NEWS | Wednesday, 30 April 2008

Reforming MEPA

The full speech on how MEPA should go about reforming, as delivered by Chief Executive of the Today Public Policy Institute (TPPI) Martin Scicluna at the GO-Today Seminar last Friday

The Today Public Policy Institute has just produced its first report entitled ‘The Environmental Deficit: the Reform of MEPA and the other Environmental Regulators’.
The report covers every aspect of the environmental deficit. It deals with it in four parts. First, the structure at the government level and the new ministerial responsibilities for the environment. Secondly, the reform of the regulatory authorities, focussing principally on MEPA, the MRA, the ADT and the local councils. Thirdly, the issues of enforcement, education and the encouragement of good practice. And fourthly, the vital matter of climate change and Malta’s sustainability.
I shall be focussing today entirely on MEPA. But I shall be glad to take questions later in the discussion period on any aspects of the think-tank’s report – which contains some 180 recommendations or proposals. 90 of these concern MEPA, while the rest cover the other aspects of the environment. May I also just say that the TPPI is autonomous, independent and not affiliated to any political party or movement. Again, I shall be delighted to take any questions later about its ongoing programme of work.
By virtue of its wide responsibilities for almost every aspect of the environment, MEPA probably exercises the greatest influence on the quality of the environment in Malta. If MEPA does not function efficiently its damaging effects are felt by everybody.
The Authority has suffered a number of setbacks, arising mainly from high profile, seemingly perverse decisions at the board and commissions level. When I was still the executive president of Din l-Art Helwa a few years ago, I said publicly once that I thought a particular decision made by the board had been “perverse”. I received an irate report next day saying “what on earth did I mean by calling the board a bunch of perverts.” Of course, their sexual orientation could not have been further from my mind.
But I want to start today by highlighting what I think is good about MEPA, because there is a danger – which we must avoid at all costs – of a kind of mass hysteria gripping us and giving the impression that MEPA is all bad. And of consequently throwing the baby out with the bath water in our haste to reform the organisation. Nothing could prove more damaging.
In the last 16 years, MEPA has been manned in the main by dedicated professional staff, though it has suffered from high turnover and the standards of case officers have been variable. Those who have been appointed to the difficult task of running the boards and commissions have been mostly conscientious, public spirited and – with one or two notable exceptions – largely effective and beyond reproach. The majority of MEPA’s decisions in 16 years have been unexceptional.
MEPA has made major strides in its dissemination and availability of information data and in ensuring access and public participation in its processes. More remains to be done. Transparency, openness and accountability in the preparations of plans and its decision making have been adopted as key objectives of the organisation. Planning itself has taken on a more comprehensive and integrated approach. MEPA’s use of information technology has been excellent.
MEPA’s creation in 1992 aimed at a clear separation between the issuing of development permits on a ministerial whim – lest we forget those dark days – and the national imperative for a well-ordered planning process. One that had at its core equity and transparency of treatment and the implementation of objective standards within a clearly laid down structure that achieved sustainable development. Nepotism and corruption were to move out of the planning process.
But if MEPA’s crucial position as Malta’s most important bulwark against land abuse is to be strengthened, there is now an equally urgent need to ensure a clear firewall is built between politicians and the authority. Perception is all important. While the government must be in a position to lay down the broad environmental and development strategy to be followed by the country, it must adopt a hands-off approach where specific development decisions are concerned – except in clearly defined areas such as national defence. And, insofar as possible, it should not hold the monopoly on the final selection of members of the key planning boards and commissions.
The think-tank’s approach to proposals for the reform of MEPA has therefore been dictated by five key factors. First, if confidence in the planning system is to be restored, there must be a root and branch examination of the whole process. There are times when what is needed is not to dabble or tinker with a problem, but to apply a blow-torch. Secondly, this should aim to keep what is good – of which there is much – but to discard, or change, what is deficient. Thirdly, there must be confidence that we have the best structure in place to do the job we want MEPA to do. Fourthly, that structure – whatever shape it takes - must be well led. Leadership – as in every walk of life – is all important. But all the more vital in an organisation as complex and as subject to external pressures as MEPA. And, fifthly, the procedures and systems – the regulatory framework for its decisions – must be workable and totally above board. We can’t force people to be good. But we can make it very difficult for them to be bad.
Thus, we concluded that the reform of MEPA should focus on three main areas. First, MEPA’s structure and leadership. Secondly, the composition and selection of its boards and commissions, which are the key decision-making bodies in MEPA. And thirdly, the adoption of systems and procedures designed to ensure transparency, effectiveness and accountability. A bond of trust between decision-makers and the ordinary man in the street.
Reform, we felt, must take account of changes needed in these three interlocking areas, together of course, with concomitant changes in the legislation to underpin it.
Let me now take you briefly through the main conclusions and recommendations reached on these three areas. Starting with structure and leadership. You may recall that there have been many public calls to “de-merge”, or separate, the roles of development planning and environmental planning which were brought together some four years ago. We have considered the arguments for de-merger very carefully.
On balance, we have concluded that the current organisation carries significant structural advantages. While there is inevitably a creative tension between development planning, on the one hand, and environmental protection, on the other, to separate the two functions into two free-standing entities would undermine the essential need for close communication, co-ordination and integration between the two halves of the same problem on matters of common concern.
The integration of land use planning and environmental care may have had its teething problems – and this may have been the cause of the call for de-merger – but it makes over-ridingly better organisational sense for the two to be part of the same organisation. This is best done under one roof – ideally co-located in the same building and properly staffed, two elements which are not currently the case – and led and overseen by the same management hierarchy, underpinned by the necessary changes in the legislation – where planning and environmental protection meet and integrate.
The fundamental challenge now lies in making the organisation work better by giving the environment directorate a comparable and equivalent decision-making voice to that of the planning directorate on planning issues by institutionalising this administratively as well as in the legislation.
As to the vital matter of leadership of such a structure (notice I prefer the word ‘leadership’ to ‘management’) we have questioned the need for the current two distinct roles of director general and chairman heading the organisation. The director general is the professional, permanent civil servant responsible for providing the day to day professional, technical, managerial and administrative support of the authority and the implementation of its decisions. While the chairman, who only operates on a part time basis, chairs the meetings of the board of the planning authority which is responsible for all aspects of planning and sustainable development and takes all the major decisions.
We believe there is a very strong case on leadership, accountability and organisational grounds, for advocating that it would make better sense to have an executive chairman, who is full time and combines both the current areas of responsibility, with clear accountability for all decisions reached, as well as the running of the organisation. Effective management and good leadership of an organisation as high profile and complex as MEPA require no less.
Next, in looking at the top structure of MEPA, we turned our attention to the men and women selected to serve on the key planning boards and commissions. The MEPA board itself – the top planning authority – the three development control commissions and the planning appeals board panels – a total of some 40 or 50 people. These are the people who make all the crucial decisions. they are an intrinsic part of the leadership hierarchy of MEPA. On their key judgements the reputation of MEPA largely stands or falls.
How are they selected? What qualities do they bring to the table? Does the predominant number of architects and public servants on the board or commissions – no matter how honourable they may be as individuals (and let me say here emphatically, the majority have been people of rectitude) – does this lead to the exercise of, or possible charges of, undue influence, possibly also sometimes duress? Are the rights of ordinary citizens thus prejudiced? Is confidence in the process undermined or damaged? Why do people conclude, rightly or wrongly, that MEPA applies two weights and two measures “strong with the weak, and weak with the strong”?
These are the issues which we tried to confront in devising the best way of selecting the composition of the boards and commissions. It is inevitable in a small country like Malta, where everybody knows, or is acquainted with everybody else, that the pressure from politicians, developers or other clients on those making planning or environmental judgements is intense. This therefore underlines the need to ensure that so far as possible conflicts of interest – that is, avoiding the use of public office for private gain – do not contaminate the planning process. That corruption – whether through blatant financial bribery or of the more insidious kind stemming from mutual back-scratching or the exercise of undue influence – does not undermine the necessary impartiality and objectivity of board or commission members.
We therefore sought ways of reducing potential conflicts of interest to the greatest extent possible. While ensuring that technical expertise informed the decisions made without removing the objectivity, autonomy and ethical basis on which decisions of such wide impact and importance were made. We felt we had to devise a system which was not simply about the personal integrity of those making decisions, but also, over-ridingly about the potential conflicts of interest – as well as very importantly the public perception about what might or might not be happening. In the end, it has to be about public confidence in the system.
What we therefore propose is the introduction of a process of independent scrutiny and selection of individuals to serve on MEPA’s boards and commissions which ensures that those making these decisions are seen openly and transparently to be beyond reproach. Most importantly, those selected should reflect more fully the different components of civil society whose concerns they are meant to represent.
This is what we propose. We recommend that the size of the MEPA board should be reduced to nine members, instead of the current fifteen. This would be the right size, we believe, for the efficient and cost effective conduct of business. The five public officers and two members of parliament should no longer form a part of the board. However, one public officer to represent government should be retained on it. The Prime Minister will select the names of the proposed executive chairman and the chairmen of the commissions. He will only appoint them after consultation with the Leader of the Opposition, as already happens with such posts as the Ombudsman, the Chairman of the Public Broadcasting Authority and others. If there is no agreement on the candidates being proposed, the public should be given the reasons for the objections. The President of Malta will then be invited to resolve the issue.
The remaining members of the board, including the deputy chairman, should be nominated from among the range of civil society bodies covering physical planning, economic development, social and community affairs, and the protection and preservation of the environment and cultural heritage. We have proposed a possible list of organisations in the report. The nominees should be people of known integrity and good judgement, of wide experience, living in the ‘real world,.’ independent-minded and non-political. They need not be experts. They must be people capable of taking the long view – a view which has at its core the long-term sustainability of Malta’s environment for generations still to come. The Prime Minister will have the power to vet and if necessary, to reject any nominees from these bodies.
The Prime Minister will then submit his choice of names to the already existing parliamentary standing committee on development planning for scrutiny and approval. The membership of the commissions and the planning appeals board panels should follow the same general process, with the same vetting and scrutiny process by parliament as for the MEPA board. I will admit that all of this is a more laborious process than today’s selection on a Ministerial whim. But in a modern and mature society is this not the kind of open selection process we should expect and demand of our politicians?
To ensure that the members of the boards and commissions receive objective technical advice, we also recommend that – if it is judged necessary by the board – the advice of professional officers in MEPA should be reinforced by the allocation of qualified planning professionals engaged on a full time contract basis to provide technical advice to the specific boards and commissions.
We also recommend that regular Parliamentary scrutiny of MEPA’s operational effectiveness and efficiency should be introduced and that the parliamentary standing committee on development planning’s role should be extended accordingly. It should also be the recipient of the MEPA auditor’s reports. In this way, parliamentary scrutiny of the development planning process will be improved and public confidence in the roles and operation of MEPA will greatly enhanced.
Some might argue that selecting nominees to these boards in this way will in themselves represent vested interests. And, to an extent, this is true and inescapable under any system. But to argue thus is to overlook the crucial difference between this and the current system of nominations by government ministers. First, a very wide spread of civil society is encompassed by this method. And second, the parliamentary scrutiny process will impose its own sifting of the wheat from the chaff. Taken together with the proposals we go on to make about improvements of transparency of the way the boards and commissions operate, these changes, we are convinced, will make a telling improvement in avoiding so far as possible the conflicts of interest that occur today, while at the same time ensuring that their membership is more widely representative of civil society as a whole. Confidence should thus be improved.
I want to deal now with the third section of our proposals for reforming MEPA. This is the need for the procedures and systems to be followed by the board and the development control commissions to be stringently tightened up in several areas. To close loopholes in the act which have led to abuse. To counter the common criticism that MEPA favours the big developer at the expense of the ordinary man. And to obviate the current practice of allowing wide ‘interpretation’ of the rules.
In all, we make some 70 proposals or recommendations for improvements in a number of areas covering procedures, the processing of planning applications, appeals, public consultation and the protection of the environment against development ODZ (outside the development zone). Some are very detailed. Some are major. Let me highlight some of these.
Perhaps the most sensitive and controversial issue affecting the environment and development has been the question of ODZ applications. The abuses committed are an indictment of the weakness of the present system. They account for probably the most constant area of complaint against MEPA’s stewardship of the environment. In the three years 2004-2007, for example, MEPA approved literally hundreds of ODZ applications. Of some 850 which were refused, more than half were subsequently approved on reconsideration. In 2007 alone, almost 450 enforcement orders against ODZ developments were dealt with, and of these almost 330 were ‘sanctioned’ (that is, they were made legal). This makes a mockery of the commitment by government that once the new development zones had been extended, no further development ODZ would take place.
We make several proposals for tightening up control in this area, chiefly by closing loopholes in the current arrangements. Publish a policy document on ODZ applications to ensure consistency and adherence to the law, clearly defining those very few developments (such as cattle farms) permitted ODZ. Otherwise, reject all ODZ applications out of hand. If the director of planning believes a planning application is likely to be approved contrary to the policies in the structure plan or local plans, he should be obliged to transfer the application to the board for resolution. Make it a rule that an ODZ application may only be sanctioned by approval of the parliamentary standing committee or, alternatively, by the Office of the Prime Minister after personal reference to him. Any building constructed illegally ODZ should immediately be demolished. Any such buildings sanctioned in the past should not be taken as a precedent to authorise similar transgressions in the future.
Next, EIAs – a vitally important planning tool which needs to be established on more solid foundations. All major projects to be subject to an EIA. If in doubt, MEPA should err on the side of the stakeholder, not the developer, in calling for an EIA. The social impact assessment of an EIA – how does the project affect people and the quality of life – must become an influential part of the process.
We go on to make a whole host of recommendations to ensure the conduct of board hearings is above board – transparent, inclusive of the general public, respecting both the spirit and the letter of due process. Simple things, like meetings starting on time. Proper minutes being kept, including of any votes taken by the board. Making minutes fully public. Members of boards speaking audibly. Allowing objectors to voice their views during public meetings. Recording detailed reasons of why boards or commissions have approved an application against the professional recommendation of the planning or environment directorate. Not holding meetings with developers or objectors informally outside board meetings. All in all, therefore, ensuring that the system is not only absolutely fair and transparent, but seen to be so by the ordinary man in the street.
We recommend the setting up of a powerful aesthetics committee to follow up the excellent proposals made by the chamber of architects to promote better standards of design and aesthetics.
There are many other recommendations concerning other advisory committees, public consultations, broadening the availability of information, dealing with the problem of excess housing (some 53,000 lie empty at the last count), bio-diversity and nature protection, protection of the coast line and other special issues which I shall be glad to cover in questions later.
One last recommendation which I believe deserves highlighting. And this is to endorse strongly the position and impendence of the MEPA auditor – vital to MEPA’s proper regulation, transparency and accountability. It is through the auditor that the ordinary citizen can be assured that his complaint will be fairly examined and resolved. He is an essential bastion against abuse.
There is one final area on which the think-tank makes strong recommendations. This concerns enforcement – an area of our lives which affects not only MEPA but every aspect of the environment. In the environmental field, flouting the law is endemic. It is the Achilles heel of Malta’s environment. Illegal boat houses, illegal structures, ODZ construction, illegal hunters’ and trappers’ hides, the state of building construction sites – all continue to defy the law.
But for enforcement to work effectively, three key ingredients must be present. First, there must be the political will to implement it. Secondly, there must be a sufficient number of enforcement officers employed and available to cope with the task. And thirdly, once enforcement has been implemented, the law courts must ensure that the administration of justice reflects the seriousness of the offence and recognises the need to introduce a culture change of respect for the environment.
The current organisation and arrangements for enforcement are inefficient – scattered in under-strength penny packets and ineffective. We therefore make a number of proposals for improvement in this field, the crux being the establishment of a single environmental enforcement agency answerable directly to the minister for the environment (the Prime Minister). This will entail the concentration into one agency of all enforcement officers in MEPA, ADT, as well as ‘green wardens’, and the administrative law enforcement section of the police. This agency, which will be under a private public partnership arrangement, will then deploy the resources available as it thinks fit within priorities laid down by government.
We believe that, in exactly the same way as happened with payment for traffic wardens, income from fines should more than compensate for the costs of sub-contracting the role of green wardens from the private sector and would therefore be more cost effective as well as being better targeted, better focused, organised and controlled.
In conclusion, these then are the think-tank’s proposals for reform. They form an integral part of the whole challenge of reducing Malta’s environmental deficit. The environment will be the largest beneficiary of a significant proportion of the entire allocation of EU structural and cohesion funds for the next five years, amounting in total to about €330 million. We have a once only opportunity to reduce the environmental deficit. We must grab it. And MEPA, as the predominant regulatory authority, holds the key to doing so. We must ensure that the way MEPA functions is as good as we can possibly make it if we are to achieve truly lasting improvements.