MEPA Reform - Issues

Issue no 001
The fact that the EPC board sittings are held in the morning is already a draw back for us architects considering other work commitments such as site visits and court-related work. Furthermore, the fact that now it is no longer on a first come first serve basis makes it worse.

Cases are now numbered and will be seen to in numerical order – this does not make much sense in view of the small print at the bottom of the letter reading:

“FOR GUIDANCE
The EPC shall decide applications in order of item number on agenda and not on a first come basis. It is envisaged that four(4) files to eight (8) files per hour shall be presented and discussed at the Board.”

In other words what this means is that there will be a lot of waiting involved!! I think this is quite unfair considering this will hinder us from making any further appointments during the morning and secondly since deferrals have been limited. Wouldn’t it be better if board meetings were late morning/early afternoon and if a precise time slot was given?

The issue has been extensively discussed between the KTP and MEPA and a solution is being sought. The procedure that has been adopted by MEPA is that cases should be held in accordance with the list as published and at this point MEPA have definitely ruled out the "first come first served basis".

MEPA are not against a system where cases are heard by appointment but this is a method which needs further study.

A suggestion by the KTP was put forward in the sense that periti on the list of the day would be advised through an SMS on an hourly, or on a shorter time frame if required, that "EPC - Case no # is about to be heard". By this method, which could initially be a short term solution but might in the long term turn out to be a long term solution to the problem, the Perit would be able to gauge when his/her case will be put for hearing. This might avoid long waiting times. MEPA is studying the proposal.

Another solution which has been put forward is for EPCs to be held between 10.30 and 13.00 hrs and 14.00 hrs to 16.30 hrs.

Issue no 002
Today, I attended a sitting of panel B for a case that was supposed to be the fourth deferral but the notice on the door put it as the sixth. I asked the secretary if she had been advised that the cases were to be seen in the same order as the website and she told me that she had infact printed the list from the website that very morning. She also said that she had been told by others that had logged in later the same morning that the information on the website did not tally with her printout. From what I understand, the deferrals on the website list are constantly playing musical chairs. Funny as this may be to the MEPA, we are on tight enough schedules as it is without having to wait even more than necessary. This time my case only slipped two places so I didn't lose too much time but I hope that you will be able to resolve this problem because the previous time my case had slipped about ten places.

Issue no 010
Submitted on 06.02.2011
Boards seem to be operating on the basis of individual, or even collective, likes and dislikes. Policies seem to be irrelevant. What counts is the personal interpretation of a Chairman or member, without any rhyme or reason. This means that development control has, once again, become erratic and subjective. The situation is as if we have appointed judges and magistrates, who think that the Law Book can be ignored. The “legislator” and the “judiciary” have become the same person, and this is never healthy.

Issue no 003
The following letter was sent to Mr Austin Walker, Chairman of MEPA with a copy to the Hon Dr Mario de Marco and the members of MEPA sitting on the Pricedures Commission:

February 4, 2011

Mr Austin Walker
Chairman
Malta Environment and Planning Authority

Dear Mr Walker

May I refer to our meeting of last Wednesday, 2nd February 2011, whereat we briefly discussed a particular case that was referred to us by one of our members just before the meeting and on which case, after being given relative details by KTP, MEPA had to investigate.

The KTP has followed up the matter further and it results that the issue represented by this case is causing much frustration and concern to a number of Periti and their clients.

The matter concerns a number of applications that had been submitted prior to the coming into force of the new Act and that were placed on the EPC agenda during January 2011. As you are aware, the EPC is bound to take a decision at its first hearing of an application, or to defer once following a request to the applicant and Perit to amend the proposal in order to make it acceptable to the Commission. As you are also aware, before January 2011, when the Directorate recommended the refusal of an application, this was not sent to the Sanitary Engineering Officer (SEO) for vetting.

It has now transpired that a number of applications that had been recommended for refusal before January 2011, were placed on the EPC agenda, and the EPC deliberated that should the applicant and Perit make modifications to the proposal, they would be amenable to approve the proposal. Thus Periti and applicants were given 5 days to submit their amendments, and the case was deferred for hearing within 15 days of the first hearing. On the date of the deferred hearing a number of applicants and Periti were informed that during the 15-day deferral period, the proposal was sent to the SEO for comments, and that the said SEO had objected to the proposal on Sanitary grounds. Although applicants and Periti requested to be allowed to amend their proposal in order to comply with the SEO’s comments, they were refused this opportunity on the grounds that a final decision had to be taken during the second hearing.

In all these cases, which we understand to number close to a hundred, at no point during the planning process were the applicant and Perit aware that there were Sanitary issues that needed to be addressed, and they were only informed of this on the date of the last hearing, with no opportunity to address the issues at hand. Thus applications that have been going through the planning process under the old regime for the past year or even longer, were simply refused by the new EPC and not given the opportunity to adjust their applications in order to comply with the SEO’s comments. We consider that these applicants have been denied a fair process and that this is, to say the least, unjust and unacceptable.

Moreover, it appears that the only alternative open to these applicants is to submit a new application. This means that such applicants would have to incur a second application fee which fee is in most instances much higher than the fee they had originally paid for their first application.

At the meeting of the 2nd February 2011, the Procedures Commission had suggested that MEPA should look into the matter and ensure that pending applications that are due to appear before the EPC for the first time are first sent to the SEO for vetting. This is certainly a step in the right direction since the Perit and applicant would at least be aware at the first hearing that there are Sanitary issues to be addressed. However the cases that have been caught up in the anomalous situation as explained above, which I am sure the Planning Directorate is able to provide a list of, need to be looked into and a means of redress for the applicant and the Perit sought without delay.

While trusting that the above is self explanatory, do not hesitate to contact the undersigned should you require any further information and/or clarification.

Yours truly,

Perit Vincent Cassar
President

Issue no 004
My exposure to the new EPCs has not been vast, however, what is worrying is experiencing the EPC applying the Policy and Guidelines 2007 strictly when these are intended to be ‘guidelines’. I would hope that the EPCs do not miss the wood for the trees and that they will be capable of judging applications within broader parameters of consistency, existing urban limitations, environmental and architectural objectives of each application. I would hope that the EPCs would be sufficiently wise and mature to know when to put the Policy guidelines aside and take responsible decisions since the outcome should be consistent, fair and based on good principles. Currently, case officers use the policy guidelines with blinkers on. The job of the EPC is to be able to move beyond this. I hope that the EPC members understand this distinction.

Issue no 005
For applications being weaned out of the ‘old’ system into the regime of EPC approval, a clear direction should be given that though members of the new EPC’s may have reservations and opinions on the application in question, if the DPA report recommends to grant and clear direction was given through previous DCC sessions, then the EPC should grant approval there-of; unless there is something glaringly and blatantly amiss. To cover such eventualities, the EPC could add the caveat in the application notes, that they are granting approval based on previous guidance given by the Directorate and/or DCC and not because they are in full agreement there-of, thus not creating precedents.

Issue no 006
Periti, as well as the Planning Directorate, should immediately be advised of policy interpretation as emerging through the EPCs. A situation may be created where-by pre-submission meetings would indicate one thing while EPC interpretation would be completely different.

The Perit in question informed KTP that he has a very serious case where despite pre-submission meetings two years ago, an unequivocal recommendation for approval without any conditions, two previous DCC sessions indicating the same positivity, the EPC, based on the interpretation of one EPC Board Member, completely and summarily overturned such a direction. The same Perit added that such instances may lead to serious legal issues including those of the Perit being accused of having given the wrong advice to the client.

Issue no 007
The rigid stance of no direct communication whatsoever between Planning Directorate and the Perit about minor issues is unnecessarily bureaucratic. The Perit in question informs us that he had various applications being dealt with by the EPC, with a recommendation for refusal, on some minor sanitary engineering issues – where previously a system of letter writing and/or still better a modicum of direct communication if the matter is not serious, would help in no small way. At least this should be done for applications submitted before the screening process came into force, although the same Perit recommends that the same is done for current applications.

Issue no 008
It should be hammered continuously that policies are there to be interpreted – and only legal notices and laws are not open to interpretation. The rigidity in EPC’s stances in reviewing applications is overly rigid.

It should also be hammered in that MEPA have an 18 year old history and not all was bad before 2011. EPCs should refrain from smugly retorting that what happened before is of no concern to them. Despite all statements to the contrary positive precedents in interpretation of policies should be taken on board by the EPCs.

Issue no 009
The law does not provide that the EPC must respect the decisions or quasi-decisions made by the DCC so some applications face double jeopardy. In one case, fresh drawings as directed by the DCC were presented in October 2010 only to be refused by the EPC in January 2011.

Issue no 011
Submitted on 06.02.2011
The concept that the EPC may defer the hearing of an application only once is, in our opinion, not correct. The delays which should be addressed are those related to bringing the file up to the EPC and not the time spent within processing by the then DCC. What about site inspections, would the EPC not be able to carry out site inspections because this counts as a sitting?

Issue no 012
Submitted on 06.02.2011
Why are the EPCs treating pre-2011 applications in such a strict manner with no deferrals and decisions taken on information available to the DCC on the date of the sitting. Keep in mind that before there was always an amount of negotiation with the DCC which now has finished because of the pre-screening but at least the EPC should give the Perit/applicant time to comply and not simply refuse the application to follow the law and expect applicants to apply again with the new exaggerated DPF fees.

Issue no 013
Submitted on 06.02.2011
The new EPCs have retained the bad habit practised by the old DCCs of the members mumbling (and possibly bungling) between themselves, out of earshot of the public, including the applicant and his Perit specifically. They still have not grasped the fact that this is a PUBLIC HEARING. If they are not sure of themselves and want to consult each other then they should do so audibly. There is absolutely no reason for 'sotto voce' discussions and this goes against the law of which they are so fond of, or indoctrinated to stick to come what may.

Issue no 014
Submitted on 06.02.2011
In a particular case, at the deferred second meeting, it was obvious that the decision hinged on a point of law. The Perit made a suggestion to the Chairman to consult the MEPA legal counsel, but he was told that this was not possible since the case had already been deferred once. So a decision for a refusal was taken by the Commission. The right to request reconsideration has been removed. Is MEPA moving forward or backward? All it seems to be interested in is in speeding up the process of an application at all costs. Except of course when the file rests on one of the directorate officer's desk for an inordinate amount of time for no valid reason. This kind of speeding up eliminates justice being done to the applicant and his case. Or else it generates more bureaucracy by increasing the number of appeals, and fills MEPA's coffers at the same time.