Malta Rationalisation Petition - YOUR LAST CHANCE TO SAVE MORE OF OUR COUNTRYSIDE FROM BEING BUILT UP

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Dr. Janez Potocnik, Environment Commissioner, Dr. David Lowe, Head of the Secretariat of the Petitions Committee, As new Environment Commissioner and Head of the EU Petitions Committee respectively, we kindly ask you to review our case which we maintain is critical to Malta’s good governance, sustainability and respect of EU Law. On the 27th July 2006 the Government of Malta committed a significant infringement of Directive 2001/42/EC ("the SEA Directive") by the manner in which the Structure Plan for the Maltese Islands of 1990 was amended by a Parliamentary Resolution. The Government of Malta has acted in a misleading manner in its amendments to the Structure Plan by virtue of section 18(3A) of the Development Planning Act, Cap. 356[1]. These amendments designated significant tracts of virgin land for development at the same time as Government was concluding the long outstanding Local Plans in terms of section 27(2) of Cap. 356. All these Local Plans were finally approved by the Minister for the Environment on 3 August 2006 and since this date falls after the cut-off date envisaged by the SEA Directive, the Maltese Government was duty bound in terms of article 13(3) of the SEA Directive to justify why such Local Plans should not have been subjected to an environmental assessment in terms of the same Directive. The relevant provision of the Directive allows “Member States (to) decide on a case by case basis that this is not feasible (to subject such plans to an environmental assessment) and inform the public of their decision.” The Maltese Government never tried to justify the fact that the Local Plans were approved after 24th July 2006 on the grounds that it is not feasible to subject such plans to an environmental assessment and though the interval which has elapsed before the approval of the Local Plans is minimal, the fact remains that the deadline laid down by the SEA Directive was not observed, resulting in an infringement of the same Directive. Concurrently with the process of the approval of the Local Plans, Government started a process which culminated in the approval of the aforesaid Parliamentary Resolution on 27th July 2006 which released additional sizeable tracts of land for development, over and above the tracts of land that had been approved for development as a result of the approval of the Local Plans. As a result of the approval of the aforesaid parliamentary resolution, significant changes to the development boundaries were made, amounting, according to the Minister of the Environment, to an incease of 2.3% of the developable zone of the Maltese Islands. These changes to the development boundaries have been exempted from the strictures of the SEA Directive by the Maltese Government on the basis of certification by the so-called independent "SEA Audit Team" headed by Ing Chris Ciantar. In view of Ing Ciantar’s position of Permanent Secretary within the Ministry for Rural Affairs and the Environment, the objectivity, impartiality and independence of judgement of the SEA Audit Team is questionable. We disagree with the exemption from the SEA Directive being claimed by the Maltese government on several counts: 1. The so-called "rationalisation exercise" was initiated by the means of a peremptory cabinet memo in May 2006 which, after taking MEPA to task for its very slow elaboration of local plans, stated that it [the memo] is "to be considered as Government’s reaction to Local Plans issued by MEPA for public consultation as well as Local Plans which were approved by MEPA." However, as already stated, the Local Plans have been concluded separately and were finally approved by Government through the Minister of the Environment who had extensive powers to disagree with MEPA on particular aspects of these Local Plans. He could have imposed his position on MEPA (Section 27(2) of Cap. 356). However, Government, rather than openly influencing the approval of the Local Plans in terms of section 27(2) of Cap. 356, issued a cabinet memo, under the guise of "rationalisation", which set a number of criteria for extension to the development zones. These criteria were interpreted by MEPA and the resulting maps of proposed development sites were issued for public consultation. At the end of the period of said public consultation, MEPA revised the plans once again to take into account objections submitted by the public. As a result, some sites that were included under the criteria of the cabinet memo were removed due to public opposition; however many new virgin sites were inserted, at the insistence of particular interested parties. These sizeable new additions were not submitted to public scrutiny at any point prior to submission to Parliamentary approval. We also maintain that the Local Plans are invalid due to the lack of public consultation Furthermore, even during the stage of Parliamentary approval, considerable changes were made by Members of Parliament to the plans which had been prepared by MEPA on the basis of the Cabinet Memo and of public submissions. Noteworthy is the inclusion of the area envisaged for the Smart City project in Ricasoli which was included at the eleventh hour after 21st July 2006 and which brought the amount of additional land which has been rendered developable as a result of this exercise to over 3% of the current development zone. It cannot be argued that such an extension of the development zone had been contemplated before 21st July 2004. What is abundantly clear is that such an inclusion could not be exempted from the provisions of the SEA Directive. The point is that the so-called "rationalisation exercise" triggered by the Cabinet Memo to MEPA of May 2006 and which culminated in the parliamentary approval of 27th July 2006, approving changes to the Structure Plan, did not have its genesis prior to 21st July 2004 as stipulated by the SEA Directive and as claimed by the Maltese government. It was rather the result of government dissatisfaction with the manner in which the Local Plan process had evolved under MEPA. Although, as already explained, Government could have chosen to impose its submissions on MEPA prior to the approval of the Local Plans, it chose not to do so, probably fearful that such direct interference in the development process could have back-fired, or because it did not have the time to make the necessary changes before the expiry of the transitory clause of the SEA Directive. Instead it chose to amend the Structure Plan without subjecting the new development zones to a strategic environmental assessment as required by the SEA Directive. 2. The Maltese Government did not justify the said exemption on a case-by-case basis as required by the SEA Directive but relied on a blanket exemption. The mere fact that it stated that it is not feasible to carry out such a strategic environmental assessment, does not mean that the Maltese Government can ignore the provisions of the SEA Directive with impunity. Moreover, the exemption clause does not apply since the so-called "rationalisation exercise" is completely independent of the Local Plan Process and was not initiated before 21st July 2004. Thus, the Maltese Government, in adopting the changes to the Structure Plan by means of Parliamentary Resolution without submitting the proposed changes to strategic environmental assessment has infringed the SEA Directive. 3. It is odd that the Maltese Government chose to extend the development zones by means of a resolution approving changes to the Structure Plan in terms of section 18(3A) of Cap. 356. The original Structure Plan did not have any plans of development zones: these had been laid down by the Building Permits (Temporary Provisions) Act. The approval of the Local Plans had been meant to revise these temporary development zones that had been enacted prior to the promulgation of the Development Planning Act, Cap. 356. This latter act had also laid down that subsidiary plans (including local plans) which had been prepared under the Building Permits (Temporary Provisions) Act and in force at the time of its coming into force would be treated as MEPA plans approved under Cap 356 (Section 29(2) of Cap. 356). Thus, it follows that the proper way to revise these subsidiary plans should have been through the procedure laid down in section 27 of Cap. 356. This had generally been followed in the process of approval of the Local Plans which had revised the pre-existing development zones and not by means of a purported revision of the Structure Plan by parliamentary resolution in terms of section 18(3A) of Cap. 356. One can only conclude once again that since the Maltese government was running out of time before the SEA Directive kicked in, it adopted this stratagem to give the whole process of extending the development zones an aura of legality without having to go once again through the whole exercise of the approval of the Local Plans. In view of the foregoing, it is our considered view that the approval of the Local Plans on 3rd August 2006 and the revision to the Structure Plan by the Maltese Parliament on 27th July 2006 without subjecting the extensions to the development zones to an environmental assessment have contravened the SEA Directive. Although five Maltese environment NGOs have requested EU action on this case, the Infringement proceedings are taking so long that the Maltese Government has now started to enact the land planning measures necessary to develop these countryside tracts. Malta already has the lowest percentage of unbuilt land in the EU, and if the EU does not act fast, we are soon to lose much more of it. We therefore urgently request you to take action to conclude the infringement proceedings against the Maltese Government. Yours sincerely,
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