A Modern Building & Construction Regulation Framework for Malta

The Kamra tal-Periti is proposing a complete overhaul of the regulatory processes and standards involved in the building and construction industry. It is proposing a consolidation of all building and construction regulation under a single Act, with building codes and performance standards regulated by a single entity, namely the Building and Construction Authority (BCA), proposed by Government in October 2018. This document outlines the Kamra’s vision and proposals.

The context in which this modern framework is being proposed is outlined in the Introduction to this document. It is accepted that the building and construction industry has evolved at a rate which has completely outpaced whatever scant, and fragmented, regulations exist. Building legislation in Malta dates back to the mid-19th century in response to a public health crisis, and has barely developed since, let alone in a systematic, consistent way. The Kamra has consulted widely with stakeholders about its vision for the regulation of industry; there is wide consensus that the current situation is no longer tenable.

The situation regarding current building and construction regulations in Malta is outlined in Chapters 2 and 3. The document emphasises the difference between building regulation, which refers to the building as a product, which needs to achieve specific performance characteristics in order to  fulfil the expectations of the consumer, and construction regulation, which refers to the regulation of the process of erection and fabrication of buildings and structures. These two chapters highlight the extensive fragmentation of the regulatory tools available in Malta, and the unnecessary bureaucracy this has created. The Kamra is not simply arguing about the removal of bureaucracy, but is proposing rationalisation and consolidation so as to render bureaucracy more effective.

Chapter 4 gives an important overview of the best regulatory practices in Europe, to form a comparative basis for the proposals of the Kamra. This analysis was crucial to ensure that what is being proposed has been effectively tried and tested, and to assure the industry of the robustness of the Kamra’s proposals.

The core of the proposals of the Kamra is presented in Chapter 5. A key thought, underpinning the proposed Framework, is that the responsibility for each phase of the construction process has to be carried by the respective actors. This requires that the actors for each part of the work have to be adequately trained, and subsequently appropriately licensed.

The proposal is based on ten important principles:

1. The separation of planning permit and building permit processes;
2. Clear well-organised regulatory processes designed to promote public safety, and quality, in the interest of the consumer, rather than being focused on ascribing blame post-accident;
3. Clear distinction between the regulations governing building (the permanent works) and those governing construction processes and temporary works.
4. The BCA is to take on the consolidated role of the assessment of buildings, building authorisations, enforcement, and monitoring of the construction processes, with the 22 public entities hitherto entrusted with the different areas of interest, becoming key stakeholders in the drafting of regulations and guidance documents
5. Major projects and public buildings to be subjected to an independent review, particularly in terms of structural design and fire engineering through the introduction of a new professional figure (Engineering Auditor).
6. Contractors to be solely responsible for the process of construction, including temporary works, and would therefore have full possession of construction sites for the duration of the works. They would obviously need to have specific skills, and should therefore be classified and licensed according to such skills.
7. The enforcement of construction regulations to be delegated to private service providers, licensed by the BCA, referred to as Building and Construction Inspectors (BCIs).
8. Contractors to be required to certify that the executed works comply with the design instructions, and with the requirements of the Construction Products Directive.
9. The construction phase will be concluded by the issuance by the BCA of a Compliance Certificate, which, inter alia, authorises that the building can be brought into use.
10. Post-occupancy checks and audits to be undertaken as pre-determined by the BCA to ensure the continued compliance of the structure with building regulations.

The Kamra’s proposal is based on a system of certifications and Approved Documents, underpinned by two sets of Codes, the Building Codes and the Construction Codes.

Building Codes would regulate the performance of the finished works, in accordance with the essential requirements for the building to be deemed safe, functional and fit for occupation before being brought into use, and remaining so after being brought into use.

It is envisaged that these Building Codes will be primarily performance-based or functional, with prescription avoided as much as possible, to avoid rapid obsolescence and encourage innovation. Guidance documents, providing non-mandatory templates satisfying regulations will provide best practice and widely accepted norms, which would allow fast-track BCA approval. The following components would be covered.

1. Structure;
2. Fire Safety & Prevention;
3. Site Decontamination;
4. Waterproofing;
5. Toxic Materials & Substances;
6. Sound Insulation;
7. Ventilation;
8. Sanitation, Plumbing & Hot Water;
9. Water Conservation;
10. Drainage;
11. Waste Management & Disposal;
12. Combustion Appliances & Fuel Storage;
13. Protection from Falling, Collisions and Impact;
14. Energy Conservation;
15. Access;
16. Lifts, Escalators & Travellators;
17. Electricity;
18. Security;
19. Information & Communications Technology;
20. Illumination;
21. Materials, Products & Workmanship.

Construction Codes would regulate the construction processes, including all temporary works, required to ensure safety and minimum inconvenience. The following components will be covered.

1. Health & Safety in and around Construction Sites;
2. Construction site operations;
3. Demolition Works;
4. Ground Investigation Works;
5. Earthworks;
6. Construction & Alteration Works;
7. Temporary Works;
8. Noise Abatement;
9. Environmental Protection;
10. Waste reduction and disposal;
11. Machinery, Plant & Equipment;
12. Insurance.

The Kamra is also recommending the consolidation of the pre-, peri- and post-construction administrative processes, including the submission to the BCA of documentation relating, for example, to the appointment of licensed contractors and professionals, the avoidance of third-party damage, EPC design rating, commencement notices, health and safety files, and compliance certification. The construction process is therefore divided into four main phases:

1. Pre-construction phase (design and pre-commencement)
2. Construction phase (execution)
3. Completion phase (compliance certification, handover and occupation)
4. Post-occupancy phase (post-occupancy review and certification)

For the pre-construction phase, the Kamra is proposing streamlined processes, depending on the project typology (for example, regular procedure for major projects, light procedure for medium/small projects, procedure by building notice for minor works, exempt) including:

1. The appointment of Principal Submitting Person, PSP, by the developer;
2. The submission of building permit application to the BCA, together with construction drawings and specifications in accordance with the Building Codes, including the identification of the various professionals involved in the project at design stage;
3. The grant of the building permit;
4. The appointment of Building and Construction Inspector (BCI);
5. The submission of the commencement notice, including particulars of BCI and the various professionals and contractors involved in the project at implementation stage; and all other requirements as set out in the Construction Codes.

The Kamra is proposing that during the construction phase, works can only be undertaken by trained and duly licensed contractors, employing operators who also have been appropriately trained in their specific trades. The contractor shall take possession of the site, shall be responsible to control access to such site, in order to prevent unauthorised access, and to ensure the safety of all visitors, in particular the PSP or delegates of the PSP, and the BCIs.

For the completion phase, the Kamra is proposing the inclusion of the following steps:

1. The submission of the completion certification by the PSP, including as-built drawings and the various certifications drawn up by the professionals and contractors involved in the project;
2. The issuing by the BCA of a Compliance Certificate on the basis of certification submitted by the professionals and contractors involved in the project, which would include the following information:
   1. confirmation that the building is safe for occupation;
   2. authorisation to the contractor/s to hand over the site to the developer for occupation;
   3. the requirement for post-occupancy review and certification of the building, indicating type and frequency.

For the post-occupancy reviews, the Kamra is proposing regular inspection, at appropriate frequency, of those components that are critical to public safety, and the continued functionality and compliance with Building Regulations.

The final part of the proposal by the Kamra presents an implementation plan and a tentative timeline for smooth and orderly transition to the proposed system. The Kamra believes that, with a concerted effort from all stakeholders, this timeline can be effectively achieved.