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.