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PR 19/19 | Developments on LN 136 of 2019

Verzjoni bil-Malti

The Kamra tal-Periti would hereby like to notify the following developments since the bringing into force of LN 136 of 2019.

 

Meeting with Government

Government requested an urgent meeting with the Kamra tal-Periti to discuss the new regulations that were brought into force earlier this week. The Kamra tal-Periti immediately accepted the offer for a meeting which happened yesterday afternoon.

During this meeting, which lasted almost three hours, the Kamra outlined in detail the several issues in the regulations and the positions voted upon in the Extraordinary General Meeting held on Friday 21st June 2019. The Kamra also expressed its deep concern for public safety due to conflicts between the Civil Code and the new regulations, and the confusion surrounding the apportionment of responsibilities.

The Kamra tal-Periti also insisted on the urgency for the setting up of a system of registration of contractors so members of the public, and periti themselves, can begin to regain confidence in the industry.

It was agreed that further meetings would occur in the next few days during which amendments to the new regulations will be proposed by the Kamra together with its team of legal consultants for Government’s consideration.

The Kamra tal-Periti reiterates its commitment to assist Government in fulfilling its intention to bring about a positive reform of the industry in the interest of public safety.

 

Exemptions under Regulation 26

Regulation 26 states that “[w]hen before the start of the 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 implies that if a perit certifies that no damage will occur to third-parties during works, the entire set of regulations can be circumvented. If damages do occur, the perit issuing such certification would carry personal criminal and civil responsibility for anything that happens, even when the contractor is at fault.

This has put members of the profession under immense pressure to sign such declarations as contractors and developers are incurring extremely high costs due to the effective suspension of works. The Kamra has received multiple reports from members of the profession who received personal threats as well as threats of crippling and vexatious lawsuits if they do not sign such declarations.

The Kamra tal-Periti is hereby making it clear that if any such lawsuits are filed against periti who are diligently and responsibly applying the law, it will enter such lawsuits parte civile and put all its resources to defend its members against cowboy operators.

The Kamra will also be writing to the Chief Justice to request that such lawsuits are dismissed on a prima facie basis in the interest of public safety.

 

Exemptions under Regulation 25

Regulation 25 states that “[w]orks of excavation, demolition and construction, that would have started but are not complete on the date of the 25th June 2019, as well as those works of excavation, demolition and construction, that still need to begin, fall under the provisions of these regulations provided that the Director of the Building Regulation Office reserves the right to issue appropriate orders according to the requirements and nature of the particular site.

Members of the public are urged to write to the Director of BRO on commencement.bro@gov.mt keeping in copy their perit asking for clearance to proceed with works, and insisting that a clear scope of works and a list of the specific exemptions from the regulations are specified in such clearance.

 

 

The Kamra tal-Periti will continue to defend and promote the interest of public safety first at all times.

 

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PR 18/19 | Kamra tal-Periti calls for all stakeholders to abide by the new regulations

Verzjoni bil-Malti

The Kamra tal-Periti has issued a directive this morning instructing all members of the profession to strictly abide by the regulations published yesterday by Government in the interest of public safety.

We must bring to the attention of the public the fact that all excavation, demolition and construction works carried out in sites which are contiguous to third parties must follow the regulations. This includes the preparation of fresh condition reports of third-party properties, fresh method statements, revised insurance policy premia, and the appointment of an STO by the contractor, or by each individual contractor present on site. Naturally, all these new requirements could not be addressed within 24 hours but require several weeks, which include the minimum two-week period granted to the third-parties to review and possibly contest the reports and method statements.

Until all the provisions are adhered to, all works are in effect suspended. Fines for non-compliance with the regulations are €50,000.

 

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PR 17/19 | Kamra tal-Periti calls for clear responsibilities in the interest of public safety

Verzjoni bil-Malti

The Kamra tal-Periti notes with deep regret that L.N. 136 of 2019 Avoidance of Damage to Third Party Property Regulations, 2019, was published by Government yesterday afternoon without prior consultation with the Kamra as required by law, despite various requests for meetings over the past two weeks. The Kamra tal-Periti has again requested to meet Government after the new regulations were published to discuss its grave concerns for public safety resulting from the new regulations themselves. The questions that the Kamra sent to Minister Ian Borg yesterday remained unanswered.

The Kamra tal-Periti has consistently insisted that responsibilities should be clearly and unambiguously defined in the interest of public safety. The Civil Code specifically identifies two figures who should carry such responsibility: the perit and the contractor. Any regulation that purports to contradict the Civil Code is only contributing to the confusion that has characterised the industry in the last decades.

The responsibilities in the Civil Code are clear.

The perit is responsible to design, specify and direct the works to ensure that the building is safe.  The contractor is responsible for executing the works, including following the design, specification and direction of the perit. It is up to the contractor to decide the composition and qualifications of his personnel to fulfil his responsibilities. This is the norm in developed countries.

The Kamra believes there is a third responsibility that needs to be borne, and that is the responsibility to regulate. This responsibility can only be borne by Government. To date, Government has failed to fulfil its duty to regulate the industry adequately, as discussed below.

  1. The BRO was left severely underfunded for years, with a meagre annual capital budget of €150,000, which is barely equivalent to the salary of six of its employees, rendering it effectively powerless and ineffective.
  2. The BRO has not put in place a system for registration and licensing of contractors in breach of Article 5 of the Building Regulation Act. This exposes the public to inordinate levels of risk.
  3. The list of licensed masons was only published last Friday during the Kamra’s EGM. The Kamra’s numerous requests for such a list over the past years, were dismissed by the BRO on the basis of data protection considerations. It is pertinent to point out that the list as published is in breach of Article 22 of the Services Directive which requires that the identification and contact details of masons and contractors be published so they may “be contacted rapidly and communicated with directly”.
  4. The planning process was never clearly separated from the building regulation process, resulting in institutional confusion and inadequate enforcement. This confusion was further exacerbated when the Planning Authority (PA) issued two circulars yesterday evening about the Legal Notice, which falls under the remit of the BRO. Moreover, instead of Government investing in developing the BRO’s IT infrastructure, the PA has taken over the implementation of the new regulations from the remit of the BRO, and extended its online planning application system for this purpose. This is exacerbating further an already confusing situation.
  5. No centralised building and construction regulations in line with those of other European Member States are in place. The few that are in place are contradictory or obsolete and fall under the remit of over 22 public entities.
  6. The draft Periti Act has been left in abeyance for over 12 years, leaving the profession unable to modernise itself in line with contemporary requirements and EU regulations.
  7. The Construction Products Directive, which falls under the remit of the MCCAA, was never enforced. This means that virtually no building and construction products on the market, which forms part of the wider European single market, are CE certified, and are therefore illegal. This has significant consequences for the consumer and the perit, in that there is no way to verify that the specifications are being met by the suppliers of building products, including bricks and pre-stressed concrete planks.

The Kamra tal-Periti 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.

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PR 16/19 | Kamra tal-Periti welcomes publication of list of licensed masons

Verzjoni bil-Malti

The Kamra tal-Periti welcomes the timely publication of the list of licensed masons on the website of the Building Regulation Office (BRO). The Kamra tal-Periti has been asking for the publication of such list for many years, and each time it was told that this could not be published for reasons of data protection.

The Code of Police Laws stipulates that “It shall not be lawful to exercise the trade of mason without a licence …”. This licence 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.

The publication of the list is therefore a welcome move, and it is expected that the BRO will not permit works to continue on any site where masons are found not to be on the list.

 

 

It is also pertinent to note that the Civil Code places the onus for the 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.” The EGM of the Kamra tal-Periti held on the 21st June 2019, which was the largest in the Kamra’s history, demanded that such licencing and registration is implemented. The Kamra tal-Periti reiterates its willingness to support Government in setting up systems for the registration and licensing of contractors in accordance with the BRO’s obligations as set out in the Building Regulation Act.

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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.