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08/07/2019/by Kamra tal-Periti

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

Declaration by UIA President Thomas Vonier

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

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

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

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

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

Declaration by UMAR General Assembly

06/07/2019/by Kamra tal-Periti

PR 20/19 | Will this Legal Notice make our building sites any safer?

The Kamra tal-Periti rejects the assertion that it and its legal advisers have not understood the Legal Notice 136 of 2019. The fact remains that over the last week massive meetings of periti, contractors and developers were organised in order to clarify what was meant to be crystal clear.

In a meeting held yesterday morning between the Kamra tal-Periti and government consultants regarding the Legal Notice, in the presence of MDA president, it was agreed that changes to the Legal Notice were necessary, and in the interim the BRO would issue binding guidance to industry stakeholders on the types of works that may be exempt from the new regulations through regulations 25 and 26, and on the liabilities that the Legal Notice implies. It was made clear to the Kamra that no demolition and excavation works would be exempted from the new regulations, upon application. It is not clear whether this means that construction on existing buildings are not covered by the Legal Notice, in spite of Schedule Six. This means that the only way that some types of construction works may proceed is by the BRO agreeing that the regulations can be circumvented altogether. This begs the question whether public safety is being safeguarded with the coming into force of the new regulations, and how further collapses of buildings will be prevented, and whether the whole confusion created was worth the effort.

The Kamra has reiterated its advice to periti to follow the requirements of the Legal Notice in its current form, until such time as the BRO issues binding guidance on the interpretation of the Legal Notice. When such guidance is issued, the Kamra will verify whether such guidance reflects what was verbally agreed, and will advise members of the profession accordingly. The Kamra was also given assurances that it would receive the fourth version of the relative BRO forms for its review before their re-publication. The BRO did not follow through such assurances. The Kamra is still not in agreement with the forms as published yesterday evening.

The Kamra is very concerned that only a few hundred building sites are currently operational. It cannot understand why all this chaos has been created, when now we are being told that most sites, except for excavation and demolition works, can qualify for exemption from the rules. Will this Legal Notice make our building sites any safer?

The Kamra’s demand for a proper registration of contractors, which was forcefully echoed by the MDA’s members at yesterday’s information session, has so far not been implemented by government. In the Kamra’s view, this is the most critical step in safeguarding public safety and preventing a repeat of the accidents of the last two months.

02/07/2019/by Kamra tal-Periti

PR 19/19 | Developments on LN 136 of 2019

Verzjoni bil-Malti

The Kamra tal-Periti would hereby like to notify the following developments since the bringing into force of LN 136 of 2019.

Meeting with Government

Government requested an urgent meeting with the Kamra tal-Periti to discuss the new regulations that were brought into force earlier this week. The Kamra tal-Periti immediately accepted the offer for a meeting which happened yesterday afternoon.

During this meeting, which lasted almost three hours, the Kamra outlined in detail the several issues in the regulations and the positions voted upon in the Extraordinary General Meeting held on Friday 21^st June 2019. The Kamra also expressed its deep concern for public safety due to conflicts between the Civil Code and the new regulations, and the confusion surrounding the apportionment of responsibilities.

The Kamra tal-Periti also insisted on the urgency for the setting up of a system of registration of contractors so members of the public, and periti themselves, can begin to regain confidence in the industry.

It was agreed that further meetings would occur in the next few days during which amendments to the new regulations will be proposed by the Kamra together with its team of legal consultants for Government’s consideration.

The Kamra tal-Periti reiterates its commitment to assist Government in fulfilling its intention to bring about a positive reform of the industry in the interest of public safety.

Exemptions under Regulation 26

Regulation 26 states that “[w]hen before the start of the works, the perit in charge of the project certifies, after giving clear reasons, that the structural interventions will not affect third party property, the provisions of regulations 4, 5, 6, 7 and 8 do not apply”.

This implies that if a perit certifies that no damage will occur to third-parties during works, the entire set of regulations can be circumvented. If damages do occur, the perit issuing such certification would carry personal criminal and civil responsibility for anything that happens, even when the contractor is at fault.

This has put members of the profession under immense pressure to sign such declarations as contractors and developers are incurring extremely high costs due to the effective suspension of works. The Kamra has received multiple reports from members of the profession who received personal threats as well as threats of crippling and vexatious lawsuits if they do not sign such declarations.

The Kamra tal-Periti is hereby making it clear that if any such lawsuits are filed against periti who are diligently and responsibly applying the law, it will enter such lawsuits parte civile and put all its resources to defend its members against cowboy operators.

The Kamra will also be writing to the Chief Justice to request that such lawsuits are dismissed on a prima facie basis in the interest of public safety.

Exemptions under Regulation 25

Regulation 25 states that “[w]orks of excavation, demolition and construction, that would have started but are not complete on the date of the 25^th June 2019, as well as those works of excavation, demolition and construction, that still need to begin, fall under the provisions of these regulations provided that the Director of the Building Regulation Office reserves the right to issue appropriate orders according to the requirements and nature of the particular site.”

Members of the public are urged to write to the Director of BRO on commencement.bro@gov.mt keeping in copy their perit asking for clearance to proceed with works, and insisting that a clear scope of works and a list of the specific exemptions from the regulations are specified in such clearance.

The Kamra tal-Periti will continue to defend and promote the interest of public safety first at all times.

28/06/2019/by Kamra tal-Periti

PR 18/19 | Kamra tal-Periti calls for all stakeholders to abide by the new regulations

The Kamra tal-Periti has issued a directive this morning instructing all members of the profession to strictly abide by the regulations published yesterday by Government in the interest of public safety.

We must bring to the attention of the public the fact that all excavation, demolition and construction works carried out in sites which are contiguous to third parties must follow the regulations. This includes the preparation of fresh condition reports of third-party properties, fresh method statements, revised insurance policy premia, and the appointment of an STO by the contractor, or by each individual contractor present on site. Naturally, all these new requirements could not be addressed within 24 hours but require several weeks, which include the minimum two-week period granted to the third-parties to review and possibly contest the reports and method statements.

Until all the provisions are adhered to, all works are in effect suspended. Fines for non-compliance with the regulations are €50,000.

26/06/2019/by Kamra tal-Periti

PR 17/19 | Kamra tal-Periti calls for clear responsibilities in the interest of public safety

The Kamra tal-Periti notes with deep regret that L.N. 136 of 2019 Avoidance of Damage to Third Party Property Regulations, 2019, was published by Government yesterday afternoon without prior consultation with the Kamra as required by law, despite various requests for meetings over the past two weeks. The Kamra tal-Periti has again requested to meet Government after the new regulations were published to discuss its grave concerns for public safety resulting from the new regulations themselves. The questions that the Kamra sent to Minister Ian Borg yesterday remained unanswered.

The Kamra tal-Periti has consistently insisted that responsibilities should be clearly and unambiguously defined in the interest of public safety. The Civil Code specifically identifies two figures who should carry such responsibility: the perit and the contractor. Any regulation that purports to contradict the Civil Code is only contributing to the confusion that has characterised the industry in the last decades.

The responsibilities in the Civil Code are clear.

The perit is responsible to design, specify and direct the works to ensure that the building is safe. The contractor is responsible for executing the works, including following the design, specification and direction of the perit. It is up to the contractor to decide the composition and qualifications of his personnel to fulfil his responsibilities. This is the norm in developed countries.

The Kamra believes there is a third responsibility that needs to be borne, and that is the responsibility to regulate. This responsibility can only be borne by Government. To date, Government has failed to fulfil its duty to regulate the industry adequately, as discussed below.

The BRO was left severely underfunded for years, with a meagre annual capital budget of €150,000, which is barely equivalent to the salary of six of its employees, rendering it effectively powerless and ineffective.
The BRO has not put in place a system for registration and licensing of contractors in breach of Article 5 of the Building Regulation Act. This exposes the public to inordinate levels of risk.
The list of licensed masons was only published last Friday during the Kamra’s EGM. The Kamra’s numerous requests for such a list over the past years, were dismissed by the BRO on the basis of data protection considerations. It is pertinent to point out that the list as published is in breach of Article 22 of the Services Directive which requires that the identification and contact details of masons and contractors be published so they may “be contacted rapidly and communicated with directly”.
The planning process was never clearly separated from the building regulation process, resulting in institutional confusion and inadequate enforcement. This confusion was further exacerbated when the Planning Authority (PA) issued two circulars yesterday evening about the Legal Notice, which falls under the remit of the BRO. Moreover, instead of Government investing in developing the BRO’s IT infrastructure, the PA has taken over the implementation of the new regulations from the remit of the BRO, and extended its online planning application system for this purpose. This is exacerbating further an already confusing situation.
No centralised building and construction regulations in line with those of other European Member States are in place. The few that are in place are contradictory or obsolete and fall under the remit of over 22 public entities.
The draft Periti Act has been left in abeyance for over 12 years, leaving the profession unable to modernise itself in line with contemporary requirements and EU regulations.
The Construction Products Directive, which falls under the remit of the MCCAA, was never enforced. This means that virtually no building and construction products on the market, which forms part of the wider European single market, are CE certified, and are therefore illegal. This has significant consequences for the consumer and the perit, in that there is no way to verify that the specifications are being met by the suppliers of building products, including bricks and pre-stressed concrete planks.

The Kamra tal-Periti is of the opinion that the Legal Notice does little to guarantee public safety primarily because it further confuses the responsibilities on site. This, coupled with the fact that the requirement for registration and licensing of contractors has not been brought into force, results in a situation where effectively the STO is being made to bear the shortcomings of Government to regulate the sector.

26/06/2019/by Kamra tal-Periti

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

The Kamra tal-Periti welcomes the timely publication of the list of licensed masons on the website of the Building Regulation Office (BRO). The Kamra tal-Periti has been asking for the publication of such list for many years, and each time it was told that this could not be published for reasons of data protection.

The Code of Police Laws stipulates that “It shall not be lawful to exercise the trade of mason without a licence …”. This licence is required to give assurance to the owner of the site, the perit in charge of the project, and society at large that such person is indeed qualified to carry out this trade and has received the appropriate training. The Code of Police Laws also states that “If any mason, through unskilfulness, imprudence or carelessness, shall, in the construction of any work entrusted to him, and appertaining to his trade, cause any injury to any person or property, it shall be lawful for the Court of Magistrates to interdict such mason from the exercise of his trade for any time to be stated in the sentence, ordering, at the same time, the withdrawal of the licence.” The responsibilities arising out of the Code are very clear, and no lesser legal instrument can be used to infer otherwise.

The publication of the list is therefore a welcome move, and it is expected that the BRO will not permit works to continue on any site where masons are found not to be on the list.

It is also pertinent to note that the Civil Code places the onus for the structural integrity jointly on the perit and the contractor. The Building Regulation Act also places the obligation on the BRO to issue “licences and registration of masons, fire consultants, other consultants in the building industry, building contractors and tradespersons.” The EGM of the Kamra tal-Periti held on the 21^st June 2019, which was the largest in the Kamra’s history, demanded that such licencing and registration is implemented. The Kamra tal-Periti reiterates its willingness to support Government in setting up systems for the registration and licensing of contractors in accordance with the BRO’s obligations as set out in the Building Regulation Act.

22/06/2019/by Kamra tal-Periti

PR 15/19 | Public safety must come first

At an Extraordinary General Meeting held on the 21^st June 2019, and attended by around 400 Periti, it was unanimously agreed that public safety is paramount, and that no effort should be spared to ensure that the safety of people in their homes, and their quality of life, are the topmost priority of all involved in construction industry, including the respective regulators.

The time is long overdue for Government to properly address in a holistic manner, the problems besetting the construction industry, and not through a piecemeal approach. Hastily drafted and ill-thought revisions to a Legal Notice will not serve to ensure public safety, but rather serves only to confuse the various roles and responsibilities on construction sites. In particular, the EGM emphasised that under Malta’s Civil Code there are only two figures responsible for construction work, namely the Perit and the Contractor. Consequently the role of a site manager, as conceived in the Legal Notice, could only be assumed to be within the contractor’s setup, since the Contractor was obliged at law to understand and follow the instructions issued by the Perit, and be sufficiently knowledgeable to understand the significance of such instructions.

A contractor may employ or engage any knowledgeable person, including technical professionals, to take control of the site, and to help the contractor and all personnel understand the instructions received, without diminishing the contractor’s responsibility in terms of the Civil Code in any way. Periti must, on the other hand, bear responsibility for all instances where there may have been negligence, or where due diligence was not sufficiently exercised by them in discharging their services, which include designing the structure so as to be safe and in accordance with regulations, issuing particular works instructions and specifications, particularly for excavation, demolition and alterations or extensions to existing buildings, During the EGM, Periti reaffirmed their commitment to take full responsibility for the tasks that were within their remit. They however demanded that Government stops dragging its feet, and immediately takes the necessary steps to ensure that the framework which allows Periti to ensure public safety is in place and effective.

In this context, the EGM is demanding that the amendments to the Periti Act, that the Kamra tal-Periti has been insisting on for the last 12 years, be approved, in full consultation with the Kamra; that Government enters into immediate discussions with the Kamra, on the Building and Construction Regulation Framework it has proposed, and to agree on its implementation within a reasonable timeframe; that, even before the setting up of the Building and Construction Authority, a proposal which the Kamra has supported since its inception, Government immediately provides the Building Regulation Office with all the necessary financial, human, and technical resources it requires to deal with its workload; and finally, that Government implements the obligations of the regulator as far as concerns the certification of all building products, both produced locally or imported, as required by the Laws of Malta since 2011.

The EGM is demanding that any Legal Notice should, rather than contain technical detail that is better placed in building regulations, include provisions that empower the Perit to suspend works, and lodge a report with the Building Regulations Office, without having to relinquish his commission, if the contractor or developer refuse to comply with the Perit’s instructions on matters relating to structural integrity.

Finally, the EGM is demanding that there should be a clear separation between planning application and permitting processes, and the processes by which building and construction is notified, regulated and monitored. Nearly five years have been wasted as a result of the misguided advice given to Government that the two processes should be brought together under the remit of the Planning Authority.

The EGM finally reiterated the profession’s full commitment to ensure public safety, and urged the Government to enter into discussions with the Kamra, as the sole and legal representative of the profession, rather than depend on advisors or entities which may not be adequately familiar with the technical and engineering aspects of the construction process.

22/06/2019/by Kamra tal-Periti

PR 14/19 | Avoidance of damage to third party property – new regulations

On the 13^th June 2019, Government halted all demolition and excavation works in the country as an emergency action in view of the recent spate of structural collapses which occurred adjacent to construction sites, a measure which the Council of the Kamra tal-Periti understood to be necessary due to the potential risks to public safety resulting from the lack of adequate regulation and of which it immediately informed periti. That day the Prime Minister announced that new regulations would be published regarding excavation and demolition works to address a number of issues. Draft amendments to the Avoidance of Damage to Third Party Property Regulations were published on Monday 17^th June 2019, and concern the following main aspects:

The definition of site responsibilities, in particular those of the site manager;
Increase in insurance cover and requirement for its renewal;
The process for the submission of the method statement and condition report, including regarding the need and frequency of geological and geotechnical surveys;
Exemptions; and
Penalties.

The Council of the Kamra tal-Periti together with its team of technical experts has reviewed the proposed draft, and has this morning issued a preliminary position to all periti. This will be discussed and approved at an Extraordinary General Meeting to be held on Friday 21^st June 2019. Periti have been given until Thursday at noon to submit their comments in writing to the Council, following which a final draft will be circulated.

The following is an Executive Summary of the Kamra’s initial reactions:

The rush to implement these piecemeal changes to the regulatory regime that governs the building industry is ill-thought. Our regulations and legislative instruments need a complete overhaul, as the Kamra has repeatedly stated since 2007. Attempting to amend the current regulations without having considered their impact on other pieces of legislation as well as on current practices and capacity of the industry is a recipe for further confusion and lack of clarity, rather than addressing the issues of safety which these changes purport to address. Even if the purported aim is to address the dangerous process of demolitions and excavations adjacent to existing properties, the Legal Notice proposes to address all other construction activities, but, at the same time, fails to address the other dangerous process of loading party walls, and their foundations, designed to carry two or three storeys, by many more floors.
The amendments claim to clarify the roles of the figures engaged on a site. However, there are glaring incongruencies with roles defined in other legislation, and rather than clarifying, the proposals introduce new roles without defining appropriate competences, while ignoring the existence of figures already defined in other legislation, such as licenced masons. It also ignores the blatant lacuna regarding the legal obligation for registration of contractors, who are liable, as per Civil Law, jointly with the perit, for the structural integrity of buildings.
The proposed processes for the submission of method statements, geotechnical investigation reports and geotechnical design reports are cumbersome and more intent on establishing who does them, who submits them, when and to whom, than on establishing the criteria for their preparation. The Kamra is of the opinion that this is a result of the lack of research to understand how such instruments are used internationally, and trying to adapt them to the local situation, with no regard for scale or complexity of projects.
The proposed draft seems to imply that the measures proposed therein are to apply retroactively to ongoing projects. This will have implications on the capacity of the industry to respond in a meaningful manner.

In our view, the proposed Legal Notice in its current form is not acceptable. The full version of the Kamra’s analysis on the draft will be published at the end of the consultation process following the EGM.

18/06/2019/by Kamra tal-Periti