MEPA Watch | Sunday, 15 March 2009

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Robert Musumeci refers to a judgment delivered by the Hon Justice Raymond C. Pace on the 29th January 2009 in the names Kunsill Lokali Marsascala vs MEPA and asks whether the breaching of Article 32(4) of the Development Planning Act ALWAYS leads to the revocation of a permit

Case Details
A permit , of whatever nature, can be revoked if it results that there is an error on the face of the record which offends the law. This legal rationale stems from Article 39(A) of the Development Planning Act.
Recently, I focused on a permit which was revoked after the objectors furnished photo evidence highlighting that the site notice was affixed in a wrong location. As a result of its own misdoing , the MEPA Board admitted that it had mistakenly affixed the notice on a wrong site. Although the applicants were not responsible for this omission, the Directorate insisted that this shortcoming was in violation of Article 32(4) of the Development Planning Act.
Within two weeks, the Directorate referred another development permit to the Board, requesting that this too should be revoked since it transpired that the permit was in breach of Article 32 (4) of the Development Planning Act. This application however concerns a location in Attard where a permit was approved by the DCC to undertake various structural works in a committed commercial site. The application, which incidentally was submitted by my office, was originally recommended for refusal. However, the DCC overturned the negative recommendation after it was satisfied that the counter arguments which were put forward outweighed the negative recommendation.
Following the decision, the Directorate became aware that MEPA’s personnel had failed to affix the site notice in spite of the fact that the application was originally validated. The Directorate, aware of its own error, recommended that revocation was merited since it felt once again Article 32(4) was infringed.
The Board was due to take a decision last Thursday during a MEPA board public hearing.

The MEPA Board Hearing
The Directorate’s representative explained that MEPA failed to affix the notice on site when the application was validated way back in the year 2007. He explained that the Directorate was made aware of these facts when just before the permit was set to be posted to the applicant. The representative recommended that the permit should be revoked since there was an unequivocal breach of Article 32 (4) of the Development Planning Act.
The well intentioned chairman insisted that in the event that the permit is revoked, the case should be reverted back for a decision without unnecessarily delay.
In reaction, the Board was nonetheless requested to give a ruling on whether the breaching of Article 32 (4) is necessarily tied to the revocation of a permit. This line of reasoning , on behalf of the applicants, was made in view of a recent court judgment delivered by the learned judge The Hon. Mr Justice Raymond C. Pace in the case Kunsill Lokali Marsascala vs MEPA and Dr Anthony Gruppetta on behalf of Malta Centre for Fisheries Sciences. This case concerned the development of an aquaculture zone, 6km away from shore off, Xrobb l-Ghagin, l/o Marsaxlokk. This permit was approved in June 2004, amid strong objections from GRTU and the Marsascala Local Council.
The Marsascala Local Council felt aggrieved that it was not given the opportunity to file an objection within the time period stipulated by Law. The Council argued that MEPA failed to notify the Council even though it was legally bound by Article 32(4) of the Development Planning Act. The Planning Appeals Board refused to recognize the Council as a valid objector since the objections were not submitted within the stipulated time period. Following this decision, the Marsascala Council had submitted an appeal before the Courts of Appeal, claiming that the permit was in breach of Article 32(4).
The Court of Appeal, as above mentioned considered that the site notice was affixed in Marsaklokk , while the Environemntal Impact Assessment underlined that that the aquaculture zone was proposed to be located between six and nine kilometers to the East of Zonqor Point Marsascala. The same judgment further underlines that during the public consultation in 2005, the Ministry had described the project location as follows: ix-xlokk ta’ Malta ta’ Marsascala. The said Honourable Judge went to state that Article 32(4) provides that, in this case, the Marsascala Local Council should have been notified with the intentions of the developer, since the proposed development affected the Marsascala territory.
The Judge also stressed about the importance that Article 32(4) is followed scrupulously ad unguem, pointing further that applicant had in effect modified the proposal when it was decided to increase the tonnage from 5 to 9 tonnes. In the decision of the Court, this modification merited republication since there was a change in the proposal description.
In the light of the said facts the Judge concluded that there was a clear breach of Article 32(4) of the Development Planning Act.The Court could not go on to ask for a revocation of the permit since this would be pronouncing itself on merits which were ultra petite. Undoubtedly , however the aquaculture permit in Marsascala is bound by the same flaws in the Attard permit.
Despite the fact that the MEPA Directorate was served with this judgment above mentioned on 29th January 2009 it still has not made any recommendation to revoke the aquaculture permit on the basis of an error on the face of the record which offends the law, even though a court judgment expressly stated that Article 32(4) was violated.
On the basis of the arguments made by the defence, the Board unanimously decided to defer the Attard case and hence no pronouncement was made.

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