Updated 12.15pm with KTP reaction

The Planning Authority illegally allowed the former Sea Malta Building to be demolished, disregarding the law and persisting in making matters worse instead of fixing its mistakes, a court has concluded. 

In a damning judgement which lambasted the PA and its former boss Johann Buttigieg, the court found that the authority had illegally demolished the building by relying on a report filed by an Enemalta architect, rather than appointing one of its own. 

The Planning Authority deserved to be “strongly rebuked” if it considered itself to be “above the law,” the court declared as it annulled the demolition order that the PA had issued five years ago. 

Most of the building has since been demolished, with demolition works starting in November 2017. The facade has been retained. 

The ex-NAAFI building, a fine example of modernist architecture situated along Xatt tal-Għassara tal-Għeneb, Marsa, was originally built in 1948 as a warehouse and recreational facility for the British Navy, Army and Air Force Institutes (NAAFI).

Enemalta plc sought to demolish it in 2017 by means of an application for a Development (Removal of Danger) Order to the Planning Authority.

The Chamber of Architects immediately stepped in to save the architectural gem which also happened to be within a protected zone designated as an “area of high landscape value of the harbour fortifications.”

It appeared that the PA had approved the demolition application without engaging an architect to inspect the site, as it was bound to so in terms of law. Instead, it relied on a report drawn up by an architect engaged by Enemalta itself. 

However, after obtaining a copy of that report, the Chamber confirmed that nowhere did it state that the building was in imminent danger of collapse.

The Chamber filed a complaint to the Environment and Planning Commissioner within the Office of the Ombudsman, who concluded that the order was null because the Authority had not appointed an architect to visit the site. 

Yet, the PA ignored the Commissioner’s decision and following a meeting of its executive council in January 2018, concluded that there was no reason to revoke the order. 

The Chamber joined forces with NGOs Din l-Art Ħelwa and Flimkien Għal Ambjent Aħjar, and instituted an action for judicial review in a bid to annul the Authority’s order.

When delivering judgment on Friday the First Hall, Civil Court, presided over by Mr Justice Christian Falzon Scerri, observed that the law clearly stated that such an order could “only” be issued after “a detailed onsite inspection by an architect or civil engineer appointed by the Authority.”

Failing that, any decision was “null and void.”

It was irrelevant for the PA and Enemalta to mask the truth by claiming that demolition was necessary because the structure posed an imminent danger.

'Unacceptable' statement by CEO

Former PA chief executive, Johann Buttigieg had testified that it was customary for the authority to rely on architects’ reports attached to applications, rather than engage an independent architect to inspect the site. 

That statement was unacceptable, said the court.

If such a practice truly existed, then it was totally illegal since it went against the express wording of the law.

“Even if the PA may deem it superfluous, the law is there to be observed not ignored,” Mr Justice Falzon Scerri went on. 

And the PA had no power to introduce new practices which ran counter to the wording of the law.

“Rather, the PA deserves to be strongly rebuked if it thinks that it is above the law, or if it thinks that it may not abide by law, deeming the law not important.”

It made “much sense” to impose the condition of a site inspection because such measure served to ensure that removal orders were not abused to bypass normal development application procedures, the judge observed. 

Persisting in its mistakes

Moreover, the court could not help admonishing the PA for not following the recommendations of the Environment and Planning Commissioner.

It was “crystal clear” that the PA had not followed the law.

It ought to have revoked the order and processed the application from scratch, engaging an architect to carry out the inspection. 

“But amazingly enough, not only did the PA not correct its mistakes but obstinately persisted in making matters worse, giving rise to this court case which had been going on for four years.” 

“It’s a noble [gesture] to admit one’s mistake: after all, no one is perfect……but unfortunately no one from the PA deemed it fit to admit this mistake,” remarked the judge. 

The defendants argued that the applicants lacked juridical interest in the case.

But the court observed that where laws on environment and planning were concerned, the legislator appeared to “have opened the doors to the popular (people’s) action to whoever, like the applicants, had the environment and Maltese landscape at heart.”

The defendants also argued that interest in the case no longer existed once the building had been demolished. 

But the court shot down that argument stating that it could not “close the door to justice” just because the alleged illegal decision had been implemented.

“The court would be sending out the wrong message if it were to uphold this plea.”

Irrespective of whether such illegal action could be reversed or not, it was still subject to review as long as the court case was instituted within six months. 

In this case, the applicants had taken their grievance to court in March 2018, namely five months after the removal order had been issued. 

For the sake of righteousness and the rule of law, such judicial review should always be allowed, not only to uncover any illegality but also to lift any shadow cast upon the government entity involved. 

“And if such illegality is uncovered, one hopes that it is not repeated in future and that those responsible…shoulder political and administrative responsibility and even face disciplinary or criminal proceedings if necessary.”

In this case, the Authority’s order was ultra vires, therefore null and void, and consequently all works involved in dismantling the Sea Malta Building had been carried out illegally, concluded the court, ordering the Authority to shoulder all legal costs. 

Lawyer Claire Bonello assisted the applicants. 

Reacting to the court judgement, the Kamra tal-Periti said the ruling confirmed "systemic failings" in the country's planning processes. 

"As witnessed in the Sea Malta building case, given the opportunity, the PA’s Executive Council will vote for the demolition of cultural heritage rather than its protection." 

Countless other such cases had been exposed on social media in recent months, it noted as it recalled how its letters to former prime minister Joseph Muscat to stop the PA from allowing the demolition had gone ignored.