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

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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

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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.