The Environment and Planning Review Tribunal will decide on Tuesday whether to revoke a development permit on a secretly negotiated waterpolo pitch in Marsascala. The ruling, requested via an appeal filed by residents, is expected to make an impact that goes beyond the contentious pool project itself.

Analysts say that the tribunal’s decision will have bearing on the larger question of the autonomy and integrity of the planning system – or whether, as appears in this case, the process is subservient to the designs of top officials in Castille.

The decision to build the new pool in the planned location was taken in high-level meetings at the Office of the Prime Minister in 2016. According to documents filed in court, former chief of staff Keith Schembri had assured Aaron Simpson, president of the Marsascala Sports Club, that the government was ready to commit around €6 million to build a new pool.

The pledge followed the government’s granting of land in Marsascala to Sadeen Education Investment Limited to develop premises and facilities of the American University of Malta, which deprived Marsascala Sports Club of their current facilities. A secret contract setting out the government’s commitments on the new pool was later signed by former parliamentary secretary for planning, Deborah Schembri, and Simpson.

A planning application for the pool, set on the southern flank of Marsascala Bay, was then presented by Frank Fabri, Permanent Secretary at the Ministry of Education and Employment, and approved by the planning board on 30 July 2020.

One of the main points of the appeal lodged by residents, as well as Moviment Graffitti, is that the decision to grant a permit flies in the face of the bay’s designation for the development of yacht marina and related maritime development in the Local Plan. The appellants argue that the Planning Authority stretched the definition of maritime development to grant a permit for a freshwater pool within that locality.

Planned pool location shown in red shading. Photo by Daniel Cilia.

They said the idea of constructing a freshwater pool within the sea was an “anomaly” and argued that an exercise that considered alternative sites was limited and superficial. A freshwater pool didn’t need to be in the sea and could be constructed on land, they said.

The existent pool at Iz-Zonqor is built on land but was handed over to Sadeen on 11 March 2016, when the government granted the company a large area on temporary emphyteusis for 99 years.

At the time, the Marsascala Sports Club managed the land-based pool under an agreement with the government signed in 2005 for 16 years. Around the same time that the government granted the land to Sadeen, the Commissioner of Lands terminated the agreement with the sports club and ordered it to vacate the premises on the basis that the “site is required for public purposes”. The sports club responded with a warrant of prohibitory injunction.

Aaron Simpson, the sports club’s president, was simultaneously engaged in negotiations that took place in the Office of the Prime Minister and involved various officials. In one of the meetings, architect Jesmond Mugliett, who was representing the government, said that a pool at the site eventually applied for would be more cost-effective, easier to build, and more acceptable for the Planning Authority.

These discussions then led to the agreement, signed on 24 June 2016, in which the government committed to delivering a new pool to the Marsascala Sports Club and, in return, the sports club agreed to revoke the prohibitory injunction and waive all claims around the termination of the lease of the existing pool. The club also committed not to interfere in any way with Sadeen’s developments at Iz-Zonqor.

A clause in the contract specified that the agreement had to remain “strictly and absolutely private and confidential between the parties.” This confidentiality clause is odd given the outlay of public funds to construct and deliver the completed new pool to the sports club.

The contract only came to light in recent weeks during the tribunal proceedings. However, parts of it have been redacted, including an entire clause that, according to sources, might specify the amount of compensation that the government would pay the sports club if it fails to deliver the pool.

Marsascala waterpolo pitch secret deal: The contract is redacted in part.

These circumstances and the non-disclosure of the details around the contract raise concerns that the decisions on the pool may have been taken in the Office of the Prime Minister, and that the Planning Authority’s approval is no more than a rubber stamp.

The appellants, aside from requesting revocation of the planning permission on grounds of incompatibility with the site’s designation for a yacht marina in the Local Plan, also attacked the planning process on issues such as incomplete adherence to due process and technical shortcomings, arguing for revocation of the permit on multiple grounds.