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Q7/2016/MDC- Query from the Maltese Commissioner for Environment and Planning concerning citizens’ rights to participate in the formulation of planning policies under the Aarhus Convention

Available languages: en
  • Case: Q7/2016/MDC
    Opened on 26 Sep 2016 - Decision on 18 Nov 2016
  • Institution(s) concerned: European Commission

Facts and background

On 19 September 2016, the Maltese Commissioner for Environment and Planning (who forms part of the office of the Parliamentary Ombudsman of Malta), sent a query to the European Ombudsman concerning citizens’ rights to participate in the formulation of planning policies under the Aarhus Convention[1].

He explained that in 2015, the (then) Malta Environment and Planning Authority commenced procedures to review the Central Malta Local Plan.

A public consultation was carried out but after the public consultation period had closed and the draft Local Plan was completed, the Maltese Government requested an amendment which could provide for the development of high‐rise buildings in a particular locality (that of Mrieħel). The amendment was included in the final draft of the Local Plan.

This caused an outcry among environmental NGOs and the public, who claimed that this amendment had been introduced ‘by stealth’ without submitting it to a separate public consultation.

The Commissioner noted that recently, an application for high‐rise development was approved by the (now) Planning Authority Board. During the hearing concerning this particular application, objectors queried the legality of the Local Plan provision allowing high‐rise development for the reasons outlined above. The Chairman of the Planning Authority Board dismissed the arguments with the statement that the Local Plan had been approved and that this issue was closed and not subject to discussion. The Maltese legislation in force when the Local Plan amendment was introduced was the Environment and Development Planning Act (Chapter 504 of the Laws of Malta)[2].

Query

On 26 September 2016, in light of the submissions of the Maltese Ombudsman, the Commission was requested to:

(1)  explain the relevance, if any, of Article 7[3] (entitled “Public participation concerning plans, programmes and policies relating to the environment”) and Article 8[4] (entitled “Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments”) of the Aarhus Convention in the context of the specific situation in Malta where the local authorities, after the public consultation period had expired, introduced an amendment to the Central Malta Local Plan (which provided for the development of high‐rise buildings in the locality of Mrieħel) without giving the public the opportunity to participate in the preparation of that particular amendment; and

2) explain whether the legality of the Central Malta Local Plan as amended questionable under EU law.

Commission's reply

The Commission replied on 14 October 2016. It noted that the Aarhus Convention Implementation Guide published by the Aarhus Convention Secretariat provided guidance for the contracting parties on the interpretation and the implementation of the requirements of the Convention. Additionally, the Aarhus Convention Compliance Committee (ACCC) examines complaints about how contracting parties implement the Convention. It pointed out that the Maltese Commissioner could refer this case to the ACCC for further assessment.

The Commission further explained that with regard to plans and programs which might have an effect on the environment, Article 7 of the Aarhus Convention was transposed into the EU legal order by, among others, Directive 2001/42/EC[5]. According to Article 3 of this Directive, plans and programs are subject to a strategic environmental assessment, including public participation, if they are prepared for any of the sectors mentioned therein and if they set the framework for projects listed in Annexes I and II of Directive 2011/92/EU[6] (the EIA Directive).

Furthermore, the competent national authorities are responsible to determine whether a certain plan or programme falls under the scope of Directive 2001/42/EC. The Commission stated that in case of modifications to plans and programmes, the Member States enjoyed a margin of discretion under Article 3 (3)‐(5) of Directive 2001/42/EC to specify certain types of plans which are likely to have significant environmental effects (known as ʺscreeningʺ). This discretion is limited by the  requirements laid down in Annex II of the directive setting out the screening criteria.

To this end, the Maltese national authorities are in charge of determining the application of the Directive. However, the Commission noted that the information given by the Maltese Commissioner did not provide evidence as to whether this plan was subject to a strategic environmental assessment. Therefore the Commission could not conclude that the Directive had been breached.

Finally, with regard to the high‐rise‐buildings in the locality of Mriehel, the Commission noted that these projects fell within the scope of the EIA Directive. According to the information available to the Commission, the authorities carried out an EIA process for the buildings in question which were reportedly included in the relevant local plan after the public consultation process on the draft Plan was closed. This gave the public a new possibility to submit comments on the individual projects. They also had the possibility to request a review of the procedural and substantive legality of the development consents for the individual projects by a national court.

Feedback

On 20 September 2016, the Ombudsman forwarded the Commission’s reply to the Maltese Commissioner. His Office was satisfied with the Commission’s clarifications.

Closing procedure

Taking into account the content of the Commission's exhaustive reply and of the fact that the Maltese Commissioner was satisfied with it, the European Ombudsman concluded that the query was successfully completed.

The European Ombudsman thanked the Commission for its excellent co-operation in this query procedure and for its efforts to provide a reply within a short period of time.

 

[1] The Aarhus Convention was approved on behalf of the European Union by virtue of Council Directive 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, OJ 2005, L 123, p. 1.

[2] In 2015, a demerger exercise took place, resulting in the setting up of an autonomous Environment and Resources Authority, while planning remained in the remit of the (now renamed) Planning Authority. Part of the exercise included the promulgation of the revised legislation, which included the Planning Act 2016 as the core document. The Commissioner explained that this legislation retained the same provisions with regard to public participation.

[3] Article 7 of the Aarhus Convention provides as follows: “Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.”

[4] Article 8 of the Aarhus Convention provides as follows: “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 this end, the following steps should be taken:

(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through representative consultative bodies.

The result of the public participation shall be taken into account as far as possible.”

[5] Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, OJ 2001 L 197, p. 30.

[6] Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ 2012 L 26, p. 1.