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08/07/2019/by Kamra tal-Periti

Declaration by UIA President Thomas Vonier

PR 21/19 | Kamra tal-Periti receives support from international associations

Verzjoni bil-Malti

The Kamra tal-Periti welcomes the announcement made on Friday by Minister Ian Borg and Parliamentary Secretary Chris Agius regarding the setting up a of a system of registration of contractors which will commence next Wednesday. This follows on from various calls that the Kamra has been making since 2007, which was strongly reiterated in recent weeks following the introduction of Legal Notice 136 of 2019 regarding the Avoidance of Damage to Third Party Property. Safety on site is paramount, and registration, licensing and classification of contractors are essential to ensure that contractors are given the adequate training and are equipped with sufficient skills to improve the quality of works execution and safety on construction sites.

The Kamra tal-Periti has taken a leading role in pushing for the introduction of registration, licensing and classification of contractors, and has drafted its proposals for a new Legal Notice to outline the processes and requirements to attain such goals. Discussions are currently under way with Government with a view towards enacting this Legal Notice later this year.

With regard to Legal Notice 136 of 2019, there are still a number of points which the Kamra tal-Periti is insisting need to be changed, in the interest of public safety as well as in the interest of the profession, contractors and developers. These include primarily the role, responsibilities and competences of the Site Technical Officer, a clear division between the Works Specifications that must be prepared by a perit, and the Method Statement which must be prepared by the contractor in order to state how the Specifications are to be achieved, a clearer distinction between temporary and permanent works, and also various inconsistencies between the Maltese and English versions of the Legal Notice. The Kamra tal-Periti will be seeking further meetings with Government next week to address such issues.

Yesterday, the Kamra tal-Periti has received letters of support for its position from the international community of architects. Thomas Vonier, President of the International Union of Architects (UIA), expressed “support for the Kamra tal-Periti’s efforts to prevent the profession of architects from assuming responsibility for services provided by third parties, as foreseen in the Legal Notice 136 of 2019. The Union commends the profession as it advocates clear and rigorous guidelines describing the responsibilities of the various stakeholders on construction sites in the interests of safety and quality of the built environment.”

In a separate letter, Wassim Naghi, President of the Union of Mediterranean Architects (UMAR), stated that the 25^th General Assembly of the organisation held in Rome this week had expressed its “support for the Kamra‘s relentless efforts over the past three weeks to ensure that the profession is safeguarded following the introduction of new legislation which was introduced suddenly, and without, what seems, an adequate period of consultation. We salute the Maltese profession in its efforts to retain its independence and impartiality, and for promoting clear and strong guidelines delineating responsibilities of the various stakeholders on construction sites in the interests of safety and quality of the built environment. The General Assembly also supports the Kamra tal-Periti in its strong calls requesting Government to immediately allocate sufficient and adequate resources to the local Regulator in order to allow it to carry out its statutory functions in a timely and efficient manner in the interest of public health and safety on and around construction sites.”

Declaration by UMAR General Assembly

06/07/2019/by Kamra tal-Periti

CIR 09/19 | Further updates on Legal Notice 136 of 2019

Dear Colleagues,

As you are aware, another meeting was held this morning with the Minister Dr Ian Borg, the Parliamentary Secretary Mr Chris Agius, and the Director BRO Mr Johann Buttigieg. Updates on our position taken at the last EGM will be announced at the next EGM which has been urgently called for Friday 5^th July 2019, details of which were issued earlier today. Your presence is solicited and appreciated.

It is to be noted that the forms relating to requests for exemptions, site management, etc have been amended in line with the Kamra’s requests, and are now available online on the PA website and on eApps.

Meanwhile, the following guidance notes supercede those issued in Circular 07/2019 and Circular 08/2019 with regards to Legal Notice 136 of 2019.

Declaration in terms of Regulation 4 of the Legal Notice

This declaration is to be submitted for all projects which do not fall under the requirements of the Legal Notice in the sense that they do not include any of the activities listed in Regulation 4. Typical examples could include:

Change of use;
Fixing of signage;
Façade restoration works including replacement of external apertures;
Internal alterations relating to non-loadbearing structures; or
Excavation, demolition or construction works where there are no adjacent third parties.

This declaration must always be made, unless the works fall under Regulation 4, in which case the other forms outlined below are to be used.

Declaration in terms of Regulation 26 of the Legal Notice

The declaration in terms of Regulation 26 is to be used when the works are contemplated in Regulation 4 but, in your professional opinion, the “structural interventions will not affect third party property“. This declaration must be made 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). The following considerations are important when submitting declarations in terms of Regulation 26:

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.
The form has been updated, at the request of the Kamra, to state that “I, the perit in charge of the project, hereby certify that the proposed structural interventions will not affect third party property save for minor damages that could occur and hence regulations 4,5,6,7,8 of the Legal Notice do not apply.” In addition, the Kamra has requested that the word “certify” is changed to “declare”, however this would require a change to the Legal Notice, which we hope will be updated shortly.
In using this form, your professional judgement prevails.
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.

Guidance regarding Regulation 25 of Legal Notice 136 of 2019 – Form A

Form A is to be used in cases where it is deemed that an exemption may be requested from the submission of a method statement, condition report or the requirement for insurance and bank guarantee in cases where the works still pose a risk to third parties. This form has been updated, following the Kamra’s request, to clarify that one may request exemption from one or more of the listed items.

This request may be used, as an example, in the following cases:

Where a method statement had already been submitted prior to the coming into force of the Legal Notice and the remaining works do not affect such method statement;
Where condition report/s had already been submitted prior to the coming into force of the Legal Notice and the remaining works will not have any impact on the adjacent third parties other than what had already been previously assumed in the first place;
Where insurance cover and bank guarantees were taken out prior to the coming into force of the Legal Notice, and where the new requirements are considered to be excessive or where the remaining works have already been practically executed and are thus less likely to have an impact on third party property.

In all cases, it is the Kamra’s opinion that insurance cover should always been taken out, and in cases were clients insist on the submission of such a request for exemption it is recommended that you follow the procedure outlined below.

Requests in terms of Form A require approval by the Director BRO.

Guidance regarding Regulation 25 of Legal Notice 136 of 2019 – Form B

Form B consists of a request for exemption from the requirement imposed by Regulation 5(1) for the contractor to nominate a Site Technical Officer. In various fora, the legislator has declared that the Site Technical Officer is only required in cases where demolition and excavation works are being carried out, and not where the works consist of construction only, including the addition of floors over existing third parties. It is unclear where this exemption from the requirement of providing a Site Technical Office emanates from and we are seeking further legal advice on this matter.

This form simply states that the perit and the mason are assuming the obligations and responsibities emanating from the Civil Code, and that the contractor (who could also be the mason) is assuming responsibilities in terms of Legal Notice 293/16.

It is important to note that the perit in charge of the project, who is assuming responsibility for the works in terms of the Civil Code, may be different from the perit in charge of the planning permit application, as long as there is a written agreement between the two periti clearly establishing lines of responsibility. The Kamra will be working on creating standard forms of agreement for use by periti in the coming months. In any case, the form is to be uploaded by the perit in charge of the planning permit application.

Meanwhile, the Kamra tal-Periti will continue to insist with the Planning Authority that the planning application form is amended to remove the declaration regarding responsibility for the works, as approved by our last EGM.

Requests in terms of Form B require approval by the Director BRO.

Guidance regarding Regulation 25 of Legal Notice 136 of 2019 – Form C

Form C is to be used where there is a risk to third party properties, but where there is an urgency to carry out the works, since delays may increase the relative risks.

In such cases, periti are to fill in the respective form, 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.

Requests in terms of Form C require approval by the Director BRO.

Additional Guidance

The following is additional guidance that may be useful in terms of the Legal Notice:

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.
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.
With regard to the content of the method statements, the Kamra tal-Periti has requested that these be split into two: Works Specifications to be prepared by a perit, and a method statement to be prepared by the contractor. This proposal has not yet been accepted by Government, however we will continue to put forward our case in this regard. In the meanwhile you are within your rights, in terms also of your contracts with your clients and the contractor’s contract with the client, to request that parts of the requirements in the Schedules relating to Method Statements are prepared by the contractor and submitted together with the rest of the submissions prepared by the perit.
In all cases, it is recommended that you ensure with your PII provider that the declarations being submitted in terms of this Legal Notice are covered by your policy.
The Kamra tal-Periti has requested several other amendments to the Legal Notice, a few of which have been taken on board, but others not. These will be discussed at the forthcoming EGM.

Submissions in terms of the Legal Notice

Periti are advised that in all cases, submission of information or requests for exemptions as outlined above, are to be made via eApps and uploaded to the relevant PA number, rather than sending them by email to BRO. This will avoid double handling and will also allow the information to be instantly available to the public.

Endorsement by Developer

Regulation 5(3) of the Legal Notice states that “The developer shall take all reasonable precautions to ensure that the construction activity will not result in any damage to contiguous properties, including damage that may result from the infiltration of water.”

The Kamra requested that the developer is included as one of the signatories to the forms, however this request has not yet been acceded to. In view of this it is recommended that you request a signed declaration from the developer, to be uploaded onto eApps with the relevant form, stating the following (or similar wording depending on the case):

I, …., ID No …, in my capacity developer for the works approved under PA…, hereby declare that I am aware of the responsibilities pertaining to the undersigned in terms of Legal Notice 136 of 2019, and that I have acknowledged the submission and content of the following (include list of forms / method statements / condition reports / etc).

Particularly in the case of the Regulation 25 Form A, where a request for exemption for taking out insurance cover and bank guarantees is being made it is recommended that the following declaration is requested from the client (or similar wording depending on the case):

I, …., ID No …, in my capacity as developer for the works approved under PA…, hereby declare that I have requested Perit … to submit a request for exemption from the requirements of Regulation 6 of Legal Notice 136 of 2019 (insurance cover and bank guarantee). I further declare that I am aware of the responsibilities pertaining to the undersigned in terms of the Legal Notice 136 of 2019, and that I have acknowledged the submission and content of the following (include list of forms / method statements / condition reports / etc).

Direction from BRO

The Kamra tal-Periti has requested the BRO to publish clear guidelines as to other circumstances where Regulation 25 can be used. Instead, it is to be noted that the requests for exemptions and approvals will be available to the public, even so that you may guide your clients who are the third parties concerned with regard to works on adjacent sites. This will give you an indication of the sort of works that are being granted exemptions. Third parties may, if they so wish, object to the granting of such exemption, and the Director BRO will consider such claim.

Note

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

03/07/2019/by Kamra tal-Periti

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.

02/07/2019/by Kamra tal-Periti

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 30^th 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:

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 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.
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.
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 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

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.
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.
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.
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.
In the case of Regulation 25 exemptions, a response from the Building Regulation Office is required.

Additional Guidance

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.
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.

Perit Simone Vella Lenicker

President

02/07/2019/by Kamra tal-Periti

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 21^st 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 25^th 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.

28/06/2019/by Kamra tal-Periti

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.

26/06/2019/by Kamra tal-Periti

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

26/06/2019/by Kamra tal-Periti

Directives

DIR 06/19 | Legal Notice 136 of 2019

Directive Repealed

See DIR 12/19

Legal Notice 136 of 2019 regarding Avoidance of Damage to Third Party Property Regulations, 2019, came into force on the 25^th 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 21^st 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:

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.
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.
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.
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.
Periti who are approached to submit the Site Management Responsibility Form as outlined in the PA Notice issued on the 25^th 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:

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
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

26/06/2019/by Kamra tal-Periti

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 25^th 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:

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.
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.
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.

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.

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.

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.

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