The Planning Authority has ignored last week’s request by civil society organisation Repubblika to suspend or withhold the publication process of the latest two permits granted in the massive Qala development spearheaded by property supremo Joseph Portelli. 

The two applications were approved last January 14, a day after Times of Malta revealed that, according to Land Registry records, the applicants were not the “sole owner” of the site as they had declared. 

A false declaration of ownership is an offence under criminal law and, separately, planning law. It can lead to a permit’s revocation.

The two permits are the latest approvals in a cluster of six development applications that have been put in since mid-2018 – five of these have now been approved, the sixth is under processing.

A false declaration of ownership is an offence under criminal law

These applications pertain to a larger project that has been split into four parts. The separate applications fit together to form one of the largest residential developments Gozo has ever seen.

The sprawling, multi-storey project has a gross floor area larger than 30,000 square metres. Planning sources say that if it had been put in as a single project, it would have been put under the Environment Impact Assessment screening procedure to assess whether it qualified for a fully-fledged EIA.

The Chamber of Architects has opened an investigation into the architects involved in the project.

Court’s ruling on ownership

Regarding the issue of ownership, the Constitutional Court last November held, in a separate case, that the onus is on the developer to “certify” ownership within the law, especially after a complaint has been made.

Mr Justice Mark Chetchuti concluded that if the applicant does not  give satisfactory information that he is the owner or has the consent of the owner, or if the proof put forward, including the declaration of ownership, is not prima facie correct or is fraudulent, then “the application cannot even be considered”.

The court then referred the specific case back to the Environment and Planning Review Tribunal to reconsider whether the applicant could certify ownership as stipulated in the law and, if not, the permit would be voided. 

Following approval of the latest two applications for the Qala development on January 14, publication of the development approval was scheduled for January 29. On January 28, Repubblika sent the Planning Authority an “urgent” letter requesting a stay of publication of the non-executable permits “pending an independent review of the applications concerned. This will prevent the need of a future revocation of the permit which raises far greater administrative complications”. 

Replying to questions from Times of Malta, the authority said that “your questions relate to matters which may, and still can, be brought forward and substantiated with information allegedly in possession of whoever is asserting, by means of the relevant legal procedure laid down in chapter [law] 552.”

The spokesperson added that upon a formal complaint and “all associated documentation substantiating such claim”, the authority would investigate and decide on “the matter within the parameters of the law”.

Revocation of permits: PA shifts onus to civil society in costly process

Following the Planning Authority’s replies (see main story), Times of Malta pointed out to planning minister Aaron Farrugia that media revelations ought to trigger investigations, not dismissal of the reports as “assertions”. Neither should the burden of action be placed on civil society.

A spokesperson for Dr Farrugia said that the “role of the ministry is to provide direction and a framework of laws in which the PA, ERA, interested parties and Maltese citizens can work”.

It added that “when it comes to claims of false or fraudulent declarations, the law states that such complaints can be brought to the authority through Article 80”. 

Article 80 lays out the provisions for revocation of permits. Repubblika’s request was to “desist from publishing the permit”, not revocation as such.

A legal expert said this is within the PA’s legal rights – non-publication would prevent a permit from going into effect. 

As for revocation, the law states the request can be made by “any person” or by the authority itself “out of its own motion”.

Sources told this newspaper that, despite these powers, the authority tends to hold back from initiating revocation procedures unless third parties put in formal requests.

In cases when the request is made by “any person”, the procedure has become costlier after a charge of €500 was introduced last year. The fee is refundable if a request is upheld. 

An environmental campaigner drew attention to the lopsidedness of this fee in comparison to the €100 fee for a developer to challenge enforcement procedures by the PA.

The Ombudsman wrote to the PA last June to request lesser and scaled fees commensurate with the complexity and magnitude of the development. Yet the fee has remained unchanged.

The campaigner also lamented that the PA puts the onus on the complainants to mount a case and that this increases costs.

The law also holds that a revocation request is upheld if the grounds for the request – such as fraudulent or incorrect information – would have had a “material bearing” on the issuance of the permit.

“All of this discourages requests for revocations,” the source said. “Besides, there are only so many cases that NGOs and local councils can handle due to limited resources. Some cases go through unchallenged and then, to add insult to injury, the PA uses those cases as a ‘precedent’ for further inaction.”