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8 News maltatoday, WEDNESDAY, 20 NOVEMBER 2013 Tumas Group gets per JAMES DEBONO THE Malta Environment and Planning Authority's new 'part-time' appeals tribunal, appointed by the new Labour government in July, has issued a permit for the Tumas Group to construct 46 villas on an artificial lagoon at Portomaso. The MEPA board had turned down the controversial extension to Portomaso on 26 April 2012, after chairman Austin Walker used his casting vote. The board members had been tied with six votes in favour and six against, after a four-hour debate held at the Mediterranean Conference Centre. On that occasion, Labour's representative on the MEPA board, Roderick Galdes - today Parliamentary Secretary for Animal Welfare and Agriculture – had voted in favour of the project. The new appeals tribunal that decided to overturn the MEPA board decision is composed of Labour candidate and lawyer Simon Micallef Stafrace, architect and newly appointed Freeport chairman Robert Sarsero, and MEPA official Martin Saliba. At both stages, the main bone of contention was a clause in the previous Portomaso permit of 1995, which stated that no further extension or development could be carried out in the area. Subsequently, this ecological zone was identified on the approved plans and a permit condition imposed to keep the site development-free. Following the approval of the Portomaso permit in 1995, a notice was put on the site which is now earmarked for development stating that, "as part of the Hilton Site Development Project, the site within this wall is being sealed off for the protection of important ecological species during project construction and will be opened to the public... any inconvenience is regretted". The Tribunal based its decision on the argument that the permit condition had been superseded by the local plan approved by the Nationalist government in 2006, which permitted development on the site in question, thus accepting the argument made by the legal representatives of George Fenech's Tumas Group, who argued that the local plan approved 10 years later included this particular site as suitable for development. The new appeals board has effectively revoked the 2012 decision and ordered MEPA to issue the controversial permit within 30 days. The area in question, described as the "southern ecological zone", was deemed important mainly because of the populations of Sphenopus divaricatus (Wedgefoot Grass) and Anthemis urvilleana (Maltese Sea Chamomile) that were recorded within this zone. The 1995 environmental impact statement had suggested that the area containing Wedgefoot Grass might qualify for Level 2 protection as an Area of Ecological Importance. But subsequent ecological surveys have shown that the plant has mysteriously disappeared from the area. The Tumas Group also forms part of Gem Holdings, a joint venture with the Gasan Group, which acts as the Maltese partner in the Electrogas consortium that will construct Malta's new 200MW LNG-powered power plant. Local plan supersedes permit condition In 2012 the board chaired by Austin Walker gave three reasons for not issuing the permit. The first reason given was that the development goes against a condition imposed in pre- Artist's impression of the Portomaso development vious permits that no further extensions/enlargements to the Portomaso Project should be allowed. It also declared that the application would result in overdevelopment of the site, that it impinges on a site earmarked as an ecological area and that it would impinge of the entrenchment wall, which is scheduled as Grade 1 building meriting maximum protection. It also insisted that that there are a number of illegalities on site, which should be remedied before any permit is issued. In the appeal, the lawyers representing the developer argued that the permit condition stipulating no further development at Portomaso was superseded by the local plan, which came in place after the permit was issued. They also argued that it was MEPA itself which had repudiated this condition by issuing other permits allowing various extensions to the project in other parts of the site. The developers pointed out that the Local Plan Interpretation document states clearly that "the local plan automatically superseded all previously approved policies, plans and other planning instruments which are in conflict with the local plan". But lawyer Ian Spiteri Bailey, who represented the objectors, shot down this claim. This is because the same local plan interpretation document invoked by the developers also states "all planning applications which have been decided prior to 2006 shall be considered as prevailing over the provisions of the local plan". This means that MEPA cannot overrule an already issued permit on the basis of subsequent changes to the local plan. On his part, MEPA lawyer Anthony De Geatano insisted that the condition imposed on the original permit was binding because the original permit viewed the development of the Portomaso complex in a holistic manner. "This clearly meant that the Authority had ruled out any further extensions from the start and this formed part of the principle of the development." But in its sentence, the tribunal gave more credence to the developer's argument. "It is evident that although in the The Tribunal based its decision on the argument that the permit condition had been superseded by the local plan approved by the Nationalist government in 2006, which permitted development of the site in question original permit the site was not to be developed, the local plan had clearly allowed the site to be developed." The tribunal concluded that the local plan automatically supersedes all previously approved plans. It also upheld the developer's argument that MEPA had not imposed the same condition against further extensions to project in other cases envisaging applications for development on another part of the site. The developer's lawyers pointed out that the density being proposed for the lagoon project of 46 two-storey villas was less than envisioned in the local plan. But the MEPA lawyer also dismissed the appellant's argument that the proposal is "a small scale development", arguing that 46 apartments will cover a footprint exceeding 6,400 is not a small one. "The excavations involved will obliterate the open area designated as an ecological zone." Moreover, although the proposed apartments will cover a lower level than the entrenchment wall, the proposal will distort completely the setting of the historical feature, as it will introduce heavy urbanisation just in front of it. Development approved despite illegalities MEPA lawyer Anthony De Geatano also argued that although the illegalities (the illegal construction of boathouses at the entrance of marina and the irregular construction of a clubhouse) may not be on the same location of the proposed development they form part of the Portomaso complex and fall within the total control of the applicant. "Hence the authority was correct to refuse the application on the basis of the illegalities on site." According to law MEPA cannot issue a permit on a site, which includes illegalities, which have not been sanctioned. In this case, the illegalities are still present on the site. On their part, the developer's lawyers argued that the applicant has a pending planning application to sanction these illegalities presented in 1999. The developers argued that the enforcement covered another site of Portomaso. "It is not reasonable in the context of a project like Portomaso, which is effectively a small town, no develop- ment is allowed on the entire site because of an illegality in another part of it." Curiously, the Appeal's Tribunal backed the developers' arguments despite the fact that the illegalities on the Portomaso site have never been sanctioned. With regards to these existing illegalities on site, the board accepted the developers' argument that it cannot stop development on the entire site if there is an illegality on a small part of the site. The reason given by the board is that "the proposed development does not in any way affect the enforcement of the enforcement order" and that the site affected by the development includes no illegalities. How a plant became extinct The developers pointed out that the zone designated as a "southern ecological zone" had never been scheduled by MEPA in the same way as the same Authority had scheduled the Qalliet rock pools. MEPA had only asked the developers to close this area so that experts can monitor the presence of the wedgefoot grass. Curiously, they also quote consultant Adrian Mallia saying that "originally this plant was identified in a passage which was closed off to protect this habitat. Unfortunately due to this closing off of this site, the plant became extinct". This declaration in itself raises more doubts on the mysterious disappearance of the plants in question. The Portomoso saga The planning controversy revolved around a permit condition imposed when the outline permit for the Portomaso development was issued in 1996 which states that "no extensions/ enlargements of this development, its individual elements or any related development within or outside the site will be permitted". The original permit was issued amidst environmental objections as well as protests against the breach allowed in the 18th century entrenchment wall and objections on the way public land was handed out to the developer. In fact, the entire area was leased by the state to the developers for a measly Lm191,000 until 2014, and eventually sold to the developers for Lm800,000 in 2006.

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