Planning reforms, environmental democracy and the rule of law

There have been several reforms to the Maltese planning system since its inception in the 1990s but the recent reforms published via Bills 143 and 144 raise several concerns for environmental governance.

There are four main concerns: 1) the tabling of the Bills in Parliament without public consultation; 2) the proposal to dismantle Malta’s plan-led system by allowing ministerial appointees on the various planning boards and committees to override agreed plans on a case-by-case basis; 3) the proposals to restrict public access to environmental justice, by making it more difficult (and potentially costly) to appeal to the Environment and Planning Review Tribunal, reducing grounds for appeals, and removing the powers of the Court of Appeal to revoke planning permits; and 4) removing the environment as a material consideration on which planning decisions are to be based.

These proposals undermine two key principles of good governance – democracy and the rule of law – as well as the rights to public participation and access to justice as enshrined in the Aarhus Convention, which Malta (and the EU) has signed and ratified and is obliged to respect under Article 65 of the Constitution.

First, publishing such a major planning reform without public participation runs counter to Article 8 of the Aarhus Convention, which states that “each party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally-binding rules that may have a significant effect on the environment”.

To be effective, public consultation must also be in plain language that most people can understand, so a white paper is preferable to legal documents. Public consultation is also undermined in the proposed amendments to the Act itself – under the current Development Planning Act (Cap. 552), legally-binding regulations issued under the Act must be published for public consultation for two weeks, while Bill 143 proposes to delete this provision.

Secondly, Malta’s planning system is based on a hierarchy of plans that decision-makers are obliged to follow when deciding planning permits, with the Strategic Plan for Environment and Development (SPED) at the highest level, followed by the local plans and, then, supplementary planning guidance.

Any conflicts between the plans must respect the planning hierarchy, whereby, for example, local plans override policy guidance in cases of conflict. The crucial strengths of this system are that it imposes the discipline of planning ahead for the country’s future, and that, the higher the level of plans, the more evidence and public consultation is involved in formulating them.

The SPED provides an overall spatial framework for integrated economic, social and environmental development, while the local plans are formulated with the involvement of local communities, enabling them to take part in shaping the future of their towns and villages and also provide a more concrete definition for their configuration and use.

The changes proposed in Bill 143 upend this hierarchy, allowing government-appointed boards and committees to change the plans in particular cases, on the basis of “spatial, architectural, or contextual considerations”, and by giving more recent policies precedence, irrespective of their position in the planning hierarchy. This signifies a move away from impersonal and coordinated governance based on publicly debated and agreed spatial plans and policies, to case-by-case decision-making that is more haphazard and open to clientelism and patronage.

These proposals empower government appointees over communities- Marguerite Camilleri

These changes make it more difficult for decision-makers to determine permits in the public interest as set out in the agreed plans and policies. It also makes decision-making more vulnerable to pressures from powerful interests. The proposal to revive expired permits without renewed consideration of the current planning, environmental or socio-economic context further undermines the plan-led system.

Thirdly, Bill 144 provides that permitted works can only start once appeals are decided – which is what environmental groups have been demanding over the last years, together with the slight strengthening of the independence of the tribunal.

However, several other proposals are included that significantly restrict access to justice: the proposals reduce the period to appeal from 30 to 20 days; limit appeals to the grounds stated in objections filed before a project is approved; double punitive sanctions for so-called ‘vexatious’ appeals; and, most importantly, remove the powers of the Court of Appeal to revoke planning permits, which runs counter to the provisions on access to justice under Article 9 of the Aarhus Convention.

The proposals would allow the tribunal to decide on cases taken to court by members of the public. This goes against the constitutional principle of separation of powers, whereby the judiciary acts as a check on the power of the executive, which is essential for ensuring the rule of law. The issuing of yet another planning amnesty for illegal development further undermines the rule of law in the planning system.

Finally, removing the environment from the list of material considerations that the Planning Board may deem relevant in determining permits, and substituting it with the vague, subjective and legally uncertain “spatial, architectural or contextual considerations”, undermines the principle of sustainable development.

More generally, it is a matter of concern that while most liberal democracies are moving towards more inclusive and collaborative forms of planning, which involve communities in envisaging what futures they want for their cities, towns and villages, these proposals move away from a plan-led system and empower government appointees over communities.

This is even more concerning in a country where the small size and particular electoral system already encourage clientelism and patronage. Unravelling the planning system will not help overcome our geographical constraints and neither will rules that are more open to misuse against the public interest.

This is particularly concerning as the country searches for a new, more sustainable economic paradigm that focuses more on quality of life than wealth creation and where spatial planning has a central role in helping envision and implementing the new paradigm.

At the centre of conflicts related to spatial planning are conflicts of values and knowledge. The solutions to spatial conflicts are better found in dialogue, debate and negotiation, mediated through a strategic planning process, rather than by postponing value conflicts into the future and into the hands of government-appointed bodies. It is only by engaging with issues through public debate and deliberation that we can envisage a planning system that can help deliver a better future for us all.

Marguerite Camilleri is a lecturer in Governance and Public Policy at the University of Malta.