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PR 15/19 | Public safety must come first

Verzjoni bil-Malti

At an Extraordinary General Meeting held on the 21st June 2019, and attended by around 400 Periti, it was unanimously agreed that public safety is paramount, and that no effort should be spared to ensure that the safety of people in their homes, and their quality of life, are the topmost priority of all involved in construction industry, including the respective regulators.

The time is long overdue for Government to properly address in a holistic manner, the problems besetting the construction industry, and not through a piecemeal approach. Hastily drafted and ill-thought revisions to a Legal Notice will not serve to ensure public safety, but rather serves only to confuse the various roles and responsibilities on construction sites. In particular, the EGM emphasised that under Malta’s Civil Code there are only two figures responsible for construction work, namely the Perit and the Contractor. Consequently the role of a site manager, as conceived in the Legal Notice, could only be assumed to be within the contractor’s setup, since the Contractor was obliged at law to understand and follow the instructions issued by the Perit, and be sufficiently knowledgeable to understand the significance of such instructions.

 

 

A contractor may employ or engage any knowledgeable person, including technical professionals, to take control of the site, and to help the contractor and all personnel understand the instructions received, without diminishing the contractor’s responsibility in terms of the Civil Code in any way. Periti must, on the other hand, bear responsibility for all instances where there may have been negligence, or where due diligence was not sufficiently exercised by them in discharging their services, which include designing the structure so as to be safe and in accordance with regulations,  issuing particular works instructions and specifications, particularly for excavation, demolition and alterations or extensions to existing buildings,  During the EGM, Periti reaffirmed their commitment to take full responsibility for the tasks that were within their remit. They however demanded that Government stops dragging its feet, and immediately takes the necessary steps to ensure that the framework which allows Periti to ensure public safety is in place and effective.

In this context, the EGM is demanding that the amendments to the Periti Act, that the Kamra tal-Periti has been insisting on for the last 12 years, be approved, in full consultation with the Kamra; that Government enters into immediate discussions with the Kamra, on the  Building and Construction Regulation Framework it has proposed, and to agree on its implementation within a reasonable timeframe; that, even before the setting up of the Building and Construction Authority, a proposal which the Kamra has supported since its inception, Government immediately provides the Building Regulation Office with all the necessary financial, human, and technical resources it requires to deal with its workload; and  finally, that Government implements the obligations of the regulator as far as concerns the certification of all building products, both produced locally or imported, as required by the Laws of Malta since 2011.

The EGM is demanding that any Legal Notice should, rather than contain technical detail that is better placed in building regulations, include provisions that empower the Perit to suspend works, and lodge a report with the Building Regulations Office, without having to relinquish his commission, if the contractor or developer refuse to comply with the Perit’s instructions on matters relating to structural integrity.

Finally, the EGM is demanding that there should be a clear separation between planning application and permitting processes, and the processes by which building and construction is notified, regulated and monitored. Nearly five years have been wasted as a result of the misguided advice given to Government that the two processes should be brought together under the remit of the Planning Authority.

The EGM finally reiterated the profession’s full commitment to ensure public safety, and urged the Government to enter into discussions with the Kamra, as the sole and legal representative of the profession, rather than depend on advisors or entities which may not be adequately familiar with the technical and engineering aspects of the construction process.

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PR 14/19 | Avoidance of damage to third party property – new regulations

Verzjoni bil-Malti

On the 13th June 2019, Government halted all demolition and excavation works in the country as an emergency action in view of the recent spate of structural collapses which occurred adjacent to construction sites, a measure which the Council of the Kamra tal-Periti understood to be necessary due to the potential risks to public safety resulting from the lack of adequate regulation and of which it immediately informed periti. That day the Prime Minister announced that new regulations would be published regarding excavation and demolition works to address a number of issues. Draft amendments to the Avoidance of Damage to Third Party Property Regulations were published on Monday 17th June 2019, and concern the following main aspects:

  • The definition of site responsibilities, in particular those of the site manager;
  • Increase in insurance cover and requirement for its renewal;
  • The process for the submission of the method statement and condition report, including regarding the need and frequency of geological and geotechnical surveys;
  • Exemptions; and
  • Penalties.

The Council of the Kamra tal-Periti together with its team of technical experts has reviewed the proposed draft, and has this morning issued a preliminary position to all periti. This will be discussed and approved at an Extraordinary General Meeting to be held on Friday 21st June 2019. Periti have been given until Thursday at noon to submit their comments in writing to the Council, following which a final draft will be circulated.

The following is an Executive Summary of the Kamra’s initial reactions:

  1. The rush to implement these piecemeal changes to the regulatory regime that governs the building industry is ill-thought. Our regulations and legislative instruments need a complete overhaul, as the Kamra has repeatedly stated since 2007. Attempting to amend the current regulations without having considered their impact on other pieces of legislation as well as on current practices and capacity of the industry is a recipe for further confusion and lack of clarity, rather than addressing the issues of safety which these changes purport to address. Even if the purported aim is to address the dangerous process of demolitions and excavations adjacent to existing properties, the Legal Notice proposes to address all other construction activities, but, at the same time, fails to address the other dangerous process of loading party walls, and their foundations, designed to carry two or three storeys, by many more floors.
  2. The amendments claim to clarify the roles of the figures engaged on a site. However, there are glaring incongruencies with roles defined in other legislation, and rather than clarifying, the proposals introduce new roles without defining appropriate competences, while ignoring the existence of figures already defined in other legislation, such as licenced masons. It also ignores the blatant lacuna regarding the legal obligation for registration of contractors, who are liable, as per Civil Law, jointly with the perit, for the structural integrity of buildings.
  3. The proposed processes for the submission of method statements, geotechnical investigation reports and geotechnical design reports are cumbersome and more intent on establishing who does them, who submits them, when and to whom, than on establishing the criteria for their preparation. The Kamra is of the opinion that this is a result of the lack of research to understand how such instruments are used internationally, and trying to adapt them to the local situation, with no regard for scale or complexity of projects.
  4. The proposed draft seems to imply that the measures proposed therein are to apply retroactively to ongoing projects. This will have implications on the capacity of the industry to respond in a meaningful manner.

In our view, the proposed Legal Notice in its current form is not acceptable. The full version of the Kamra’s analysis on the draft will be published at the end of the consultation process following the EGM.

 

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PR 13/19 | Kamra tal-Periti holding talks with various industry stakeholders

The Council of the Kamra tal-Periti has called an Extraordinary General Meeting on Friday 21st June 2019 to discuss the state of the construction industry. The purpose of the meeting is to update its members on the developments that have occurred over the past few weeks, the progress made on its public consultation document A Modern Building and Construction Regulation Framework for Malta following its publication in May, closing talks held over recent months with government about the updated Periti Act, and to consult on the draft regulations to be published on Monday by government following the temporary suspension of demolition and excavation works.

Meanwhile, the Kamra tal-Periti is also holding talks with various industry stakeholders about its reform proposals. The consultation meeting scheduled with the MDA for the end of the month has been brought forward to Tuesday, 18th June. The Kamra tal-Periti and the MDA have reached an understanding that in this critical juncture for the industry, it is important to converge towards a common position for the good of the country. Further meetings are also scheduled to take place with the Chamber of Engineers, the Chamber of Commerce, and the BICC.

The events of the past weeks have thrown a spotlight on the industry as a whole, including on the profession, which most certainly has its own responsibilities to carry with regard to the current state of affairs, as do all the other operators involved. The issues we are facing are complex, and the fast pace of the industry is stretching resources beyond capacity, yet none of this justifies relaxation of standards and lack of diligence.

This is a crucial moment for the industry to come together and seek convergence, and the Kamra will continue to take a leading role in ensuring that this takes place.

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PR 12/19 | The Building and Construction Industry is in Crisis

Verzjoni bil-Malti

The Council of the Kamra tal-Periti is shocked to wake up this morning to the news of yet another serious incident which involved the collapse of a building in Mellieha.

The facts of the case are still emerging, yet it is evident that this incident and similar ones in the past months are a direct symptom of the chaos that prevails in the construction industry.

The Kamra tal-Periti has been calling for a complete overhaul of our regulatory systems since 2007, yet nothing has materialised to date. At the end of 2018, Government proposed the establishment of a Building and Construction Authority, a proposal which the Kamra had supported, however this is still in the early stages of formulation and is not envisaged to be established before the end of the year.

In May, the Kamra tal-Periti issued its detailed proposals for a modern building and construction regulation framework. A preliminary introduction to these proposals was presented to the Parliamentary Secretary for Planning and the Property Market, the Honourable Chris Agius, and to the Building Industry Consultative Council (BICC), however detailed discussions have yet to commence. The proposals were endorsed by the profession last November, and presented to various stakeholders in the past weeks. The Kamra has received very positive feedback and looks forward to taking these proposals forward with government.

The efforts which are being made are feeble. The only proposal that was announced since the Guardamangia collapse was the exploration of the setting up of a Considerate Constructors Scheme, an as yet insufficient local interpretation of a similar scheme in the UK. The proposed Scheme appears to be merely intended to tie contractors to a code of ethics on a purely voluntary basis rather than strengthening the regulatory system and accountability of industry operators across the board, thus providing further loopholes in the system.

Delay is not an option. The industry is in crisis. We have a complete lack of regulation of contractors, a complete lack of adequate competencies among the workforce, confusion about the various roles and responsibilities on construction sites, building regulations which date back to the 19th century, as well as a serious lack of enforcement. Unless we take immediate action, matters will only get worse.

In view of this, the Kamra tal-Periti has requested an urgent meeting with the Prime Minister to discuss a way forward. The meeting is expected to take place next week.

 

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PR 11/19 | Kamra tal-Periti nominates Professor Richard England for the CAA Robert Matthew Award

Verzjoni bil-Malti

The Kamra tal-Periti has nominated Professor Richard England as a candidate for the Robert Matthew Award. This Award commemorates the first President of the Commonwealth Association of Architects (CAA), Sir Robert Matthew and recognises innovative contributions to the development of architecture, in the Commonwealth context. The award is given to an architect or architectural office making the most outstanding contribution having particular relevance to the country or region in which they operate. Past winners include Ken Yeang with TR Hamzah and Yeang of Malaysia, Philip Cox of Australia, Ian Ritchie Architects of UK, and Arup Associates of UK.

Professor England burst into the architectural scene in Malta in 1962, with the design of the iconic Church of St. Joseph in Manikata. This international modernist aesthetic was inspired by north and central European models. With his Manikata Church, England proposed a vision of architecture that better responded to the local context, both climatic and cultural, pioneering a modern Regionalist movement, which he subsequently explored extensively in the design of hotels for a burgeoning tourism industry in Malta, and of innumerable private residences.

Over the last half century, England’s work attracted the attention of the international architectural world. In the early 80s, he was commissioned by Iraqi architect Rifat Chadirji, to work together with other world-famous architects, including Carlfried Mutschler, Arthur Erikson, Sheppard Robson, Ricardo Bofill, Robert Venturi, and Arup Associates, to prepare plans for the Bab Al-Sheikh district of Baghdad. Richard England received this call in recognition of his ability to understand vernacular traditions, and to propose solutions that, although compatible with these traditions, would not rigidly adhere to traditional forms.

His buildings have been published in leading international architectural journals, and have received innumerable awards around the world, including ten International Academy of Architecture Awards and two Commonwealth Association of Architects Regional Awards. Professor England was awarded the Gold Medal of the City of Toulouse in 1985, the International Committee of Architectural Critics Silver Medal in 1987, the 1988 Georgia USSR Biennale Laureate Prize, the IFRAA-AIA Award for Religious Architecture in 1991, International Prize at the III Architectural Biennale of Costa Rica in 1996, and the Gold Medal of the Belgrade Architectural Triennale in 2000. In 1999, he was appointed as Hon. Fellow of the American Institute of Architects. He was awarded the Grand Prix of the International Academy of Architecture in 2006 and 2015, and the Annual Award of the Academy in 2012. In 2016, he was one of the winners of the European Architectural Awards.

This professional recognition by peers was accompanied by academic recognition at a number of Universities all over the world. He has received a number of Honoris Causa doctorates, including from the University of Buenos Aires, Argentina, the Institute of Advanced Studies at the University of New York, U.S.A., the University of Sofia in Bulgaria, the Spiru Haret University in Romania, and, in 2016, from his alma mater, the University of Malta.  In 1995, he received an Honoris Causa Professorship from the University of the Republic of Georgia; and he is also Hon. Visiting Fellow at the University of Bath, United Kingdom, and a Professor, Academician and Vice-President of the International Academy of Architecture. He has been invited to lecture in North and South America, the United Kingdom, Europe, the Middle and Far East, and the ex-USSR.

Richard England has been Malta’s foremost architectural ambasador, to all the corners of the world, making Malta proud that it has contributed, in this discipline, at the highest levels of achievement, the Kamra tal-Periti noted in its submission for the Award. The results will be announced later this year.

 

Professor Richard England receiving KTP’s Premju Emanuele Luigi Galizia Lifetime Achievement Award in 2018

 

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ACE issues declaration in support of Germany on tariffs

In June 2015, the European Commission launched an infringement procedure against Germany on the grounds that the German minimum compulsory tariffs for architects and engineers (Honorarordnung für Architekten und Ingenieure – HOAI) would allegedly violate the Services Directive by preventing professionals from other Member States from establishing and providing their services freely in Germany.

On 28 February 2019, the Advocate General of the European Court of Justice (ECJ), Maciej Szpunar, released his opinion which considered the minimum and maximum tariffs as unlawful. The tariffs were said to hinder cross border activities, because engineering and architecture firms could not enter the market and establish their own prices. Furthermore, he claimed that Germany had not proved that the independent statutory fee-scales for architects and engineers were suitable and necessary for quality assurance and consumer protection. Therefore, he proposed that the Court uphold the Commission’s decision.

The leading German associations of architects and engineers, together with the Federal Government, strongly advocated maintaining the minimum and maximum tariffs and commissioned several advisory opinions. All studies commissioned in this context proved that there is no evidence to suggest that cross border activities are negatively affected by the presence of fee-scales. On the contrary, quality cannot be guaranteed where there is price dumping of architectural and engineering services. Moreover, the most economically advantageous tender, rather than cheapest price, has been recognised as a principle of the latest version of the Public Procurement Directive. Therefore, ACE finds it incomprehensible that the Advocate General did not follow the conclusive arguments given by the German government. ACE is strongly convinced that the minimum and maximum tariffs serve the common interest by:

  • Protecting customer’s rights through transparency of fees and related services for everyone, certainty of design costs, competition based on quality rather than price, higher quality and more positive results along with lower risks of dispute, amongst other benefits.
  • Supporting cross-border activities by providing helpful descriptions of services and guidelines for providing these services. Insufficient language skills and knowledge of building regulations or relocation issues are the main reasons for not moving to another country.
  • Continuing to ensure that courts have a basis on which to make awards during litigation, while public bodies have reference points that can be used when drawing up budgets for public works.

ACE still maintains that the HOAI does not constitute an obstacle to cross-border establishment and provision of architectural and engineering services in Europe, nor has the abolition of compulsory fee-scales in other Member States led to an increase in cross-border establishment in the past.

The Kamra tal-Periti is a member of the Architects’ Council of Europe.

 

ACE Declaration
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PR 10/19 | Planning Authority decision is “unfair, irregular and against the principles of natural justice”

Verzjoni bil-Malti

The Commissioner for Environment and Planning within the Office of the Ombudsman has found the Planning Authority’s decision to require holders of CTB concessions to sanction or regularise their property to be “unfair, irregular and against the principles of natural justice”.

The Eighth Schedule regarding Category B concessions, referred to as CTB in short, came into force in August 2012. Residential property owners were able to submit an application to the Malta Environment and Planning Authority to cover illegal development that fell within specific strict parameters. If approved, the applicant would then be allowed to request permission for alterations and additions to the property, and a Compliance Certificate for the provision of new water and electrical services to the dwelling could be issued.

PA Circular 4/12 points out that CTBs do not have an expiry date. The CTB regulations had the effect of restoring the affected properties’ market value to levels comparable to legal properties of a similar description. As a result, these properties became sellable again, and banks were reassured that the effects of the concession were permanent.

With the coming into force of the Development Planning Act in 2016, the CTB regulations were repealed and no further applications could be submitted. In August 2016, new regulations were published that allowed for the regularisation of various types of illegalities, with no specific parameters, as long as these were not deemed to be an “injury to amenity”.

The Kamra tal-Periti had raised a number of concerns with the new regulations, and had published its position particularly regarding reports from members of the profession that the Planning Authority was requiring holders of CTB concessions to regularise their property, at a much heftier fee than what they had originally paid for the concession.

On the 28th January 2019, the Planning Authority published a Circular titled “Category B Concession (CTB) Explained”. The Circular concludes that when an application for development permission is submitted on a site which is covered by a CTB concession, then the irregularity “needs to either be sanctioned or removed, prior to any processing of the application.  If the illegal development cannot be sanctioned, a regularisation application would need to have been submitted and approved prior to the planning application being confirmed as complete.”

The Kamra tal-Periti requested the Ombudsman’s office to investigate this matter in March 2019, outlining its opinion that holders of CTB concessions for minor irregularities were facing serious risks on their investment unless the Planning Authority changed its interpretation of the law. Banks that have taken such properties as security against mortgages are also at risk in case of default, as the value of such properties may be much lower than expected as a result.

In a decision delivered on the 7th May 2019, the Ombudsman’s Office concluded that the above quoted paragraph from the Authority’s Circular “is found to be unfair, irregular and against the principles of natural justice” and ordered the Planning Authority to “withdraw and cancel this part of the Circular to the effect that a new application can be submitted on a site covered by a CTB concession without the need for sanctioning, regularising or removing the illegal works covered by the same CTB concession, as long as no further illegal development has taken place on site.”

The Council of the Kamra tal-Periti does not condone illegal development in any way, however once certain rights were granted to property owners in the past these cannot be taken away at a later date, more so when the legal ramifications are wide ranging and potentially serious.

 

KTP Complaint to Ombudsman

Ombudsman Final Opinion on PA’s CTB Circular

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PR 09/19 | Building Industry is regulated by 22 entities

Verzjoni bil-Malti

On the 26th April 2019, the Council of the Kamra tal-Periti met with a delegation of the Partit Nazzjonalista, headed by Party Leader Dr Adrian Delia, who highlighted a number of issues which the Party considers to be of utmost importance, including the need to shift from a mindset of development permitting to one of planning, and the importance of quality in the building industry. Dr Delia also highlighted the need for a long term vision for the country, and stated that the Party will insist that all the necessary technical and environmental studies related to the proposed link between Malta and Gozo are published prior to a final decision being taken.

Perit Simone Vella Lenicker, President of the Kamra tal-Periti, noted that the Chamber presented its proposals for an overhaul of the building and construction regulations to Government just two weeks ago. These proposals were approved by the profession at a General Meeting held last November, and were positively received by the Parliamentary Secretary Chris Agius. These proposals will ensure better quality in the industry and will bring it firmly into the 21st century.

She also emphasised that shifting from a mindset of development permitting to one of strategic and local planning is imperative to ensure that the urban quality within our towns and villages is not lost forever.

With regard to the proposed Malta-Gozo tunnel, Perit Vella Lenicker reiterated the position of the Kamra that the studies should be carried out and published before any decisions are taken. She also stated that it was worrying that motions had to be passed in Parliament to ensure that all regulations and legislative requirements are adhered to, and this further emphasised the need for an urgent review of the Strategic Plan for the Environment and Development and the translation of the Plan into the Local Plans, both of which are now practically obsolete.

A number of other issues were discussed, including the need for an architecture policy, a landscape policy and a skyline policy, as well as the need to introduce a culture of design competitions for projects which are funded by public money.

The Council of the Kamra tal-Periti also presented its vision, as a member of the Architects’ Council of Europe, for the upcoming MEP elections, including the need to achieve a better quality of the built environment, the need to secure affordable housing of high quality, the need to re-think the connection between climate change and the built environment and the need to improve education and up-skilling across the sector.

The delegation of the Kamra tal-Periti included also Perit André Pizzuto (Vice President and Treasurer), Professor Alex Torpiano (Past President), and Council Members Periti Sandro Cini, Gaston Camilleri and Alberto Miceli Farrugia.

 

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PR 08/19 | The inadequacy of building and construction regulations

Following the two incidents in construction sites in Swieqi and Guardamangia that occurred yesterday, and several others over the course of the past months, the Kamra tal-Periti feels compelled, yet again, to point out the grave inadequacies of our building and construction regulations.

The Kamra tal-Periti has been exhorting Government to regulate the industry for many years, both through widely reported press statements, and at various meetings held with successive Ministers and Parliamentary Secretaries responsible for the industry.

The rate of construction accidents in Malta, whether resulting in damage to neighbouring properties, injury or even death, is unacceptable. The ever-increasing complexity of today’s buildings, compounded by the current frenzy of the industry to turn around projects as quickly as possible, urgently requires an immediate and major overhaul of the country’s building and construction regulatory processes.

 

The current legislation in Malta is characterised by excessive fragmentation of responsibilities.

 

Article 1638 of the Civil Code states that “[i]f a building or other considerable stone work erected under a building contract shall, in the course of fifteen years from the day on which the construction of the same was completed, wholly or in part, or be in manifest danger of falling to ruin, owing to a defect in the construction, or even owing to some defect in the ground, the architect and the contractor shall be responsible therefor.”

This article in the Civil Code does not establish clear lines of responsibility, which are generally decided by the Courts when similar incidents occur, depending on the particular circumstances of each case. Moreover, whereas Periti carry a professional warrant and are subject to a Code of Professional Conduct, contractors are not regulated at all. This is especially worrying when it comes to demolition and excavation contractors. The absence of a registration system means that anyone with demolition or excavation plant can carry out such works, without any basic training, technical knowledge, or insurance cover.

The Avoidance of Damage to Third Party Property Regulations (L.N. 72 of 2013) place the onus of enforcing the implementation of a works method statement drawn up by a Perit outlining the method of construction on a site manager purposely appointed by the developer, and on the contractor executing the works. Regulation 10 states “[p]rofessional responsibility for the method statement remains with the perit who prepares it, whilst ultimate responsibility for adhering to the method statement rests with the site manager and the contractor.”

Once again, the regulations do not establish minimum basic training or competences for site managers, not even as basic a requirement as literacy. The regulations even allow the developer to take on the role of site manager, in what is clearly a blatant conflict of interest sanctioned by the law. Indeed, if the developer fails to appoint a site manager, the regulations presume that the developer is ipso facto carrying the responsibilities of a site manager.

 

When two key players in the industry are not required to possess basic competence and are wholly unregulated, the public is exposed to unacceptably high and unnecessary risks.

 

The Kamra’s calls for an overhaul of the regulatory framework were finally heeded by Government last October when it launched the White Paper for the setting up of a new Building and Construction Authority. Just two weeks ago, the Kamra held talks with Government on its detailed proposals for the regulation of the industry to bring it in line with other European countries. The Kamra will be making its proposals public in the coming days.

The Kamra tal-Periti will not be commenting on these or other specific cases until investigations are concluded so as not to prejudice any potential proceedings.

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PR 07/19 | Kamra tal-Periti presents its vision for national building and construction regulation

Verzjoni bil-Malti

Yesterday (11th April 2019), members of the Council of the Kamra tal-Periti presented the Chamber’s vision for an overhaul of the current building regulations, which are both outdated and insufficient to ensure the highest standards of quality in the construction industry. This vision was presented to the Honourable Mr Chris Agius, Parliamentary Secretary for Planning and the Property Market, representatives of the Building Regulation Office (BRO) and the Building Industry Consultative Council (BICC), as well as consultants appointed by Government to oversee the establishment of a new Authority which is intended to regulate the industry.

Perit Simone Vella Lenicker, President of the Kamra tal-Periti, explained that the proposals being presented were approved by an Extraordinary General Meeting of the Chamber held last November, and confirmed the Kamra’s full availability to participate in discussions regarding the formulation of new building regulations, as well as the technical expertise of its members to ensure the highest standards within the sector.

Vice President Perit André Pizzuto gave an extensive presentation of the Kamra’s position, starting with an overview of the current situation and its limitations. He then went on to outline the Kamra’s proposals which include the consolidation of various regulators within the new Authority, the dire need for a comprehensive register of contractors, the importance of contemporary regulations which are not prescriptive but performance-based, and the promotion of a self-regulatory approach by the various professionals involved in the construction process.

The Kamra’s proposals were received positively, and discussions will continue in the coming months to ensure full synergy between the profession and the government’s advisors.

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