Maltatoday, 29th June 2008, by James Debono

By invoking Article 39 A to revoke an outline permit for the Spin Valley Disco on land owned by Nationalist MP Jeffrey Pullicino Orlando, MEPA risks opening a can of worms as other dubious developments could merit the same treatment.

Article 39 A is usually invoked to revoke permits issued on the basis of “fraudulent” plans or information. Only a year ago, MEPA revoked a permit for the re-development of Ulysses Lodge in Ramla l-Hamra, because the developers failed to indicate the existence of a small public path, which affected two out of the 25 proposed villas.
But while in the Ramla case the permit was annulled because of an alleged shortcoming on the part of the developer, the Mistra permit was annulled because of a shortcoming on the part of one of MEPA’s own organs.
MEPA has now invoked another section of the same article, which allows MEPA to revoke permits if “there exists an error on the face of the record.”
An “error on the face of the record’“ is defined by the law as “an error… which offends against the law.”
MEPA argues that the DCC board had issued an outline permit “within a Natura 2000 site”, the board decided that there exists “an error on the face of the record”, since no appropriate assessment was carried out prior to the approval of the outline permit as required by the provisions of the Flora, Fauna and Natural Habitats Protection Regulations.
But can the same argument be applied to other developments approved by MEPA, which violate other laws and which were never submitted to “an appropriate assessment”?
By specifically referring to Mistra’s status as a candidate Natura 2000 site, MEPA could be narrowing the application of 39A to developments affecting extremely sensitive areas. Natura 2000 sites are protected by legislation which makes an environment impact assessment (EIA) a prerequisite for any development. This made it easier for MEPA to revoke the permit.
Yet in stating when Article 39 A can be invoked, the Development Planning Act makes no distinction between the laws protecting Natura 2000 sites, and other laws such as the Structure Plan, which precludes ODZ development whenever a development can take place within development zones; as well as the EIA directive, which outlines clearly which developments merit an EIA and which do not.
When asked whether the revocation of the Mistra permit could set a precedent for further revocations, MEPA’s legal representative hinted that while the case on Mistra was watertight because of existing legislation protecting Natura 2000 candidate site, an element of subjectivity exists in other cases where no EIA was conducted.
But on a political level MEPA’s decision to revoke the Mistra permit can set a precedent for demands to revoke permits for developments which were also deemed to be in breach of the law.
One case in point could be the approval of the Lidl supermarket in Safi, approved by the same DCC board responsible for the Mistra disco approval.
In his report, endorsed by the Prime Minister a few days before the election, Mepa auditor Joe Falzon concluded that since the project was so extensive it should have been covered by an EIA.
In his report, the Mepa auditor said the approval gave rise to “the most serious concern” since the DCC “chose to ignore all the relevant approved policies and approve an application without in any way justifying its actions based on approved policies”.
He also queried why the DCC had failed to consider the possibility that this type of development needed an EIA.
Since the DCC board is deemed by the Auditor to have ignored “all the relevant approved policies,” in the Safi case, does this not constitute “an error on the face of the record” which could lead MEPA to invoke Article 39 A to annul the Safi permit?
The MEPA board could face this question if a request to invoke 39 A to question the legality of the Safi permit is made by the common citizen.
Since 2002 Article 39 A has been invoked 16 times. As a result of this six permits were revoked, two permits were partially revoked and six permits were modified.
Prior to Thursday only four permits were revoked because of “an error on the face of the record.” The permits revoked for this reasons included the construction of basement garages, the sanctioning of a reservior, the extension of a bar in Gozo and the sanctioning of two flats and garages in Mosta.
What’s certain is that in the case of Mistra, Article 39 A was invoked by the same MEPA board which falls under the direct responsibility of the Prime Minister.
The same board made no attempt to revoke the Safi permit, despite its illegal status. Ultimately Article 39A is proving to be a very expedient political tool for the authorities.
The revocation of the Mistra permit now piles further pressure on the unrepentant Jeffrey Pullicino Orlando to step down. After all, the permit issued by the DCC on his land was so illegal that MEPA had to revoke it.
Yet next time round, MEPA could find itself faced with demands for revocations that defy political expedience.