Interview | Sunday, 12 July 2009

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The suicide note

James Debono

MICHAEL FALZON, the former Nationalist minister who set up the Planning Authority in 1991, accuses the present government of showing disdain for the common citizen with a reform that might well cost Lawrence Gonzi the next election

You have to give it to Michael Falzon. He has a way with words that leaves nothing to the imagination. “The MEPA reform document presented on Thursday is not a blueprint for reform. It’s a political suicide note – it won’t solve anything and will even make more citizens angry at the way permits are granted,” the former minister says.
Falzon, an architect by profession, was the minister behind the setting-up of the Planning Authority, the regulator that was expected to confine the nepotistic practices of the 1980s Labour government to the past. With its Structure Plan and Local Plans, the PA had to craft policies that would guide decision-makers and the issuance of permits.
But time and again, the PA, and its successor the Malta Environment and Planning Authority, became the target of severe criticism for the a suspicious haphazard issuance of permits, the well-worn accusation of being “tough with the weak” (famously characterised by the anecdote of the refusal to develop a window), and of blessing mega-projects with scant care for their effects on the environment or for being developed on land that is outside development zones.
And Gonzi found MEPA to be a primary problem, as he faced unparalleled protest from civil society marching in the streets. He would make MEPA reform one of his green tickets for re-election in 2008.
Now that he has unveiled his vision, Falzon is quick to sum up the result. “MEPA will become more efficient in refusing permits,” he says, referring to the removal of the right to appeal for a ‘reconsideration of permit’. “The government is dismantling the existing checks and balances that protect applicants from intransigent planning officers.”
Falzon argues that the reform blurs the distinction between the Development Control Commission boards – usually staffed by politically appointed architects to take decisions on whether to issue the permits – and the Planning Directorate (which includes the case officers who study applications for permits, recommending the refusal or approval of the application), by making both employees of the organisation.
“The DCC is now just part of the MEPA set-up… It is just there to rubberstamp the decisions of the directorate. In terms of internal office politics they are now part of the same team.”
Another risk of the proposed system is that of concentrating the power of issuing permits in a few hands. “The positive thing about the old set-up was that the power to issue permits was not concentrated in a few hands. Case officers who already behave like tin-pot dictators will become more despotic. Today they represent a hurdle which can be overcome. Now they will become more powerful,” Falzon says, warning that this newfound power is an “opening for abuse.”
The reform document proposes having two DCCs composed of three members each, working full-time, rather than ‘part-time’ as is the case today.
Falzon disagrees with me when I suggest this diminishes the risk of potential conflict of interests on the part of practicing architects who sit on the DCC boards, where they are expected to take decisions affecting past and future clients. He calls the notion of conflict of interest “a red herring” and denies that abuse was rife among these DCC members.
(One might bear in mind that a DCC board resigned en bloc when the MEPA ombudsman accused it of illegally issuing a permit for the Lidl supermarket on ODZ land in Safi.)
Falzon instead says the risk posed by potential conflict of interests is offset by the benefit of having practicing architects “with some experience in private practice on the DCC.”
“These checks and balances will now be weakened because as full-time employees, DCC board members will become part of the same institutional set-up to which the members of the Planning Directorate also belong.”
But was the fact that DCC members were taking decisions on applications by potential clients (or in some cases stepping down temporarily from their role to represent their own clients) eroding people’s trust in MEPA?
“That was part of the game. When they wanted to accept that situation they accepted it. But the advantages outweighed the disadvantages.”
The reform also proposes that straightforward applications within development zones are decided in 12 weeks; complex ones can take up to a maximum of 26 weeks. Straightforward applications for development in ODZ areas will be decided in 26 weeks, the more complex ones can take up to one year. Shouldn’t developers be satisfied by the government’s commitment to have applications decided in a stipulated timeframe?
“This is the biggest joke in the reform. Government has simply shifted some of the most lengthy parts of the application process to the initial stages before the application is even validated by MEPA. Up to now all that was required from you to have an application validated was to fill the details and pay the money due to MEPA. Now you will put all the details, pay the money and still not have a validation.”
Falzon argues that since consultation with third parties will have to take place before the application is even validated, the time taken to validate the application will be lengthened considerably. “This will take ages and you will be at the mercy of a planning official for your permit to be validated. This is a joke.”
A major shortcoming of the reform according to Falzon is that it does not set a time limit on the validation of an application.
Another aspect of the reform is that it encourages applicants to submit applications to a screening process, to establish whether the application conforms to existing policies. Those developers whose applications heed MEPA’s advice will be fast-tracked. So doesn’t this save MEPA and developers alike precious time that is otherwise wasted in determining applications that are clearly in breach of policies?
Falzon remains sceptical. “It would require a cultural change in MEPA. I have always argued that there should be more discussion between applicants and the directorate. The reform attempts to address this aspect but up to now case officers were encouraged not to talk to applicants and architects. That is why we had a situation where applicants ended up negotiating with the DCC board.”
Falzon thinks that attempts to foster dialogue between case officers and applicants are doomed to fail. “Some case officers recommend a refusal simply because of a minor breach of one of MEPA’s many policies. It will be difficult to change the attitude of these case officers who have been working for the last 20 years looking at every applicant for a permit as the enemy, overnight.”
To address the problem posed by DCC boards overturning the recommendations of case officers, Falzon proposes to send any negative report to the architect’s applicant before a negative recommendation is issued. “Instead of issuing a negative report, why not send the draft of the negative report to the architect in a way that he can make changes in order to overcome the objections in the DPA report?”
But ultimately a fair hearing is only possible if the persons who decide whether a permit is issued or not are completely detached from the persons making the recommendation, Falzon argues. “Otherwise it’s going to concentrate the power to issue permits in to very few hands.”
While making the process more onerous for developers, the reform also promises to give the government a decisive say in policy-making, Falzon describes this aspect of the reform as “the politician’s revenge”.
Lawrence Gonzi insists this is not a return to the past when politicians determined the fate of planning applications. But Falzon disagrees.
“In some aspects it is a return to the past because the direct responsibility of ministers has been increased. We are dealing with an area of responsibility that was removed from politicians who have the electorate in mind, and for the sake of the common good this responsibility was supposedly handed over to technical people. This is being taken back into the hands of civil servants.”
He also warns of the future repercussions of such a move. “The Prime Minister is not eternal and this responsibility can be moved to another minister under this government or another government. For me this is going backwards not forwards.”
For Falzon the assumption that the Prime Minister is eternal is “part of the suicide note enshrined in this reform.”
Yet Falzon acknowledges that MEPA’s great failure was to miss the wood for the trees. “Instead of keeping abreast with development in this country, MEPA spent a lot of time bugging applicants of permits for silly issues and forgetting its main responsibility, which is to update the Structure Plan which is obsolete after 20 years.”
Another failure was that after taking 17 years to issue the local plans, they still contained a lot of mistakes. “But do you solve this problem by taking these responsibilities away from MEPA and giving them to a civil servant under the direction of a Minister? Why should the OPM be more efficient than MEPA?”
For Falzon the end result of the reform will be that of “increasing the number of permits which are refused and the number of frustrated people in this country. And this will rebound like a ton of bricks on this government.
“A number of citizens have been complaining that they were being treated like rubbish at MEPA. The number of citizens who will be complaining in the future is going to increase. The common citizen has been treated with disdain in this reform.”
And while the reform has placated environmental NGOs, Falzon angrily raises his voice when he accuses the government of failing to address the concerns of “common man who wants to build a garage or another floor on his house, or the farmer who wants to raise the height of the boundary wall… Nobody represented these people, they were not represented, they were not consulted and treated with disdain as if they didn’t exist. It’s the government’s duty to represent them. They are the government’s bloody voters. That’s why it’s political suicide because they treated the voter with disdain. We have simply added some new hurdles and made the hurdles higher for these people.”
But in what ways are these people worse off with the reform?
“They have less checks and balances to control the excesses of ill motivated or naïve planning officers,” he reiterates.
And who are the winners, then?
“The country has lost… but some NGOs have won because their requests have been accepted. But these are requests from which nobody will benefit.”
But will the reform ultimately serve to protect the few remaining open spaces in Malta and Gozo?
“Time will tell but I am sure the big developers will find a way out and they will manage to get what they want. The common men will suffer.”
Falzon says the government has now reversed that principle of criminal law in which it is better not to convict a guilty man, than to convict an innocent one. “In this case we have overturned this idea. As long as we do not issue the wrong permit it does not matter if we refuse nine genuine cases and one not so genuine case. We are choosing the easy way out.”
So will it really cost the PN the next election?
“Didn’t I say it’s a suicide note?”

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