Posts

DIR 02/24 | New BCA Forms

The Council has noted that two new forms were introduced by the Building and Construction Authority (BCA) in recent days. These are the “Declaration to the BCA regarding Third Party Property Condition Reports and Excavation Affected Complexes” and “Certificate of Insurance”.

Members of the profession are being hereby informed that these two forms were not discussed and agreed upon by the Kamra tal-Periti. Many of you will recall that the BCA forms were a major sticking point back in 2019, and the repeal of directives by the Kamra was in part conditional to its review of and agreement with such forms. Indeed, several circulars had been issued regarding the BCA forms at the time*. The matter eventually also formed part of the Letter of Commitment signed by the minister and permanent secretary responsible for sector at the time.

It is pertinent to reiterate the fact that S.L.623.06 does not specify the use of forms, and thus their imposition by the BCA is considered ultra-vires at law. All BCA forms, besides the above two, are only in place because of the agreement reached with the Kamra back in October 2019.

As a result of the BCA’s failure to consult with the Kamra tal-Periti on the two aforementioned forms, the Council is hereby directing all members of the profession not to file them.

Members of the profession are kindly requested to keep an eye out for further communication from the Council in the coming days.

Perit André Pizzuto
President

*

https://kamratalperiti.org/cir-11-19-building-the-future-towards-a-renewed-profession/

https://kamratalperiti.org/cir-14-19-bro-forms/

https://kamratalperiti.org/cir-15-19-new-forms-for-use-prior-to-commencement-of-works-or-utilisation-of-planning-permit/

DIR 01/23 | Development within UNESCO buffer zones of the megalithic temples in Malta

As professionals in the field of architecture and engineering, it is imperative that we approach the design and planning of development projects within the buffer zones of UNESCO World Heritage Sites with the utmost care and sensitivity. This Directive outlines the guidelines and standards to be followed in the planning and design of development within the buffer zones of megalithic temples in Malta.

This Directive sets out the limitations on the types of development that can be carried out within the buffer zones of megalithic temples in Malta and provides technical guidance on how to go about carrying out such projects in compliance with these guidelines.

 

  1. Limitations on Development:

In accordance with Article 3 (1) of the Periti Act (Cap. 622), which states that the practice of architecture and civil engineering is a regulated profession with the overriding need to protect public interest, particularly in relation to issues of public health and safety, protection of the environment, protection of cultural heritage, and structural integrity of buildings and structures, only development that is consistent with the purpose and intent of the buffer zones and the UNESCO World Heritage Convention may be carried out within the buffer zones designated for the megalithic temples.

 

 

  1. Limitations on Scale and Design:

Development within the buffer zones must be of a scale and design that is appropriate and compatible with the international architectural and cultural heritage value of the megalithic temples and their buffer zones. Members must ensure that the height, bulk, and massing of the development are in proportion to the surrounding environment and do not negatively impact the visual, physical, or environmental integrity of the site and the surrounding landscape.

 

The following types of development within the buffer zones of the megalithic temples in Malta would be considered by the Council to give rise to potential professional misconduct:

 

  • Development that would alter the physical, visual or environmental integrity of the megalithic temples, their buffer zones and surrounding landscape.
  • Development that would have a negative impact on the cultural or natural heritage value of the megalithic temples, their buffer zones and surrounding landscape.
  • Development that would alter the views or vistas of and from the megalithic temples, their buffer zones and surrounding landscape.

 

 

  1. Compliance with International Conservation Charters:

All development within the buffer zones of UNESCO World Heritage Sites in Malta must be carried out in compliance with the relevant international conservation charters, such as the UNESCO World Heritage Convention and the ICOMOS (International Council on Monuments and Sites) charters, including the Venice Charter, the Burra Charter, and the Nara Document on Authenticity. These charters set forth principles and guidelines for the conservation of cultural heritage sites, including the use of materials, techniques, and designs that are consistent with the original character of the site.

 

 

  1. Adherence to Davos Baukultur Quality System:

The Davos Baukultur quality system is a set of standards and guidelines for the design and construction of development projects in cultural heritage contexts. All members must adhere to these standards when carrying out development within the buffer zones of UNESCO World Heritage Sites in Malta, to ensure that the development is of high quality and consistent with the principles of cultural heritage conservation and best international practice.

 

 

  1. Technical Guidance:

In accordance with the above principles, members must follow the following technical guidance when carrying out development within the buffer zones of megalithic temples in Malta:

 

a) Materials and Techniques:

Members must use materials and techniques that are compatible with the cultural and historical context of the site. This may include the use of traditional building methods and materials, such as local stone, as well as modern materials and techniques that are appropriate for the site.

 

b) Design and Scale:

Members must ensure that the scale, design and location of the development are compatible with the buffer zones and do not negatively impact the visual, physical or environmental integrity of the site and the surrounding landscape.

 

c) Archaeological Impact Assessment:

Members must carry out an archaeological impact assessment prior to submitting a planning application, to assess the potential impact of the development on the cultural heritage value of the megalithic temples and the buffer zones. The assessment should be included with the planning application.

 

d) Consultation with Heritage Authorities:

Members must consult with the relevant heritage authorities and organisations, such as the Superintendence of Cultural Heritage and Heritage Malta, to ensure that the development proposal is also consistent with their heritage policies and guidelines.

 

e) Monitoring and Review:

Members must continuously monitor and review the development to ensure that it remains compliant with the relevant planning regulations, policies, and guidelines, and does not negatively impact the heritage value of the megalithic temples, their buffer zones and surrounding landscapes.

 

 

The Council of the Kamra tal-Periti takes the responsibility to ensure that all members of the profession act responsibly and ethically, having due regard for sustainable development practices, the protection of the national, cultural, social, and environmental heritage entrusted to it through the new Periti Act very seriously.

Members must follow these guidelines when designing and seeking planning permission for development within the buffer zones of the megalithic temples of Malta to ensure that our profession is associated with the highest standards of professionalism, integrity, and sensitivity to the cultural heritage of our country.

 

Perit André Pizzuto
President

 

 

,

The Shift News and Ethics

The Shift News has today published a news article on its web portal which heavily editorialises and distorts a reply sent to its editor, Caroline Muscat.

 

The full email is being published below for the record.

 

 

Dear Caroline,

 

In reply to your specific question, the first provision in the Code of Professional Conduct stipulates that “[a] member [of the profession] must not hold, assume or consciously accept a position in which his interest is in conflict with his professional duty”. This is common in deontological codes in most professions locally and abroad. The emphasis is on avoiding conflicts between professional duty and personal interests.

 

Such a conflict would arise when a professional could stand to gain personally from delivering a particular service in such a way that it undermines the client’s interests. It follows, therefore, that a perit delivering a professional service to himself cannot have a conflict of interest precisely because the interests are aligned.

 

It is pertinent to note that we are not aware of any European or North American states where an architect is prohibited from working on his own projects. You may wish to peruse a number of projects linked below where this was done successfully:

 

https://en.wikipedia.org/wiki/Palazzina_Vincenti

https://www.dezeen.com/2022/01/29/architect-designers-homes-interiors-lookbooks/

https://www.ft.com/content/cfe85654-5d31-11e9-9dde-7aedca0a081a

 

 

Professional duty is not, however, limited to safeguarding the client’s interests. It also encompasses exercising the profession diligently, in line with established codes of ethics, codes of practice, standards and the law.

 

Regards,

 

Andre

 

This is indeed not the first time this news outlet has misrepresented the Kamra or a member of the profession. On 13th June 2022, Shift News published a story claiming that “[s]ources close to the agency told The Shift that despite the intense unofficial lobbying, particularly by NGOs and elements of the Chamber of Architects not to re-appoint Portelli’s architect as chair of the regulator…“. This is a categorically false statement. Despite a Right of Reply request being sent, Ms Muscat decided not to publish it.

More recently, The Shift News falsely reported that Perit Yanica Zammit was the architect in charge of the FTS school in Msida. On this occasion, after apparently insisted attempts by the maligned perit, the right of reply was eventually published.

 

CIR 09/22 | Update on Tender for Property Valuations issued by CFR

Further to Directive DIR 08/2022, the Council met with the Commissioner for Revenue, Mr Joseph Caruana, and the Director of Property Tax, Ms Josette Galdes on 12th August 2022. During this meeting the Council outlined its serious misgivings about the tender, particularly relative to the capping of €25 per valuation report and €25 per Court sitting. The Council also pointed out that there is no mention of remuneration for disbursements, such as acquiring planning permits from the PA, and that such remuneration fees would inevitably affect the quality of the valuations being provided.

 

During the meeting the CFR stated that it understood the nature of the Kamra’s objection, and expressed its openness to introducing differential rates, distinguishing between the valuation of garages and hotel resorts, which would have otherwise all been compensated for at the capped rate of €25.

It was agreed that the CFR would consult with the Department of Contracts (DoC) to establish whether the tender as published could be amended. However, the CFR was not willing to withdraw and republish the tender should this not be possible.

 

On 16th August 2022, the CFR informed the Council that the DoC was unable to amend the tender.

 

Given the above, the Council is notifying members of the profession that the only resolution to the matter is allowing the current tender to run its course without any bids, so it may be republished after appropriate consultation is made with the Kamra in accordance with article 4 of Subsidiary Legislation 390.01.

 

Moreover, the Council shall retain Directive DIR 08/2022 in place. Members of the profession are reminded that disciplinary action will be taken against periti who do not abide by the Directive.

 

Perit André Pizzuto
President

 

 

DIR 08/22 | Tender on Property Valuations issued by CFR

The Council of the Kamra tal-Periti has been notified of a tender issued by the Commissioner for Revenue with reference SPD7/2021/081 named “SERVICES – FRAMEWORK AGREEMENT FOR THE PROVISION OF PROFESSIONAL SERVICES OF PERITI TO PROVIDE VALUATIONS OF PROPERTIES TO THE COMMISSIONER FOR REVENUE (CFR)”.

The tender stipulates that “[v]aluations of properties is capped at a fixed fee of twenty-five Euro (€25.00) excluding VAT”. These are unacceptable terms, which undermine the scope of the due diligence and research necessary for the preparation of a valuation report, as well as underestimate the associated liabilities.

 

In view of the above, the Council is hereby instructing all Periti not to submit bids for this tender.

Failure to abide with this Directive will result in disciplinary action.

 

Perit André Pizzuto
President

 

 

DIR 04/22 | Transfer of Commissions

Explanatory Note

The transfer of commissions, projects and tasks from one perit to another is generally a delicate and potentially complex transition which can give rise to a number of issues related to ethics, commercial interests, and intellectual property rights.

In 2009, the Council of the Kamra had, at the behest of the General Meeting, issued the Change of Perit Directive that sought to govern the transition from an ethical perspective. The focus at the time was not to stifle the possibility for the incoming periti from delivering their professional services and not to unduly harm clients who may be victims of vexatious requests for payments from outgoing periti. As a result, Directive 04/09 had stipulated that outgoing periti must hand over projects to the incoming perit even if there are outstanding payments due.

Over time, however, the original intentions of the 2009 directive were thwarted to the point where periti frequently ended up not getting paid for their services by their clients, who exploit the directive to move projects from one perit to another, sometimes more than once, to avoid paying for professional services.

This directive seeks to strike a fairer balance between the rights of periti to get paid, and the protection of clients from vexatious claims for payment.

It is important to underscore that the rights and obligations outlined below pertain exclusively to the realm of professional and ethical conduct, and do not overrule or substitute civil law. It is thus recommended that in exercising the professional rights enunciated below, periti seek legal advice to ensure they do not expose themselves to civil claims for damages.

Members of the profession are also notified that this Directive was vetted by the Kamra’s legal advisors.

 

Directive

 

The Council of the Kamra tal-Periti hereby gives notice to all members of the profession of this Directive governing the transfer of commissions, or engagements to provide professional services, from one perit (or partnership of periti) to another.

 

This Directive outlines the processes to be followed in such cases, as well as the relative rights and obligations of the periti involved, and matters relating to liability.

 

Directives DIR 04/09, DIR 03/19 and Circular CIR 02/09 are being hereby repealed.

 

 

1. PROCESSES

 

1.1 When a development application is still ongoing

When a commission is terminated during the processing of a planning application, the outgoing perit shall, in addition to the client and the Kamra, also notify the Planning Authority via eApps, requesting immediate suspension of the planning application process in terms of S.L. 552.13 reg 12 (1) to provide sufficient time for:

  • the client to identify another perit;
  • the outgoing and incoming periti (or partnership/s of periti) to satisfy their respective obligations as set out in this Directive;
  • the compilation and submission of any forms that may be prescribed by the Planning Authority.

 

1.2 When works are underway

When a commission is terminated after construction works have commenced, the outgoing perit shall, in addition to the client, also notify the Kamra tal-Periti, the Building & Construction Authority[1], the Planning Authority[2], and the Commissioner of Police[3], as well as the Superintendence of Cultural Heritage[4], where applicable, to ensure that no works proceed without the general supervision of a perit, and the necessary forms as may be prescribed by the Building & Construction Authority, Planning Authority, and any other relevant statutory bodies, are formally filed[5].

 

1.3 In all other cases

In all other cases where the statutory processes described above do not apply, the provisions in Sections 2 and 3 only shall be applicable.

 

 

2. RIGHTS & OBLIGATIONS OF THE OUTGOING PERIT

 

2.1 Right to refuse release

A perit may refuse to release a commission in the following circumstances:

a) if the termination is being initiated by the client in cases where the perit has issued legitimate instructions to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes.

 

b) if the perit has not been remunerated in accordance with the terms set out in a written agreement[6] with the client.

 

Provided that if any of the above circumstances exist, the perit shall immediately notify the Kamra providing details of such circumstances.

Provided further that once the outgoing perit has been remunerated, or a final decision is reached by a Court or other adjudicating body, the outgoing perit shall release the commission to the incoming perit and proceed with the handover in accordance with section 2.3.

Provided further that if no circumstances as described above exist, the perit shall not withhold the release of his commission unless otherwise authorised by the Council of the Kamra tal-Periti.

 

2.2 Obligation to notify

The outgoing perit shall in all circumstances, follow the processes set out in section 1 of this directive, as applicable.

Provided further that if the commission is being terminated by the outgoing perit, s/he shall keep a record of the relative written notification to the client of the termination.

 

2.3 Obligation to provide handover

Upon being notified in writing by the incoming perit that s/he was engaged by the client to take over the commission, the outgoing perit shall provide the incoming perit a full handover within a reasonable amount of time, which handover shall include information about the design, site conditions, site survey, the client brief governing the services s/he had hitherto provided, photographs of the works, instructions and reports about the works, communication with the various authorities until the time the original perit was still entrusted with the commission, and any other relevant information necessary to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes, as may be applicable depending on the nature of the commission.

Provided that such handover excludes the transfer of intellectual property belonging to the original perit, including any digital information such as CAD drawings, 3D models, and other similar data, unless agreed to by the outgoing perit at his/her discretion or as may have agreed in a prior written agreement between the outgoing perit and the client.[7]

Provided further that the outgoing perit may request payment for the transfer of his/her intellectual property, unless otherwise specified in a written agreement between the original perit and the client.

Provided further that the outgoing perit may request additional remuneration and/or termination fees from the client to provide a handover as long as this is already provided for in the written agreement.

 

3. RIGHTS & OBLIGATIONS OF THE INCOMING PERIT

 

3.1 Obligation to notify

Upon being approached by the client to take over the commission from another perit, the incoming perit shall notify in writing the outgoing perit of this requesting the initiation of the handover process.

 

3.2 Obligation to refrain from taking over a commission

A perit shall refrain from accepting to take over a commission originally commenced by another perit in the following circumstances:

 

a) If the original perit is being substituted for issuing legitimate instructions to a contactor to safeguard public safety, structural integrity of buildings, the protection of cultural heritage and the environment, compliance with planning permit conditions, and/or adherence with laws, regulations, directives and codes.

 

b) If the original perit has not been remunerated in accordance with the terms set out in a written agreement with the client.

Provided that if no such written agreement exists, the incoming perit will not be impeded from taking over the commission as long as other sections of this directive are followed.

 

c) If the incoming perit has not notified the original perit in writing and requested a comprehensive handover from the outgoing perit.

 

For the purposes of this Directive, taking over a commission shall include the submission of Change of Perit Forms, or other equivalent forms, to any authority. Incoming periti are prohibited from filing such forms.

The Council of the Kamra tal-Periti shall consider any actions by a perit to take over the commission of another perit before resolving such disputes as constituting “supplanting” in terms of Provision 4 of the Code of Professional Conduct.

Provided that an incoming perit shall not be impeded from taking over a commission, if the outgoing perit chooses to waive his/her rights outlined in section 2.1.

 

4. PROFESSIONAL LIABILITY WHEN TRANSFERRING COMMISSIONS

4.1 Under no circumstance shall a transfer of a commission constitute the transfer of liabilities between periti (or partnerships of periti).

4.2 The outgoing perit shall remain liable for the professional services s/he has completed until the date of the transfer becomes effective.

4.3 The incoming perit shall be liable for the professional services s/he provides from the date the transfer becomes effective onwards.

4.4 The handover information should be sufficiently detailed to clearly demarcate the liabilities of both outgoing and incoming periti, and is to include a clear indication of all services rendered and works erected by the effective termination date.

 

Perit André Pizzuto
President

 

[1] Notification to the BCA can be effected via eApps (Avoidance of Damage tab) or via email info@bca.org.mt

[2] Notification to the PA can be effected via eApps (Submit Correspondence tab)

[3] Notification to the Commissioner of Police can be effected via email on pulizija@gov.mt

[4] Notification to the SCH can be effected via email on monitoring.sch@gov.mt

[5] The PA’s Change of Perit form and the BCA’s Change of Responsibility form are to be submitted by the outgoing perit.

[6] For the purposes of this Directive, a written agreement, which can be in the form of a contract, letter of engagement, or quotation approval (including via email), shall include as a minimum:

  • confirmation that the client has accepted the perit’s offer to provide clearly specified services;
  • the remuneration the perit will receive from the client in exchange for the services agreed upon;
  • the date of such agreement.

[7] Periti are advised to refer to Directives DIR 01/15 and DIR 02/18 for further detail on intellectual property rights held by periti.

 

 

 

Draft Directive Consultation: Transfer of Commissions

The transfer of commissions, projects and tasks from one perit to another is generally a delicate and potentially complex transition which can give rise to a number of issues related to ethics, commercial interests, and intellectual property rights.

In 2009, the Council of the Kamra had, at the behest of the General Meeting, issued a Directive that sought to govern the transition from an ethical perspective. The focus at the time was not to stifle the possibility for the incoming periti from delivering their professional services and not to unduly harm clients who may be victims of vexatious requests for payments from outgoing periti. As a result, Directive 04/09 had stipulated that outgoing periti must hand over projects to the incoming perit even if there are outstanding payments due.

Over time, however, the original intentions of the directive were thwarted to the point where periti frequently end up not getting paid for their services by their clients, who exploit the directive to move projects from one perit to another, sometimes more than once, to avoid paying for professional services.

 

The current Council has thus decided to redraft a new Directive to govern the transfer of commissions between periti that shall replace the 2009 Directive. The draft directive seeks to strike a fairer balance between the rights of periti to get paid, and the protection of clients from vexatious claims for payment.

The draft Directive changes many of the dynamics that we have been hitherto accustomed to, including:

  1. The right for the outgoing perit to refuse to release the commission subject to certain conditions being satisfied;
  2. The requirement to provide a handover;
  3. The processes to be undertaken depending on the stage of the project.

 

The Council has approved the text of the Directive and is hereby publishing it for consultation with members of the profession. There was, however, a minority position within Council on certain parts of the text which members of the profession are being specifically requested to express their opinion about through an online poll.

 

The two lines of thought are as follows:

 

Version 1

The outgoing perit may refuse to release the commission if any professional fees clearly established in a written agreement are still due, and the incoming perit shall desist from taking over a project in such situations. If a dispute on the settlement of the fees arises between the outgoing perit and his/her client, the transfer of the commission shall remain pending until the dispute is resolved by the Courts or any other adjudicating body.

 

Version 2

The incoming perit may take over the commission from the outgoing perit, if the latter institutes formal legal action against the client to recover any outstanding fees within an established period of time, and the incoming perit is duly informed of such action. In such case, the incoming perit may freely take over the commission in the knowledge that the dispute will be settled by the Courts or any other adjudicating body.

 

Members of the profession are invited to participate in the online poll by selecting their preferred direction for the final text of the Directive.

 

The poll closes on 25th April 2022.

 

Full draft Directive text

You can review the two versions of the full text by clicking on the links below. The differences are highlighted in yellow.

Version 1

Version 2

 

Online Poll

Participate in the online poll by selected your preferred version, and drop any additional feedback you may have in the comment box.

 

 

Poll is now closed.