MEPA Audit Report 2006/080
Compl. 99 – 06
The process leading to MEPA’s recent approval of the Local Plans was subject of a number of complaints, received in the form of letters as well as articles in newspapers.
The issue was raised as follows:
1. A letter dated 22 August 2006, from The Hon Dr Michael Gonzi M.D. M.P., on behalf of various residents of Sta Maria Estate, Mellieha.
2. A letter dated 1 September 2006, from Mr Silvio Debono, through the Office of the Ombudsman, on behalf of various residents of Sta Maria Estate, Mellieha.
3. An article in Maltatoday, dated 3 September 2006, entitled Santa Marija residents issue legal warning to Minister
4. A letter dated 05 September 2006 from Mr John Buttigieg, Mayor of Mellieha.
5. A letter from Mr Beppe Debono, dated 6 September 2006, on behalf of various residents of Sta Maria Estate, Mellieha.
6. A letter dated 20 September 2006, from Dr Joseph Grech, on behalf of his client, Mr Francis Xavier Debrincat.
7. A letter dated 25 September 2006, from Dr Mark Gauci.
8. A letter, dated 2 October 2006, from Perit Lawrence Mintoff, sent on behalf of 34 owners of property in Aragon Court, Marsascala.
9. A letter, dated 10 October 2006, from Perit Raymond Vassallo, sent on behalf of his client relative to PA 3305/06.
Complaints 7 to 9 were received at the Audit Office after I had issued a preliminary report relative to this investigation.
An investigation was carried out in terms of Section 17C of the Development Planning Act.
Complaint
The objections can be grouped under two headings:
a) Those related to the decisions taken as to the area which can be developed (e.g. site coverage, height limitation, etc.) and consequently their effect on both existing and proposed development.
b) The procedures adopted in the approval of the plan.
As the adopted policies follow from the procedures adopted, the investigation was at this stage limited to procedural issues, specifically to the issue of consultation.
The procedural complaints are based on the fact that after the consultation process carried out by the MEPA, following the publication of the First Draft of the Local Plans, no further consultation were carried out. Consequently, the public was faced with approved Local Plans which differed considerably from the Draft Local Plans published by the MEPA for consultation. The public was never given the opportunity to air its views on the substantial amendments and additions to the original Draft Local Plans.
Procedure adopted
The Audit Office discussed the issue with the official in charge of the Local Plans Unit of the MEPA and requested his version of events as to how the process was concluded. He stated that the procedure adopted was as follows:
a) The Draft Local Plans, as approved by the MEPA were published and the public was invited to submit representations. During the consultation period, the MEPA received various submissions, all of which were duly assessed, together with other amendments prepared by the MEPA staff.
b) The finalized Draft Local Plans were presented to the MEPA Board for its approval. Additional amendments to the Draft Plans were made by the MEPA Board as a result of its deliberations.
c) The Final Drafts as approved by the MEPA Board were subsequently sent to the Hon. Minister for his approval in terms of the Development Planning Act..
This confirms the statement of the complainants that no further consultation with the public was carried out after the closing date for submissions on the original draft proposals.
The Audit Office was informed that the officials at the Local Plan Unit of MEPA were concerned about the issue of public consultation. Legal advice was sought which directed them that there was no requirement to undertake additional consultations after the six week public consultations on the Draft Local Plans.
It is pertinent, however, to point out that subsequent to the adoption of the Cabinet Memorandum on the Rationalisation of Development Boundaries, a consultation exercise was carried out limited to the said adjustment to the development boundaries. The resultant proposals, as a result of which the said development boundaries were modified, were not however submitted for public consultation.
The Duty to Consult
It is the view of the Audit Office that the MEPA is obliged to consult the public on the preparation of a Local Plan (vide Section 27 of the Development Planning Act) on a substantially wider scale than that applied by MEPA. The relevant provision in the Development Planning Act legislation which clearly explains the spirit of the law and the intentions of the legislator is Section 27 (2) (a) which reads:
“During the preparation or review of a subsidiary plan, the Authority shall make known to the public the matters it intends to take into consideration and shall provide adequate opportunities for individuals and organizations to make representations to the Authority”.
The MEPA is thus obliged “to make known to the public the matters it intends to take into consideration”. This duty is not restricted to the first draft of the Local Plan. In fact it is “during the preparation” of a local plan when the MEPA has the duty to consult the public. The crucial issue therefore is to determine the period of the ‘preparation’ of the Local Plan. In my view the period of ‘preparation’ spans the time from initial drafting up to the final approval. It is on the basis of this interpretation that in my view all additions, as well as substantial amendments, to the Draft Local Plan require public consultation. This consultation process should, in my view, be repeated until such time as the public (individuals and organisations) would have had an adequate opportunity to submit representations on all proposals contained in a Draft Local Plan.
The Duty to Consult
It is obviously not reasonable to criticise the MEPA for acting on legal advice. It is also beyond my competence to judge the validity or otherwise of the advice tendered.
However, irrespective of the manner in which the legal provisions were interpreted, the procedure adopted by the MEPA can easily lead to suspicions that any person or persons, within the MEPA structure, can omit crucial (and possibly controversial) policies at the initial stage and then include them in the Local Plan at a later stage, when no further consultation is possible. The potential for abuse in accepting the procedures as adopted by the MEPA is enormous. This clearly conflicts with both the letter and spirit of the Development Planning Act.
I believe that legal provisions should be introduced to ensure consultation at all stages of the preparation or amendment of a local plan. I find comfort in the fact that the MEPA Chairman has stated in his reactions to a preliminary version of this report that “MEPA would endorse a conclusion of the Audit Officer which would be critical of the provisions of the law and suggesting possible amendments”. I would recommend that a legal notice is issued to specify clearly the duties of MEPA relative to public consultation. In my view, it should be clear that these are as follows:
a) That the draft proposals for the Local Plan are published for public consultation and submissions from the public are received. These representations are analysed and amendments to the Draft Plan carried out where considered necessary and subsequently a new draft produced.
b) That the amendments and any new policies included in the amended Local Plan should be re-published for public consultation. This consultation process should be repeated any number of times as necessary and should be limited only to substantial modification, new or proposed deletion of draft policies.
c) Only when all the matters which have been taken into consideration have been subjected to public consultation, is the finalized Local Plan process to be considered as validly concluded as only at this stage, would the process of public consultation be exhausted.
Obviously, this would lengthen the process. However, it should be borne in mind that the process relative to the Local Plans has been in hand for over ten years during which there was ample time for public consultation.
Public participation in Land Use Planning is crucial to the democratisation of the planning process as regulated by the Development Planning Act. Adopting procedures which limit, or curtail this right, is unacceptable.
Finally, since the preliminary report was finalized and sent to the Chairman, MEPA for his comments, the Audit Office received an e-mail from one of the complainants where allegations of corruption were made against officers (not identified) of MEPA. The Audit Office does not have the resources or competence to investigate these types of allegations and has advised the complainant to refer the matter directly to the Commission for the Investigation of Corruption.
Conclusions
In view of the above it is concluded that the MEPA failed to consult with the public on the substantial amendments and additions which were carried out to the Draft Local Plans after the original drafts was issued for public consultation. The MEPA justified its actions by stating that it acted on legal advice.
Joseph Falzon Audit Officer 9 November 2006