Alex Torpiano

APERFECT STORM

DEvElOPERS, ARChiTECTS AnD REgulATORS

by Alex torpiano

The term ‘uglification’ is an inherently ugly word. More and more frequently it is being applied to the spatial environment of Malta and, perhaps a bit less up to now, of Gozo. The spatial environment includes both urban and rural areas – the boundaries between these two, in a small country like Malta, are rather undefined.

The concern about ‘uglification’ expressed by eNGOs such as Din l-Art Ħelwa, but also by many citizens, is not merely a nostalgic aversion to change, or to development in general, by a group of people fixated on the past. This is a genuine, and increasingly widespread, worry. The ugliness is there for all to see; it cannot be dismissed as a subjective opinion, or as a matter of taste; there is a wide consensus that there is ugliness around, even by those who have contributed to this ‘uglification’.

The buildings that are blotting the landscape do not sprout out of the ground spontaneously. They are commissioned by a developer, designed by an architect, and approved for building by the regulator. To a certain extent, this has always been the case, but the characteristics of these actors have changed over the years.

The ‘developer’ is certainly a recent actor; in the past, architecture depended on patrons who would commission major buildings. The smaller, vernacular, residential buildings would very often be built by the owners themselves. The patrons were generally people who were land-owners, who had money to invest, and who wished to achieve specific objectives. The earliest objective was probably shelter, or defence, as in the case of fortifications and fortified palaces, commissioned by the rulers of a region. Another early objective was a place for the practice of religious rites, commissioned, in the West, either by the Church, or by rich practitioners of the faith, who would wish to bequeath a place of worship, to perpetuate their memory. An important objective was that of reflecting the glory and (economic) power of the patron, perhaps as a way of impressing peers.

These were the generators of what we today consider as the treasures of architecture; the issue was rather about how much money could be invested into the work, than about how much profit that particular construction could make.

Probably by the late eighteenth century, the role of the ‘developer’ had already emerged, as the person or company building and selling houses and other buildings, especially in the bigger cities of Europe. In Malta, the achievement of political independence in the 1960s required the replacement of a defencebased economy by one based on tourism and industry – the broad objectives were those of providing a framework for the development of an alternative economy.

The 1960s saw the first ‘building boom’, as well as the emergence of the first modern ‘developers’, initially entrepreneurs and professionals, who had the financial resources to invest. This activity drew the support of a growing banking industry and, of course, of government, which saw investment in development as a provider of employment. Between the 1960s and the 1990s, the real estate industry flowed and ebbed; home ownership schemes, and easy financing provided by financial institutions such as Lohombus, introduced the real estate world to first-time home-owners, and gave them a taste for the potential returns from real estate.

Up to the late 1990s, the volume of development activity remained healthy but not extravagant. There were, of course, concerns about the loss of built heritage even back then – Din l-Art Ħelwa was set up in 1965 as an expression of this concern – and there were some development decisions, often by the State, which we certainly regret today. The

in ThE CuRREnT SOCiAl MEDiA ChATS bETwEEn ARChiTECTS, 99% OF ThE DiSCOuRSE iS AbOuT DEvElOPMEnT PERMiSSiOn MinuTiAE, AnD nEvER AbOuT ARChiTECTuRAl STylE OR PhilOSOPhy. ThE quESTiOn ARiSES whEThER wE EvEn nEED ARChiTECTS FOR DEvElOPMEnT PERMiT PROCESSES?

opening up of some old village cores by wide boulevards piercing through the old urban fabric was one such regrettable activity. Most of the new development also took place on virgin land, rather than by demolishing old buildings.

Importantly, the objectives of the developer ‘patrons’ had begun to change significantly; development went beyond the mere provision of accommodation, be it residential, industrial or tourism. A major objective was that of investment, and therefore of profitability, based on ratios of gross-to-net floor areas, on floor heights, and so on. With accession to the European Union, and the political decision to expand the economy by pumping up demography (latest statistics show a 25% population growth over the last ten years), demand for all types of accommodation exploded. Development as an investment attracted more entrepreneurs and more money. Financing this type of activity was not easily possible for everybody, although banks did, initially, provide relatively easy terms for real estate investment.

With the promise of good returns (particularly when igaming, Airbnb, financial services and, more recently, the investment citizenship programme, created a strong demand for residential and office accommodation), and the absence of significant alternative investment opportunities, many people poured their financial resources into the real estate business. At a certain stage, the promise of a good return on investment was so powerful a perception, that developers found it increasingly possible to sell property ‘on plan’ even before construction had started – indeed even before development permission was issued – and were thus able to finance their project with pre-sales. Nevertheless, some small-time investors, lacking experience, also had their fingers burned as estimates of cash flow became unrealistically optimistic.

This situation has fostered: (a) an increased haste in development, for a project to be placed on the market as quickly as possible, and before competitors; (b) the relentless pursuit of cost-cutting, in the context of smaller profit margins; (c) the pushing aside of all considerations of aesthetics, design and, especially, of the impact of development on the common urban realm.

When blips in growth occurred, say during the global recession of 2013, the development industry ran to the state to ask for help, for example, by requesting the state to take over unsold residential properties, often of dubious standard, as social housing or as old people’s homes. The state, in turn, increasingly depended on property sale taxes, and was consequently ready to listen when asked to lower floor-to-floor heights, or to lower the minimum apartment floor areas – all in the general direction of ‘packing them in’, rather than of offering a worthy addition to the urban realm. And when COVID stalled the economy, the industry proposed – and the state glibly accepted – that a lowering of sales tax would encourage more people to buy, hence ‘bolstering’ the GDP. We have already heard the industry proposing that, post-Covid, such subsidies to the development/real estate industry should continue.

Development today is therefore completely different from what it was in the past. While previously development had the primary objective of providing shelter and enclosure, whilst fulfilling intangible objectives such as the projection of power and glory, today it is primarily an economic activity in itself.

The second actor is that of the architect, the ‘perit’ (I obviously declare my ‘conflict of interest’ here). During the period of the Order of St John, there were both military engineers/ architects, imported from Europe for specific commissions, as well as home-grown periti, gradually emerging from the role of mastermason position into that of architect-designers in their own right. As private commissions increased, even with early twentieth-century real estate ‘developers’, there was an increasing demand for architects who had received training, often abroad, say in the Beaux Arts tradition, or later in the Modernist style, that is, a training focused on contemporary architectural movements.

Architects were commissioned to ‘design’ buildings, meaning that they were required to give buildings style and elegance. Even up to the 1980s, approval for development required the architect to prepare designs that had to satisfy an Aesthetics Board, first set up in 1935 – the process of getting approval for the proposed aesthetics was a major step in getting development approval. The other rules to be satisfied were rather simple, and established. There were sanitary regulations to be followed, ensuring that new buildings had sufficient light and fresh air; and there were rudimentary

ThE gOvERnMEnT COnTinuES TO MAkE PROMiSES AbOuT STREAM-lining AnD FAST-TRACking, AS iF SPEED wAS ThE PROblEM. ThE FOCuS OF ThE PlAnning AuThORiTy iS nOT ‘PlAnning’ buT gETTing PERMiTS OuT quiCkly.

planning rules, mainly about where one could build and where one could not, including height limitations and curtilages, and the like. The architect addressed these issues as part of his commission, the other part being that of following the construction process, and taking responsibility for structural integrity of the construction.

After the free-for-all, which was the Building Development Areas Act of 1983, the rules for development permission were tightened under the first Development Planning Act of 1992. This was a step in the right direction. Unfortunately, it also resulted in an increasingly legalistic approach to planning issues, with architects seeking all sorts of ‘loopholes’ within the prototype legislative framework that was set up. More lawyers became interested in the planning process; the process of taking development permit decisions began to resemble, more and more, processes in courts of law.

More architects began to see their role as primarily that of obtaining planning permission on behalf of their clients and, hence, the art of making effective submissions to the various boards became very important. This took up more and more time of architects, and consequently the time devoted to actually ‘design’ buildings became less and less.

If one follows the current social media chats between architects, one would observe that 99% of the discourse is about development permission minutiae, and never about architectural style or philosophy. Architectural design has been subsumed into the process of obtaining development permits; which has itself abandoned planning principles to become a legal debate on ‘rights’ and ‘legitimate expectations’. The question arises whether we even need architects for development permit processes?

The remaining, and most important, actor is the regulator. A degree of regulation did exist at least as from 1962, but the first comprehensive development planning legislation had to wait until 1992. This was the first, laudable attempt to introduce a serious planning process to manage land use. An underlying objective of this planning legislation was to take planning permission out of the hands of (corruptible) politicians. The 1992 Act sought to separate the act of planning and of development permission from the patronage of politicians. Even more important was the research that preceded the ‘act of planning’. For the first time, the spatial implications of the socio-economic development options of Malta were studied, and used to inform ‘plans’ and ‘policies’.

The Planning Authority of 1992 morphed into the Malta Environment and Planning Authority of 2002, and then reverted back to the Planning Authority in 2013. These movements were the result of different political visions of the relationship between development and the environment. The bottom line, however, was that politicians (and their clients) did not like the fact that the leverage inherent in politicians’ ability to influence development permit decisions had been diluted in 1992.

After 1992, successive governments sought to claw back control over the development permitting process, in various not-so-subtle ways. By 2013, the Planning Authority was firmly within the portfolio of the prime minister. Various changes in administrative structure were enacted since but, effectively, direct government control of planning decisions was brought firmly back.

Whilst the methods of filling important positions, such as that of the attorney general, the ombudsman, the judiciary, have been subjected to significant scrutiny in order to ensure independence and hence integrity

ThE PlAnning AuThORiTy hAS FORgOTTEn AbOuT PlAnning, juST AS ARChiTECTS hAvE FORgOTTEn AbOuT ARChiTECTuRE.

of action, the executive chairman, wielding immense power, is appointed by and answers directly to the minister. The majority of the members of the Planning Commission are appointed by the prime minister, or directly represent political parties. The members of the Planning Commissions are now selected after a call for application, but their tenure and rules of appointment have nothing to do with those of, say, magistrates. The links that such members retain, on the one hand, with the political party they are affiliated to, as well as, on the other hand, private practice interests, cannot result in independence.

Within the Planning Authority, the group of professionals dedicated to ‘forward planning’ – that is, actual planning (since no planning can be other than ‘forward’) – has been disbanded. The focus of the Planning Authority is that of determining development applications. The emphasis is on ‘efficiency’, ‘short determination periods’ and turnover of applications – ‘delays’ are perceived as detrimental to the industry. Planning considerations are considered as bureaucracy. And the government continues to make promises about stream-lining, fasttracking, and the like, as if speed was the problem. The focus of the Planning Authority is not ‘planning’ but getting permits out quickly.

Government agencies have an aversion to any planning process at all. The use of Development Notification Orders (DNOs) to cover wider and wider categories of ‘development’ attests to this aversion. The DNO process is basically one which allows certain types of developments to be permitted, completely by-passing the permission processes and, hence, oversight. DNOs now cover road works, development within industrial areas, by the armed forces, the correctional services, civil protection and the police, as well as, as per a current proposal, ‘urban greening projects’.

The Planning Authority has forgotten about planning, just as architects have forgotten about architecture – developers are simply in a rush to make money. The evolution of the three actors as outlined above make for the perfect storm that is hitting our urban and natural environment. Perhaps, it ought to be better termed a ‘tragedy’.

The current debate is, inexplicably, not about what we should change to save the environment, but whether there should be compensation for changing the rules curtailing inappropriate development. There is a dangerous and misleading narrative in this debate, since those promoting the doctrine of ‘legitimate expectation’ use this argument to browbeat planning commissions into approving applications, while realising the deleterious nature of the proposal.

The argument in favour of compensation presumes that only the owners of properties wishing to develop (higher) have the right to enjoy their property – and not the neighbours who wish to preserve the character of their street and their way of life. And it is an argument merely focused on permissible heights, and not on quality of architecture and urban space!

How can we walk back from the environmental precipice? Will public pressure convince politicians that they have gone too far in undermining proper planning processes? Do we have the time to enact rules to preserve urban areas, for the benefit of the communities that live in them, before they are ruined? Can we resolve the multiple demands that legitimate, and often illegitimate, activities make on our rural areas? Can we create planning governance structures that are free of (small p) political interference, (otherwise known as clientelism), with sufficient checks and balances? e-NGOs are no longer considered as Cassandras, but their warnings and objections are perceived as fundamentally correct. Other organisations such as the Kamra talPeriti, the Chamber of Planners, even the Malta Developers Association, recognise the perils of not taking drastic corrective action. The mobilisation against over-development in Gozo, across party lines, is also very encouraging. We may yet save the day. n

Alex torpiano is an architect, and Dean of the faculty for the built environment at the University of malta. he is executive president of Din l-Art Ħelwa.