Wednesday, 9th February 2011
Sifting solidified sand at Dwejra
Alfred E. Baldacchino
Following the Dwejra debacle, three reports were published: a legal report by Kevin Aquilina and Simone Borg; a technical report by Louis Cassar et al. and an administrative report by the auditor of the Malta Environment and Planning Authority, Joe Falzon.
The legal report aims at reviewing the process adopted by Mepa in issuing development permissions for film shooting applications in environmentally sensitive areas. Referring to the guidelines on the implementation of the Habitats Directive, this report highlights measures regarding activities in special areas of conservation (SACs), such as appropriate assessment, the precautionary principle and the related Aarhus Convention, which emphasises the importance of public consultations in relation to environmental decision-making. If Mepa failed to include any reference to the Habitats Directive in the permit, how can the applicant be aware of such legal obligations? And how can one expect Mepa to follow the guidelines of the implementation of this EU directive with regardto such activity? The Film Commissioner interviewed by the authors commented that the permission issued is “…too generic as it covers various sites at one go. Conditions need to be streamlined better per filming site”.
The Dwejra permit in question included all levels of protection under the Development Planning Act, completely ignoring any level of protection under the Environment Protection Act – no mention that Dwejra is a SAC, part of the EU Natura 2000 Network. No reference to the important geological features of the site, yet “the applicant was given development permission… to cover the site with ‘sand or shingle’”.
A very interesting, not surprising, excerpt from this legal report is that “Both the Director of Planning and the Director for Environment Protection thought that Mepa was exercising a dual role: it had to safeguard the integrity of Natura 2000 sites but, at the same time, it is called upon to give its consent or otherwise to activities taking place at these sites. They thought that Mepa should move out of the first function and that such function should be carried out by a management committee independent of Mepa so that it could regulate such committee from a distance without having such a dual role”. Isn’t this what private and political entities, eNGOs and individuals have been stressing for such a long time, that environmental protection and development planning are not compatible? Mepa cannot tell its left foot from its right. Environmental obligations, on a national and international level are still out of Mepa’s grasp. Mepa is the competent authority for environmental matters. Seems it wants to abdicate from such responsibility.
The scientific report shows that the thick layer of “sand” completely buried flora and fauna. Only three plant clusters were recorded, two identified and one consisting of a number of desiccated twigs, which could not be identified. Any plants present in the area, would already have been obliterated during deposition of “sand”. The report refers to dry vegetation on the periphery, saying these could be either removed buried plants from site or introduced plants with the extraneous quarry sand, potentially a means of introducing invasive species in this part of the SAC.
With regard to fauna “at the base of boulders and under small stones and in depressions, crevices and at the base of vegetation”, two species of ants and two different species of terrestrial gastropods were recorded in the reference area: two forms of the endemic Maltese top snail and a Maltese round-mouthed snail. On the fringes of the area two unidentifiable snails were also recorded. Nothing was found in the area of “gravelly mud”. Not surprising, considering the thickness of the covering material and the way it was “cleaned” with bristle brooms and brushes. In the adjacent rock pools, some with sand deposits, large populations of crustaceans (copepods), large number of ciliates and sparse populations of an isopod were recorded. The habitat type “vegetated sea cliffs of the Mediterranean coasts with endemic Limonium spp” listed in the Habitats Directive and also in local legislation is reported to have suffered a high negative impact in the affected areas. Other important species of flora included in the Standard Data Form, compiled by Mepa and sent to the EU, regardingDwejra Natura 2000, include the Maltese sea lavender, the Maltese camomile, the rare pygmy groundsel, the cliff carrot, all endemic or sub-endemic, listed in the Malta Red Data Book, and the rare corn daisy, also listed in the Red Data Book. These were recorded either around the perimeter of the covered area or in the adjacent area and one or two of them were partially covered with the deposited “gravelly mud”. Mepa initially declared the area as bare rock with no ecosystem; later it referred to it as a “white area” in the SAC. When the report was published MEPA commented there was no evidence the deposited sand eliminated the terrestrial fauna and flora of the site!
Besides, the significance of damage to fossils and ichnofossils within the site and in other parts of Dwejra is considered to be high, given the extent of observed damage, the sensitivity of the resource to damage, permanent and irreversible nature of damage and inexistent scope for mitigating impacts, notwithstanding that it is protected by the Cultural HeritageAct.
The Mepa auditor’s report exposed all the cracks and fissures (and incompetence) of this competent authority for the environment. This report reveals the letter of consent was signed by the Director of Planning, who is quoted as saying the Planning Directorate was communicating on behalf of the Environment Protection Directorate! The auditor also reports that “…it was agreed that all filming applications would be led and processed through the Planning Directorate” which “is authorised to represent Mepa”. On this matter the auditor states that “the legal adviser explained the situation in a written note which states: Instruments of delegation are published by government notice. There is an instrument of delegation in relation to delegated decisions (which is not the case here) which refers to both directors”. Accordingly, the permit could only be issued by Mepa’s CEO and not by any particular director. One might ask how valid was such a permit?
This report affirms that all work had to be monitored, at the expense of the applicant, but, notwithstanding, it never was. It confirms that rain had washed a good quantity of fine sand into the rock pools, on the perimeters and also overspilled into the rocky foreshore while the rest turned into mud. It quotes the chairman and the legal adviser saying that, since only standard conditions were imposed and no special conditions were included, the need for an assessment was superfluous. It reveals that Mepa officials were under undue pressure to issue the permit in inadequate time to make proper assessments of the implications. Both Mepa directors were critical of the Film Commissioner, among others.
The auditor emphasised that “Mepa’s Director of Environment had the obligation to screen the applications (within SACs)” so he could “identify the likely impacts upon a Natura 2000 site and consider whether these impacts are likely to be significant”. Despite claims this had been done, the auditor did not find information in any file “where and what criteria were used to come to this conclusion”. Not only so but the auditor states the indications are that the assessment of the application was carried out by the Planning Control Department in consultation with the Directorate of Environment Protection, indicating also that the latter was absent from such assessment procedure.
The auditor states that the precautionary principle was not even considered and evasive answers were given to his office. He was told conditions are based on circumstances that are not abnormal, despite the fact that the Habitat Directive makes it clear that “the safeguards set out… are triggered not by a certainty but by a likelihood of significant effects”. A strong worded comment by the auditor is that “Unfortunately, the DEP abdicated its responsibilities to the Planning Directorate that was ill-equipped to carry out this work”. This is the result of having environment and planning in the same bed, with the environment playing the part of the ghost of Cinderella.
My first contribution on the matter was titled Dwejra – Gone With The Wind (November 13, 2010). After reading the above three reports, I regret to say Mepa has gone to the dogs.
P.S. Photos do not appear in the original article but were added by the author on this blog.