CIR 13/19 | Overview of conclusions reached

Dear Colleagues,

Over the past days, the Kamra tal-Periti has issued various communications to all periti and to the press. Below is a summary of the current state of affairs:

  1. Legal Notice 136 of 2019 regarding the Avoidance of Damage to Third Party Property Regulations, 2019, came into force on the 25th June 2019. This was later amended through Legal Notice 180 of 2019, which came into force on the 29th July 2019, and which removed the obligation of the perit in charge of the project to approve the Site Technical Officer appointed by the contractor, as well as widening the pool of persons authorised to provide such services through the inclusion of those in possession of a Bachelor of Engineering.
  2. In the period between the publication of the two Legal Notices, the Council of the Kamra tal-Periti worked incessantly to ensure that the interests of the profession are safeguarded, and that public safety is placed at the forefront. In particular, it is to be noted that the Kamra’s primary contentions with the Legal Notice revolved around the fact that periti are the only actors on construction sites who are properly regulated, while all other actors operate in an unregulated manner, to the extent that the industry had reached, in the Kamra’s own words, a state of crisis.
  3. Although the Legal Notice as amended only reflects two of the changes requested by the Kamra, significant progress has been made on various other overarching and important matters that impact the industry, as outlined in Circular 11/19, which you are invited to read and study carefully since it provides a number of guidance notes to be adopted in the coming months.
  4. The Kamra notes with satisfaction that practically all of the motions approved by its Extraordinary General Meetings held on the 21st June 2019 and the 5th July 2019 have been successfully addressed, as outlined in the above mentioned Circular, and there is now a recorded committment by Government to implement significant reforms to the industry – see here the Letter of Commitment presented by Government to the Kamra tal-Periti on Friday 2nd August 2019.
  5. The commitments made by Government include the establishment of a new Authority to regulate the building and construction industry, and that this will be accompanied by the promulgation of new building and construction regulations in line with the Kamra’s proposals published last May. This will be accompanied by the long awaited registration, licensing and classification of contractors and skilled labourers by Government, and in line with the Kamra’s proposals, thus ensuring that liabilities are carried by the professional and the contractor in a more equitable manner in line with the Civil Code. The new regulations will clearly delineate the various responsibilities to be carried by each of the participants on a construction site, which will, in the interim period, be addressed through Forms of Contract to be published shortly by the Kamra tal-Periti. The new regulations will also also address liability periods of the participants on a construction site, bringing them in line with existing European models.
  6. Government is also committed to table in Parliament, immediately after the summer recess, various amendments to the Periti Act, which currently regulates the profession. Such amendments have been the subject of discussions with subsequent governments since 2007, and there is now convergence on most of the proposed changes. The Kamra tal-Periti looks forward to concluding discussions in line with the direction given by the members of the profession at its various General Meetings, and to the successful conclusion of this matter.
  7. In terms of Legal Notice 136 of 2019, as amended, various aspects were agreed, including the establishment of a register, to be published by the Building Regulation Office (BRO), of persons who are competent to provide the services of a Site Technical Officer, the amendment of the various forms that are to be submitted to the BRO to be in line with the latest Legal Notice and the processes agreed to between Government and the Kamra, and the eventual integration of the provisions of the Legal Notice in the regulations that will be eventually established under the Act regulating the new Authority.
  8. The Council of the Kamra tal-Periti is confident that there is the political will to ensure a comprehensive reform of the building and construction industry, as also outlined in the Kamra’s document A Modern Building and Contruction Regulation Framework for Malta (May 2019) which has already received the support of all the stakeholders who have been consulted to date. Government has clearly acknowledged the fact that an overhaul of the construction industry is not only necessary but also desirable to ensure that it moves forward in a sustainable manner. Although addressed to the Kamra tal-Periti, the Letter of Commitment is an important milestone for all actors in the industry, including the general public. The Kamra looks forward to being a primary participant in ensuring that the agreed reforms are implemented in the coming weeks and months.
  9. In light of all the above, Directive 06/19 has been repealed and replaced with Directive 12/19.
  10. Directive 03/2019 and Directive 04/2019 remain in force.
  11. As outlined above, the BRO will be publishing a register of persons authorised to provide the services of Site Technical Officer. It is also noted that the forms to be submitted to the BRO have not as yet been changed to reflect the recent changes to the Legal Notice and the processes agreed to with the Kamra tal-Periti. In view of this, periti are advised:
  • Not to submit any forms to the Building Regulation Office until further notice;
  • Not to submit any Site Responsibility Forms to the Building Regulation Office until the register of authorised persons is published.

The Kamra tal-Periti will be issuing further details on these two points in the coming days.

 

Note

All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

 

  

Perit Simone Vella Lenicker
President

 

 

 

CIR 11/19 | Building the Future – Towards a Renewed Profession

Dear Colleagues,

Those of you who were present at the Annual General Meeting of December 2007 will remember the slogan adopted at the time: Building the Future – Moving Towards a Renewed Profession. The Council at the time had presented a long term vision, which was approved by the profession at the same AGM. You may refresh your memory by reading the Kamra’s proposals  for an overhaul of the profession, and its seminal publication “The Urban Challenge – Our Quality of Life and the Built Environment” which outlined the Kamra’s vision to address the various challenges faced by the country at the time and which, sadly, have only worsened since.

Over these twelve years, the Kamra has been consistent in its approach and has worked hard to achieve the goals set in 2007, lobbying incessantly with successive governments to deliver its vision.

The events of the past few months have highlighted what the Kamra termed as a crisis in the building industry, and further reinforced the fact that the failure to address the challenges it highlighted in 2007 had led to a situation which had become untenable.

The publication of Legal Notice 136 of 2019 on the Avoidance of Damage to Third Party Property caused an upheaval in the industry, not only because it was introduced without a proper consultation process and came into force immediately without adequate time for the industry to adjust, but more so because it failed to address the core issues that plague the industry and to address successive governments’ failure to regulate.

The Kamra kept the members of the profession, as well as the general public, updated on a regular basis over the past weeks through, among others, the following means:

  • Two Extraordinary General Meetings held on the 21st June 2019 and the 5th July 2019;
  • Five Circulars providing detailed information on the interpretation of the Legal Notice, the forms and procedures established by the Building Regulation Office (BRO) in response to the Legal Notice, and advice on how to address various site conditions in light of the requirements of the Legal Notice;
  • Various press releases aimed at both the profession and the general public, to explain the Council’s position as events unfolded; and
  • Through its social media platforms, primarily the Kamra tal-Periti Facebook page, and the Kamra tal-Periti Twitter account.

 The following is a detailed resumé of the requests made by the Extraordinary General Meetings held in June and July 2019, and the final outcomes on each point to date.

 

Follow up on the Extraordinary General Meeting of the 21st June 2019

 

Those of you who were present for the first EGM of the 21st June 2019 will remember that this was held on the last day of the public consultation period on the draft of the subsequently published Legal Notice 136 of 2019. There were a number of points which the profession unanimously agreed required to be addressed, and three overriding matters which the profession confirmed to be unacceptable. These concerned:

  • the lines of responsibility between the owner / developer, the contractor and the perit in charge following the introduction of the figure of the Site Technical Officer and certain text in the draft which contradicted other legislation and historically established lines of responsibility;
  • the reports and studies required to be submitted, which at the time were considered to be overly onerous for certain small to medium projects; and
  • the urgent need for registration, licensing and classification of contractors.

After seven intense weeks of meetings, negotiations, phone calls and emails, the Council is now in a position to report that significant progress has been made on the various requests made by the EGM, which will be further elaborated upon in this Circular. Some of these points have already been outlined in Circular 10/19, however for the sake of completeness they are being repeated also in this Circular 11/19.

 

Motions approved by the Extraordinary General Meeting of the Kamra tal-Periti held on the 21st June 2019

The EGM approved a number of motions, including the following four which are directly relevant at this point in time. The motions as approved are reproduced in bold, while the respective outcome as at the date of this Circular is presented in italics.

 

  1. Building and Construction Regulation Framework

Whereas the Council of the Kamra tal-Periti presented its proposals for a new Building and Construction Regulation Framework during the Extraordinary General Meeting held in November 2018, where such proposals were discussed by the profession; and

Whereas the Council finalised its proposals and sent them to all Warrant Holders in May 2019;

Now, therefore, this Extraordinary General Meeting hereby approves the document “A Modern Building and Construction Regulation Framework for Malta” and the proposals outlined therein, and authorises the Council to present such proposals to Government and to take them forward for implementation.

On this matter, there is convergence with Government that an overhaul to the building and construction regulatory framework is required, and discussions have been under way since May, both with Government and with the various stakeholders. Although discussions with the latter were halted due to the more pressing matters at hand, the Council will be proceeding with its consultation process shortly. So far, the proposals have been positively received and there is a clear commitment from Government to establish a new Building and Construction Authority, the enactment of new building and construction regulations, and the resultant better regulation of the industry. Meetings with Government have been ongoing, and although a number of details still need to be ironed out, the Council is confident that its proposals are being actively and seriously considered, and that there is the political will to achieve a holistic overhaul in the coming months.

 

  1. Holistic approach to the regulatory framework

Whereas Government published draft amendments to Legal Notice 72 of 2013 on Monday 17th June 2019; and

Whereas the Council of the Kamra tal-Periti has already stated that such amendments constitute a piecemeal approach to the current regulatory system and do nothing to ensure public safety but rather only serve to further confuse the various roles and responsibilities on construction sites;

Now, therefore, this Extraordinary General Meeting of the Kamra tal-Periti demands that Government commits to:

  1. Finalise and enact the Periti Act, in full consultation with the Council of the Kamra tal-Periti, in accordance with the discussions being held by the Council with Government, by the end of October 2019, and this to allow the profession to be better organised, as it has been requesting for the last 12 years;
  2. Immediately enter into discussions with the Council regarding the Kamra’s proposed Building and Construction Regulation Framework, to agree on a timeframe for its implementation, and to consider the Kamra tal-Periti as a key stakeholder and contributor in the process; and
  3. Set up the proposed new Building and Construction Authority, but in the interim to immediately provide the Building Regulation Office with all the necessary financial, human and technical resources it requires to deal with its workload, including putting in place a proper system of Building Regulations and Codes of Practice;
  4. Implement without further delay the obligations of the regulator regarding the certification of building products, both produced locally and imported, as required by the Laws of Malta since 2011.

The Kamra is pleased and proud to announce that, during the inauguration of the exhibition of projects shortlisted for the Premju Emanuele Luigi Galizia held on the 25th July 2019, the Minister for Infrastructure, Transport and Capital Projects, the Hon. Dr. Ian Borg stated Government’s commitment to move the amended Act for Parliamentary approval immediately after Parliament resumes from the current summer recess. This commitment came as a befitting statement to mark the 100th year from the coming into force of the Architects Ordinance on the 25th July 1919. The Council of the Kamra tal-Periti is committed to provide its full co-operation to ensure that this target is met, and looks forward to being instrumental in bringing the profession firmly into the 21st century. The Council is also committed to keep its members updated on progress in this regard.

 

 

With regard to the second two points of this motion, progress on these has already been reported in the preceding section of this Circular.

With respect to the fourth point regarding the implementation of the Construction Products Directive, the Council regrets that it was not able to address this more comprehensively in the past weeks due to the overload it was subjected to, however discussions have been held with the BRO and with the Building Industry Consultative Committee (BICC), where the Council stressed the importance of this matter, and this position has been acknowledged by these stakeholders as being of the utmost importance. The Council will continue in its efforts in this regard, and will keep the profession updated accordingly.

  

  1. Amendments to Legal Notice 72 of 2013

Whereas Government published draft amendments to Legal Notice 72 of 2013 on Monday 17th June 2019; and

Whereas the Council of the Kamra tal-Periti circulated a document with its initial reactions to such draft to all Warrant Holders on Tuesday 18th June 2019; and

Whereas such document outlined six overarching issues which were discussed also during this Extraordinary General Meeting; and

Whereas such document also outlined a number of detailed proposed amendments to various Regulations within the Legal Notice;

Now, therefore, this Extraordinary General Meeting of the Kamra tal-Periti endorses the document circulated on the 18th June 2019 and hereby declares that the Legal Notice as published in draft format is unacceptable, and hereby authorises the Council to request amendments to the Legal Notice in line with the above, subject to the following three points being non-negotiable in the Council’s discussions with Government:

  1. That the only two figures who are responsible for construction works in terms of the Civil Code are the Perit and the Contractor. Therefore, the role of site manager as described in the draft amendments must be assumed within the Contractor’s setup, since the Contractor is obliged to understand and follow the instructions issued by the Perit, and be sufficiently knowledgeable to understand the significance of such instructions. The Contractor may employ or engage a Perit, or a suitably qualified person registered with the Building Regulation Office, without diminishing the responsibility of the Contractor in terms of the Civil Code.
  2. That a Geotechnical Design Report prepared in accordance with MSA EN 1997-1 should be required for all works covered by the Legal Notice, except that the Perit in charge of the project may request an exemption from the Director BRO in circumstances where said Perit deems that such Report is not required, or only parts thereof are needed, and such request is to include detailed reasons for such request for exemption.
  3. That all civil works Contractors are to be registered with the Building Regulation Office by the date of coming into force of the amended Legal Notice and not permitted to work unless they are so registered and a list thereof published, and that a system of licensing based on technical ability, capacity and resources is in place by the end of March 2020.

Periti are reminded that the above motion was based on the contents of the original draft of the Legal Notice as issued for public consultation. On the first point, periti are reminded that the original draft required the Site Technical Officer (STO) to be a perit, or a person deemed to be competent by the perit in charge, and was to be appointed by the developer. The draft also stated that if the developer did not appoint such person, then the role would fall ipso jure on the perit in charge of the project.

Following the EGM, the Legal Notice as eventually published reflected the Kamra’s position that the role of STO be assumed within the Contractor’s setup. However a number of new concerns arose out of the responsibilities assigned to the STO and the perit in charge of the project by the Legal Notice.

Firstly, the definition of the STO’s role in Legal Notice 136 of 2019 stated that such person was to be “nominated by the contractor and shall be approved by the perit in charge of the project.” The Council presented the position that the perit responsible for the development should not have the right to object to the contractor’s choice as long as the chosen STO is recognised by Government as being suitable to undertake such responsibilities.  Indeed, since the STO is meant to supervise the execution of the method statement, it would defeat the purpose of the law to have the perit of the project choose the STO. In addition, the responsibility placed on the perit in charge to “approve” the STO could give rise to issues of ‘culpa in eligendo’ whereby the perit could then be held liable if the appointed STO results to be negligent or incompetent. In this regard, it would have been opportune to divest the perit of the project from the obligation to “approve” the STO.

 

The Council has worked diligently to remove this obligation from the Legal Notice, taking into consideration concerns raised by the Malta Developers Association about its removal. In the past days, it was agreed that:

  • The word “approved” would be replaced by the word “accepted”, thus eliminating the perit’s exposure to claims of ‘culpa in eligendo’;
  • The uploading of the Site Responsibility Form to the Planning Authority’s eApps system would be considered as a de facto acceptance of the identity of the STO, without diminishing in any way the Contractor’s obligation to appoint a competent person – the Site Responsibility Form will be amended to remove any reference to approval of STOs by the perit in charge;
  • The Legal Notice has been amended through Legal Notice 180 of 2019 to include a wider pool of persons authorised by Government to assume the role of STO;
  • A register of persons satisfying such qualifications and who would like to offer their services in this regard will be published by the BRO;
  • That until such time as the BRO is in a position to create such register, the Kamra tal-Periti will be launching a process of registration for periti who are interested in undertaking such role, and will be forwarding such list to the BRO for publication on its website;
  • The Kamra tal-Periti will be issuing a Services Agreement Template between the Contractor and the STO, which will reflect the requirements currently set out in the Legal Notice, and this in line with the requirements of Article 20 of Tariff K in the Code of Organisation and Civil Procedure which requires that the perit and her/his client qua employer agree on the applicable services and fees through an agreement in writing.

 The Council of the Kamra tal-Periti reiterates its position that there remains the risk of multiplying defendants in litigation in the sense that, should a development project lead to court action (whether through defects in construction or damages caused to third parties), it is likely that plaintiffs would proceed not only against the owner/ employer/ developer and the contractor, but also against the perit of the project as well as the  STO. Periti are therefore encouraged not to take on such role before they have fully understood the responsibilities associated with it and before having sought professional advice to ensure that they are suitably competent and covered to take on such role.

In addition to the above, it is to be noted that the Kamra tal-Periti has participated in two meetings over the past weeks with Government, the BRO and other stakeholders, where further definition of the roles of the developer, the contractor and the appointed STO, as well as the perit in charge were discussed, and notes Government’s intention to publish such definitions in the coming weeks, following which the above-mentioned Contract of Engagement may be replaced by another template that would better define the role of the STO, once agreement has been reached on the more detailed definition of such role.

The Council also reminds the profession of its position that concurrent undertaking of the role of perit in charge and STO by the same perit or partnership of periti on the same project is considered to give rise to issues of conflict of interest. The STO is engaged to ensure that the contractor’s obligations at law are met, while the perit in charge of the project is engaged by the owner/ employer/ developer to design, specify and direct the works. This position is, in the opinion of the Council and its legal advisors, in line with the spirit of the Regulations.

On the issue of responsibilities, the Council further notes that the term “perit in charge of the project” is defined in the Legal Notice as “the perit that is going to assume responsibility for the execution of the project approved in the development permit”. The Council has made its position amply clear that the perit in charge of the project is not responsible to execute, however Government has not agreed to amend the text of the Legal Notice in this regard. It is nevertheless noted that, as things stand, the following definitions already exist:

  • The Building Regulation Act defines “perit” as having the meaning as defined by the term “profession”, in the Periti Act; and
  • The Periti Act defines “profession” as follows: “profession” means the profession assuming responsibility for the design and, or, construction of building works, under the generic title of Perit and includes works in architecture and civil and structural engineering.

 

Despite the fact that the above definitions do not, in the Council’s view, amply cover the role of the perit, it is nevertheless noted that, as outlined above, the promulgation of the amended Periti Act and the establishment of the Building and Construction Authority are imminent, and confirms that the perit’s role will be further defined once such legislative instruments are in place. Meanwhile, in view of the fact that the Legal Notice is published under the Building Regulation Act, which in turn refers to the Periti Act, the Council notes that both these Acts clearly do not place any responsibility in relation to the execution of a project on the perit in charge, and also has Government’s reassurance that such roles as stipulated in the said Acts, as well as in the Civil Code and the Code of Police Laws, would prevail. To this end, the Council will be reviewing the draft Services Agreements that had been presented to the profession and approved at various General Meetings, but were never promulgated pending the revisions to the Periti Act, and will endeavour to issue Standard Agreements in the coming weeks, in line with the developments outlined above. Meanwhile, periti are reminded of their obligation at law to enter into a written contract with their client prior to the provision of any services.

 

As stated above, the motion being discussed in this Section included another two points, one relating to the studies required to be undertaken prior to the commencement of works and the other relating to the registration of contractors.

With respect to the studies, the Council notes that the draft of the Legal Notice included various provisions regarding the preparation of a Geotechnical Design Report. These were subsequently removed from the Legal Notice as published, however there remains the concern that the requirements of the method statement as defined therein include aspects which should not fall under the responsibility of the perit in charge of the project but rather should fall within the remit of the contractor, such as the type of equipment to be used, the type and certification of cranes, and the procedures to be adopted for the loading and carting away of the resulting debris. This is in line with existing international forms of contract where the contractor is responsible for the temporary works, and the method of works is to be specified by the contractor. Other obligations should lie with the appointed Health & Safety Supervisor such as the requirement to stipulate the precautions and safeguards to be adopted for the safety of persons.

Furthermore, the requirements of the condition report include a number of items which are, in practice, difficult to achieve, such as the identification of the type and dimensions of foundations of the buildings within the affected excavation zone and the estimated bearing pressure at foundation level. Although the Schedule states also that “if information about the foundations of the building is not readily available, this is to be clearly stated in the report and the assumptions made in calculating the bearing pressure are to be described”, the Council is of the opinion that any assumptions which are not evidence-based may expose the perit to additional risks in case of litigation.

In this regard, it is noted that the Council is participating actively on a Working Group which was set up by the BICC following the coming into force of the Legal Notice. This Working Group is formulating its proposals regarding the above, and it is envisaged that these will be concluded in the coming weeks. In light of this, the Kamra hereby recommends that until such time as such exercise is concluded, if any of the content of the Method Statements as outlined in the Legal Notice is, in their opinion, or as a result of contractual obligations between the developer and the contractor, required to be prepared by the contractor or any other consultant or figure within the project setup, then these are to be requested of such responsible person and annexed under such person’s letterhead to the rest of the requirements uploaded onto eApps by the perit.

 

The third and last aspect of the motion being discussed here related to the registration of contractors, and the EGM’s request that a system of classification and licensing would be in place by March 2020. Following on the Council’s insistence on this point, on the morning before the second EGM, Government announced that registration of contractors would be undertaken as from the 10th July 2019 by the BRO, and that licensing and classification would be in place by the end of the year, thus anticipating the timeframe stipulated by the EGM. This step was announced at a joint press conference headed by Minister Ian Borg and Parliamentary Secretary Chris Agius, flanked by the Kamra tal-Periti and the Malta Developers Association, on the 5th July 2019.

It later transpired that the BRO delegated this task to the Malta Developers Association, in what seems to be merely an exercise in collection of data, and not registration as originally requested by the Kamra, and as already required by the Building Regulation Act. While it may be argued that this process is not in line with the Act, it is nevertheless a start, and we hope that we will see the ultimate goal of enacting a proper system of licensing and classification coming into force by December. In this regard, the Council has taken a pro-active approach by drafting proposals for a Legal Notice to establish a workable system that will also lead to better procurement processes and to clear identification of contractor competences. We are working incessantly to ensure that this comes to fruition in the coming months, and there is commitment from Government’s end to see this through.

 

  1. Supplementary provisions to Legal Notice 72 of 2013

In addition to the principles approved in Motion 4, this Extraordinary General Meeting of the Kamra tal-Periti hereby resolves that the following matters be enacted, and hereby authorises the Council to demand that:

  1. The Legal Notice includes a provision that if the developer qua owner/employer or the Contractor refuses to comply with the Perit’s instructions on matters related to structural integrity, then said Perit may suspend the works and shall lodge a report with the Building Regulation Office;
  2. That a list of licenced masons, and whose licence is currently valid is published by the date of coming into force of the amended Legal Notice;
  3. That the declaration on the planning application form whereby the applicant Perit is made to “assume the direction and responsibility of the work referred to in this application” is immediately removed from said form;
  4. That the Commencement Notice submitted by the Perit to the Planning Authority is to contain only the details of the Applicant, and of any Monitors and Experts required as per the conditions of permit, and the relevant declarations, and that this system is in place by the end of June 2019;
  5. That a new Commencement Notice is created which will be submitted to the Building Regulation Office and which will contain the details and relevant declarations of the persons identified in Schedule 2 of the Legal Notice, and that this system is in place by the end of June 2019;
  6. That a Notice of Completion of Civil and Structural Works be created and required to be submitted to the Building Regulation Office together with a set of as-built structural drawings;
  7. That all of the above are to be executed in full consultation with the Council of the Kamra tal-Periti.

 

With regard to point (1) above, although this request was not acceded to, it is to be noted that the Legal Notice as published includes the following provisions:

 “10. (1) When the site technical officer is in doubt about how works are to proceed, he shall stop the works and request direction from the perit who would have prepared the method statement.

(2) The site technical officer shall ensure that the contractor is complying with all their obligations as provided for in these regulations. If the site technical officer notices any violation of these regulations, he shall immediately stop the works and notify the perit(i) in charge and the Building Regulation Office.

(3) Upon being served with an enforcement notice issued by the Director, the site technical officer shall immediately communicate this notice to the contractor and the perit(i) and see to it that this order is complied with by ceasing the demolition, excavation and/or construction activity, as applicable.”

It also places a number of obligations on the Director of the BRO in cases where works are not proceeding according to the approved method statement, including the serving of enforcement notices and calling in the assistance of the Police Force to halt the works.

 

It is the Council’s opinion that these provisions adequately provide for a clear process, led by and under the responsibility of the STO, to ensure that the works are in line with the Legal Notice. This does not, however, preclude the perit in charge from also lodging an independent report if it transpires that the contractor, the appointed STO and/or the developer are not abiding by their obligations in terms of the Legal Notice, and periti are encouraged to do so if the situation so requires in order to protect their interests and the interests of third parties. Periti are also reminded that they are also empowered to order the suspension of the Works, verbally and in writing, if the situation so requires, and to notify the owner / employer / client of such suspension writing. No works are to be carried out under the direction of the perit until such time as the situation is rectified to the perit’s satisfaction. It is also recommended that such reports and communications are copied to the Kamra tal-Periti.

 

Point (2) above has already been discussed in the preceding section of this Circular, and the list of licenced masons is now available on the website of the BRO. Periti are reminded that Directive 04/19 remains in force.

 

With regard to point (4) above, this was discussed with the Planning Authority (PA) some weeks ago, and where the Council proposed that the Commencement Notice submitted to the PA should only contain information on those figures within the project setup that are required to be identified under the Development Planning Act, or as a result of the conditions of permit, while any figures within the project setup required under the Building Regulation Act or the Occupational Health and Safety Act would be submitted to the BRO, as outlined in point (5) above. The creation of the Site Responsibility Form has effectively addressed these concerns, and separated the roles and responsibilities related to planning from those related to the construction process. As outlined in Section 3 above, the Site Responsibility Form is being amended in line with the Kamra’s requests, and discussions will be taken up once again with the PA to align the two forms and to ensure no overlap between the two. This will include the EGM’s request as outlined in point (c) above, on which the Council understands that there is no objection from the PA.

 

With regard to point (6), it is noted that the Legal Notice as published after the first EGM stipulates at Regulation 6(6) that “On completion of the project, the developer shall, within two (2) weeks, submit a certification issued by the perit in charge of the project that the works have been completed. For the purpose of this sub-regulation project completion shall mean the completion of all structural and other works including the roof, screed of roofs, terraces and yards, the closure of apertures and other works to render the building sealed against the ingress of water.” This addresses the first part of point (f). The Council will be pushing for the second part regarding the submission of as-built drawings as part of its discussions in line with its document “A Modern Framework for Building and Construction Regulations” which already contemplates this proposal and which document was endorsed by the EGM.

 

Follow up on Extraordinary General Meeting of the 5th July 2019

The second EGM was held on the 5th July 2019. At the time, some of the points outlined above had not as yet been resolved, and therefore the position presented by the Council at such EGM was still a “works in progress”. In this context, the Council had noted that, in its opinion the Legal Notice in its entirety required various adjustments, also to bring it in line with already established local and international practices, and to ensure that it is a workable legislative instrument which truly ensures public safety. The Council had highlighted a number of points which were more important than others and which, in its opinion, required immediate attention. The below is a summary of such points (in bold), together with a brief outline of the status as at the date of this Circular (in italics):

 

Lines of responsibility between the developer, the perit in charge and the contractor in view of the fact that the Legal Notice contradicts historically established practices, both locally and internationally

On this matter, it is noted that all the points raised in the preceding parts of the Circular are intended to further clarify such roles, and while Government has not agreed to amend the Legal Notice in this sense, the Council is satisfied that the additional safeguards provided by the measures outlined above will give adequate protection to periti, both in their role as perit in charge, or in their role as STO if they decide to take on such role.  As already outlined above, the Council is currently in discussions with the Ministry and the BRO, to address the anomalies highlighted by the Kamra on several occasions.

 

The definition of ‘perit in charge’

This point has been elaborated on in the preceding section A(3) above. Although it would have been preferable to have an immediate resolution of this point, the Council is of the opinion, in light of the other safeguards and commitments by Government to achieve a resolution over the coming months, that it is acceptable to retain the definition for the interim period. The Council will be working diligently and persistently to ensure that this point, and the immediately preceding one, are addressed without delay.

 

The role of the Site Technical Officer (STO), which as defined in the Legal Notice, includes the requirement for the STO to be “present on site whenever decisions are being taken that influence the risk of damage to third party property or injury to persons that may be caused by the works”. However, the definition of the STO’s role also requires her/him to be “responsible for the enforcement of the method statement covering the works which the contractor who nominates him is responsible for.” The “enforcement” of the method statement automatically implies that the STO’s presence on site is much more onerous than being there only when decisions are taken (also considering that the word “decisions” is not really defined). The Legal Notice also implies that if the contractor does not abide by the method statement, the STO may be held responsible, in her/his professional capacity, for the contractor’s failures.

As outlined in Section A(3) above, the role of the STO will be further defined in the coming weeks, and the Council is actively involved in outlining the requirements of such role. Meanwhile a Standard Services Agreement will be put forward for use by periti interested in taking on such role. Kindly refer to Section A(3) above for further details on what this entails. It must, in any case be stressed that having an STO on site should not detract from any of the obligations of the perit in charge to monitor the works regularly in order to ascertain that they are compliant with her/his specifications.

 

The requirement that the Site Technical Officer (STO) is to be approved by the perit in charge

Kindly refer to Section A(3) above.

 

Competences required to carry out the role of STO

At the time of coming into force, the Legal Notice only contemplated periti as being able to carry out this role. Government has now amended the Legal Notice to allow persons with a Bachelor in Engineering to also take on this role.

It is to be noted that the Council had presented a list of other competences for Government’s consideration, also keeping in mind Malta’s obligations in terms of the Services in the Internal Market Directive, since the Legal Notice appears to exclude the participation of foreign professionals for this specific role. It is understood that these proposals are still being actively considered.

Nevertheless it is important to note that periti are ethically obliged not to undertake roles for which s/he is not appropriately qualified or knowledgeable, and this also applies for the role of STO.

 

Works Specifications vs Method Statement.

This point has been elaborated on in Section A(3) above.

 

Distinction between temporary and permanent works

This point ties in with the preceding one, and is being discussed by the BICC Working Group mentioned above. One of the main concerns with the Legal Notice is that it does not make any distinction between the “permanent works”, i.e. the final building structure, and the “temporary works”, i.e. the process of erecting such structure. The former is the responsibility of the perit, while the latter is the responsibility of the contractor, under the perit’s direction. Ultimately, the perit and the contractor carry joint liability for the structural integrity of the final structure in terms of the Civil Code. The terms “permanent works” and “temporary works” are internationally well defined, and are also used locally in a number of projects. Clarifying the works falling under each aspect would make it easier to clarify roles and responsibilities for each. As stated earlier, the Council is actively involved in further defining these terms and there is commitment from Government to include these as part of the legislation that will establish the new Building and Construction Authority.

 

The use of Regulations 25 and 26 which deal with the option for the submission of requests for exemption from abiding by all, or parts, of the Legal Notice

At the time of the EGM, the Council was still unsure as to how these would be working, however since then it has had several discussions with the Ministry and BRO, and has worked well with both to come up with solutions through the introduction of the relevant application forms, even though the Council is still of the opinion that some of the wording of the forms requires amendment. In view of the republication of the Legal Notice, some of these forms will need to be amended again, and there is commitment from Government to effect amendments to such forms in consultation with the Kamra in order to safeguard the profession in terms of the declarations made on such forms.  

 

There are several discrepancies between the Maltese and English versions. Although at law the Maltese version prevails, the Council is of the opinion that it is important that certain glaring differences between the two versions are amended especially when considering the number of foreign periti, contractors and developers operating in Malta who would more naturally refer to the English text.

Government has not aligned the Maltese and English versions by the time of drafting of this Circular. Periti are advised to refer to the Maltese version as the one which takes precedence at law. The Kamra tal-Periti will do its best to issue a Circular shortly that highlights the discrepancies between the two versions to assist those members of the profession who are not proficient in the Maltese language to better understand their obligations

 

Way forward

The matters outlined above are recorded in a Letter of Commitment (see link below), issued under the signature of the Hon Minister Dr Ian Borg and the Permanent Secretary Mr Christopher Cutajar. In view of the above, the Council will be issuing a new Directive to all periti in the coming hours.

Members of the profession are invited to read through this Circular and such Directive carefully, and to submit any comments or queries on buildingregs@kamratalperiti.org. Periti are also encouraged to seek legal advice on their position in relation to any Service Agreements entered into prior to the coming into force of Legal Notice 136 of 2019, or in the interim period until the coming into force of Legal Notice 180 of 2019, as well as in relation to any new Service Agreements they intend to undertake from now on, pending the publication by the Kamra tal-Periti of standard Service Agreements in the coming weeks.

 

 

Note

All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

 

Perit Simone Vella Lenicker
President

 

CIR 10/19 | Follow up on EGM decisions

Dear Colleagues,

Following the Extraordinary General Meetings held on the 21st June 2019 and the 5th July 2019, the Council has been busy discussing a way forward with Government. Progress has been made on a number of issues, while others remain open for discussion.

Follow up on EGM of the 21st June 2019

Those of you who were present for the first EGM of the 21st June 2019 will remember that this was held on the last day of the public consultation on the draft of the subsequently published LN 136 of 2019. There were a number of points which the profession unanimously agreed required to be addressed, and three overriding matters which the profession confirmed to be unacceptable. These concerned:

  • the lines of responsibility between the owner / developer, the contractor and the perit in charge following the introduction of the figure of the Site Technical Officer and certain text in the draft which contradicted other legislation and historically established lines of responsibility;
  • the reports and studies required to be submitted, which at the time were considered to be overly onerous for certain small to medium projects; and
  • the urgent need for registration, licensing and classification of contractors.

Circular 05/19 was issued on the 26th June 2019 with detailed explanations of each of these points and the situation as at that date. You may read the Circular here.

Following on the Council’s insistence regarding the third point, on the morning before our second EGM, Government announced that registration of contractors would be undertaken as from the 10th July 2019 by the Building Regulation Office (BRO), and that licensing and classification would be in place by the end of the year. This step was announced at a joint press conference headed by Minister Ian Borg and Parliamentary Secretary Chris Agius, flanked by the Kamra tal-Periti as the main promoters of this step, and the Malta Developers Association.

It later transpired that the BRO abdicated its obligations with regard to setting up a register of contractors, passing this task on to the Malta Developers Association, in what seems to be merely an exercise in collection of data, and not registration as originally requested by the Kamra, and as already required by the Building Regulation Act. While it may be argued that this process is not in line with the Act, it is nevertheless a start, and we hope that we will see the ultimate goal of enacting a system of licensing and classification coming into force by December. In this regard, the Council has taken a pro-active approach by drafting proposals for a Legal Notice to establish a workable system that will also lead to better tendering processes and to clear identification of contractor competences. We are working incessantly to ensure that this comes to fruition in the coming months.

 

Follow up on EGM of the 5th July 2019

During the second EGM held on the 5th July 2019, the Council presented the progress that had been achieved on the points outlined above and on others which the profession had tasked it to work on following the first EGM.

It was noted that while the Legal Notice in its entirety required various adjustments, also to bring it in line with already established local and international practices, and to ensure that it is a workable legislative instrument which truly ensures public safety, there were a number of points which were more important than others and which required immediate attention. The below is a summary of such points, together with a brief outline of the progress achieved to date on each:

  • Lines of responsibility between the developer, the perit in charge and the contractor: The Legal Notice contradicts historically established practices, both locally and internationally. On this matter the Council is currently in discussions with the Ministry and the BRO, to address the anomalies highlighted by the Kamra on several occasions.
  • Definition of perit in charge: The definition stated in the Legal Notice is: “the perit that is going to assume responsibility for the execution of the project approved in the development permit.” As agreed by the EGM, the perit in charge is not, and has never been, responsible for the execution of the project. That is the contractor’s sole responsibility. The role of the perit in charge is to design, specify, direct, monitor and approve the works, as well as to assume responsibility for the permanent structure. It is therefore important that the definition in the Legal Notice is amended to reflect this. The Council is, concurrently, working with the BRO on establishing guidance regarding the roles and responsibilities on construction sites, however until this exercise is concluded it is imperative that the definition is changed.
  • The role of the Site Technical Officer (STO): This role is defined in the Legal Notice, and includes the requirement for the STO to be “present on site whenever decisions are being taken that influence the risk of damage to third party property or injury to persons that may be caused by the works“. However, the definition of the STO’s role also requires her/him to be “responsible for the enforcement of the method statement covering the works which the contractor who nominates him is responsible for.” The “enforcement” of the method statement automatically implies that the STO’s presence on site is much more onerous than being there only when decisions are taken (also considering that the word “decisions” is not really defined). The Legal Notice also implies that if the contractor does not abide by the method statement, the STO may be held responsible, in her/his professional capacity, for the contractor’s failures. It must, in any case be stressed that having an STO on site should not detract from any of the obligations of the perit in charge to monitor the works regularly in order to ascertain that they are compliant with her/his specifications.
  • The requirement that the Site Technical Officer (STO) is to be approved by the perit in charge: Legal advice obtained by the Kamra has indicated that this requirement may give rise to possible exposure to colpa in eligendo as a result of the approval of an expert appointed by a third party. The EGM agreed that this matter can be easily resolved by having an official list of persons, including periti and other professionals who register with the BRO to offer the services of an STO. Once these persons are approved by the BRO, there is no need or reason for the perit to approve or otherwise who the contractor decides to appoint to take on this role. It is an established fact that any service provider is responsible to engage competent persons to provide the services requested, and there is no logical reason why the perit must approve who the contractor engages.
  • Competences required to carry out the role of STO: At the moment, the Legal Notice only contemplates periti as being capable to carry out this role. Government has already indicated its intention to extend the competences to include Electrical and Mechanical Engineers, and others. On this matter, the Council had presented a list of other competences for Government’s consideration, also keeping in mind Malta’s obligations in terms of the Services in the Internal Market Directive, since the Legal Notice appears to exclude the participation of foreign professionals for this specific role. It is understood that these proposals are being actively considered.
  • Works Specifications vs Method Statement: On this matter, there is agreement across the profession that the Method Statements as described in the Schedules should be split into two parts, namely: Works Specifications which are prepared by the perit in charge and which specify the interventions to be carried out on the site; and a Works Method Statement which is to be prepared by the contractor.
  • Distinction between temporary and permanent works: One of the main concerns with the Legal Notice is that it does not make any distinction between the “permanent works“, i.e. the final building structure, and the “temporary works”, i.e. the process of erecting such structure. The former is the responsibility of the perit, while the latter is the responsibility of the contractor, under the perit‘s direction. Ultimately, the perit and the contractor carry joint liability for the structural integrity of the final structure in terms of the Civil Code. The terms “permanent works” and “temporary works” are internationally well defined, and are also used locally in a number of projects. Clarifying the works falling under each aspect would make it easier to clarify roles and responsibilities for each.
  • Regulations 25 and 26: These regulations deal with the option for the submission of requests for exemption from abiding by all, or parts, of the Legal Notice. At the time of the EGM we were still unsure as to how these would be working, however since then we have had several discussions with the Ministry and BRO, and have worked well with both to come up with solutions through the introduction of the relevant application forms, even though the Council is still of the opinion that some of the wording of the forms requires amendment. The Council is still working hard to put forward its proposals in this regard, to ensure that these changes are effected in order to safeguard the profession in terms of the declarations made on such forms. Further guidance on the use of the relevant forms may be found in Circular 09/19 here.
  • Discrepancies between Maltese and English versions: Although at law the Maltese version prevails, the Council is of the opinion that it is important that certain glaring differences between the two versions are amended especially when considering the number of foreign periti, contractors and developers operating in Malta who would more naturally refer to the English text.

 

Way forward

All of the above positions have been presented to Government in the various meetings held since the last EGM. There is convergence and understanding on a number of points, yet not on others. We have requested an urgent meeting this week, to go through all the above points again, and to get a better understanding of the way forward in addressing them.

Following this meeting, the Council will be in a better position to review the situation, and inform you accordingly. Meanwhile, kindly note that Directive 03/19 and Directive 06/19 still stand. The Council is actively investigating any reports of breaches of said Directives.

 

Premju Emanuele Luigi Galizia

Allow me to take this opportunity to congratulate, on behalf of the whole Council, the finalists of this year’s edition of the Premju Emanuele Luigi Galizia. The standard of submissions received is very high, and we look forward to another successful edition which promotes quality in architecture and civil engineering, and to encourage excellence in our built environment.

All members of the profession are invited to attend the presentations which the finalists will be making to the various judging panels. A full program can be perused here.

  

Note

All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

 

Perit Simone Vella Lenicker
President

 

CIR 09/19 | Further updates on Legal Notice 136 of 2019

Dear Colleagues,

 

As you are aware, another meeting was held this morning with the Minister Dr Ian Borg, the Parliamentary Secretary Mr Chris Agius, and the Director BRO Mr Johann Buttigieg. Updates on our position taken at the last EGM will be announced at the next EGM which has been urgently called for Friday 5th July 2019, details of which were issued earlier today. Your presence is solicited and appreciated.

It is to be noted that the forms relating to requests for exemptions, site management, etc have been amended in line with the Kamra’s requests, and are now available online on the PA website and on eApps.

Meanwhile, the following guidance notes supercede those issued in Circular 07/2019 and Circular 08/2019 with regards to Legal Notice 136 of 2019.

 

Declaration in terms of Regulation 4 of the Legal Notice

This declaration is to be submitted for all projects which do not fall under the requirements of the Legal Notice in the sense that they do not include any of the activities listed in Regulation 4. Typical examples could include:

  • Change of use;
  • Fixing of signage;
  • Façade restoration works including replacement of external apertures;
  • Internal alterations relating to non-loadbearing structures; or
  • Excavation, demolition or construction works where there are no adjacent third parties.

 

This declaration must always be made, unless the works fall under Regulation 4, in which case the other forms outlined below are to be used.

 

Declaration in terms of Regulation 26 of the Legal Notice

The declaration in terms of Regulation 26 is to be used when the works are contemplated in Regulation 4 but, in your professional opinion, the “structural interventions will not affect third party property“. This declaration must be made before any works may continue on any ongoing site, including works which were previously covered by the exemptions of LN 72 of 2013 (which are now no longer exempt). The following considerations are important when submitting declarations in terms of Regulation 26:

  • In your assessment, it is important to consider whether the execution of the works may cause a risk of damage to third parties, as a result of the structural interventions. This generally means that:
  • there are no excavations which, even though not directly abutting third party property, could affect, in some way, third party property;
  • that there are no demolition works adjacent to existing buildings, even if not directly in contact with such building, which could affect such adjacent buildings; or
  • that there are no construction works that could, in some way, impact any adjacent or underlying existing buildings, even if the intention is to build separate party walls.
  • The form has been updated, at the request of the Kamra, to state that “I, the perit in charge of the project, hereby certify that the proposed structural interventions will not affect third party property save for minor damages that could occur and hence regulations 4,5,6,7,8 of the Legal Notice do not apply.” In addition, the Kamra has requested that the word “certify” is changed to “declare”, however this would require a change to the Legal Notice, which we hope will be updated shortly.
  • In using this form, your professional judgement prevails.
  • In situations where periti are being pressured to issue declarations on the basis of Regulation 26, and where this is, in their professional judgement, not justified, you are advised to following the same procedure outlined in Directives 03/2019 and 04/2019.

 

Guidance regarding Regulation 25 of Legal Notice 136 of 2019 – Form A

Form A is to be used in cases where it is deemed that an exemption may be requested from the submission of a method statement, condition report or the requirement for insurance and bank guarantee in cases where the works still pose a risk to third parties. This form has been updated, following the Kamra’s request, to clarify that one may request exemption from one or more of the listed items.

This request may be used, as an example, in the following cases:

  • Where a method statement had already been submitted prior to the coming into force of the Legal Notice and the remaining works do not affect such method statement;
  • Where condition report/s had already been submitted prior to the coming into force of the Legal Notice and the remaining works will not have any impact on the adjacent third parties other than what had already been previously assumed in the first place;
  • Where insurance cover and bank guarantees were taken out prior to the coming into force of the Legal Notice, and where the new requirements are considered to be excessive or where the remaining works have already been practically executed and are thus less likely to have an impact on third party property.

In all cases, it is the Kamra’s opinion that insurance cover should always been taken out, and in cases were clients insist on the submission of such a request for exemption it is recommended that you follow the procedure outlined below.

Requests in terms of Form A require approval by the Director BRO.

 

Guidance regarding Regulation 25 of Legal Notice 136 of 2019 – Form B

Form B consists of a request for exemption from the requirement imposed by Regulation 5(1) for the contractor to nominate a Site Technical Officer. In various fora, the legislator has declared that the Site Technical Officer is only required in cases where demolition and excavation works are being carried out, and not where the works consist of construction only, including the addition of floors over existing third parties. It is unclear where this exemption from the requirement of providing a Site Technical Office emanates from and we are seeking further legal advice on this matter.

This form simply states that the perit and the mason are assuming the obligations and responsibities emanating from the Civil Code, and that the contractor (who could also be the mason) is assuming responsibilities in terms of Legal Notice 293/16.

It is important to note that the perit in charge of the project, who is assuming responsibility for the works in terms of the Civil Code, may be different from the perit in charge of the planning permit application, as long as there is a written agreement between the two periti clearly establishing lines of responsibility. The Kamra will be working on creating standard forms of agreement for use by periti in the coming months. In any case, the form is to be uploaded by the perit in charge of the planning permit application.

Meanwhile, the Kamra tal-Periti will continue to insist with the Planning Authority that the planning application form is amended to remove the declaration regarding responsibility for the works, as approved by our last EGM.

Requests in terms of Form B require approval by the Director BRO.

 

Guidance regarding Regulation 25 of Legal Notice 136 of 2019 – Form C

Form C is to be used where there is a risk to third party properties, but where there is an urgency to carry out the works, since delays may increase the relative risks.

In such cases, periti are to fill in the respective form, ticking the “Request to effect emergency works” option. Works under this category may include the following, which are given only as examples for guidance purposes:

  • Shoring up or replacement of dangerous structures, subject to the standard clearance having been received from the Planning Authority;
  • Closing off of excavation sites where exposed third party foundations are at risk, especially where the exposed rock or land formation shows evidence of possible instability;
  • Bracing of partly constructed walls, such as in the case where the loadbearing walls have partly or completely built, but require the casting of the ceiling structure to ensure their stablity;
  • Construction of parapet walls for safety purposes;
  • Casting of roof screeds and waterproofing works;
  • And similar cases.

Requests in terms of Form C require approval by the Director BRO.

  

Additional Guidance

The following is additional guidance that may be useful in terms of the Legal Notice:

  • Road works fall within the definition of “construction work” and therefore if they pose a danger to third party property, should be compliant with the Legal Notice. The Kamra has been informed that works within a certain distance of third party property are to comply with the Legal Notice. We are seeking clarification on the actual distance.
  • Any requests for exemptions granted by the BRO prior to the coming into force of Legal Notice 136 of 2019 are to be resubmitted in order to confirm their compliance with the new Regulations, if applicable. It is important to keep in mind that all requirements of the Legal Notice should be in place, including insurances to be taken out by the respective parties.
  • With regard to the content of the method statements, the Kamra tal-Periti has requested that these be split into two: Works Specifications to be prepared by a perit, and a method statement to be prepared by the contractor. This proposal has not yet been accepted by Government, however we will continue to put forward our case in this regard. In the meanwhile you are within your rights, in terms also of your contracts with your clients and the contractor’s contract with the client, to request that parts of the requirements in the Schedules relating to Method Statements are prepared by the contractor and submitted together with the rest of the submissions prepared by the perit.
  • In all cases, it is recommended that you ensure with your PII provider that the declarations being submitted in terms of this Legal Notice are covered by your policy.
  • The Kamra tal-Periti has requested several other amendments to the Legal Notice, a few of which have been taken on board, but others not. These will be discussed at the forthcoming EGM.

 

 

Submissions in terms of the Legal Notice

Periti are advised that in all cases, submission of information or requests for exemptions as outlined above, are to be made via eApps and uploaded to the relevant PA number, rather than sending them by email to BRO. This will avoid double handling and will also allow the information to be instantly available to the public.

 

Endorsement by Developer

Regulation 5(3) of the Legal Notice states that “The developer shall take all reasonable precautions to ensure that the construction activity will not result in any damage to contiguous properties, including damage that may result from the infiltration of water.

The Kamra requested that the developer is included as one of the signatories to the forms, however this request has not yet been acceded to. In view of this it is recommended that you request a signed declaration from the developer, to be uploaded onto eApps with the relevant form, stating the following (or similar wording depending on the case):

I, …., ID No …, in my capacity  developer for the works approved under PA…, hereby declare that I am aware of the responsibilities pertaining to the undersigned in terms of Legal Notice 136 of 2019, and that I have acknowledged the submission and content of the following (include list of forms / method statements / condition reports / etc).

Particularly in the case of the Regulation 25 Form A, where a request for exemption for taking out insurance cover and bank guarantees is being made it is recommended that the following declaration is requested from the client (or similar wording depending on the case):

I, …., ID No …, in my capacity as developer for the works approved under PA…, hereby declare that I have requested Perit … to submit a request for exemption from the requirements of Regulation 6 of Legal Notice 136 of 2019 (insurance cover and bank guarantee). I further declare that I am aware of the responsibilities pertaining to the undersigned in terms of the Legal Notice 136 of 2019, and that I have acknowledged the submission and content of the following (include list of forms / method statements / condition reports / etc).

 

Direction from BRO

The Kamra tal-Periti has requested the BRO to publish clear guidelines as to other circumstances where Regulation 25 can be used. Instead, it is to be noted that the requests for exemptions and approvals will be available to the public, even so that you may guide your clients who are the third parties concerned with regard to works on adjacent sites. This will give you an indication of the sort of works that are being granted exemptions. Third parties may, if they so wish, object to the granting of such exemption, and the Director BRO will consider such claim.

 

Note

All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

Perit Simone Vella Lenicker
President

 

CIR 08/19 | Updated position regarding Legal Notice 136 of 2019

Dear Colleagues,

 

During the meeting held last Thursday with the Minister, the Council made its position clear on the various aspects of the new Legal Notice with which it was not in agreement, as have already been outlined in our various correspondence and press releases. At the end of the meeting, the Kamra was invited to submit its proposals for amendments to the Legal Notice, which it did on Sunday 30th June 2019. In general, these amendments will clarify the role and responsibility of the perit, of the contractor and of the developer, and clarify the role and competences of the site technical officer. A meeting was held on Monday morning with Government to discuss these proposed amendments and hopefully reach agreement on the changes required. We are now awaiting further feedback from Government.

 

Meanwhile, the Council notes with satisfaction that its instructions to periti to faithfully abide by the Legal Notice were adhered to. Regrettably only about 20% of building sites are now operative on the basis of exemptions granted under regulations 25 and 26 of  Legal Notice 136 of 2019. The Kamra’s objective is to return to a state of normality with all sites back in operation as before, even if the rest of the industry generally remains oblivious to the significance of the responsibilities implied.

 

Of course, it will be necessary for some sites to remain closed for a while longer until they are brought into line with the requirements of the Legal Notice, however there are a number of situations where more sites can be brought back in operation as outlined below.

 

In addition, the undersigned also held meetings with the President of the Malta Developers Association over the weekend, to discuss the interim period until the required changes to the Legal Notice come into place. The meetings were very fruitful and it was agreed that the Kamra would be able to issue clear guidance on the way forward, on the assumption that our proposals to Government will also be agreed to, including the positions approved in our last EGM. Unfortunately this has not happened.

Until a final position is published, you are advised to proceed in accordance with the guidance below, and to inform your clients and respective contractors that we are still awaiting the application forms and a formal guidance note from BRO to be published.

The below guidance notes supercede the FAQs published under Circular 07/2019 and are intended to address certain works that may proceed under the new Legal Notice.

 

Guidance regarding Regulation 26 of Legal Notice 136 of 2019

The below guidance notes supercede the FAQs published under Circular 07/2019 and are intended to address certain works that may proceed under the new Legal Notice:

 

  1. If, in your professional opinion, the “structural interventions will not affect third party property“, then you are to follow the provisions of Regulation 26 of the Legal Notice. This has to be done before any works may continue on any ongoing site, including works which were previously covered by the exemptions of LN 72 of 2013 (which are now no longer exempt).
  2. In your assessment, it is important to consider whether the execution of the works may cause a risk of damage to third parties, as a result of the structural interventions. This generally means that:
    • there are no excavations which, even though not directly abutting third party property, could affect, in some way, third party property;
    • that there are no demolition works adjacent to existing buildings, even if not directly in contact with such building, which could affect such adjacent buildings; or
    • that there are no construction works that could, in some way, impact any adjacent or underlying existing buildings, even if the intention is to build separate party walls.
  3. The use of this Regulation appears straight forward enough, however the Kamra tal-Periti has received legal advice that the way this exemption is formulated does not provide legal clarity. We have requested that this regulation clearly states that phrase “that the structural interventions will not affect third party property” is changed to state that this is barring any minor damages such as ingress of water, movement cracks, damage to finishes, etc. So far, this has not been addressed. Nevertheless, your professional judgement prevails.
  4. In situations where periti are being pressured to issue declarations on the basis of Regulation 26, and where this is, in their professional judgement, not justified, you are advised to following the same procedure outlined in Directives 03/2019 and 04/2019.
  5. If you decide to proceed under Regulation 26, you are advised to fill in the respective form which may be downloaded from the Planning Authority website, and to upload it onto Eapps.

 

 

Guidance regarding Regulation 25 of Legal Notice 136 of 2019

  1. Requests for exemptions on the basis of Regulation 25 should, in general, be made where a risk to third party properties does exist, but where there is an urgency to carry out the works, since delays may increase the relative risks.
  2. In such cases, periti are to fill in the respective form which may be downloaded from the Planning Authority website, ticking the “Request to effect emergency works” option. Works under this category may include the following, which are given only as examples for guidance purposes:
    • Shoring up or replacement of dangerous structures, subject to the standard clearance having been received from the Planning Authority;
    • Closing off of excavation sites where exposed third party foundations are at risk, especially where the exposed rock or land formation shows evidence of possible instability;
    • Bracing of partly constructed walls, such as in the case where the loadbearing walls have partly or completely built, but require the casting of the ceiling structure to ensure their stablity;
    • Construction of parapet walls for safety purposes;
    • Casting of roof screeds and waterproofing works;
    • And similar cases.
  3. Regulation 25 also allows requests for exemptions to be made even when the work is not urgent. Typical examples of requests that may be considered are:
    • Restoration works as long as these are limited to stone replacement, cleaning and pointing works on facades, and the replacement of façade features (eg. balconies, windows, etc);
    • Minor internal structural alterations that are not considered to have an impact on third parties;
    • Internal alterations that are not of a loadbearing nature;
    • And similar cases.
  4. Periti are reminded that even when such exemption is given, a mason still needs to be appointed, while a contractor is to be nominated to take responsibility for the requirements of LN293/16.
  5. In the case of Regulation 25 exemptions, a response from the Building Regulation Office is required.

 

 

 

Additional Guidance

  1. Road works fall within the definition of “construction work” and therefore if they pose a danger to third party property, should be compliant with the Legal Notice. The Kamra has been informed that works within a certain distance of third party property are to comply with the Legal Notice. We are seeking clarification on the actual distance.
  2. Any requests for exemptions granted by the BRO prior to the coming into force of Legal Notice 136 of 2019 are to be resubmitted in order to confirm their compliance with the new Regulations, if applicable. It is important to keep in mind that all requirements of the Legal Notice should be in place, including insurances to be taken out by the respective parties.

 

The Kamra tal-Periti has requested the BRO to publish clear guidelines as to other circumstances where Regulation 25 can be used, and also to amend the forms in line with our discussions of the past days.

All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

 

Perit Simone Vella Lenicker

President

 

CIR 07/19 | Legal Notice 136 of 2019 | FAQs (1)

The Kamra tal-Periti has received a number of queries from the profession regarding the provision of Legal Notice 136 of 2019 which came into force yesterday.

 

The following are some points for your guidance:

 

  • If, in your professional opinion, the “structural interventions will not affect third party property“, then you are to follow the provisions of Regulation 26 of the Legal Notice. This has to be done before any works may continue on any ongoing site, including works which were previously covered by the exemptions of LN 72 of 2013 (which are now no longer exempt).
  • In your assessment, it is important to consider whether the execution of the works may cause a risk to third parties, such as falling loads, overturning of site equipment, mechanical failure of equipment, etc.
  • If, in your professional opinion, the new Legal Notice is applicable to the works concerned (demolition, excavation and construction), then any breach of the Legal Notice (including non-compliance with the Method Statement requirements, Condition Report requirements, insurance cover, etc) means that the works themselves are non-compliant and effectively suspended. If works proceed, the developer and the contractor may expose themselves to fines of up to EUR50,000. Periti are exposed to fines of up to EUR500 for Method Statements which are non-compliant with the Regulations, unless works are suspended until such time as these can be submitted.
  • Road works fall within the definition of “construction work” and therefore if they pose a danger to third party property, they should be compliant with the Legal Notice.
  • In situations where periti are being pressured to issue declarations on the basis of Regulation 26, and where this is, in their professional judgement, not justified, you are advised to following the same procedure outlined in Directives 03/2019 and 04/2019.
  • If the Director BRO issues a statement in accordance with Regulation 25, ensure that this is made in writing and that it clearly states the scope of the works which are permitted under the exemption. Keep in mind that the ultimate responsibility in case of an incident remains uncertain in view of Regulation 14(4) which exonerates the Director BRO from liability, except in cases of gross negligence.
  • In the case of dangerous structures, the normal planning procedures are to be followed. Once clearance is granted from the Planning Authority, periti are to forward such clearance to the BRO to seek further guidance. At this stage it is understood that the requirements of the Legal Notice still need to be observed. Further guidance on this matter is being sought.
  • Similarly, in cases where adjacent sites may be at risk if works are stopped until compliance with the regulations is in place, periti are to write to the BRO, clearly explainining the situation, and seek guidance accordingly.
  • Any requests for exemptions granted by the BRO prior to the coming into force of Legal Notice 136 of 2019 are to be resubmitted in order to confirm their compliance with the new Regulations. It is important to keep in mind that all requirements of the Legal Notice should be in place, including insurances to be taken out by the respective parties.
  • All Directives and Circulars are being sent to all periti who are on the Kamra’s database. If you meet colleagues who are not receiving such communications, kindly ask them to send an email to buildingregs@kamratalperiti.org so that the records can be updated.

 

Perit Simone Vella Lenicker

President

 

CIR 05/19 | Legal Notice 136 of 2019

Legal Notice 136 of 2019 regarding Avoidance of Damage to Third Party Property Regulations, 2019, came into force on the 25th June 2019.

 

The publication of the Legal Notice follows a very short process of public consultation, during which the Kamra tal-Periti was not directly consulted as obliged by law. It also follows an Extraordinary General Meeting wherein the profession agreed that the following three points outlined in the draft were considered to be non-negotiable:

 

  1. That the only two figures who are responsible for construction works in terms of the Civil Code are the Perit and the Contractor. Therefore, the role of site manager as described in the draft amendments must be assumed within the Contractor’s setup, since the Contractor is obliged to understand and follow the instructions issued by the Perit, and be sufficiently knowledgeable to understand the significance of such instructions. The Contractor may employ or engage a Perit, or a suitably qualified person registered with the Building Regulation Office, without diminishing the responsibility of the Contractor in terms of the Civil Code.
  2. That a Geotechnical Design Report prepared in accordance with MSA EN 1997‐1 should be required for all works covered by the Legal Notice, except that the Perit in charge of the project may request an exemption from the Director BRO in circumstances where said Perit deems that such Report is not required, or only parts thereof are needed, and such request is to include detailed reasons for such request for exemption.
  3. That all civil works Contractors are to be registered with the Building Regulation Office by the date of coming into force of the amended Legal Notice and not permitted to work unless they are so registered and a list thereof published, and that a system of licencing based on technical ability, capacity and resources is in place by the end of March 2020.

 

The following is a summary of the Council’s reactions in light of the above.

 

  1. The Site Technical Officer (STO)

The Legal Notice reflects the concept that the STO is assumed within the Contractor’s setup. However a number of concerns arise out of the responsibilities assigned to the STO and the perit in charge of the project as outlined below:

 

  • The definition of the STO states that such person is to be “nominated by the contractor and shall be approved by the perit in charge of the project.”

It is our view that the perit responsible for the development should not have the right to object to the contractor’s choice as long as the chosen STO is a warranted perit.  Indeed, since the STO is, in a way, meant to supervise the application of the method statement, it would defeat the purpose of the law to have the perit of the project choose the STO.

On the other hand, the responsibility of “approving” the STO might give rise to the so-called culpa in eligendo whereby the perit could then be held liable if the STO, albeit a warranted perit, results to be negligent or incompetent. In this regard, it would have been opportune to divest the perit of the project from the obligation to “approve” the STO.

  • The proposed amendments create the risk of multiplying defendants in litigation in the sense that, should a development project lead to court action (whether through defects in construction or damages caused to third parties), it is likely that plaintiffs would take a convenient way out and proceed not only against the owner/employer/developer and the contractor, but also against the perit of the project as well as the perit acting as STO.
  • The Kamra tal‐Periti agrees that periti are amply qualified to undertake the role of STO, although it also notes that there are other people who are suitably qualified and competent to do this, and who should be duly registered with the Building Regulation Office, an aspect which the Legal Notice does not address at all.
  • The Council is also of the opinion that the perit in charge of the project and the STO should not be the same person. The STO is engaged to ensure that the contractor’s obligations at law, in particular the Civil Code, and in terms of the respective contract with the owner/employer/developer are met, while the perit in charge of the project is engaged by the owner/employer/developer to design, specify and direct the works. This position is, in the opinion of the Council, in line with the spirit of the Regulations.
  • Although the Legal Notice states that “the provisions of these regulations shall in no way be construed as having any bearing on the responsibilities related to the design of buildings and construction activity emanating from other legistlative instruments” (Regulation 2), it is then stated at Regulation 9 that “Professional responsibility for the method statement remains with the perit who prepares it. The responsibility for the enforcement of the method statement rests with the site technical officer, and the implementation of the measures in the method statement, lies with the contractor.” Here, the Legal Notice assigns responsibilities to the STO and the contractor as two separate entities, when in reality the STO is engaged directly by the contractor and the Civil Code only recognises the contractor as being legally responsible for executing the design and the specifications. The same discrepancy exists in Regulation 11. Furthermore, the definition of “perit in charge of the project” means “the perit that is going to assume responsibility for the execution of the project approved in the development permit”. The perit in charge of the project is not responsible to execute. This should be made amply clear.

In conclusion, therefore, while the Legal Notice as issued addresses the main concerns discussed by the EGM, which were based on the original draft Legal Notice, it raises a multitude of new concerns which the Council deems to be unacceptable.

 

 

  1. The studies to be submitted

The draft of the Legal Notice included various provisions regarding the preparation of a Geotechnical Design Report. These have now been removed and replaced with more onerous requirements for Method Statements and Condition Reports. The main concerns here include the following:

  • The Legal Notice stipulates that “when before the start of works, the perit in charge of the project certifies, after giving clear reasons, that the structural interventions will not affect third party property, the provisions of regulations 4, 5, 6, 7 and 8 do not apply.” This places the onus of responsibility as to whether the regulations are applicable or not on the perit responsible for the project. There will be cases where this is evident, however in most cases the risk of damage to third party property exists and cannot be anticipated.
  • The requirements of the method statement include aspects which should not fall under the responsibility of the perit in charge of the project but should fall within the remit of the contractor, such as the type of equipment to be used, the type and certifcation of cranes, and the procedures to be adopted for the loading and carting away of the resulting debris. This is in line with existing international forms of contract (eg. FIDIC) where the contractor is responsible for the temporary works, and the method of works is to be specified by the contractor himself. Other obligations should lie with the appointed Health & Safety Supervisor such as the requirement to stipulate the precautions and safeguards to be adopted for the safety of persons.
  • The requirements of the condition report include a number of items which are, in practice, difficult to achieve, such as the identification of the type and dimensions of foundations of the buildings within the affected zone and the estimated bearing pressure at foundation level. Although the Schedule states also that “if information about the foundations of the building is not readily available, this is to be clearly stated in the report and the assumptions made in calcultating the bearing pressure are to be described”, the Council is of the opinion that any assumptions which are not evidence-based may expose the perit to additional risks in case of litigation.

In conclusion, therefore, while the Legal Notice as issued addresses the main concerns discussed by the EGM by eliminating the need for a geotechnical design report, it raises new concerns which the Council deems to be unacceptable.

 

  1. Registration of Contractors

It appears that the original intention to include a reference to “contractors who are duly registered in accordance with the Building Regulation Act” has been left out.  Indeed, these “registered contractors” do not exist.

This has now been replaced with the definition that the “contractor means the person engaged by the developer in order to execute the works.” Although this seems to have been a move to skirt the obligation of registration, it is to be noted that this Legal Notice is published under the Building Regulation Act. The obligations arising out of Article 5 are still in force.

In light of the above, the concerns of the EGM still stand and the Council’s position remains that approved in the EGM.

 

  1. Additional concerns

The Council is of the opinion that the Legal Notice does little to guarantee public safety primarily because it further confuses the responsibilities on site. This, coupled with the fact that the requirement for registration and licensing of contractors has not been brought into force, results in a situation where effectively the STO is being made to bear the shortcomings of Government to regulate the sector.

The myriad of implications that this Legal Notice raises are widespread and highly delicate. The precipitous coming into force of this Legal Notice without any lead time for studying and understanding the serious ramifications of its provisions cannot be quantified.

The Council has issued this Circular after seeking legal advice.

 

Perit Simone Vella Lenicker

President

 

CIR 02/10 | Tariff K and VAT

Reference is made to previous circulars and directives regarding the application of the schedule of fees as defined in Tariff K and the inclusion of VAT, as part of the Cost of Construction.

We wish to draw your attention that a recent Court of Appeal judgement has ruled that the amount of VAT is not part of the Cost of Construction and that it should not be included in the computation of the fees due to the perit squashing a previous court judgment delivered by the First Hall of the Civil Court which had decided in favour of the inclusion of the amount of VAT as part of the Cost of Construction.

The Kamra tal-Periti, whilst taking note of the decision reached by the Court of Appeal, does not agree with this decision. We hereby inform you that KTP is already in the process of seeking legal advice on the matter and will vigorously challenge this interpretation of the term “cost of construction” with legitimate means and in the appropriate quarters.

Furthermore, as we have informed you earlier, a Legal Notice dated 29th December 2009 determined that fees are no longer mandatory and may be established by written agreement between the client and the perit. In the absence of such agreement, the fees described in Tariff K are to stand. Also in this instance we are not in agreement with this unilateral decision taken by government and we are also here seeking redress through the appropriate channels.

CIR 02/09 | Procedure for when a Perit discontinues a commission and/or when another Perit is engaged to take over

The Kamra tal-Periti would like to draw the attention of all Warrant Holders to the correct procedure to be adopted by Periti in cases when a commission undertaken on behalf of a Client is discontinued for any reason and/or when a Perit assumes responsibility for a commission originally undertaken by another Perit.

Warrant Holders are to note that these procedures apply equally to all cases across the board irrespective of whether the Client has decided not to retain the services of his original Perit any further or whether the Perit has decided to withdraw from the work for his own reasons. Moreover, the procedure also applies irrespective of whether there remain any outstanding issues between the original Perit and the Client or whether the Client decides to retain the services of another Perit or not.

Upon being informed by the Client that his services are no longer required or upon deciding not to pursue the commission any further, the Perit shall furnish the Client with a formal letter notifying his withdrawal and stating that he is no longer acting on behalf of said Client on the commission in question. A copy of the covering letter is also to be sent to the appropriate authorities (where applicable), and any stakeholders involved.

All Periti are to note that the withholding of the ‘Change of Architect’ form in such cases is considered to be a breach of Professional Conduct as is the resulting (or any other form of) obstruction of assumption of the work by any other Perit that the Client may subsequently wish to engage. Any pending issues such as outstanding fees or similar, that may exist between the Client and the original Perit are to be dealt with separately and do not constitute an acceptable reason for with holding the necessary documentation or for obstructing another Perit from resuming the work.

In cases where a Perit accepts a commission originally commenced by another Perit, correct procedures are also to be followed. Upon being engaged by the Client, the second Perit shall contact the first Perit and inform him formally in writing that he has been engaged by the Client to continue the works and shall also forward an endorsed ‘Change of Architect’ form (where applicable) unless this has already been furnished.

It is to be noted that the failure to inform a colleague of the intention to assume a commission originally commenced by the said colleague or the obstruction of the continuation of a commission by a colleague when on e discontinues the said commission or is no longer retained by the client, are considered to be a breach of professional conduct. The Kamra tal-Periti will take a serious view of any such incidents and any such cases brought to its attention will be dealt with accordingly.