Inconvenience and loss of business caused by an Open Centre for Immigrants.

Case notes investigated by the Parliamentary Ombudsman

The complaint

The management of a wedding and other receptions complex in close proximity to an Open Centre (which used to accommodate hundreds of irregular immigrants) complained of the chaotic and disastrous situation in the area resulting from the activities which had been allowed to develop because of alleged bad administration by various Government Departments/Agencies. As a result, the Company lost most of its financial business.

Complainant did not dispute the need to maintain the openness of the Centre or the need/related process of integration of these immigrants within the country and society. Nor did he dispute the free movement of these immigrants outside the Open Centre as a pre-requisite to such integration. However he maintained that the application of these principles should not prejudice the rights of others. He iterated that the related activities should respect the laws and regulations applicable to the rest of the Maltese society. He argued that this balance was not being maintained.

Complainant further argued that the Open Centre was not covered by a MEPA permit and therefore no Environment Impact Assessment especially the related traffic impact of the related activities had been carried out. He submitted proposals on how such negative impacts should be reduced.

Complainant stressed that the negative impacts have ruined his business.

The investigation

This Office interviewed the various parties involved, including the Police authorities, Local Council officials, the Management of the Open Centre and complainant. Information was also sought from the Audit Officer MEPA in respect of the role/responsibilities of MEPA in the situation under consideration.

The following facts emerged:

a) The road in question is the only artery that leads to complainant’s establishment which is duly licensed to hold weddings and other receptions for several hundreds guests. The road is poorly lit at night.

b) The Open Centre is a tent village which can accommodate several hundreds of immigrants and has its main entrance in this road. The environment is far from welcoming – it is a depressing site and raises doubts from the humanitarian aspects.

c) The negative impact of the siting of the Centre on complainant’s business was very evident not only because of the visual degradation inherent in the set-up, but more importantly because of the chaotic traffic situation that had been allowed to develop in the immediate vicinity of the main entrance to the Centre.

d) As a result of the rightly and justly accorded freedom of movement for residents of the Open Centre, and the encouragement to provide for their daily needs as a community, a certain level of commercial activity has developed to cater for the needs of this community – resulting in a number of hawkers (at the time of the investigation, some were licensed, others not) gathering daily at different times of the day, but especially in late afternoon and evening. The residents of the Centre converge onto this road for their daily purchases and to socialise between themselves.

e) The road in question has no pavement and the commercial activity at times assumes the proportion of an open market, often congested, making access by car very difficult and dangerous both to residents and drivers, and all the more so in winter when there is less daylight. The situation becomes even worse when cars are heading for a reception at complainant’s establishment.

f) Despite repeated reports by complainant, also to the effect that he was losing business, and the surprise visits by the Police, these sporadic inspections did not resolve the problems caused by the daily activities.

g) Complainant produced evidence of the loss suffered by his business, including the loss of an exclusive contract from a leading catering firm for the operation of complainant’s complex, on the grounds that the complex “is no longer in a fit condition for the use for which it has been let”. This firm confirmed that it had cancellation of bookings because of the problem and of guests being intimidated and turned back on their way to a social event. As a result complainant’s business activity practically came to a standstill.

Considerations

The Ombudsman understood the mammoth crisis facing Government because of the problem of irregular immigrants who need temporary accommodation and therefore appreciated the need for an Open Centre. At the same time, the Ombudsman also noted complainant’s positive attitude in respect of the latter’s appreciation of the needs of an Open Centre for immigrants. Complainant was in fact only insisting that the related activities should be done with the least possible inconvenience to other social and commercial activities in the area.

Having established the facts which confirmed complainant’s predicament, and the related circumstances, particularly the chaotic situation in the area which also constituted a danger to drivers and pedestrians, besides ruining complainant’s business, the Ombudsman went on to consider the proposals put forward by complainant himself which he considered would help to ease the situation. It was confirmed with the MEPA Audit Officer that the Open Centre needed, but was not covered by, a MEPA permit, with the result that no Environmental Impact Assessment including an evaluation of the traffic impact in the area was ever carried out. An Environmental Impact Assessment raises awareness to the inconvenience caused by an activity and serves to promote the implementation of measures to address such negative impact. However the Ombudsman considered that these are matters that fall within the competence of, and should be addressed, by MEPA.

Complainant made four proposals on how the situation could be improved. These included:

1) the narrowing of the main gate of the Open Centre and its use solely for administrative functions;

2) the opening of a small gate on the south side of the Centre, next to the container storage depot, for easy access to the residents of the Centre and their needs;

3) an alternative place to accommodate hawkers; and

4) the erection of hoarding along existing fence to protect the privacy of residents.

While the Ombudsman agreed that a certain amount of commercial activity was needed in the area, he considered that this should be regulated by the identification of a properly designed location, with hawkers duly licensed, and in full respect of regulations as applicable to other open markets. This was a matter that should be considered by the competent authorities, including, amongst others, MEPA, the Department of Trade, and the Management of the Open Centre.

The Ombudsman however expressed concern regarding any proposal that would in effect restrict the access of the immigrants to and from the Centre. He agreed that hawkers should not be allowed to converge on the main gate, but disagreed with the proposal of a hoarding in the area. The Ombudsman was of the opinion that in considering complainant’s proposals/options, MEPA should seek professional advice from OIWAS and from the Management of the Open Centre. Since all these fell within the competence of MEPA which had to ensure that the Centre was duly covered by a permit, it was not for the Ombudsman (at that stage) to reach any definite conclusions on these proposals.

In the light of the above findings, the Ombudsman upheld the complaint in respect of the chaotic commercial activity in front of the main entrance to the Open Centre which needed to be properly regulated and well lit. The Open Centre itself needed to be covered by a MEPA permit. As a result of the failure of the authorities to effectively control the situation, the complainant was the victim of such failure with serious financial repercussions.

The Ombudsman recommended that the competent authorities including MEPA should investigate the situation to determine what steps were needed to be taken in line with his report so as to address complainant’s grievances.

Follow up

The Ombudsman sent his Final Opinion to the complainant and to the competent authorities including MEPA, Police, the Ministry for Justice and Home Affairs and the Management of the Open Centre.

The continued sporadic police presence in the area did not result in any significant improvement. Nor had the competent authorities implemented the Ombudsman recommendation. He had only succeeded to convince MEPA to ensure that an application for a permit to sanction is filed. This however is a long way off from finalisation. The Ombudsman therefore brought the matter to the attention of the Prime Minister stressing that the lack of proper control of the situation in the area and lack of effective action by the responsible authorities had caused grievous financial losses to complainant. The Ombudsman pointed out that if the administration is not in a position to solve the problem in the short term such as to enable complainant to carry out his commercial activity in a fair and effective manner, he had no option but to request Government to consider that the Open Centre run by Government was in effect expropriating complainant’s property by rendering it unjustly valueless. Government should further consider that it was not fair for one single person to suffer in a disproportionate manner because of the interests of the country and should consequently compensate complainant in an adequate manner. In making this statement, the Ombudsman referred to an analogous case, a villa in Delimara where the Courts ordered compensation because of the negative effects of the Enemalta Power Station chimney to the detriment of the owner of that villa.

While informing the Prime Minister that the next step open to Ombudsman, in terms of the law, was to refer the matter to the House of Representatives, he concluded by recommending to the Prime Minister that the latter appoints an Official within his Office to coordinate the necessary measures on the part of the various departments/agencies to remedy the situation.

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