Issue link: https://maltatoday.uberflip.com/i/546399
maltatoday, SUNDAY, 26 JULY 2015 20 Twenty reasons against O n 3 July 2015, government decided to turn the clock backward and propose the separation of the planning and environment protection functions within MEPA, to create two new separate and distinct authorities – the Planning Authority and the Malta Environment Authority. Back in 2002, the Cultural Heritage Act was enacted to fuse the then government Department for the Protection of the Environment with the Planning Authority, in the creation of MEPA. When the Planning Authority was established in 1992, the law created the Planning Appeals Board to review MEPA's decisions. The Environment and Development Planning Act 2010 re-designated the Board as the Environment and Planning Review Tribunal. Apart from the creation of the PA and the creation of the Malta Environment Authority, a third bill will re-establish the current Environment and Planning Review Tribunal. All these three bills are intended to replace one single law – the Environment and Development Planning Act, 2010. If this measure was for the better, I would have had no valid reason to complain; but if this measure is for the worst, as I view it to be, than I remain with no other alternative but to voice my reservations at the enactment of these three Bills hoping that they will be duly addressed. First, the new laws do away completely with codification. It makes life easier for everybody to find the law in one single enactment and makes it possible for better interaction between the institutions. What is the added benefit of having three distinct laws when they could have easily been integrated into one? The reasoning escapes my comprehension. Second: it is unclear why the Prime Minister is being given further powers than he already enjoys. Is it not enough that the 1997, 2001 and 2010 laws on environment and planning have erased completely MEPA's autonomy to make it totally subservient to the government of the day? In 1992, the PN established an independent Planning Authority. Yet, as time went by, it began to suffer from a deliberate and ongoing erosion of autonomy in favour of government. Today MEPA is nothing more than a glorified government department when compared to the independent status it originally enjoyed in 1992. The amendments of 1997 under Labour and those of 2001 and 2010 under a Nationalist administration all contributed to curtail MEPA's independence. The worst thing to have in planning is politicians putting their finger in the pie, to dictate who is to be granted a development permission or not – irrespective of the law, plans and policies. What needs to be avoided is rule by political partisan diktat instead of rule under the law. Third, in 1992 the Planning Appeals Board was presided by a lawyer and composed of a person versed in planning, and another person. Up to 2010 the practice had always been to appoint two architects as they were versed in planning. Then the Planning Appeals Board was restyled as the Environment and Planning Review Tribunal and its composition was changed: it was now presided by a planner with a lawyer and a person versed in the environment as its members. The new Bill on the Environment and Planning Review Tribunal does not clearly and unequivocally set out the composition of the Tribunal. One has to arrive at its composition through a process of deduction. It appears that it will be composed of a lawyer as chairman, an expert in environmental law and an expert in planning law. The Tribunal will have three lawyers with no planners, nor environmentalists as members. However, the Tribunal will in the future be assisted by experts. This is a wrong move as it will contribute only to increase expenses to parties who appear before it and delay the decision making process. The new Tribunal should instead be constituted with two chambers: a Development Planning Chamber and an Environment Protection Chamber. The Development Planning Chamber should be presided by three full-timers: an advocate versed in development planning as chairperson and two persons versed in planning as members. No expert would need to be appointed as the planners are themselves experts in planning. In so far as the Environment Protection Chamber is concerned, it should be presided by a full-time environmental lawyer and two full-time environmentalists. The appointment should be for a single period of seven years, non- renewable. The panels of the Tribunal should be distributed as follows: a panel of advocates versed in development planning law; a panel of advocates versed in environmental law; a panel of planners; and a panel of environmentalists. Otherwise, if the current set-up is retained, the members of the Tribunal will have to rely on expert evidence and, at the end of the day, it will be the experts – not the Tribunal – who will decide the matter bearing in mind that much of the business transacted by the Tribunal is mainly technical not legal. Fourth, the decision of the EPRT should continue to be final on a point of fact but subject to an appeal to the Court of Appeal on a point of law. The law however fails to delineate the exact difference between a point of law and a point of fact. As time passed by, this distinction was blurred by court pronouncements: at first the Court of Appeal, Superior Competence, gave a correct and restrictive interpretation to the term 'point of law' but the Court of Appeal, Inferior Competence abandoned previous case law in favour of a wider approach as to what constitutes a point of law. A point of law should be defined narrowly in the Development Planning Act as the interpretation of a legal provision and should not include the application of the law to the facts at issue or the interpretation of a plan or policy. Fifth, the Court of Appeal should be presided by three judges. With development projects that can run into the millions of euros, such a responsibility should not be shouldered by one judge. Moreover, it should be made clear that the judge should at no point threat, let alone, order that a development permission be issued, because appeals' court proceedings should be of judicial review. Sixth, under the proposed law, the members of the Planning Appeals Board and the EPRT will be appointed by the Prime Minister rather than by the President of Malta, even if acting in accordance with the advice of the minister responsible for planning. How can the Prime Minister, who is responsible for the proper execution of all government development projects, not entertain a huge Opinion Kevin Aquilina Landmark protest in Valletta