Four environmental NGOs and a number of owners affected by a parliamentary motion releasing substantial tracts of land for development back in 2006, have failed in their bid to annul a decision exempting that process from a strategic environmental assessment.
Flimkien Għal Ambjent Aħjar, Friends of the Earth, the Ramblers Association and Graffitti together with numerous owners had filed an action for judicial review against the individual members of the audit team which took the decision, the Planning Authority (former MEPA) and the Minister for Environment and Rural Affairs.
The dispute stemmed from Motion 245 of July 26, 2006 whereby Parliament approved the partial revision of the Structure Plan, days after the three-member audit team, chaired by engineer Christopher Ciantar, alongside lawyer Simone Borg and economist Jacques Sciberras as members, had delivered its conclusions.
In a letter to MEPA dated July 20, the team laid out its reasoning for deciding that, “in this particular case the process is at a stage when it is not feasible to carry out a strategic environmental assessment.”
But the applicants argued in court that such exemption fell foul of the EU Strategic Environmental Assessment (SEA) Directive which was transposed into Maltese law in 2005, making such environmental assessment mandatory in respect of any such plans submitted to parliament after July 2004.
In case of plans originating before that date but formally submitted to parliament after July 21, 2006, Member States could decide “on a case by case basis” whether abiding by the SEA Directive was “feasible and inform the public of their decision.”
In this case, the approval of the rationalisation process without the strategic environmental assessment was to be annulled and no further development permits in the affected areas were to be approved, argued the applicants.
Fourteen years on, the First Hall, Civil Court, presided over by Madam Justice Joanne Vella Cuschieri, has delivered an 84-page long judgment rejecting the applicants’ claims, whilst calling upon the authorities to use their good judgment when considering development applications in areas of historical and environmental value.
Upon all evidence put forward, the court concluded that there was “not a shadow of doubt” that work on the preparation of local plans had started years before 2006, even as far back as 1991.
Although referred to as a rationalisation process only in the final stages of the ongoing local plan preparations, the scheme was no “stand alone exercise” and no new requests were included other than those submitted during the consultation process, the audit team had explained.
Since the first preparatory work had started well before July 2004 and was at a very advanced stage by the time the SEA Directive came into effect and since therefore the partial structure plan review was “by no means in the strategic phase,” the team had concluded against the carrying out of a SEA.
The court observed that those considerations “were and are factually just.”
Edence did not support that claim by the applicants that the requests to MEPA and the review process had commenced merely months before 2006 said the court, adding that the volume of work such process entailed could not have been completed in a few months.
The audit team’s decision in favour of an exemption was “legally justified,” went on the court, further assured by the European Commission’s decision in March 2010.
The court also observed that the Commission had likewise said that an SEA was not necessary in this case since it had not been proved that the local plans and rationalisation exercise were two separate processes.
Former Environment Minister George Pullicino had testified at length in the proceedings, explaining that “rationalisation was an ongoing process” and that the country could no longer rely on temporary schemes.
Moreover, Cabinet had issued a memo setting criteria for inclusion of particular areas after noting that thousands of applications to MEPA were being handled with different yardsticks.
Throughout the process, MEPA had been inundated with some 5200 applications for inclusion in the local plans and the government of the day wanted to impose “one yardstick for each application, equally applicable to all,” Pullicino had testified.
The NGOs and other applicants also argued that they lacked other legal tools to challenge the rationalisation process.
But the court disagreed, pointing out that each area released for development was subjected to a ‘planning control application’ that was open to objections.
Yet it appeared that many of the owners involved as parties in the suit had not availed themselves of those means and the court could not make good for such shortcoming.
Moreover, as stated by Pullicino in his testimony, releasing a zone for development did not automatically mean that a request for development would be approved, especially when the area involved agricultural land and archaeological sites.
Adding further, Madam Justice Vella Cuschieri observed that requests for development had in fact been refused in areas of Mosta and Ta’ Brag at Mellieħa where objections had been availed of.
As for other areas, such as Tal-Papa at Birzebbugia, the court hoped that “common sense would prevail” when development applications were being considered.
Finally, the court recommended that owners who truly cherished the environmental and historical value of such areas, “not merely the depreciation in value of their property,” would make good use of legal means to register their objections.
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