Environment Landscaping Conundrum

September 10, 2019

The environment landscaping problem

Tuesday, 10 September, 2019

Alfred E Baldacchino

 

One of the environmental legacies from such ‘landscaping’ “secret contract” – the ubiquitous invasive fountain grass.

According to the National Audit Office (NAO) report of September 2017, “landscaping maintenance through a Public-Private Partnership” was a matter for which an agreement was entered into on October 31, 2002 between the government (Ministry of Finance) and the Environment Landscaping Consortium (ELC) “for managing government resources, which were made at its disposal to deliver the landscaping projects in accordance with the terms and conditions stipulated in the agreement.”

This agreement “was not derived through competitive tendering procedures” but awarded “through direct negotiations with ELC following a call for an expression of interest.”

The government further opted to extend this contract twice, namely in 2007 and 2012 through two direct orders which “also deviate from the spirit of competition promoted by the Public Procurement Regulations where it is stipulated that material contacts are to be subject to a European Union wide call for tenders”.

According to the NAO, “the contractual rates negotiated are not favourable to the government” because of such procedures.

This contract expires at the end of 2019, having to date received from the government approximately €8 million per year (that is, €136 million in total).

The NAO report goes into detail about the contractual deficiencies of this agreement. Amongst these, the report outlined how the parties’ documents did not reconcile on various aspects of service delivery. It noted that the Project Management Committee was non-functioning and that there was non-receipt of a number of reports, particularly the quarterly management accounts, which “constitutes a contractual breach”.

The report noted the use of pesticides at Buskett Gardens’ orchards despite the restrictions within an EU Natura 2000 site, and also how documentation relating to a detailed survey of the sites could not be traced by the Planning Authority and the Environment and Resources Authority.

The NAO also outlined how work was carried out without any authorisation and that work on four projects, which had to be completed by 2017 and which were to be carried out by the contractor at no additional cost to the government, had not yet commenced.

There was mention of how the government had not kept abreast on the status of the contractual clause needing to be fulfilled whereby the government had agreed to finance an in-house training course for students following horticulture studies at MCAST. There was also mention of the government’s lack of knowledge of the contractor’s financial input, which was not conducive to a balanced partnership.

The report noted how the contract rates higher than other landscaping agreements signed by governmental entities and that the operational and financial information gaps were not appropriately safeguarding the government’s position as a partner within this agreement. It went on to note: “The contractor’s non-compliance remains evident on a number of issues.

In some cases, deviations from contractual clauses that date back to 2002 impact negatively on the government’s direct and broader interests.”

Bad planning, wrong use and waste of scarce water resources.                    Photo A E Baldacchino 2011.07.01.

The NAO report refers only to the financial and commercial aspects of this PPP contract. The national and EU obligations with regards to biodiversity are not entered into.

A copy of this public agreement was requested on June 23, 2015. This request was vehemently refused by the Ministry for Transport and Infrastructure, as was the subsequent appeal dated August 13, 2015.A request was filed with the Information and Data Protection Commissioner on August 19, 2015. The Commissioner’s decision of January 19, 2016 considered “that the public interest is better served by providing the applicant with a copy of the requested document” and “that there are no impediments to release a copy of the agreement.”

 

I cannot help but wonder whether there is any hidden political hand in this environment landscaping conundrum

 

The Commissioner’s decision went on to say that, hence, “in the spirit of transparency and accountability as contemplated by the Act, the MTI [Ministry of Transport and Infrastructure] is instructed to accede to Mr Baldacchino’s request by not later than twenty-five (25) working days from the receipt of this decision”.

Following this ruling, an appeal was lodged by the said Ministry to the Information and Data Protection Appeals Tribunal.

The Information and Data Protection Appeals Tribunal (14.09.2107) waived the appeal made by the Ministry for Transport and Infrastructure, confirming the Commissioner of Information and Data Protection ruling (19.01.2016), and ordered that a copy of the agreement signed between the government and ELC on October 31, 2002 should be given to the applicant.

The Information and Data Protection Appeals Tribunal in its ruling (27/2016) concluded, amongst other things, that “in the said agreement, there is no information of a commercial nature that cannot be made public and that in terms of article 35(2) of the said Act, it is in the public interest that such an agreement be made public.”

The Ministry for Transport and Infrastructure was unhappy with this ruling. An email from the Ministry for Justice, Culture and Local Government in October 2017 subsequently explained: “The Ministry for Transport and Infrastructure had appealed the Tribunal’s decision and filed a court case (45/2017) against the Commissioner for Information and Data Protection, before the first hall of the Civil Court”, arguing that the decision of the Commissioner for the Protection of Data should be declared “null and void”.

maintenance of public gardens –  pruning agony.

Judgement had to be reached by December 2017, but the sitting has been postponed and postponed again. The decision is still pending.

Considering the Freedom of Information Act (Chap. 496 of the Laws of Malta) and considering that, as a member of the European Union and also a signatory to the Aarhus Convention (Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters), one would have thought that such a matter would have been solved within weeks. But after four years from the initial request for a copy of this agreement, such a contract is still not publicly available.

One would have thought that the ELC – the government’s private partner – would be proud to inform everyone how they utilised the €136 million from public funds in relation to their contractual obligations.

The NAO’s report (page 55) concludes: “Contractual non-compliance prevailed in the face of government’s limited enforcement action. In such circumstances, the government’s position shifted from one where action could be initiated to dissolve this PPP Agreement, to one where prolonged weak enforcement implied tacit consent”.

 

The Fountain grass will long be remembered after the demise of the ELC.  It will be up top the social, financial and ecological expenses to control and manage such an EU listed invasive species used in local ‘landscaping’.

The Ministry for Finance has opted for the second position and continued to vote €8 million per annum. What will be the stand taken by the Ministry of Finance vis-à-vis the coming budget with regards to this ‘secret agreement’? Hopefully the Ministry for the Environment, who is now responsible for this ‘secret contract’, will put its foot down.

I cannot help but wonder whether there is any hidden political hand in this environment landscaping conundrum.

aebaldacchino@gmail.com

 

Related articles

Trees hit headlines

Our ‘landscaping’ needs professional updating

Maltese trees – conserving and landscaping

updating/https://alfredbaldacchino.wordpress.com/2016/07/09/trees-and-invasive-species

/https://alfredbaldacchino.wordpress.com/2016/05/11/national-hobby-of-butchering-trees

/https://alfredbaldacchino.wordpress.com/2016/03/04/use-and-overuse-of-pesticides-2

/https://alfredbaldacchino.wordpress.com/2015/05/05/alien-invasive-species-animation-film

/https://alfredbaldacchino.wordpress.com/2012/10/29/eu-stand-on-invasive-species/

 

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Trees hit headlines

May 4, 2018

Trees hit headlines

Friday May 4, 2018

Alfred E  Baldacchino

The last couple of months saw trees in the news.

Following the collapse, on February 10, of a mismanaged, unprofessionally pruned alien tree on the Mrieħel road, which led to the death of a foreigner, a spokesman for an entity paid out of public funds, was interviewed on a local TV station. He did not deny that the management of the trees in that particular road was their responsibility.

Photo: (Times of Malta) Jonathan Borg

April 9 saw another fatal accident in Żurrieq where a double-decker tourist bus “hit low-lying tree branches resulting in two dead tourists, 50 injured and some ending in intensive care, one needing a  major operation” (Times of Malta, April 10).

“Transport watchdog has long recognised trees as road hazards” read a heading in this newspaper (April 15). It referred to an “EU directive regarding road safety audits, impact assessments, inspections and high-frequency collision investigations”. The guidelines drawn in the light of this EU directive, outlined the fact that trees and landscaping are a “potential roadside hazard” and “need to be taken into account”.

In all honesty, the transport watchdog does not have the necessary acumen, adequate paraphernalia or professional personnel to plan, monitor, and professionally manage roadside trees. They rely on contractors.

Trees do not grow on their own in urban areas. They are planted, monitored and managed by contractors paid from public funds. So it is not the trees that are road hazards. It is the contractors who are responsible for their upkeep, ensuring that trees are managed aesthetically, professionally, and not posing a road hazard.

Trees do not move from the place where they are planted. If a tree has a 15- year-old branch protruding onto the road, it is not the fault of the tree, but that of unprofessional management. Even schoolchildren are today conscious and aware of proper tree management.

Following the ever-increasing negative impacts of such mismanagement and lack of awareness of international biodiversity obligations, a copy of the agreement for landscaping was requested on June 23, 2015. An agreement which the government and a private-public partner signed on October 31, 2012.

This request was vehemently refused by the Ministry of Transport and Infrastructure (under Joe Mizzi) on  July 23, 2015, as was the subsequent appeal, on August 13, 2015.

On August 19, 2015, the matter was referred to the Information and Data Protection Commissioner. The commissioner’s decision of January 19, 2016 “considers that the public interest is better served by providing the applicant with a copy of the requested document” and “the commissioner has resolved that there are no impediments to release a copy of the agreement.

“Hence in the spirit of transparency and accountability as contemplated by the Act, the MTI [Ministry of Transport and Infrastructure] is instructed to acceed to Mr Baldacchino’s request by not later than twenty-five (25) working days from the receipt of this decision”.

One would have thought that such a matter would have been solved within weeks. But it seems, not in Malta

Subsequently a letter from the commissioner informed me that an appeal by the ministry (still under Mizzi) had been lodged to the Information and Data Protection Appeals Tribunal.

Almost two years from the initial request, the Information and Data Protection Appeals Tribunal decided, refusing the appeal made by the Ministry for Transport and Infrastructure, confirming the decision reached by the Commissioner of Information and Data Protection, ordering that a copy of such agreement signed between the government and ELC on October 31, 2001 should be given to applicant.

The Ministry of Transport and Infrastructure in 2017 said that legal proceedings were instituted by the ELC (Environment Landscaping Consortium) before the first hall of the Civil Court, “arguing that the decision of the Commissioner for the Protection of Data should be declared null and void”. Judgement had to be reached in December 2017, but the sitting has already been postponed twice.

As a member of the European Union, and also a signatory to the Aarhus Convention (Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters), one would have thought that such a matter would have been solved within weeks. But it seems, not in Malta.

What is the reason for such objections? The National Audit Office (NAO) published a ‘Performance Audit: Landscaping maintenance through a Public-Private Partnership’, dated September 2017. This throws a lot of light on possible reasons.

Topics covered in such report deal with: the non-availability of management accounts; no details regarding questions asked; contractor’s evident non-compliance on a number of issues; the government’s limited enforcement actions; arising questions regarding the financial and economic considerations revolving around the agreement; the non-submission of management accounts constituting a contractual breach; government’s lack of knowledge of the contractor’s financial input not conducive to a balanced partnership;

Contract rates higher than other landscaping agreements signed by governmental entities; operational and financial information gaps not appropriately safeguarding the government’s position as a partner within this agreement; contractual deficiencies that incorporated two subsequent addenda, as well as a number of elements of contractual non-compliance, generally, having their roots within the 2002 contract, beside others.

One of the conclusion the NAO report came to is that: “The contractor’s non-compliance remains evident on a number of issues. In some cases, deviations from contractual clauses that date back to 2002 impact negatively on government’s direct and broader interests.

One of the invasive species, Penisetum or Fountain grass, planted and paid by public funds, which is today spreading uncontrolled along roadsides, valleys, and other natural habitats. The social, ecological and financial negative impacts have to be paid by the man in the street.

“Contractual non-compliance prevailed in the face of government’s limited enforcement action. In such circumstances, government’s position shifted from one where action could be initiated to dissolve this PPP Agreement, to one where prolonged weak enforcement implied tacit consent” (page 55).

To these financial observations, the immediate and long-term negative impacts on the Maltese ecosystem must also be taken in consideration.

What is the next immediate step? The Minister for Finance has to decide: either the dissolution of the agreement in the national interest, or the dishing out of an additional €8 million for the continuation of the implied tacit consent of such non-compliance.

Alfred Baldacchino is a former assistant director of the Malta Environment and Planning Authority’s environment directorate.

aebaldacchino@gmail.com

further readings:

https://alfredbaldacchino.wordpress.com/2017/03/02/our-landscaping-needs-professional-updating/

https://alfredbaldacchino.wordpress.com/2016/07/09/trees-and-invasive-species/

https://alfredbaldacchino.wordpress.com/2016/05/11/national-hobby-of-butchering-trees/

https://alfredbaldacchino.wordpress.com/2016/03/04/use-and-overuse-of-pesticides-2/

https://alfredbaldacchino.wordpress.com/2015/05/05/alien-invasive-species-animation-film/

https://alfredbaldacchino.wordpress.com/2012/10/29/eu-stand-on-invasive-species/