Michael Falzon | Sunday, 19 July 2009
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Private property, public interest

Sometimes, I think it is a good idea if one starts from first principles. I believe in the right for every citizen to own property and enjoy property. This right is however limited. It is subject to the interest of the community, of the common good.
Every building permit should therefore be a necessary limitation on the right to the enjoyment of one’s own property, a limitation in the interests of the common good. The operative word here is ‘necessary’ in a situation where the line of demarcation between one’s right to enjoy his or her property and the common good is, at best, nebulous.
If one looks at the way the state issues building permits from this angle, one could perhaps look at MEPA’s record and the recently announced proposals to reform the way it works in quite a different light.
The details in the assessment of case officers and whoever decides to issue a permit – such as whether one should allow the owner of a plain nondescript 30-year old façade to demolish it and replace it – probably never includes looking at the issue from the point of view of the rights of the owner. But the individual citizen does. One can understand that some buildings are to be preserved for various reasons, all pertaining to the common good. But when extends this ‘conservation policy’ to areas where the common good hardly matters and the issue is reduced to the foibles – or the personal taste – of one officer or some group of persons, the common citizen will immediately conclude that he is being unnecessarily harassed. He could be wrong in many cases. But the instances where the right for enjoyment of one’s property should prevail over so-called public interest that is nothing but excessive regulation or personal predilection are not few or rare.
One of the clarion calls of the proposed MEPA reform refers to the issue of ‘consistency’. MEPA has rightly been accused of being inconsistent, not least when evaluating the rights of the private owner against the interests of the common good. There can never be hard and fast rules about this. MEPA’s efforts to substitute plain common sense by a myriad policies and guidelines have failed miserably and have, in fact, led to the inconsistencies that many people grumble about.
Let me give an example of a MEPA wrought inconsistency. In some Local Plans, which were duly endorsed by the responsible Minister, MEPA created the idea of ‘priority areas’ that are somewhere halfway between an Urban Conservation Area (UCA) and a normally schemed area. The idea itself is almost bizarre: MEPA thinks that there are never enough policies to go round and does not realise that the introduction of more and more policies continues to exacerbate the ‘consistency’ problem.
In one particular such area that I know of, the replacement of the case officer has led to a ‘de facto’ change in policy without MEPA actually changing its policy! One case officer used to consult the Heritage Advisory Committee (HAC) regarding applications in a priority area and if the HAC says it does not object to the demolition of a façade, the case officer would duly accept such demolition as part of the approved development. The case officer was replaced and the ‘new’ one has decided to oppose demolition of façades in a priority area, whatever the HAC recommends. The same area manager who used to endorse the case officer’s report accepting demolition is now endorsing the subsequent case officer’s report that opposes demolition at all costs!
The ordinary citizen already finds it difficult to accept being treated differently from his neighbour when a new policy is officially introduced. Being treated differently because a case officer has different penchants than another is certainly unacceptable. The MEPA reform proposes to give more power to case officers. How this will increase consistency is beyond me.
There is another type of alleged ‘inconsistency’ that is continually spoken about by those who think they know everything just because they scratch the surface of what happens in MEPA. This is the alleged ‘inconsistency’ in the way MEPA handles applications made by different architects. The fact that one architect is well versed in planning law and can make logical arguments in favour of the approval of an application while another one fails miserably on this score leads some to conclude that MEPA is inconsistent because it is partial to some architects.
I do not wish to give the impression that I am defending MEPA’s record in the different way it deals with different architects. This leaves a lot to be desired. But singling out individual architects just because they can make a better job than others is ridiculous and unfair.
Let me make a parallel with legal proceedings in the Courts, as I often like to do. Two persons are accused of the same crime. One has a run-of-the-mill incompetent lawyer to defend him while the other accused engages a brilliant criminal lawyer. Should the brilliant lawyer limit the use of his intelligence and ability at the service of his client to the level of the incompetent lawyer so that both accused are treated equally by the law and sentencing by the law courts is consequently ‘consistent’? Should we denigrate brilliant lawyers for being better and more efficient than others?
This is the warped logic that seems to pervade the expectations of some NGOs who have now decided to personalize the accusation of inconsistency in MEPA’s decisions by attacking those architects who give a better service to their clients because their methods and professional dedication are superior!
Trying to stamp out this type of ‘inconsistency’ is incredibly naïve, because this is not a MEPA inconsistency, whatever anybody says.
Government is insisting that the MEPA proposals lead to more consistency in the issuing of permits. I have gone through all the MEPA reform document more than once and I have not found one single suggested action that will somehow lead to MEPA being more consistent in the processing of development applications. Will dismantling the checks and balances that attempted to avoid human mistakes – genuine or otherwise – lead to more consistency?
Which ‘inconsistency’ is the MEPA reform proposal referring to? That resulting from the lack of clear direction within MEPA where the left hand does not know what the right hand is doing? Or that resulting from the obvious advantage of an applicant engaging a more efficient and professionally capable architect?
The proposed reform should have indicated the steps that lead to less MEPA wrought inconsistencies but it does not. I am afraid that the flaunting of ‘consistency’ as a mainstay of the proposed reform is just hype.
At the end of the day, the acid test of the proposed MEPA reform is the answer to this question: Will applicants for permits get a fairer deal or will fewer people be even more empowered to abuse the citizens’ right to enjoy their property in the most casual and inconsequent way?
I am no prophet but to me it does seem that the omens for the common citizen are not good at all.

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