MEPA Watch| Sunday, 17 May 2009

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Robert Musumeci states that it is unwarranted to revoke a permit on the grounds that a site notice is removed from site

Case Review
During the last weeks we have witnessed a series of MEPA applications which were revoked after it was discovered that the site notice, which incidentally MEPA is obliged to affix by law each and every time an application is lodged, was affixed in a wrong location. Of recent, it came to our knowledge that a number of objectors have voiced their objections following the issuing of a permit close to Wied il-Ghasel. These same objectors claimed that such permit should be revoked on the grounds that the site notice was systematically removed from the site in order to deflect the public’s attention.
The Planning Appeals Board chaired by Dr Ian Spiteri Bailey has been entrusted with the task to decide whether MEPA was legally correct to revoke one of these permits after it was established that the site notice was affixed in a wrong location. The permit was revoked even though the application details had appeared in the local press in accordance with the provisions of the law. The first Appeals Board sitting was held last Friday.

Robert Musumeci’s observations
Article 32(4) of the Development Planning Act provides that the Authority shall, at the expense of the applicant, cause the proposal and the name of the applicant to be published in the local press and advertised by a notice on the site. Article 32(5) of the Development Planning Act further provides that any person may, on the basis of issues relevant to planning, make representations objecting against any development. The law also provides that such objection shall be in writing and shall contain a reasoned justification, and shall be received by the Authority within a period of fifteen days from the publication of the notice referred to in subarticle (4) (and therefore not from the date when the application is advertised by a notice on the site).
It is therefore very clear that anyone can make an objection to a development if it is received by the Authority within fifteen days from the publication period in the local press (and not from the date when the application site notice is affixed on site).
MEPA has always agreed with this legal position in the past. For example, in the case Miriam Cremona vs Kummissjoni ghall-Kontroll tal-Izvilupp u Julian Buhagiar f’isem Mobisle Communications Ltd (PAB 302/02 KA PA 1372/02), MEPA’s able legal counsel defended MEPA’s position by stating that the consultation period during which interested third parties may lodge an objection to be considered as registered objectors commences from the date of publication in the local press. At the same time, MEPA’s lawyer had underlined that the consultation period is not related to the site notice in any way… l-oggezzjonijiet tat-terzi biex wiehed jista’ wara jappella ghandu jibda jiddekorri mid-data tal-pubblikazzjoni ta’ l-avviz fl-istampa lokali u mhux mid-data li fiha tkun imwahhla s-site notice.
In fact, the Planning Appeals Board dismissed the appellant’s insistence that she was a registered objector on the grounds that her objections had not reached the Authority within the stipulated timeframe prescribed by law. Even though Cremona alleged that the site notice was removed from site, the Planning Appeals Board made no exception to her arguments: It-terminu biex wiehed jakkwista dritt biex jista’ eventwalment jappella bhala third party, jibda biss mill-pubblikazzjoni fil-gazzetta….Huwa fatt mhux ikkontestat li l-appellanta ma resqet l-ebda oggezzjonijiet kif trid il-ligi tant hu hekk li hija tipprova teradika l-gurisdizzjoni ta’ dan il-Bord billi tirreferi ghat-twahhil tas-site notice.
Furthermore, further case law dictates that the Development Planning Act (even as amended) lays down that the period during which third party objections may be filed (and thus taken into consideration during the eventual planning process) cannot be linked in any way to the date when an interested party becomes aware that a site notice has been affixed on a site. This is expressly documented in a Planning Appeals Board’s decision in the names Dr. John Buttigieg LL.D vs Kummissjoni ghall-Kontroll tal-Izvilupp (PAB 162/00 KA PA 1977/99), during which case it was alleged that the site notice was removed systematically from the site location. Notwithstanding, the Planning Appeals Board did not give any weight to such serious allegations for the following reasons: … il-ligi torbot kollox mat-terminu li jissemma fl-artikolu 32(5) u mhux mad-data ta’ meta t-terza persuna tinduna li twahhal is-site notice. Il-Bord jinnota wkoll li ghalkemm l-Att dwar l-Ippjanar ta’ l-Izvilupp gie emendat sostanzjalment is-sena li ghaddiet xorta wahda ma tbiddel xejn f’dan ir-rigward…
One may therefore conclude that case law is very clear in this regard. The Authority must base all its decisions accordingly and avoid situations where investors are facing unwarranted uncertainties, not knowing whether their permit can, in effect, be revoked in the future. Prudence in the way we interpret the law is therefore a key requisite. Uniformity in sentencing policy is the solution to Malta’s planning ills.

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