the authority will take notice of them.”
The council will now be sending a questionnaire to all Lija residents to consult them on the best way on how to protect Lija’s character.
“We will tell them we will only present proposals after listening to them. We want to show them that they will be involved in the whole process.”
The proposals will than be evaluated and handed over to the council’s architect, who is a planning expert, to prepare his report.
Surely, conducting such an exercise will cost the council a lot of money. How can a small council afford such an expense?
“We have always been careful how to spend our money. We do not have any debts and we have a reserve of money to use for this purpose.”
I met Robert Musumeci just a few hours after MEPA’s fateful decision which effectively removed a third floor and a penthouse from an already approved development in Lija. In his role as architect for the project – sited just a few metres away from the Lija belvedere on Transfiguration Avenue – the Nationalist Party’s Siggiewi mayor has found himself clashing with another Nationalist mayor: Ian Castaldi Paris.
But true to his moderate style of politics, Musumeci now congratulates the Lija mayor for a “good victory” and MEPA for showing “courage”.
He praises the Lija mayor for conducting an effective campaign and for having convinced MEPA to change a decision.
“My relationship with the Lija mayor is excellent. We hail from the same party and from the same social and political stratum in the party. We have an excellent professional relationship. In this case we found ourselves on two opposite sides because of our different institutional and professional roles.”
He even praises MEPA for being courageous.
“Taking such a decision while being conscious of its repercussions is courageous.”
For Musumeci, the case also shows the effectiveness of “pressure exercised by individuals in the consultation process even after local plans are enacted and permits issued.”
Although he does not question the legality of MEPA’s decision to change an already issued permit, Musumeci hints that by shifting the goal posts set in an approved local plan, MEPA has sent shivers down property investors’ spines.
“When one looks at the case from the perspective of investors, there is cause for concern.”
He argues that investment decisions were made within the parameters of a local plan which according to law should not change before the expiry of two years.
“When a permit issued according to the local plan is modified before the expiry of two years, it affects the investment made. This will have serious consequences. One should be very cautious in this regard.”
Musumeci also contends that although the law allows MEPA to schedule an area irrespective of the local plan, “whoever had invested on the basis of an approved local plan should not be penalised.”
For the past weeks Musumeci has argued that the only way through which MEPA could have stopped the developers from constructing a third floor and a penthouse a few metres away from the Lija tower was through a discontinuance order issued according to Article 45 of the Development Planning Act. This carries with it an obligation to grant compensation to the owners affected by such an order.
Yet in its press statement MEPA did not make any reference to this article and simply stated that it was “issuing of a conservation order on the ‘monumental space’ of two properties in Transfiguration Avenue thus precluding any building works to be carried out beyond two floors from street level.”
But Musumeci contends that MEPA has effectively issued a discontinuance order without referring to it by name.
“MEPA is effectively implementing a discontinuance order which is consonant with the conservation order issued on 15 July. The law obliges MEPA to give a justification for a discontinuance order. The justification is the conservation order which led to the discontinuance.”
He explains that on 14 July 2008, the Malta Environment and Planning Authority had already used the power granted to it by law through Article 46 of the Development Planning Act when it created a buffer zone around the tower.
But this was not enough to stop the development of the two three storey blocks in Transfiguration Avenue.
“In the absence of clear directions from MEPA, these two permits remained valid. Today MEPA made it clear that two floors in these two permits are no longer valid. These have to be discontinued.”
To prove his case that MEPA was effectively discontinuing the permits he explains that conversation order had no impact other buildings in the same street except to preclude any future three-storey development.
“On the other hand with regard to the two already issued permits, the conservation brought about a revocation of part of the permit – which effectively means a discontinuance order.”
Writing in MaltaToday in April, Musumeci insisted that any changes to the approved local plan before the expiry of two years would defy the spirit of the law by shifting the goalposts for the citizen.
“John Citizen is entitled to base his financial projections and decisions on a particular development upon the existing framework of legislation.”
Musumeci claimed that it would be manifestly unjust to legislate retroactively in such a way as to prejudice individual applications already processed.
“This certainly would be a throwback to medieval times, when the absolute monarch had the power of life and death over each of his subjects, immaterially of what the law stated.”
But Musumeci thinks that so far, MEPA has exercised its power according to law.
Surely the local plan endorsed by Minister George Pullicino in August 2006 stated clearly that the plan would stay in force for a minimum period of two years. The only way to change it was through a review of the structure plan.
But Musumeci acknowledged that MEPA is perfectly justified to invoke other articles of the Development Planning Act like its power to schedule a particular zone.
But if MEPA was applying the law retroactively when it created a two-storey buffer zone around the Lija tower, this would have technically meant removing the Lija church which already exceeds two floors.
“Naturally the scheduling was enacted to preclude future and not past developments.”
Therefore, to stop two already issued permits, MEPA had to issue a discontinuance order.
“MEPA has every right to schedule. I simply appeal to the authority to continue abiding by the law. MEPA has now ordered a discontinuance. I hope that MEPA will now adhere to the conditions of a discontinuance order.”
Still, MEPA is not referring to any discontinuance order.
“Ask MEPA, not me,” is Musumeci’s prompt answer.
Surely for the developers the issue is a crucial one for a discontinuance order entitles them to compensation for the losses.
Musumeci hints that the very act of scheduling a building or a particular zone could open MEPA to claims for compensation not just from the owners but also from other people owning property in the area.
“So far, the law does not foresee compensation to owners negatively affected by the scheduling.”
But he also cites a court judgement delivered in the Constitutional court by Hon. Mr Justice Caruana Demajo in the case Trimeg Limited vs MEPA, delivered on 16 October 2007, which states that one is entitled to compensation for the loss of development potential even if no permit for any such development has been issued.
But in the Lija tower case, MEPA has partially revoked an already issued permit and this, according to Musumeci, makes the case for compensation even stronger.
“Article 45 of the Development Planning Act speaks clearly what happens when an already issued permit is modified. According to this, a permit can be modified simply because the Authority feels that there are overriding circumstances. In this case the overriding circumstance was the scheduling”
So how much will the owners expect in compensation?
“The applicants are considering their position with their lawyers. I cannot speak for them.”
But Muscumeci confirms that “what has been removed from the permit amounts to a substantial sum of money.”
Was it correct for Magistrate Scerri Herrera to seek the council’s authorisation for a permit on behalf of the developer?
“I see no reason why this question should be put to me. However, the Lija Mayor mayor was correct when he said that she behaved like an ordinary citizen and an owner of one of the airspaces which she had bought on plan, and not as a developer. He also said that she behaved correctly and did not exercise any pressure.”
But is not the presence of a magistrate in such a case over powering for those facing her?
“A magistrate remains an ordinary citizen. Surely as confirmed by Castaldi Paris she was acting as an ordinary citizen. I have no reason to doubt Castaldi Paris.”
The Lija development case coincided with the ongoing consultation on MEPA reform. What should be the main thrust of this reform?
“Consistency should be the absolute priority. As long as circumstances do not change, the decision should be identical irrespective of who applies for a permit.”
But the most radical reform proposed by Musumeci is that nobody involved in the planning process should occupy the role of a decision-maker in MEPA. Musumeci acknowledges that he at first did not believe this was necessary, but has now changed his mind.
“I do not doubt anybody’s integrity but we have arrived at a stage where we need a full time board composed of seven persons who are not involved in any planning applications. This should apply to Development Control Commissions and the MEPA board itself.”
Yet will there be anyone willing to give up his private profession to take up this role?
“I am convinced that there will be people willing to take up this role, just as there are people who are willing to take up a post in the judiciary. MEPA has now become another form of judiciary. In this way all doubts will be eliminated.”
Musumeci also believes that lawyers should have a more prominent role in MEPA.
I point out to Musumeci that some projects drag on for years, even if they are outside development zones, simply because MEPA does not give a clear indication on such developments at the initial stages. Should planning applications be screened before time is wasted on EIAs and other studies?
Musumeci makes it clear that ODZ applications should not be rejected automatically.
“The structure plan itself makes it very clear that ODZ development can take place. There are developments which cannot take place in residential area. It would be blatantly unfair to reject an application before the process has even commenced. Its like judging someone guilty before even proving that this is the case.”
But what about projects deemed to defy the Structure Plan? Shouldn’t applications be screened beforehand to avoid time wastage?
“I firmly believe that any application should be subject to a process. Our system is valid. Any application, even the most ridiculous, should be subject to the process. Either we have a process, or not. Any project should be judged according to plans and policies. Otherwise many doubts would be created. People will ask why did this project pass through the screening process, when another did not?”
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How on earth did the council convince MEPA to change its course?
In his role as architect for the project – sited just a few metres away from the Lija belvedere on Transfiguration Avenue – the Nationalist Party’s Siggiewi mayor has found himself clashing with another Nationalist mayor: Ian Castaldi Paris.