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CIR 05/24 | Update on Tender for Property Valuations issued by CFR (2)

In 2022, the Council of the Kamra tal-Periti was alerted to a tender published by the former Commissioner for Revenue (CFR), now renamed Malta Tax & Customs Administration (MTCA), calling for periti to draw up property valuations at a capped rate of €25 excluding VAT.

The Council had immediately issued a directive instructing periti not to submit bids for this tender due to its “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”.

Urgent meetings were held with the Commissioner for Revenue and Director of Property Tax to discuss the way forward. Given that the tender could not be amended following its publication, an agreement was reached such that following its closing date, the CFR would republish the tender with fresh terms in agreement with the Council of the Kamra, including considerably improved financial terms that reflect the dignity and respect we should all expect for our profession.

The above background history was explained in a circular published soon after. A meeting was also held with a number of periti who had already been giving similar services to the CFR for a number of years through an arrangement which the National Audit Office declared to be non-conformant with the public procurement regulations. They were also kept regularly informed of meetings and communications exchanged between the Council and the CFR, and were in agreement with our approach.

 

Regretfully, a number of periti –  indeed the same periti who were being kept continuously informed about the ongoing negotiations – chose to outmanoeuvre the Council to try to gain an advantage over ethical and responsible members of the profession who chose to diligently follow the directive and await the outcome of the negotiations the Council was conducting. This resulted in a wholly unnecessary two-year delay during which members of the profession could have benefitted from the improved terms eventually negotiated, which we are happy to announce below.

 

Indeed, rather than the measly and demeaning sum of €25 excl. VAT per report, as a result of our negotiations successful bidders will be earning €50 excl. VAT per report for all properties having a contract value of less than €1 million, and €150 excl. VAT per report for all properties having a contract value of €1 million or more.

The Council considers this a suitable compromise, considering also that the use of the term “valuation” has been dropped from the tender document in favour of the term “review”. This shift in terminology is felt to more appropriately reflect the actual exercise to be performed by periti who successfully bid for the new tender.

The tender published by the MTCA via the Department of Contracts is linked below:

CfT: CT2136/2024 – Framework Agreement for the Provision of Professional Services of Periti to provide reviews of Properties to the Malta Tax and Customs Administration (MTCA)

 

The Council looks forward to building further on the positive relationship established with the MTCA, and remains committed to representing the interests of the profession at all times to the best of its abilities.

 

Perit André Pizzuto
President

 

 

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CIR 03/24 | BCA Forms Resolution

Following Directive DIR 02/2024, a series of meetings were held with the Ministry of Justice and Construction Reform and the Building and Construction Authority to discuss the need to reduce bureaucracy and eliminate unnecessary forms, so periti can focus on what is truly important for their professional role: high quality design and general site supervision.

Following our final meeting held yesterday afternoon, on behalf of the Council I am pleased to inform you that the form “Declaration to the BCA regarding Third Party Property Condition Reports and Excavation Affected Complexes” has been repealed, and that the situation that existed prior to the introduction of the form has been reinstated. Needless to say, the obligations of developers and periti with respect to condition reports as laid out in S.L.623.06 still apply.

Regarding the other form “Certificate of Insurance”, it has been clarified that this will be replacing the insurance policy document and statutory statement. Thus, going forward periti will only be required to file this certificate declaration, which will be automatically prepared and supplied by the insurers to policy holders.

BCA has also informed us that they are in the final stages of reaching an agreement with local insurers to provide insurance policy renewal notifications directly to the BCA.

Finally, the BCA has accepted to shortly reinstate an exemption form for dangerous structures similar to Form 25c, which had been unexplainedly withdrawn by previous BCA management in 2021/2022. The purpose of such a form is to ensure that in emergency situations related to collapse or imminent danger of collapse, the BCA clearance will be expedited. Updates on a new Form 25c are expected to be announced soon.

We thank the Ministry and BCA for their sensitivity on this issue, and trust that the relationship that has been built in recent weeks will result in further positive improvements in the industry, in the interest of public safety and that of the profession.

As a result of this agreement, the Council hereby notifies all members of the profession that DIR 02/2024 is hereby repealed.

 

Perit André Pizzuto
President

 

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DIR 02/24 | New BCA Forms

Directive Repealed

See CIR 03/24

 

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/

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PR 04/23 | Court of Appeal confirms Kamra tal-Periti’s decision to suspend perit’s warrant

The Court of Appeal in its superior jurisdiction has this morning passed judgement confirming the Kamra’s decision to suspend a perit’s warrant on the grounds of gross negligence and bringing the profession into disrepute.

 

The milestone judgement reaffirmed a number of critical points of law, including:

  1. The Council of the Kamra tal-Periti’s legal remit and procedures to oversee disciplinary proceedings as envisaged in the Periti Act, Cap 390, and the Chamber’s regulations thereto are in line with the European Convention on Human Rights and the Maltese Constitution. Disciplinary proceeding conducted by a professional body such as the Kamra tal-Periti composed of peers carrying out investigations and taking disciplinary decisions are indeed in line with Article 6 of the ECHR.
  2. The directives published by the Kamra are legitimate instruments as they are intended to guide periti to act diligently in line with the art and the profession, consistent with the dignity of the profession.

 

The judgement also confirmed the rigorous approach employed by the Council in reviewing complaints made by members of the public and in upholding public safety on construction sites.

Since the beginning of the year, the Council has closed eleven cases on a prima facie basis and five formal conduct hearings. It is currently carrying out forty-two prima facie investigations and holding six disciplinary proceedings. A further thirty-three allegations of misconduct are currently pending.

 

This judgement is only the second such appeal judgement in the Kamra’s history and provides invaluable guidance for the Council to learn from as it seeks to perfect its processes and its decisions to ensure the highest integrity and credibility.

The Council will continue to strive to act diligently and in good faith as it has been doing particularly in recent years to ensure that allegations of misconduct are handled expeditiously and in full observance of the constitutional rights of the parties involved.

 

Read judgement

 

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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

 

 

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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

 

 

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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

 

 

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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.

 

 

 

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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.

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Case Study 4 | Change of Use and Related Works on a Property on which another Perit was previously engaged

One of the functions of the Kamra tal-Periti is to investigate complaints of misconduct made against members of the profession. In some cases, it is evident that periti act in bona fide, however in a manner which may give rise to issues of misconduct.

One such case involved a complaint which was received from Perit A in May 2018. Perit A had been engaged to submit an application for sanctioning and alterations to a property including the change of use of a space into a clubhouse. This application was approved and a commencement notice submitted in April 2018.

Perit A subsequently became aware that Perit B had been engaged to submit an application for the change of use of the property to a restaurant, including related alterations, which application had been submitted in February 2018.

Perit A reported that at no time had Perit B notified of such engagement, and also claimed that Perit B had copied certain details (site information and signage) from the first set of permit drawings and reproduced them in the new application drawings.

The Council of the Kamra tal-Periti wrote to Perit B asking for comments on the complaint. Perit B responded stating that the works which were subject of the new application were completely different from those which Perit A was engaged to undertake, that the briefs were different and that the Client had confirmed that the works covered by the first permit would not be undertaken. Furthermore, the fact that the Planning Authority did not require a Change of Perit form was also interpreted by Perit B as an indication that there was no need to inform Perit A. Nevertheless, immediately upon becoming aware of the complaint, Perit B wrote to Perit A apologising for their actions.

Perit B also stated that the elements which Perit A alleged to have been copied from the original permit drawings consisted of site information and signage, and that the new application was not proposing any changes to such aspects. Thus these were indicated on the new application drawings in order to represent the “as existing” situation.

After taking into account all of the submissions by the parties, the Council of the Kamra tal-Periti concluded as follows:

 

  1. VERACITY OF ALLEGATION

It is evident that Perit B did submit an application for a change of use and related minor works on a building on which Perit A had been previously engaged to carry out other works. It is also evident that Perit B used the drawings prepared by Perit A as a basis for the new application.

 

  1. NATURE OF MISCONDUCT

The Code of Professional Conduct (Chapter 390.01 of the Laws of Malta) states that “A member, on being approached or instructed to proceed with professional work upon which another member was previously employed, shall notify the fact to such architect.”

In this case, the works which Perit B was approached to undertake were different to those entrusted to Perit A, although they concerned the same building. The Council is of the opinion that this presents a borderline case, in view of the following:

  1. The brief given to Perit B was different to that given to Perit A and therefore it could be considered that Perit B was not “proceeding with work upon which another member was previously employed”;
  2. The Applicants for the two planning applications appear to be different, although possibly representing the same Client Organisation,and therefore it seems that there was also lack of communication at this level;
  3. Notwithstanding the above, the fact that the proposed works in the application submitted by Perit B concerned the same site on which a planning permit had been obtained by Perit A and which was still valid, and for which a commencement notice was subsequently submitted, created uncertainty both in terms of responsibility, as well as with regard to Perit A’s relationship with the Client.

The Council was therefore of the opinion that it would have been far more prudent for Perit B to advise Perit A immediately upon being engaged to proceed with the new application, particularly in view of the fact that the structural works covered by the first permit were potentially overlapping in terms of execution timeframe with the new works to be undertaken Perit B’s direction. The Council is nevertheless assured that the actions of Perit B were not intended to supplant Perit A, who would have proceeded to oversee the implementation of the scope of works entrusted to said Perit A.

The Council also took note of Perit B’s explanation that the site information and signage were replicated from Perit A’s drawings since no changes were being effected to these parts in the new application, and therefore these were taken as the “as built” situation. Nevertheless, this further confirms the Council’s opinion that it would have been prudent for Perit B to communicate directly and immediately with Perit A on this matter.

 

 

DECISION

The Council concluded that the case presents a borderline situation, further exacerbated by Perit B’s failure to communicate with Perit A.  The Council also considered that Perit B had apologised immediately upon being made aware of Perit A’s complaint.

Perit B was formally advised that it would have been prudent to notify Perit A, if anything in order to ensure that Perit A was aware of the Client’s intentions not to proceed with the originally approved works, and was exhorted to exercise more prudence in future similar situations.

 

The Council has issued this Case Study to remind members of the profession that, at all times, it is important to safeguard the interests of fellow professionals. For the avoidance of doubt, it is recommended that, upon being engaged to carry out new works on a site where another perit was previously engaged, periti should communicate with the pevious perit and advise them of their new engagement, even if the works to be undertaken are different from those originally entrusted to the first perit. It is also to be noted that the administrative requirements of the Planning Authority, such as the requirement or otherwise to submit a Change of Perit form, are not to be confused with the overriding principles outlined in the Code of Professional Conduct.

 

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