DIR 11/20 | COVID-19 Pandemic: Vulnerable Individuals & Site Inspections

 

The Kamra tal-Periti is hereby giving notice to all members of the profession of a Directive that has been approved by the Council with regard to:

 

  • Periti considered as Vulnerable Individuals;
  • Third parties considered as vulnerable individuals; and
  • General provisions regarding site inspections and travel between the Islands.

Directives 08/20 and 09/20 are hereby repealed, and replaced by this Directive.

 

This Directive has been endorsed by the Superintendent of Public Health

 

1. Periti considered as Vulnerable Individuals

Note: This part of the Directive is practically identical to that previously covered by Directive 08/20, except for the new procedure in Point (iii) and some amendments to the notification forms.

 

Vulnerable individuals, as defined by Legal Notice 111 of 2020, are prohibited from leaving their residence except for certain essential needs.

In view of such restrictions, and until further notice, periti in the above categories are to immediately notify their clients of the restrictions imposed on them. In addition periti affected by these restrictions are to follow the procedures outlined below.

  1. For all works where the closure of the construction site[1] does not pose any risk of danger or damage to the site itself or adjacent third parties[2], immediately submit a Notification COVID-19 KTP-01 (Vulnerable persons)_no risk using the template provided.
  2. For all works where the closure of the construction site poses a risk of minor damage to the site and/or adjacent third parties, immediately submit a Notification COVID-19 KTP-02 using the template provided. In this case, the Developer[3] is to be notified to forward such Notification to all affected third parties. It is recommended that you advise the Developer and their appointed Contractor/s to also submit to their respective insurance providers.
  3. For works where the closure of the construction site poses a risk of significant damage to, and/or a risk to the structural stability of, the site and/or adjacent third parties, immediately submit a “Request for exemption from mandatory quarantine” from the Superintendent of Public Health, through this link. In the section titled “Applicant’s reason/s for request of exemption” state “as per enclosed declaration” and submit the form. Upon receving an acknowledgement, submit the Request for dispensation COVID-19 KTP 03_(Vulnerable persons)_risk to structural stability or significant damage using the template provided to covid19.sph.exemptions@gov.mt and to all the entities listed in the template. In this case, no works that require the direction of the perit are to proceed until the dispensation is issued from the Superintendent of Public Health, and thereafter works are to proceed strictly in accordance with the content of the request for dispensation. In this case, the Developer is to be notified to inform any affected third parties, and once dispensation is received the perit is to inform all the entities to whom the Request outlined above was submitted. Once the works for which dispensation has been granted are complete, the perit is to proceed in accordance with points 1 or 2 accordingly.
  4. For works outlined in point 3 above, and where the perit is minded to not request dispensation from the Superintendent in view of the overriding reasons of public health, the perit is to immediately contact the Kamra tal-Periti for further guidance, outlining the sites which pose concern and the proposed way forward accordingly.

With respect to the cases outlined in point 3 above, periti are also encouraged to contact the Kamra tal-Periti if they require any specific guidance depending on the nature of the works under way.

The relevant notices are to be issued on your letterhead and may be amended accordingly depending on the specific situation.

In addition, in all cases, the Project Supervisor should be notified so s/he may ensure that the site is sealed off to prevent access by unauthorised persons.

With respect to periti who live with people in these vulnerable groups, while there is currently no restriction on their gong out to work, it is advisable to prepare yourselves for such eventuality.

 

2. Third parties considered as vulnerable Individuals

Note: This part of the Directive is practically identical to that previously covered by Directive 09/20, except for the amended procedure in Point (iii) and some changes to the notification forms.

 

Vulnerable individuals, as defined in Legal Notice 111 of 2020, are prohibited from leaving their place of residence except for essential needs. In view of such restrictions, which are intended to safeguard the health of the persons concerned, the Kamra tal-Periti is hereby issuing the following Directives:

  1. Prior to carrying out any inspections for the purposes of preparing condition reports before the commencement of works or property valuations or any other reason which requires access to any property, periti are to ask their client to obtain a declaration from the owner of the property to be inspected as to whether or not the property is occupied by any person in the categories stated in the Legal Notice.
  2. No inspections for the purposes outlined above are to be undertaken under any circumstances if the property in question is occupied by persons in the categories listed in the Legal Notice.
  3. In the case of inspections that are required for the purposes of assessing potentially dangerous structures, either as a result of lack of maintenance or as a result of works underway on adjacent sites or any other reason whereby damage to the structure has been reported to the perit by the affected party, the perit is to request dispensation from the Superintendent of Public Health to carry out such inspection using the template Request for dispensation COVID-19 KTP 04_(Vulnerable persons)_inspections of property. The request is to be submitted to the Superintendent of Public Health on query.covid19@gov.mt, the Commissioner of Police, the Kamra tal-Periti, your Client and your Professional Indemnity Insurance provider, as well as others as you may deem appropriate.

 

No inspections are to be carried out until the relevant clearance is issued by the Superintendent of Public Health. Once such dispensation is received, the perit is to notify accordingly all the entities listed in the Request form, and is to proceed with the inspection accordingly.

 

3. General recommendations regarding site inspections and travel between the Islands

 

In all cases where inspections are required to be carried out in third party property, it is recommended that periti follow these precautions:

  • Request that not more than one person is present in the property during the inspection, whenever possible;
  • Request that all windows and doors (internal and external) are kept open to avoid having to touch surfaces;
  • Request that you are allowed to inspect the damaged area without interruptions to limit your presence within the property, and that a distance of 2m is maintained between you and the person showing you around;
  • Carry your own sanitiser spray or gel, and use it before entering and after leaving the property.

Legal Notice 112 of 2020 stipulates that “in public spaces, groups of more than three (3) persons are prohibited including in queues and bus stops …” Although construction sites are not regarded as “public spaces”, it is recommended that this measure is implemented also on construction sites.

With respect to travel between Malta and Gozo, it is to be noted that this is currently permitted for work-related reasons as per Legal Notice 118 of 2020. Travellers will be required to make a declaration to this effect upon embarcation.

The Kamra tal-Periti is currently working with the Superintendent of Public Health to issue more detailed guidelines regarding safety on construction sites at this time. These are planned to be concluded next week.

 

Perit Simone Vella Lenicker
President

 

[1] For the purposes of this Directive a “construction site” means any open site where ongoing works involve demolition, site clearance, excavation, construction, finishes and/or services, and which are being carried out under your direction;

[2] For the purposes of this Directive “adjacent third parties” means any third party and/or their property and includes private and/or public third parties as well as the general public;

[3] For the purposes of this Directive “developer” has the same meaning ascribed to it in Legal Notice 136 of 2019.

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DIR 09/20 | COVID-19 Pandemic: Third parties considered as vulnerable Individuals & social distancing

 

The Kamra tal-Periti is hereby giving notice to all members of the profession of a Directive that has been approved by the Council with regard to third parties considered as vulnerable individuals, as well as recommendations regarding social distancing on construction sites.

 

Third parties considered as vulnerable Individuals

Reference is made to Legal Notice 111 of 2020, which prohibits vulnerable individuals, as defined therein, from leaving their place of residence. In view of such restrictions, which are intended to safeguard the health of the persons concerned, the Kamra tal-Periti is hereby issuing the following Directives:

 

  1. Prior to carrying out any inspections for the purposes of preparing condition reports before the commencent of works or property valuations or any other reason which requires access to any property, periti are to ask their client to obtain a declaration from the owner of the property to be inspected as to whether or not the property is occupied by any person in the categories stated in the Legal Notice.

 

  1. No inspections for the purposes outlined above are to be undertaken under any circumstances if the property in question is occupied by persons in the categories listed in the Legal Notice.

 

  1. In the case of inspections that are required for the purposes of assessing potentially dangerous structures, either as a result of lack of maintenance or as a result of works underway on adjacent sites or any other reason whereby damage to the structure has been reported to the perit by the affected party, the perit is to request dispensation from the Superintendent of Public Health to carry out such inspection using the template Request for dispensation COVID-19 KTP 04_(Vulnerable persons)_inspections of property. The request is to be submitted to the Superintendent of Public Health, the Commissioner of Police, the Kamra tal-Periti, your Client and your Professional Indemnity Insurance provider, as well as others as you may deem appropriate. Contact details are inside template.

 

No inspections are to be carried out until the relevant clearance is issued by the Superintendent of Public Health.

 

Social distancing

Once clearance is received from the Superintendent of Public Health in terms of point 3 above,  it is recommended that periti follow these recommendations, which are also applicable for any inspections to be carried out in third party property:

 

  • Request that not more than one person is present in the property during the inspection, whenever possible
  • Request that all windows and doors (internal and external) are kept open to avoid having to touch surfaces
  • Request that you are allowed to inspect the damaged area without interruptions to limit your presence within the property, and that a distance of 2m is maintained between you and the person showing you around
  • Carry your own sanitiser spray or gel, and use it before entering and after leaving the property

 

The COVID-19 Bulletin 15 states that the Police “have the right to intervene on groups of more than 5 people, and disperse them in such a way as to leave 2 metres between each one of them.” It is recommended that this measure is implemented on construction sites, and that you forward the link to all concerned so as to be observed at all times.

 

Perit Simone Vella Lenicker

President

 

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DIR 08/20 | COVID-19 Pandemic: Periti within vulnerable groups // UPDATED

 

UPDATED: 28/03/2020

On Thursday 26th March 2020, the Deputy Prime Minister and Minister for Health Mr Chris Fearne gave notice of new restrictions that will be brought into force on Saturday 28th March 2020.

These measures were brought into force through Legal Notice 111 of 2020, and prohibit vulnerable individuals from leaving their place of residence, as outline therein.

These measures include an order prohibiting vulnerable individuals from leaving their place of residence. The list of vulnerable groups published in the COVID Bulletin Issue No 15 includes:

 

  • Are over 65 years old
  • Are pregnant
  • Suffer from chronic illness
  • Are insulin dependent diabetics
  • Are on biological medication
  • Had chemotherapy in the last six months
  • Are undergoing immunosuppression (eg. had a transplant or HIV treatment)
  • Are on renal dialysis
  • Have respiratory problems and needed treatment in the last year
  • Had cardiac problems in the last six months
  • Are on oral steroids

 

In addition, those who live with people in this category will have to observe the lockdown or find alternative accommodation.

In view of such restrictions, and until further notice, periti in the above categories, or who live with people in such categories, are to immediately notify their clients of the restrictions imposed on them. In addition periti affected by these restrictions, and who are not in a position to delegate their responsibilities, are to follow the procedures outlined below:

  1. For all works where the closure of the construction site[1] does not pose any risk of danger or damage to the site itself or adjacent third parties[2], immediately submit a Notification COVID-19 KTP-01 (Vulnerable persons)_no risk using the template provided.

 

  1. For all works where the closure of the construction site poses a risk of minor damage to the site and/or adjacent third parties, immediately submit a Notification COVID-19 KTP-02 using the template provided. In this case, the Developer[3] is to be notified to forward such Notification to all affected third parties. It is recommended that you advise the Developer and their appointed Contractor/s to also submit to their respective insurance providers.

 

  1. For works where the closure of the construction site poses a risk of significant damage to, and/or a risk to the structural stability of, the site and/or adjacent third parties, immediately submit a Request for dispensation COVID-19 KTP 03_(Vulnerable persons)_risk to structural stability or significant damage using the template provided. In this case, no works that require the direction of the perit are to proceed until the dispensation is issued from the Superintendent of Public Health, and thereafter works are to proceed strictly in accordance with the content of the request for dispensation. In this case, the Developer is to be notified to inform any affected third parties. Once the works for which dispensation has been granted are complete, the perit is to proceed in accordance with points 1 or 2 accordingly.

 

  1. For works outlined in point 3 above, and where the perit is minded to not request dispensation from the Superintendent in view of the overriding reasons of public health, the perit is to immediately contact the Kamra tal-Periti for further guidance, outlining the sites which pose concern and the proposed way forward accordingly. Reference is also made to Directive 07/20 in this regard.

 

With respect to the cases outlined in point 3 above, periti are also encouraged to contact the Kamra tal-Periti if they require any specific guidance depending on the nature of the works under way.

 

In all cases, the relevant Notices are to be submitted to the following:

 

Superintendent of Public Health:

sph.health@gov.mt

 

Building and Construction Agency:

Upload to eApps under the Avoidance of Damage to Third Parties tab

 

Planning Authority:

Upload to eApps under Correspondence

 

Commissioner of Police:

Via email to pulizija@gov.mt​

 

Local Council of the Locality:

Via email – refer to https://localgovernment.gov.mt/en/lc/Pages/Local-Councils-Landing-Page.aspx/

 

Kamra tal-Periti:

buildingregs@kamratalperiti.org

 

Your Professional Indemnity Insurance provider:

As applicable

 

Additionally to (as applicable):

Client and/or site owner/s; Mason; Contractor/s; Project Supervisor in terms of LN 88 of 2018; any appointed Consultants

 

The relevant notices are to be issued on your letterhead and may be amended accordingly depending on the specific situation.

 

In addition, in all cases, the Project Supervisor is to be specifically instructed to ensure that the site is sealed off to prevent access by unauthorised persons.

 

 

As at the time of issuance of this Directive, the relevant Legal Notice had not as yet been published by Government. In view of this, periti are requested to follow further notifications from the Kamra that may slightly alter or affect this Directive once the Legal Notice is published.

With respect to periti who live with people in these vulnerable groups, while there is currently no restriction on their gong out to work, it is advisable to prepare yourselves for such eventuality.

 

Perit Simone Vella Lenicker

President

[1] For the purposes of this Directive a “construction site” means any open site where ongoing works involve demolition, site clearance, excavation, construction, finishes and/or services, and which are being carried out under your direction;

[2] For the purposes of this Directive “adjacent third parties” means any third party and/or their property and includes private and/or public third parties as well as the general public;

[3] For the purposes of this Directive “developer” has the same meaning ascribed to it in Legal Notice 136 of 2019.

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DIR 07/20 | Change of Perit in cases of compliance with Orders and Guidance issued by the Superintendent of Public Health during the COVID-19 Pandemic

The Kamra tal-Periti is hereby giving notice to all members of the profession of a Directive that has been approved by the Council.

 

Periti are hereby authorised to refuse to sign a Change of Architect Form or to handover a project or assignment to another Perit in cases where they are following orders or guidance issued by the Superintendent of Public Health as part of the efforts to contain the spread of the COVID-19 pandemic in the Maltese Islands and as a result of which the former Perit is in any way reasonably prevented, restricted, limited or delayed from fulfilling his/her professional obligations in part or in full.

The Council of the Kamra tal-Periti will consider any actions by another Perit to take over a project or assignment in such circumstances as constituting “supplanting” in terms of Provision 4 of the Code of Professional Conduct.

Periti are reminded that the Council of the Kamra tal-Periti is empowered to take appropriate action in terms of the Periti Act in case of breach of this Directive.

 

Perit Simone Vella Lenicker
President

DIR 01/20 | Advertising and Marketing of Professional Services

 

The Kamra’s Directive 01/19 provides a brief background to the issue of advertising of professional services pursuant to the removal of Paragraph 3 of the Code of Professional Conduct in 2010, and to the requirements of Article 24(2) of the Services in the Internal Market Directive (2006/123/EC) which stipulates that:

“Member States shall ensure that commercial communications by the regulated professions comply with professional rules, in conformity with Community law, which relate, in particular, to the independence, dignity and integrity of the profession, as well as to professional secrecy, in a manner consistent with the specific nature of each profession. Professional rules on commercial communications must be non-discriminatory, justified by an overriding reason relating to the public interest and proportionate.

Commercial communication may therefore be subject to compliance with professional rules concerning the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of that profession.

Since a prohibition to advertise a certain professional activity could restrict possibilities for professionals to make themselves known and to promote their services, it would constitute a restriction on the freedom to provide services. Professional rules therefore cannot impose a general and absolute prohibition of any form of advertising. Rather, a balance is to be sought between the objective of protecting the public and the profession itself, often the impetus behind such restrictions, with the rights of professionals to freely provide their services to the public.

All Warrant Holders authorised under the provisions of the Periti Act (Chapter 390 of the Laws of Malta) to provide architectural and engineering services shall abide by this Directive.

 

General Principles

  • Warrant Holders shall not communicate or promote or represent themselves or their professional services in a false or deceptive manner; nor shall they allow others to do so, whether or not acting on their behalf.
  • The Council of the Kamra tal-Periti will investigate alleged breaches in line with the afore-mentioned principles, and with the guidelines published concurrently with this Directive.
  • Any actions by Warrant Holders which are found to be in breach of this Directive will be considered as conduct which is discreditable to the profession, as provided for in the Periti Act.

 

 

 

Perit Simone Vella Lenicker

President

 

DIR 12/19 | Legal Notice 136 of 2019 & Legal Notice 180 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. This was later amended through Legal Notice 180 of 2019, which came into force on the 29th July 2019.

In the period between the publication of both 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.

Although the Legal Notice still does not reflect all the changes requested by the Kamra, significant progress has been made, as outlined in detail in Circular 11/19. The Council is of the opinion that all the progress outlined in said Circular, and particularly Government’s recorded commitment to deliver on all the outstanding points through the Letter of Commitment, address many of the concerns raised by the profession.

 

 

The above is considered sufficient for the Council to issue the following Directives:

  1. Periti are to immediately inform their clients of the coming into force of Legal Notice 136 of 2019 if they have not already done so, and to advise their clients also of the coming into force of Legal Notice 180 of 2019, and to advise them to bring themselves and the works in line before any works can continue.
  2. If periti become aware that works are ongoing without the provisions of the Legal Notice being in place, they are to immediately notify in writing the Building Regulation Office and the Commissioner of Police, keeping the Kamra tal-Periti in copy.
  3. The Building Regulation Office (BRO) will be publishing a list of competent persons as per Schedule 3 as amended (see LN 180 of 2019) who register their interest to provide the service of STO. The register is intended to provide the general public with a list of periti and others who are authorised to provide this service. Further details will be announced shortly.
  4. Periti are advised that the forms required to be submitted to the BRO through the PA eApps portal are in the process of being amended, in consultation with the Kamra, in order to bring them in line with the amendments enacted through Legal Notice 180 of 2019, and with other considerations made by the Kamra. Periti are advised to await further direction before proceeding to upload any forms.
  5. Periti engaged under Design and Build Contracts should seek legal advice regarding the potential implications of the Legal Notices on their responsibilities and indemnity. The Kamra will be seeking additional legal advice on the position of such periti in the coming weeks.
  6. Periti in full or part time employment with Contractors or Developers are advised to seek legal advice on their position. Their position directly within the Contractor’s setup places additional responsibilities on them in terms of the Legal Notice, and these need to be clarified. The Kamra tal-Periti will be addressing this situation separately, as already discussed with a number of such periti.
  7. Periti employed in the Public Service should seek guidance from the Union Periti u Inginiera fis-Servizz Pubbliku. The Kamra tal-Periti has already met with the Union prior to the issuance of Legal Notice 136 of 2019 and will be scheduling another meeting with such Union in the coming weeks.
  8. Directive 03/2019 and Directive 04/2019 remain in force.
  9. Directive 06/19 is hereby repealed.

 

The repeal of Directive 06/19 should not be interpreted as an automatic obligation on periti who are in full or part time employment with Contractors or Developers to take on this role. Any undue pressure on such periti to assume this role is to be reported to the Kamra tal-Periti.

This Directive is to be read in conjunction with Circular 11/19. In particular, it is noted that the 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, and thus to a potential breach of the Code of Professional Conduct. Periti are invited to communicate with the Kamra tal-Periti for further guidance in relation to specific situations. Any undue pressure by Contractors or Developers for periti to take on the role of STO is to be reported to the Kamra tal-Periti.

 

 

 

Perit Simone Vella Lenicker

President

 

DIR 06/19 | 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.

As outlined in Circular 05/2019, the Legal Notice as published does not address the concerns raised by the profession at its EGM of the 21st June 2019.

Furthermore, it 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 licencing of contractors has not been brought into force, results in a situation where effectively the Site Technical Officer (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 very delicate. As a result of the rushed coming into force of this Legal Notice, without any lead time for studying and understanding, the serious ramifications of its provisions cannot be quantified. This includes implications regarding Professional Indemnity Insurance with respect to compliance with the Legal Notice. It also makes no provision for existing contractual obligations between periti and their clients, and between contractors and developers qua owners. The implications of what happens if these existing contracts are in conflict with the Legal Notice may be serious, and may also possibly lead to litigation.

The main legal function of the Kamra tal-Periti is to safeguard “the wellbeing and the progress of the profession”, and is constituted “for the advancement of the profession, the defence of its rights and for keeping high its prestige,” while its mission statement is to “support members of the profession in achieving excellence in their practice of architecture and engineering in the interest of the community.

Thus:

  • In its capacity to ensure that all members of the profession are safeguarded in discharging their services to their clients, and in view of the provisions of the Legal Notice which no member of the profession has had adequate time to assess and fully understand the implications thereof; and
  • In light of the approval of Motion 6 by the last Extraordinary General Meeting of the Kamra tal-Periti, which empowered the Council to “issue any Directives as it deems necessary in relation to the matters discussed during this Extraordinary General Meeting, and to consider a breach of said Directives by Warrant Holders to constitute a breach of the Code of Professional Conduct”;

 

Now, therefore, the Council of the Kamra tal-Periti is hereby issuing the following Directives:

  1. Periti are to immediately inform their clients of the coming into force of the Legal Notice, and to advise them to bring themselves and the works in line before any works can continue.
  2. Periti are notified that upon the coming into force of the new regulations, any applicable works, including demolition, excavation and construction, which are not in line with all its provisions are effectively suspended. This includes works which were previously exempt under Legal Notice 72 of 2013. In view of this, periti are to issue notifications of suspension of works to their clients and to the contractors immediately. If periti become aware that works are ongoing without the provisions of the Legal Notice being in place, they are to immediately notify in writing the Building Regulation Office and the Commissioner of Police, keeping the Kamra tal-Periti in copy.
  3. Until further notice, no perit is to assume the position of STO as provided in the Regulations, unless they are currently contractually bound to do so.
  4. Periti who were contractually bound to take on the role of STO as described in the Legal Notice prior to the coming into force of the Legal Notice, and as long as this is clearly stipulated in their contract of employment / engagement, and they are fully cognisant of any additional legal implications being placed on them by the Legal Notice, are to immediately advise the Kamra of their position.
  5. Periti who are approached to submit the Site Management Responsibility Form as outlined in the PA Notice issued on the 25th June 2019, are to immediately inform the Kamra tal-Periti of said request, and to refrain from uploading it until they receive further direction from the Kamra tal-Periti.

In addition, the Kamra tal-Periti recommends that:

  1. Periti engaged under Design and Build Contracts should seek legal advice regarding the potential implications of the Legal Notice on their responsibilities and indemnity; and
  2. Periti employed in the Public Service should seek guidance from the Union Periti u Inginiera fis-Servizz Pubbliku. The Kamra tal-Periti has already met with the Union prior to the issuance of the Legal Notice and will be scheduling another meeting with such Union in the coming days.

Directives 03/2019 and 04/2019 remain in force.

 

Perit Simone Vella Lenicker

President

 

DIR 04/19 | Publication of List of Licensed Masons

The Kamra tal-Periti notes the belated publication of a list of current licensed masons by the Building Regulation Office (BRO) on its website. This is in response to the Kamra’s repeated requests over several years. The publication of this list on the evening of Friday 21st June 2019 is therefore a step forward; however the usefulness of the published list is very limited since the relative ID numbers, which would allow identification of the person holding the licence, and the validity period of the licence have not been published at the same time. This is in breach of the Services Directive (Article 22).

Nevertheless, it is now expected that the BRO will not permit works to continue on any site where the appointed mason is not on the list.

The Code of Police Laws stipulates that “It shall not be lawful to exercise the trade of mason without a licence …”. This licence, which must be renewed annually, is required to give assurance to the owner of the site, the perit in charge of the project, and society at large that such person is indeed qualified to carry out this trade and has received the appropriate training. The Code of Police Laws also states that “If any mason, through unskilfulness, imprudence or carelessness, shall, in the construction of any work entrusted to him, and appertaining to his trade, cause any injury to any person or property, it shall be lawful for the Court of Magistrates to interdict such mason from the exercise of his trade for any time to be stated in the sentence, ordering, at the same time, the withdrawal of the licence.” The responsibilities arising out of the Code are very clear, and no lesser legal instrument can be used to infer otherwise.

It is also to be noted that various Court sentences have determined that the “ownerqua employer” or “developer” is obliged to ensure that the persons engaged on a construction project are duly qualified to exercise such role.

 

Directive regarding ongoing works

In view of the publication of this list, periti are advised to:

  1. Inform their clients that the list of licensed masons has been published and that, in view of their obligation to ensure that persons engaged on a construction site are duly qualified, they should check that the person listed as a “mason” on the Commencement Notice submitted to the Planning Authority is in fact included on the list – periti may, if they so wish, offer to undertake this check themselves on behalf of their clients;
  2. If it is found that a person claiming to be a mason is engaged on an ongoing project and is not on the list, then the perit is to immediately order the suspension of the Works, verbally and in writing, and to notify the owner / employer / client of the situation in writing – no works are to be carried out under the direction of the perit until such time as a duly licensed mason is appointed;
  3. If the perit notes that works are continuing following the order to suspend the Works, then said perit is to immediately notify in writing the Building Regulation Office and the Commissioner of Police, keeping the Kamra tal-Periti in copy.

 

It is to be noted that the Kamra tal-Periti has received reports that the list may not be fully updated. It is therefore recommended that, if a mason’s name is not on the list, the client is to contact the BRO for further guidance, following which the appropriate action may be taken as outlined above.

Periti are reminded of the protection afforded to them through Directive 03/19 regarding their right to refuse to sign a Change of Architect Form when the interest of public safety is being safeguarded by the Perit.

The Kamra tal-Periti fully endorses the notion that there should be no compromises on public safety.

 

ADDITIONAL REMARKS:

A. Future works

In the case of building works for which a Commencement Notice has not yet been submitted as at the date of this Directive, the Kamra tal-Periti will be insisting with the BRO that it should not permit any works to commence on a site where the person indicated as the appointed mason in the Commencement Notice is not duly licensed. The onus to verify whether a mason is licensed, and therefore competent, lies with the owner / employer / developer, and with the regulator, in this case the BRO.

 

B. The list published by BRO

The Kamra tal-Periti will be writing to the BRO to request that the published list contain, as a minimum, the ID Card Number and address of the licensed mason, as well as the validity period of such licence, to enable owners to verify that the licence number matches the person identified in the list. This will avoid the current practice of persons claiming to be masons and listing the number of someone else.

This requirement is in line with Article 22 of the Services Directive which states that:

  1. Member States shall ensure that providers make the following information available to the recipient:
  • The name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means;
  • Where the provider is registered in a trade or other similar public register, the name of that register and the provider’s registration number, or equivalent means of identification in that register; …
  1. Member States shall ensure that the information referred to in paragragh 1, according to the provider’s preference:
  • Is supplied by the provider on his own initiative;
  • Is easily accessible to the recipient at the place where the service is provided or the contract concluded;
  • Can be easily accessed by the recipient electronically by means of an address supplied by the provider;
  • Appears in any information documents supplied to the recipient by the provider which set out a detailed description of the service he provides.

 

C. Licensing and registration of contractors

It is also pertinent to note that the Civil Code places the onus for structural integrity jointly on the perit and the contractor. The Building Regulation Act also places the obligation on the BRO to issue “licences and registration of masons, fire consultants, other consultants in the building industry, building contractors and tradespersons.

Following the approval by the Extraordinary General Meeting, the Kamra tal-Periti is demanding that the registration and licensing of building contractors and tradespersons is implemented by the date of coming into force of the amendments to Legal Notice 72 of 2013.

 

Perit Simone Vella Lenicker

President

 

DIR 03/19 | Change of Perit in cases of Public Safety

Following the Extraordinary General Meeting of the Kamra tal-Periti held on Friday 21st June 2019, wherein it was unanimously agreed that public safety must be given priority over any other concern, the Kamra tal-Periti is hereby giving notice to all members of the profession of a directive that was also unanimously approved during said EGM.

Periti are hereby authorised to refuse to sign a Change of Architect Form in cases where they have submitted a report to the Building Regulation Office stating that the Developer qua owner/employer or the Contractor/mason have refused to follow their instructions on matters related to structural integrity. In line with the EGM’s decision, the Council of the Kamra tal-Periti will consider any actions by another Perit to take over the works concerned as constituting “supplanting” in terms of Provision 4 of the Code of Professional Conduct.

Periti are reminded that the Council of the Kamra tal-Periti is empowered to take appropriate action in terms of the Periti Act in case of breach of this Directive.

 

Perit Simone Vella Lenicker

President

 

DIR 02/19 | Marsamxett Balcony Grant Scheme

Reference is made to the Expression of Interest (EOI) issued by the Planning Authority regarding the Marsamxett Balcony Scheme. Said EOI indicates that only those fees of periti who registered with the Authority will be reimbursed as part of the grant scheme, and this only up to €500.00.

The Kamra tal-Periti was not consulted on this EOI, and has the following observations:

  • This call is unprecedented, since it was never a requirement for periti to register directly with the Authority in order to be on some “list”. All periti, by virtue of their warrant, are eligible to submit applications on behalf of their clients, and do not require any form of endorsement or registration by the Authority.
  • The call guarantees that fees due to the periti who register with the Authority will be reimbursed directly by the Authority, up to the afore-mentioned cap. This means that unless periti are registered with the Authority, reimbursement to the applicant cannot be guaranteed; this cannot be accepted, not least because 80% of the funds come from EU sources. It also means that periti who are not on the list are disadvantaged since their clients cannot claim reimbursement of their fees.
  • The Authority has also taken it upon itself to decide what appears to be the appropriate fees for the services required, by establishing a cap on the amount that would be covered by the fund. In most cases, this will barely cover the fees required to undertake a survey of the property.

The Kamra tal-Periti has communicated with the Planning Authority regarding the above, and was informed that the creation of this register was deemed to  be required because a number of potential applicants were not able to engage periti to submit applications on their behalf, either because of lack of finance or because the periti they approached were not in a position to undertake the services required. The Authority also informed that the Kamra that the amount of fees covered by the grant was determined by the PPCD (Planning and Priorities Co-ordination Division). Despite the Kamra’s objections to the EOI, the Authority has not withdrawn said EOI, and the list of periti who registered is now available online.

Periti are reminded of their obligation at law to enter into a written agreement with their clients regarding the amount of fees due, clearly outlining the services to be carried out and the terms of payment (refer to the Kamra‘s Directive on this matter). Periti are also reminded that they are not obliged to receive payment for their services only after the grant is awarded, but at any time during the provision of the services that they deem fit, and that such dates are to be clearly stipulated in the agreement with the client.

 

Perit Simone Vella Lenicker
President