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PR 20/19 | Will this Legal Notice make our building sites any safer?

Verzjoni bil-Malti

The Kamra tal-Periti rejects the assertion that it and its legal advisers have not understood the Legal Notice 136 of 2019. The fact remains that over the last week massive meetings of periti, contractors and developers were organised in order to clarify what was meant to be crystal clear.

In a meeting held yesterday morning between the Kamra tal-Periti and government consultants regarding the Legal Notice, in the presence of MDA president, it was agreed that changes to the Legal Notice were necessary, and in the interim the BRO would issue binding guidance to industry stakeholders on the types of works that may be exempt from the new regulations through regulations 25 and 26, and on the liabilities that the Legal Notice implies. It was made clear to the Kamra that no demolition and excavation works would be exempted from the new regulations, upon application. It is not clear whether this means that construction on existing buildings are not covered by the Legal Notice, in spite of Schedule Six. This means that the only way that some types of construction works may proceed is by the BRO agreeing that the regulations can be circumvented altogether. This begs the question whether public safety is being safeguarded with the coming into force of the new regulations, and how further collapses of buildings will be prevented, and whether the whole confusion created was worth the effort.

The Kamra has reiterated its advice to periti to follow the requirements of the Legal Notice in its current form, until such time as the BRO issues binding guidance on the interpretation of the Legal Notice. When such guidance is issued, the Kamra will verify whether such guidance reflects what was verbally agreed, and will advise members of the profession accordingly. The Kamra was also given assurances that it would receive the fourth version of the relative BRO forms for its review before their re-publication. The BRO did not follow through such assurances. The Kamra is still not in agreement with the forms as published yesterday evening.

The Kamra is very concerned that only a few hundred building sites are currently operational. It cannot understand why all this chaos has been created, when now we are being told that most sites, except for excavation and demolition works, can qualify for exemption from the rules. Will this Legal Notice make our building sites any safer?

The Kamra’s demand for a proper registration of contractors, which was forcefully echoed by the MDA’s members at yesterday’s information session, has so far not been implemented by government. In the Kamra’s view, this is the most critical step in safeguarding public safety and preventing a repeat of the accidents of the last two months.

 

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

Dear Colleagues,

 

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

 

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

 

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

 

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

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

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

 

Guidance regarding Regulation 26 of Legal Notice 136 of 2019

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

 

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

 

 

Guidance regarding Regulation 25 of Legal Notice 136 of 2019

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

 

 

 

Additional Guidance

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

 

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

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

 

 

Perit Simone Vella Lenicker

President

 

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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.

 

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

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

 

The following are some points for your guidance:

 

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

 

Perit Simone Vella Lenicker

President

 

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

 

CIR 05/19 | Legal Notice 136 of 2019

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

 

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

 

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

 

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

 

  1. The Site Technical Officer (STO)

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

 

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

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

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

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

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

 

 

  1. The studies to be submitted

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

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

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

 

  1. Registration of Contractors

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

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

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

 

  1. Additional concerns

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

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

The Council has issued this Circular after seeking legal advice.

 

Perit Simone Vella Lenicker

President

 

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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.

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

 

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