Complaint against permit for setting up and operating a circus

Case Notes investigated by the Commissioner for Environment and Planning

The complaint

A letter dated 17 October 2012, accompanied by various documentation, was received at this Office from complainants, stating the following:

“We, the residents of Street A, in Naxxar and the vicinity, feel that we have no option left but to refer to you, perhaps you can help us in our plight. Just days ago, by chance, we have come to know that the Local Council have found no objection to allowing an events organising company to install a circus right in the middle of our residential area, in a field surrounded by dwellings of residents. This shocked us as we were not even informed, let alone asked for an opinion. We came to know of this just 5 days ago. This circus which will field about 90 animals, including crocodiles, tigers, pumas etc, will be there from the 8th November to the 9th December, not including installation required and also a pending extension because it will be close to the festive season. This is just weeks away, and that is why the matter is of utmost importance.

I will try to list the reasons for our complaints, as it seems that no authority is willing enough to help us. We have written to the Local Council, The Police Authorities, MEPA and the Health Authorities in the past days but we have had no formal reply yet thus making our situation more precarious.

1. We feel that having all these animals there for such a long time will definitely endanger the health and sanitary conditions of the area, with us residents bearing the consequences. This apart from noise pollution, traffic etc. 90 animals there all relieving themselves in a field adjacent to our homes, is hardly the ideal situation, apart from smells, contamination of waters when rains come etc. Still it seems that no one is willing to help in this matter.

2. According to a MEPA representative interviewed by THE TIMES (as seen on today’s paper) MEPA feels that the site is not suitable for such an event, but cannot do anything because the Local Council have found no objection.

3. Believe it or not, from a discussion I held on the phone with a Health Department representative, they could not know how they come into the picture. He referred me to a higher ‘Authority’, who never contacted me.

4. The Local Council never even replied, not even an email of acknowledgement.

5. We also feel that the original location has been changed by the organisers, after they received the go ahead from the Local Council. This was not in the original agreement, and surely one does not change location just by informing the Local Council, but by a new formal request, so that the new site could be inspected and examined. A resident talked to councilors, who were unsure where the site was, and they had to check with the Secretary of the council. This does not augur for good discussion in the council.

6. The new area was described as an adjacent piece of land, but it is definitely not adjacent as it [is] right behind dwellings on the opposite side of the road.

Of course we can go on, but we feel frustration cause the Local Council does not seem interested to help relocate the circus, while other authorities seem to be waiting for the Council to take the first step.

We consider our health and safety threatened, and would like to take just one point from MEPA representative, the area is not suitable for such an event. Thus we are asking you to help us by first of all, in view of all the above, getting the Local Council especially and other authorities to review the situation and relocate the circus.

Included please find,

a. Copy of minutes of meetings of the Council put online last Friday after we informed them that we knew nothing of the whole event. I believe that the first meeting was in August, so minutes were about 2 months late.
b. Copy of the article on today’s Times, referring to the MEPA representative.
c. Copy of the promotion by the organising company.
d. Petition by residents. This is only the initial copy. Till now there are almost three times as much signatures in other petitions going around.
e. Additional info related to the matter.

I believe that you are the last resort with whom we can search for help. We thank you very much, and hope to hear your reaction soon.”

The case was immediately taken up by this Office, in view of the fact that on 8 November 2012 the Circus was due to be placed on site for opening to the public.

The MEPA was contacted by e-mail on 22 October 2012 for further information. The MEPA responded by e-mail dated 23 October 2012 giving the background information of the case. Another e-mail was sent to the MEPA on 25 October 2012 requesting submission of its statement on the case. This e-mail was immediately acknowledged.

Another e-mail dated 25 October 2012, also accompanied by various documentation, was received from complainants highlighting the urgency of the case, and stating that although the site had been changed from the one to which they had originally objected to a different one a short distance away, their objections still stood.

The MEPA submitted its position by e-mail dated 26 October 2012.

Facts and findings

From the correspondence submitted by the complainants, it results that the Naxxar Local Council, during its meeting of 21 August 2012, approved a request from an operator for the setting up of a Circus for the period between mid-November and the Christmas festive season, in the ex-Trade Fair car park. It appears that the location was later changed to a nearby field, which abuts onto the area in question.

The residents got to know about this event after the Council minutes were placed online around the middle of October.

On its part, the MEPA received an enquiry on 19 September 2012 from a Perit’s office, requesting clarification on whether there was a need to apply for the temporary use of land for a Circus, on two sites, one at Għajnsielem, and the other at the Naxxar Trade Fair grounds.

Following the submission of site plans of the areas in question, the MEPA replied that with regards to the Naxxar site there were concerns “… since the identified location was not part of the Naxxar Trade Fair Grounds (or its parking grounds), and the location was in fact just abutting residential buildings and an established villa area.”

The Perit replied with a letter from the Naxxar Local Council dated 13 September 2012 which showed approval for the use of a private field next to the car park, as a site for the Circus. The MEPA replied once more on 16 October 2012 stating that the use was “… not considered compatible and may cause nuisance to the surrounding residential area and thus runs counter to Structure Plan policy BEN 1, and in this regard the proposed temporary use of land cannot be considered as permitted development under the terms of LN 115/07 article 3(5).”

Following a meeting the following day between the Perit and the MEPA DNO Manager, it was suggested to use Ta’ Qali area, but it was explained that there were commitments already in place within the Naxxar area.

On 18 October 2012 a site plan of the Trade Fair parking area, showing the uses within the site, was submitted together with the endorsement of the Naxxar Local Council. The MEPA then issued a definite reply of no objection.

Analysis of the case

Before going into the merits of the complaint, I feel that a couple of preliminary observations are in order.

1. It appears that the Local Council’s decision of 21 August 2012 to permit the setting up of the Circus was only put up for public attention in the beginning of October. This gave very little time to the residents concerned, as well as the general public, to voice their concerns.

Local Councils need to exercise greater sensivity in dealing with such requests for uses of land, where the use could potentially raise conflicts with the amenity or character of the location, or which could give rise to objections by the community.

This could be achieved by issuing a notice when such requests are to be discussed at the Local Council meeting. Alternatively, a grace period of one week could be given following notification, for representations to be made. It is important for communities to be given the opportunity to submit their views to the Local Council when changes, even of a temporary nature, are to be made to the use of land situated within their area.

2. The applicant, through his Perit, requested a clarification on the application from the MEPA on 17 September 2012, one month after the application to the Local Council was approved. Such a request for clarification should have been made before the permission was sought from the Local Council. The MEPA was then faced with a situation where approval by the Local Council had been obtained and commitments had been made.

It is therefore perhaps understandable that the MEPA tried to find a compromise solution, albeit reluctantly since it was not completely happy with the choice of site.

3. This chain of events has led to this investigation having to be conducted in an extremely short time-span. The MEPA’s collaboration in replying to requests for information and submitting its statement of the case on time is therefore commendable.

The temporary use of land is covered by the Development Notification Order 2007 of the Planning Act (Chapter 356) (L.N. 115 of 2007). Class 10 (Temporary Uses) of the Legal Notice states that:

“1. Subject to the provisions of article 2 in this Class, the following development is permitted under this Class in all areas without any notification as established in subarticle 5(1), except where site lies ODZ, where the notification procedure as established in sub-articles 5(1) and 5(3) shall apply:

(i) The reversible use of land, as well as any temporary structures required for such use, for not more than thirty (30) days, provided that the land used is fully restored to its pristine condition and any structure removed before the expiry of such thirty-day period.

2. Notwithstanding the provisions of article 1 of this Class, the use of land is not permitted if such use is:

(a) for a caravan site; or

(b) for camping; or

(c) for off-road vehicle, motor car and motorcycle racing or rallying, or for practising for these events and activities.

3. Notwithstanding anything contained in the provisions of article 1 and 2 of this Class, the development described therein shall only be permitted if:

(a) any temporary structure required for such use would not impair visibility at a road junction or otherwise pose a threat to the safety of pedestrians or vehicular traffic;

(b) such use does not entail direct or indirect damage to existing historical buildings or monuments, archaeological features including underground shelters, cisterns or water galleries, rubble walls and natural stone paving.”

Article 3 (5) states that:

“A development permission under this Order shall not apply if it runs counter to policies or plans or legislation or policy guidance approved according to the Act or the Environment Protection Act, applicable at the time of the notification; nor does it exempt from compliance to reinstate and restore anything done in contravention of such policies.”

One must ask therefore, does the proposed use run counter to existing policy, plans, legislation or policy guidance? In a sense this reply was already given by the communication from the MEPA to the Perit by e-mail dated 16 October 2012 where it was stated that “…the proposed site at Naxxar is not considered compatible and may cause nuisance to the surrounding residential area and thus runs counter to Structure Plan Policy BEN 1, and in this regard the proposed temporary use of land cannot be considered as permitted development under the terms of LN 115/07 article 3(5)”.

The MEPA’s response reproduced here was with reference to the proposal to site the Circus in the private field. The site was subsequently changed to the ex-Trade Fair parking lot and nearby football pitch. It follows therefore that the question to be asked here is whether this site raises the same issues under policy BEN 1 as were identified for the previous site. In my opinion it does.

The site is accessed via a residential zone, and is surrounded on two sides by residential zoning. Furthermore, the site is not “… committed with the commercial use as private parking facilities” as stated in the communication between applicant’s Perit and the MEPA since Policy NA01 of the Central Malta Local Plan currently designates the site for residential development.

The proposed use therefore runs counter to the current Local Plan zoning which in itself would have been a major reason for refusal had the application been made through the normal procedures. The temporary nature of the development should not give a carte blanche to bypass other provisions of the Structure Plan and subsidiary policies.

Although the Legal Notice contains adequate provision, it is being recommended that the text should include clearer provisos which would preclude the proposal from being permissible.

It is being suggested that article 3(6) could be amended to include another sub-article stating the issues which would make such activities objectionable under Policy BEN 1. This would serve as a clear indication which would at least oblige applicants to seek guidance from the MEPA at an early stage.

Conclusions

• The complaint is sustained since the proposed activity is incompatible with the residential nature and amenity of the surrounding areas, and the designated zoning in the Local Plan. The MEPA should withdraw its ‘no objection’ to the use of the site for the setting up of the Circus.

• It is being recommended that article 3(6) of the Development Notification Order 2007 of the Planning Act (Chapter 356) (L.N. 115 of 2007) should be amended by the addition of another sub-article citing the issues which would make such proposals objectionable under Policy BEN 1 of the Structure Plan.

This case illustrates the complex and often unwieldy situation with regards to the holding of ‘temporary’ activities. Whether by chance, by negligence or by the turning of a blind eye by one authority to the requirements at law set out by another one, a circus operator found himself caught in a ping-pong battle regarding his permit to operate. The issue was finally resolved by the MEPA in a rather embarrassing fashion. The circus was dismantled and re-erected a few metres away as there was nothing to prevent it from setting up once more in a ‘temporary’ manner once it had been dismantled and the activity stopped in terms of the temporary permit originally issued.

Own Initiative Investigation

Partly as a result of what has emerged from this investigation, an ‘Own Initiative’ investigation was taken up on the system of temporary permits for holding outdoor activities.

Case Studies