MEPA Auditors Report October 2004 - September 2005
This report is submitted in terms of the requirements of Section 17C of the Development Planning Act.
1. The current year was the first full year of operation of the Audit Office during which year it handled 739 complaints and requests for information. Requests for information were dealt with immediately. A substantial number of the complaints were brought to a satisfactory conclusion. In addition, the complaints led to 103 investigative reports which were drawn up when in respect of any particular complaint it was identified that there was no possibility of a satisfactory conclusion. At the time of writing, three of these reports were still in a preliminary state,having been submitted to MEPA for its comments on the conclusion of the investigation by the Audit Office. It is expected that a final version of these three reports would be issued by mid-October 2005.
2. It is to be noted that two of the investigations were initiated after a request was submitted by the Ministry for Rural Affairs and the Environment. Another two investigations were carried out as a result of submissions from the Superintendence of Cultural Heritage. Two investigations were carried out after a request was received from DCC Divisions ‘B’ and ‘C’ (one each) at MEPA. Two other requests for investigation were received from the Director of Planning (one case) and the Director General at MEPA (one case).
3. The Audit Office, in addition, also carried out 4 investigations on its own initiative. An investigation was carried out to examine the allegations published in the weekly Malta Today on 23 January 2005 entitled “MEPA ignores recommendations and gives green light to development off Dingli Cliffs”. A report published in the weekly Kulhadd dated 26 June 2005, entitled “Il-Gvern ibaxxi rasu ghal sfida ta’ militant tal-PN” was investigated too, as was an article in the Sunday Times dated 1 May 2005, and entitled “The Green Whistleblower – Fontana ODZ application.” An additional investigation was carried out relative to MEPA’s pending reconsideration load. Five reports were submitted to MEPA in respect of these four investigations.
4. Six (6) complaints are still pending investigation. One of these complaints is awaiting the appointment of a substitute Audit Officer, in view of a declared conflict of interest of the Audit Officer. The Chairman of MEPA and the Hon. Minister for Rural Affairs and the Environment were notified about the matter on the 6 July 2005 but as the Parliamentary session was due to end shortly for the summer recess, the said appointment had to await the reconvening of Parliament in September 2005. The Audit Office has been verbally informed that the issue will be attended to as early as possible.
Investigative Reports
5. The investigative reports submitted to MEPA during the reporting period are 108 and dealt with the subject areas listed in Table 1. They contained a total of 283 recommendations: 176 being specific to the investigations and 107 being of a general nature.
| Area of Consideration |
Number
|
| Administrative and ethical issues |
3
|
| DCC Workings |
16
|
| Delays |
15
|
| Development Notification Orders |
5
|
| Discrimination |
9
|
| Enforcement / Illegal Development |
19
|
| Processing of Applications |
8
|
| Telecommunicatiosn Antennae |
3
|
| Third Part objections |
5
|
| Miscellaneous |
25
|
| Total |
108
|
Table 1 Subject areas investigated
6. The Audit Office considers that it requires emphasising a number of points resulting from its investigations.
A. The Development Control Commission (DCC)
7. It has been noted in a number of cases that the DCC is not giving adequate justification when overturning recommendations of the Planning Directorate. In this respect this Office has, on five occasions, drawn the attention of MEPA on the matter.
8. Initially, the Audit Office had occasion to express its concern in respect of the ignoring by DCC Division ‘A’ of its duty to cooperate in investigations in terms of Section 17C of the Development Planning Act, but the matter was rectified to the satisfaction of this Office. Subsequently the Audit Office found co-operation from the DCC Boards.
9. In a number of cases investigated, it has been noted that the DCC (all three divisions) is providing alternative analysis of applications and proceeding with negotiating with applicants after the submission of the Development Planning Application Reports (DPARs) by the Planning Directorate. The DCC has an important function in that it has to review the DPARs prepared by the technical staff of the Planning Directorate. The DCC has a broader outlook at all the aspects of an application than the purely technical input of the professional planners. However these procedures, i.e., the carrying out of negotiations by the DCC can give rise to serious problems. Unfortunately, if carried too far, it will mean that the DCC is assuming in addition to its duties, the role pertaining to the Planning Directorate.
10. It is to be noted that the majority of members of the DCC are practicing architects and civil engineers (13 out of 21), a situation which has remained fairly constant since the MEPA was set up in 1992. While it is a fact that a working knowledge of spatial planning is of major importance in this position, it is not the only requirement. It is inevitable that a practicing architect and civil engineer would be prejudiced (at least subconsciously) in favour of development. Moreover frequent conflicts of interest are liable to arise, which inevitably have a bearing on the functioning of the Board due to the absence of one or more members from the Board. The Audit Office has had occasion to note the frequency where decisions cannot be taken by the DCC due to the number of members present being inadequate, as members who declare a conflict of interest have to withdraw from the Board when a particular application is being assessed.
11. Nomination of DCC members from other areas of expertise would definitely contribute to more equitable decisions especially where applications involving the natural environment or the historical and cultural heritage of the country are involved. Being conversant with planning policies is not a qualification restricted to members of the architectural profession. The appointment, for example, as members of DCC Division ‘C’ of persons conversant with the built heritage of the Islands, has contributed to its effectivity. In a similar way, it would be of great benefit if persons well-versed in environmental issues would be appointed as members of the DCC Division ‘A’ which deals with applications outside development zones.
12. The balancing of rights and duties of the different sections of society, relative to land use planning, is of the essence in physical planning. While the Audit Office is aware that it is difficult to identify competent persons of known integrity who are both willing and able to fill the positions on the DCC Boards, I believe that it would be of great benefit if the composition of the DCC Boards represents a more general cross-section of society. This ensures that through the different competencies of the DCC members planning policies are observed. A lack of competence in a particular field may easily lead to irreversible decisions which seriously harm the natural environment or the cultural heritage of the nation.
13. The practice of having a representative of the Director of Planning present during DCC Meetings has been discontinued with the consequence that there generally is no one from the Planning Directorate during DCC meetings with whom the DCC can communicate and interact.
14. The Development Planning Act does not provide any manner of correction whereby permits in conflict with approved policies can be modified or withdrawn. The provisions of Section 39A of the Development Planning Act apply only to issues of fraud by the applicant, errors on the face of the record as well as to issues of public safety. This leads to a situation wherein both genuinely incorrect as well as maliciously erroneous applications of policy by the DCC, are only actionable by the Planning Appeals Board. But this remedy only arises in those cases where an appeal is filed. It is to be noted that in addition to applicants only registered objectors may file an appeal. MEPA itself is helpless if an application contrary to policy is approved. In all other cases, particularly in the case of applications in respect of which no representations are submitted in terms of Section 32 of the Development Planning Act and which are approved by the DCC, the matter cannot be reviewed.
15. In these cases, the Development Planning Act does not provide a remedy notwithstanding that they expressly infringe both the letter and the spirit of the provisions of Section 33 of the Act. A decision of the DCC may be considered as creating a precedent, even if, at a later date, it becomes obvious that it was a mistaken decision. The Planning Appeals Board frequently considers a precedent decision as being sufficient grounds to accept appeals and grant permits. The result of all this is that while the Development Planning Act restricts the powers of the DCC, in effect the DCC would be establishing its own planning rules. As whilst the justification on planning grounds is a requirement when a Planning Directorate recommendation is overturned, its absence does not invalidate a decision. The matter requires urgent attention to provide both a remedy, thereby correcting errors and abuse, as well as a system whereby abuse of authority by the DCC would be penalised. It is pertinent to point out that the Building Permits (Temporary Provisions) Act of 1988 had such a deterrent. Section 12 of that Act provided that the granting and issuing of a permit contrary to the provisions of the Act, was to be penalised by means of a fine and/or imprisonment. A system whereby in exceptional cases it would be possible to suspend and eventually withdraw a permit where a mistaken decision is identified is also necessary.
16. In the light of the above, the issue of discretionary planning requires detailed consideration. The DCC has no right to initiate policy, or to take decisions which effectively do so. It is the duty of the DCC to interpret policy. Its discretionary powers, like any other decision making body, are limited to be used where the relevant policy is not sufficiently clear and therefore an interpretation is necessary.
17. MEPA has already been advised by this Office to examine Section 33 of the Development Planning Act in order to establish a sound basis and clearly defined criteria as to when deviation from established policy is permissible and who is to exercise such discretion. Where the DCC believes that the observance of the official policy would lead to an injustice or to environmental damage or some similar situation, it cannot ignore clearly established policies which allow no room for interpretation and impose its opinion. Most of the members of the DCC Board have no professional training in planning and therefore are not trained to take such decisions. In the opinion of the Audit Office, it is only the Board of the Authority which should have the authority to deviate from policy as it is the body established by law to create these policies. This is to be carried out on the basis of clearly defined rules and should be buttressed by a detailed justification on a case by case basis.
18. This Office had occasion to note the effect which decisions taken by the Planning Appeals Board (PAB) have on the work of MEPA. It is not the remit of the Audit Office to investigate the operations of the said Board, and therefore my comments are limited to their effect on the functions of MEPA. It is a fact that some decisions of the PAB are effectively usurping the powers of MEPA by creating policy. In addition the composition of the PAB has created a situation where legal aspects take precedence on planning issues, possibly because the PAB is chaired by a lawyer. As such developments which had serious negative effects on the environment, both the natural or otherwise, were approved not on planning grounds but because of a minor technical matter of a legal nature (e.g. precedent), MEPA is advised to carry out a study on the implications of these PAB decisions and on the basis of the results of such a study to advise the Government as to the effective action required to prevent recurrence of these situations.
B. Directorate of Planning
19. The deficiencies of the Directorate of Planning have been highlighted in the Robinson Reports, presented in November 2004. Reporting on the quality of Development Planning Applications Reports (DPARs), Leslie Robinson stated that:
6% of the DPARs were assessed as inadequate, in addition a number of the adequate reports were judged to be of poor quality,
15 different case officers were the authors of the inadequate or substandard reports (currently MEPA has a total of 53 case officers),
problems have been identified with written English, drafting reasons for refusal, report writing, the use of policy and the assessment of proposals,
areas of poor practice identified included: recommending a refusal when negotiations could have achieved a recommendation of approval, not producing balanced enough reports and not being prepared to deviate from policy even when non compliance is small.
20. This Office has had occasion to examine a number of complaints dealing with delays in the processing of applications for a development permit and has generally identified that a number of case officers engaged in piecemeal analysis of applications, dishing out separate requests for information to architects. In addition, a lack of a coherent policy as to which consultations are required together with an inadequate response rate from consultees, does not make matters easier.
21. This Office has also noted that a number of applicants are reluctant to amend an application at the request of the Planning Directorate and prefer to negotiate with the DCC. Whether this is a result of the practice which the DCC Boards have adopted of negotiating with the applicants, or whether it is a result that applicants find a more sympathetic approach in the DCC members is not clear at this stage.
22. The largest number of complaints relative to delays has been submitted relative to requests for the reconsideration of decisions. This is due to the fact that MEPA is not yet in line with the provisions of Legal Notice 266/01 in force since 1 November 2001 and entitled Development Planning (Procedure for Reconsideration),Regulations 2001.
23. On the 30 September 2005, there were 1,498 requests for reconsideration pending to be determined. The Planning Directorate has concluded a report on 909 of these requests but these were still pending at the three DCC Divisions for a variety of reasons. The number of applications awaiting the conclusion of a reconsideration report by the Planning Directorate amounts to 589.
24.MEPA has informed this Office that it is expected that the processing of requests for the reconsideration of decisions will be in line with the provisions of Legal Notice 266/01 by the end of the current calendar year. Whilst one hopes that this projection would materialise, it is unwise to raise expectations unduly. Past experience has shown how difficult it is to achieve this aim. The main complaint against MEPA since its inception has been the undue delay in processing of applications. Despite considerable improvement, after thirteen years it is still a common complaint!
C. Role of Third Parties
25. Third parties are in general viewed as a nuisance by developers. Whilst it has to be recognised that there have been improvements, MEPA itself, however still needs to reinforce its dealing with third parties. It should be borne in mind that the service being provided by MEPA is being so provided on behalf of the Maltese community and it is the interest of the community at large, and not the seeker of an individual development permit which MEPA should continuously protect.
26. A case in point is in the notification procedures relative to mixed-use areas. By definition, areas of mixed-uses are those in which two or more uses co-exist. The co-existence necessarily means that the full potential of each use is not realised: the different uses partially restrain each other. Notwithstanding this, MEPA has been ignoring a particular use and improving conditions relative to other uses thereby causing nuisance and in the process, infringing the provisions of the Structure Plan. Two reports have been issued by the Audit Office on the matter, both dealing with the placing of Tables and Chairs outside catering establishments. In one case, the existence of facilities for fishermen were ignored whilst in another, there was no consideration of the fact that third party residences are overlying a catering establishment. Hence the clearance of a notification in terms of the Development Notification Order (DNO) 2001, ignored the issue of nuisance to third parties. This is the result of the fact that the DNO Office of MEPA is generally ignoring planning policies when processing notifications in terms of the Development Notification Order and limiting itself strictly and exclusively to the parameters referred to in the Development Notification Order. MEPA did not act on the recommendations of the Audit Office submitted in the relative investigation reports. The Audit Office is insisting that the simplified notification procedures applied in terms of the Development Notification Order 2001 do not exempt MEPA from applying planning policies in respect of such notifications, but unfortunately, this is what is being carried out. The DNO is short-circuiting the Structure Plan and other policies!
D. Enforcement
27. Enforcement action is a very weak link in the MEPA setupdue to the fact that Direct Action by MEPA is not resorted to frequently enough to serve as a deterrent. Direct action is very costly and MEPA has serious problems when it comes to recover its expenses from the developer (as required by law). However, it is relatively easy and does not require a large financial outlay to deny the illegal developer the enjoyment of his development by, for example, sealing off premises. Instead, a small number of decisions have been taken which effectively, even if unintentionally, assist the illegal developer. The MEPA acted in these cases within the provisions of the law, but this Office believes that the application of these provisions was not advisable in these cases. This Office had an occasion to criticise a decision to give an application to sanction an illegal development privileged treatment. In other cases it is in the interest of the developer to postpone a decision as long as possible as he is enjoying the fruits of his illegal development. The MEPA co-operates by continuous deferment of the final decision.
28. The MEPA cannot delay any more taking policy decisions on how to render the enforcement of its decisions effective. Like any other law-enforcement body, only the deterrent value of its powers is really effective. Deterrence is only effective if the public believes that any illegality would be discovered and the price to pay for it is considerable. At present the MEPA generally acts only following reports, and then its actions are rarely effective. The message given to society is that it is improbable that anillegal development would be removed, and even if this happens the owner would have probably enjoyed the fruits of his illegal act for a considerable period.
29. This Office is continuously faced with complaints that MEPA does not follow up its own enforcement notices. This is resulting in a reinforcement of a ‘cowboy attitude’ of habitual defaulters with the consequent infringement of the rights of third parties.
30. The lack of effective enforcement action is also leading to allegations of discriminatory treatment and of corrupt practices. While it is obvious that the MEPA cannot advertise how it intends to follow up on direct action, the public has to feel that any illegal development is liable to action at any time and nobody is exempt. This Office is continuously receiving complaints that action was taken against a particular person but not against others who also have a similar illegal development.
Code of Ethics
31. In January 2005, in response to a request from the Hon. Minister for Rural Affairs and the Environment, this Office had drafted a Code of Ethics which is intended to be applicable to all MEPA employees and appointees. The Hon. Minister had informed this Office in writing of his intention to introduce the Code of Ethics for all MEPA employees early in 2005.
32. This Office has been verbally informed that the draft Code of Ethics is being currently discussed at Ministerial level. The promulgation of a comprehensive Code of Ethics can be of assistance to MEPA to improve its image as a modern and effective organisation which believes in giving a good service to the community.
Conclusion
33. The above is a focus on the major areas of concern in the workings of MEPA which require prompt attention and action.
34. The MEPA, like any other ongoing organisation, faces problems. This report did not consider all the problems. A frequent complaint has only been treated in part: the question of delays in the processing of applications. This was intentional, partly because this problem has been considered at length in other situations, but also to focus on other, equally important, but not so-apparent problems. One of the most serious is the approval of applications contrary to policy. While the number of such decisions may be small, their effect can be very serious. In particular as they lead to serious precedents which effectively create policy. It is only occasionally that the public is aware of this matter, and this only when prodded by an NGO or an individual at the wrong end of a developer’s stick. This is understandable as the public only reacts to issues with which it can identify.
35. Delays in the determination of development applications are primarily encountered in the processing of requests for the reconsideration of DCC decisions. These are pending cases which do not feature in the statistics, published monthly by MEPA, hence misleading the public as to the actual number of cases pending final determination.
36. MEPA should understand that each development application submitted for its consideration does not only involve the rights of developers, but also those of society in general. Even if no representations are submitted by third parties, MEPA is duty bound to consider the impact on third parties in its decisions. This is done in most cases but the Audit Office feels that there are several instances where the impact on third parties should be given more consideration. MEPA is not an agent for development but in its land use planning function it is the tool of the Maltese Community to control development as is clearly stated in its mission statement.
37. Finally I would like to thank all the staff of the MEPA, whether Board members or employees, for their continuous support and co-operation. The setting up of the Audit Office was a very bold decision. Few organisations would like to hand over all their records to unhindered and unrestricted access by an independent person with the right to expose any shortcomings to the public. This report may appear to consider only these negative aspects. This is inevitable. The Audit Office considers primarily complaints from the public. Because of its nature it does not receive letters with praise for the work which the MEPA is doing in improving the quality of life by the careful management of the environment in all its aspects. By concentrating on the most salient of these negative features, the Audit Office hopes that it can contribute to a more effective organisation. The positive features are there for all to see.
Joseph Falzon
Audit Officer
7 October 2005