MEPA Watch | Sunday, 05 July 2009

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Robert Musumeci says permits which are not quashed by a higher court are assumed to be based on correct information

The week’s details
This week, the MEPA debate was taken to Parliament. Amongst the themes considered, calls were made to the Authority to secure consistency which should be rooted in good decisions. In other words, a mistake made in the past does not set a precedent which may be applied to all future cases. There were also calls to eliminate loopholes which may exist in the system. (Loopholes are existing laws which contravene the intent of the law without technically breaking the law).

Robert Musumeci’s observations
In principle there is general consensus on this matter. At the same time one must appreciate that many a time, planning policies are generic and therefore remain subject to interpretation. For example, Structure Plan Policy BEN 1 states that any proposed development is unacceptable in a residential area if it would have a deleterious impact on the amenity of the area and of existing adjoining uses by virtue of noise, vibration, additional traffic generation, operating times, and most of all inconvenience to public transport access. A case officer assessing a particular request may claim that a particular development would constitute a deleterious impact on the amenity of the area and insists that the said request should be turned down by the DCC. On the other hand, the decision body (DCC) may reason out that the area in question is already committed with heavy development and any additional new similar development would not constitute added inconvenience as claimed by the case officer.
In reality, one cannot avoid such circumstances. The role of the case officers is limited to making a recommendation. Without doubt, architects acting on behalf of their clients have the opportunity by law to make their counter arguments. At the end, the Commission (which shall be appointed by the Prime Minister and the Authority itself which role is to take planning decisions) has the right (by law) to vote against a recommendation made by the case officer, in which case it is obliged to register in the relevant file the specific planning reasons adduced by the members of the Commission who did not agree with the Director’s recommendation.
This means that each and every time the DCC takes a decision which runs counter to the recommendations made by the case officer, one may safely assume that the specific planning reasons adduced by the members of the Commission (who did not agree with the case officer’s recommendation) carry more weight than the recommendations previously expressed by the case officer.
No doubt, consistency has to be based on cases decided on correct principles. Of course, John Citizen is to assume that any planning decision which remains valid and has not been quashed by a higher court, was based on correct principles and there is nothing to stop an architect in quoting the relevant cases in eventual applications carrying similar planning merits. In other words, an architect defending a client cannot is not in a position to assume that a valid permit was not based on correct information.
However, the Prime Minister is correct to state that any sections of the law which contravene the intent of the law without technically breaking the law should be eliminated out rightly. This would be a major step in the right direction.

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