Archive for category: Circulars

Dear Colleagues,

Following the Extraordinary General Meetings held on the 21^st June 2019 and the 5^th July 2019, the Council has been busy discussing a way forward with Government. Progress has been made on a number of issues, while others remain open for discussion.

Follow up on EGM of the 21^st June 2019

Those of you who were present for the first EGM of the 21^st June 2019 will remember that this was held on the last day of the public consultation on the draft of the subsequently published LN 136 of 2019. There were a number of points which the profession unanimously agreed required to be addressed, and three overriding matters which the profession confirmed to be unacceptable. These concerned:

• the lines of responsibility between the owner / developer, the contractor and the perit in charge following the introduction of the figure of the Site Technical Officer and certain text in the draft which contradicted other legislation and historically established lines of responsibility;
• the reports and studies required to be submitted, which at the time were considered to be overly onerous for certain small to medium projects; and
• the urgent need for registration, licensing and classification of contractors.

Circular 05/19 was issued on the 26^th June 2019 with detailed explanations of each of these points and the situation as at that date. You may read the Circular here.

Following on the Council’s insistence regarding the third point, on the morning before our second EGM, Government announced that registration of contractors would be undertaken as from the 10^th July 2019 by the Building Regulation Office (BRO), and that licensing and classification would be in place by the end of the year. This step was announced at a joint press conference headed by Minister Ian Borg and Parliamentary Secretary Chris Agius, flanked by the Kamra tal-Periti as the main promoters of this step, and the Malta Developers Association.

It later transpired that the BRO abdicated its obligations with regard to setting up a register of contractors, passing this task on to the Malta Developers Association, in what seems to be merely an exercise in collection of data, and not registration as originally requested by the Kamra, and as already required by the Building Regulation Act. While it may be argued that this process is not in line with the Act, it is nevertheless a start, and we hope that we will see the ultimate goal of enacting a system of licensing and classification coming into force by December. In this regard, the Council has taken a pro-active approach by drafting proposals for a Legal Notice to establish a workable system that will also lead to better tendering processes and to clear identification of contractor competences. We are working incessantly to ensure that this comes to fruition in the coming months.

Follow up on EGM of the 5^th July 2019

During the second EGM held on the 5^th July 2019, the Council presented the progress that had been achieved on the points outlined above and on others which the profession had tasked it to work on following the first EGM.

It was noted that while the Legal Notice in its entirety required various adjustments, also to bring it in line with already established local and international practices, and to ensure that it is a workable legislative instrument which truly ensures public safety, there were a number of points which were more important than others and which required immediate attention. The below is a summary of such points, together with a brief outline of the progress achieved to date on each:

• Lines of responsibility between the developer, the perit in charge and the contractor: The Legal Notice contradicts historically established practices, both locally and internationally. On this matter the Council is currently in discussions with the Ministry and the BRO, to address the anomalies highlighted by the Kamra on several occasions.
• Definition of perit in charge: The definition stated in the Legal Notice is: “the perit that is going to assume responsibility for the execution of the project approved in the development permit.” As agreed by the EGM, the perit in charge is not, and has never been, responsible for the execution of the project. That is the contractor’s sole responsibility. The role of the perit in charge is to design, specify, direct, monitor and approve the works, as well as to assume responsibility for the permanent structure. It is therefore important that the definition in the Legal Notice is amended to reflect this. The Council is, concurrently, working with the BRO on establishing guidance regarding the roles and responsibilities on construction sites, however until this exercise is concluded it is imperative that the definition is changed.
• The role of the Site Technical Officer (STO): This role is defined in the Legal Notice, and includes the requirement for the STO to be “present on site whenever decisions are being taken that influence the risk of damage to third party property or injury to persons that may be caused by the works“. However, the definition of the STO’s role also requires her/him to be “responsible for the enforcement of the method statement covering the works which the contractor who nominates him is responsible for.” The “enforcement” of the method statement automatically implies that the STO’s presence on site is much more onerous than being there only when decisions are taken (also considering that the word “decisions” is not really defined). The Legal Notice also implies that if the contractor does not abide by the method statement, the STO may be held responsible, in her/his professional capacity, for the contractor’s failures. It must, in any case be stressed that having an STO on site should not detract from any of the obligations of the perit in charge to monitor the works regularly in order to ascertain that they are compliant with her/his specifications.
• The requirement that the Site Technical Officer (STO) is to be approved by the perit in charge: Legal advice obtained by the Kamra has indicated that this requirement may give rise to possible exposure to colpa in eligendo as a result of the approval of an expert appointed by a third party. The EGM agreed that this matter can be easily resolved by having an official list of persons, including periti and other professionals who register with the BRO to offer the services of an STO. Once these persons are approved by the BRO, there is no need or reason for the perit to approve or otherwise who the contractor decides to appoint to take on this role. It is an established fact that any service provider is responsible to engage competent persons to provide the services requested, and there is no logical reason why the perit must approve who the contractor engages.
• Competences required to carry out the role of STO: At the moment, the Legal Notice only contemplates periti as being capable to carry out this role. Government has already indicated its intention to extend the competences to include Electrical and Mechanical Engineers, and others. On this matter, the Council had presented a list of other competences for Government’s consideration, also keeping in mind Malta’s obligations in terms of the Services in the Internal Market Directive, since the Legal Notice appears to exclude the participation of foreign professionals for this specific role. It is understood that these proposals are being actively considered.
• Works Specifications vs Method Statement: On this matter, there is agreement across the profession that the Method Statements as described in the Schedules should be split into two parts, namely: Works Specifications which are prepared by the perit in charge and which specify the interventions to be carried out on the site; and a Works Method Statement which is to be prepared by the contractor.
• Distinction between temporary and permanent works: One of the main concerns with the Legal Notice is that it does not make any distinction between the “permanent works“, i.e. the final building structure, and the “temporary works”, i.e. the process of erecting such structure. The former is the responsibility of the perit, while the latter is the responsibility of the contractor, under the perit‘s direction. Ultimately, the perit and the contractor carry joint liability for the structural integrity of the final structure in terms of the Civil Code. The terms “permanent works” and “temporary works” are internationally well defined, and are also used locally in a number of projects. Clarifying the works falling under each aspect would make it easier to clarify roles and responsibilities for each.
• Regulations 25 and 26: These regulations deal with the option for the submission of requests for exemption from abiding by all, or parts, of the Legal Notice. At the time of the EGM we were still unsure as to how these would be working, however since then we have had several discussions with the Ministry and BRO, and have worked well with both to come up with solutions through the introduction of the relevant application forms, even though the Council is still of the opinion that some of the wording of the forms requires amendment. The Council is still working hard to put forward its proposals in this regard, to ensure that these changes are effected in order to safeguard the profession in terms of the declarations made on such forms. Further guidance on the use of the relevant forms may be found in Circular 09/19 here.
• Discrepancies between Maltese and English versions: Although at law the Maltese version prevails, the Council is of the opinion that it is important that certain glaring differences between the two versions are amended especially when considering the number of foreign periti, contractors and developers operating in Malta who would more naturally refer to the English text.

Way forward

All of the above positions have been presented to Government in the various meetings held since the last EGM. There is convergence and understanding on a number of points, yet not on others. We have requested an urgent meeting this week, to go through all the above points again, and to get a better understanding of the way forward in addressing them.

Following this meeting, the Council will be in a better position to review the situation, and inform you accordingly. Meanwhile, kindly note that Directive 03/19 and Directive 06/19 still stand. The Council is actively investigating any reports of breaches of said Directives.

Premju Emanuele Luigi Galizia

Allow me to take this opportunity to congratulate, on behalf of the whole Council, the finalists of this year’s edition of the Premju Emanuele Luigi Galizia. The standard of submissions received is very high, and we look forward to another successful edition which promotes quality in architecture and civil engineering, and to encourage excellence in our built environment.

All members of the profession are invited to attend the presentations which the finalists will be making to the various judging panels. A full program can be perused here.

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

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:

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

Guidance regarding Regulation 25 of Legal Notice 136 of 2019

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

Additional Guidance

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

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

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

Perit Simone Vella Lenicker

President

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:

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

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

1. The Site Technical Officer (STO)

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

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

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

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

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

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

2. 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.

3. 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.

4. 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