MEPA Watch| Sunday, 02 August 2009

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Robert Musumeci observations on the proposed MEPA reform – part 4

Highlights
The MEPA reform contemplates the dismantling of the Planning Appeals Board. According to current law, the Planning Appeals Board is a quasi-judicial body independent of the Authority. In terms of article 15 of the Development Planning Act, it has jurisdiction to:
(a) hear and determine all appeals made by a person aggrieved by any decision of the Planning Authority on any matter of development control, including enforcement;
(b) determine which procedure should be followed in respect of a subsidiary plan or a planning position statement, which extends the scope of or are in conflict with the substance of the Structure Plan;
(c) determine which procedure should be followed in respect of a planning policy or a revision of an existing planning policy which extends the scope of or is in conflict with the substance of the Structure Plan;
(d) determine which procedure should be followed in respect of a general development order which extends the scope of or is in conflict with the substance of the structure plan;
(e) hear and determine appeals from (i) a revocation order or a modification order of a development permission; (ii) a planning obligation; (iii) scheduling of property; (iv) a conservation order; (v) scheduled trees; (vi) a stop order; (vii) an enforcement order; (vii) a penalty inflicted by the Authority; (ix) an order prohibiting the transfer inter vivos by any title whatsoever of any land and in respect of which an enforcement notice is served; (x) a development notification order.
(f) to draw up recommendations on a development permission application to be referred to Cabinet.
The decisions of the Board are final, except on points of law decided by the Board, which may be challenged in the Court of Appeal. The MEPA reform contemplates that a Planning and Review Tribunal composed of three members should replace the current setup of the Planning Appeals Board. The salient changes may be highlighted as follows:
• Members sitting on the Planning and Review Tribunal are engaged on a full time basis and cannot engage themselves in private practice;
• The fees charged to applicants who lodge an appeal will be increased, reimbursing part of it if the applicant’s appeal is successful;
• The appeals process shall constitute a technical review mechanism, comparable in nature and expertise to the DCCs. In fact the Tribunal shall not be chaired by a lawyer any longer but a person versed in planning and environment, assisted by a lawyer and a warranted architect as its two other members;
• The planning forma mentis remains firmly respected and not confused with case law as applicable in the civil, commercial and criminal courts;
• The Tribunal may suspend the execution of works in respect of a granted development permit in the case of third party appeal, provided that appellant makes a request for such suspension concurrently with the application for appeal and the first hearing of the Tribunal will take place within six working days from the receipt of the appeal. The Tribunal will communicate its final decision within three months from the first hearing of the appeal and suspension of the permit will be valid for not more than three months from the date of the first hearing of the appeal.

Robert Musumeci’s observations
It is not clear whether the proposed Tribunal shall be vested with all the legal powers cited in Article 15 of the current Development Planning Act. For certain, the proposed reform highlights that the Tribunal must move away from the legal mechanisms applied in civil, commercial and criminal courts, stating further that the planning forma mentis must remain firmly respected and not confused with case law.
At the same time, one of the key objectives of the reform is to secure consistency in planning decisions. Against this background, I have one simple question. How can one secure a uniform sentencing policy if the decision bodies are not bound by their own past decisions? In my view, case law must form the basis of all planning decisions if we really want to secure a MEPA reform which promotes consistency and transparency in the decision process.
Another major change entails the possibility of the Tribunal having the legal powers to suspend the execution of works in respect of a granted development permit, in the case of third party appeal. In such cases, the Tribunal is also legally bound to communicate its final decision within three months from the first hearing of the appeal. That being stated, one cannot fail to appreciate that if works remain at a standstill for a further period of three months following the grant of a permit, investors would nonetheless remain subject to bank interests. One key question: What if it results that the objectors’ requests were frivolous and simply aimed to put pressure and delay the process? Will applicants be financially compensated in such cases?
Once again, I suggest that all appointed members are endorsed by the Leader of the Opposition, and possibly installed after a public call for expression of interest.

Next week MEPA watch will focus on the proposed changes to the application process.

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