Legal loophole means construction of freestanding buildings is unregulated, Sofia inquiry told

The construction of freestanding buildings is currently unregulated, the public inquiry into the death of Jean Paul Sofia discovered today to the evident consternation of board members.

This emerged from the testimony of lawyer Kurt Scerri, a lecturer at the Faculty of Laws at the University of Malta.

Scerri exhibited a compendium of conflicting legal dispositions in the laws regulating the construction sector in Malta. That compendium was the result of the first phase of a larger process, which is still ongoing and has since moved on to another phase that is due to be completed in February 2024, he said.

“The left hand doesn’t know what the right is doing. It is the order of the day in this country,” remarked Mr Justice Joseph Zammit McKeon, who is chairing the board of inquiry.

“We are now focusing on the Code of Police Laws and the Civil Code, preparing for the final phase where we propose changes,” Scerri reported, going to explain that the Civil Code demands certain standards of diligence for both periti and contractors, for which they were to be held responsible.

Lawyer Anthony Borg from the Office of the State Advocate asked what the role of the Building and Construction Authority (BCA) was with regards to the construction of freestanding buildings.

BCA had no jurisdiction at time of Sofia collapse

The BCA did not have jurisdiction over such construction sites at the time of the collapse which claimed the life of Jean Paul Sofia, on 3 December 2022, he said.

The Building Regulation Act had been introduced in 2011 in a bid to slowly introduce construction regulations, he said, adding that although the Act didn’t introduce new obligations itself, it put a framework in place.

“The first time this act was used was when the Avoidance of Damage to Third Parties Act (ADPTA) was introduced in 2013, which was later amended in 2019,” he said.

The public inquiry has heard that at the time of collapse and even today, there are no regulations governing freestanding buildings

However, ADTPA only applies in cases where the construction site had neighbours, he said.

“So, the act was introduced to protect neighbours?” asked Zammit McKeon. “No, it was enacted to introduce laws to regulate construction,” Borg replied.

“So did it contemplate the protection of third parties from free standing properties?,” the judge asked.

“I would be wrong if I say it did, because the Act itself didn’t refer to any type of building,” answered the witness, confirming that in 2011, the idea was to have every type of building fall within the remit of the law.

Regulations were made under the Development Planning Act, said the witness, adding that the act had not been amended after 2011. The Act was subsequently amended twice following the fatal collapse, first on 20 December 2022 and subsequently in May 2023.

The Environmental Management Construction Site Regulations (EMCSR) were introduced in 2007, Borg said. “The entity responsible for enforcing it was the Planning Authority. But from a report drawn up by the Kamra tal Periti, it appears that, by ministerial order, the enforcement of this act was passed on to the Building Regulation Office, a move which the Kamra tal-Periti had expressed scepticism about.”

The PA had been responsible for enforcing those regulations in December 2022, he said, explaining that on the date of the fatal incident, two applicable regulations were in force: ADPTA and the EMCSR.

The EMCSR’s emphasis was limiting damage to the environment and nearby properties as a result of construction, he said.

Nobody responsible

It emerged from the witness’s answers to Zammit McKeon’s questions that the position on 3 December was that the Building and Construction Authority (BCA) had not formally absorbed the functions of Building Regulations Office (BRO).

“So informally, on 3 December, who was responsible for the operation of the law?” asked the judge.

“There was nobody responsible, because the BRO, as a government department, had not been absorbed by the BCA,” Borg replied.

At this point the witness was warned by the Board that what he had just said had massive implications, but he confirmed this was the case.

“I replied in the way that I did because there was another angle. You had a law, the ECSMR, which in practice wasn’t being enforced,” Borg said. “From reports by the Kamra, the idea was that this law be introduced under the Building Regulation Act, but for some reason, probably a grave oversight, this had remained under the Development Planning Act. Had the BRO tried to enforce it, they would have failed because there was no way for them to use it.”

Ombudsman Joseph Zammit McKeon is chairing the public inquiry board

“So, because the minister issued an order, everything stopped. When did this happen?” asked Zammit McKeon, clearly outraged.

“It is not clear,” replied the witness. “This law refers to the Planning Authority… it was a significant legal lacuna. You had a law which wasn’t being enforced. From December, this year the changes necessary were made to allow the entity intended to enforce it – the BCA – to do so and now it can.”

Borg explained that the BCA Act doesn’t actually specify the authority’s jurisdiction and only states that it takes over the jurisdiction established by the laws that it superseded. “The avoidance of damage to third parties and the ECMSR have completely different areas of operation. This is not a typical law, with a parent act and offshoots. These are laws dealing with two completely different situations.”

While the ADTP regulated adjacent properties, the ECMSR dealt with freestanding properties.

‘My son isn’t coming back’

Zammit McKeon read out Article 2 of the ECMSR, which establishes the scope of the regulations, amongst them the limitation of environmental degradation and the minimisation of the risk of injury to the public and damage to property. “It applies to all buildings,” he said. “But the issue is who is to enforce them? The PA who says ‘no’ because of a ministerial order, the BCA who says ‘no not me’, or the stakeholders who say ‘it’s a self-regulating industry’?”

In September 2022, the regulation was finally moved into the Building and Construction Authority Act, said the witness. Asked whether there was any clause repealing the previous law, he said that there wasn’t. “Only a shift in enforcement.”

Answering a question put to him by lawyer Eve Borg Costanzi, Borg said while the BCA Act itself establishes principles, “it is the specific regulations which give it teeth and possibly conflict with other dispositions in the law.”

“So, there was nothing limiting the BCA’s remit at the time?” asked Borg Costanzi.

“Before 16 December 2022, there was the ECSMR. With regards to structures, there was nothing on the basis of which the BCA could act, unless the structure had neighbouring properties. After 16 December, the BCA absorbed the regulations and so it started inspections and enforcement,” Scerri replied.

Jean Paul Sofia

Zammit McKeon asked whether there was a lacuna (a legal loophole) at the time and whether “someone closed their eyes to it.”

“There was a lacuna in the way the ECSMR were enforced,” Borg said. “On 16 December what happened was that the subsidiary legislation was moved from under the PA to the BCA. The regulations remained the same, otherwise.”

“What concerns me most is the legislative loophole,” said the judge, turning to State Advocate Chris Soler. “Which we will fill, Dr Soler. We will fill.”

“But my son isn’t coming back, is he, Dr Soler?” Sofia’s father was heard telling the State Advocate.

Zammit McKeon summed up what the witness had said. “Dr Scerri is saying that the law regulating the BCA is 623 (the Building and Construction Authority Act). Regarding the regulations issued before it was set up, the BCA didn’t have jurisdiction over them. In order for this anomaly to be resolved, they shifted its competence under 623.”

The loophole remains

The witness pointed out that “with regards to the structure of freestanding buildings, to date, there are still no regulations.”

“So, the loophole remains and another incident like this can happen again. Now if you want to wait till the inquiry is finished…” the judge told the State Advocate, saying that he was choosing to bite his tongue at this point instead of completing the sentence.

After the rest of today’s witnesses finished testifying, the Board declared the evidence stage of the public inquiry closed, explaining that the Sofia family and the State Advocate would now file their notes of observations.

The inquiry board had heard no less than 69 witnesses, some of them more than once, resulting in around 1,000 pages of transcripts, in addition to some 1,800 pages of documents. The documents will be given page numbers by the end of November, said Zammit McKeon, telling the parties that they had until the end of December to submit their. notes of submissions.

“If that happens, on 2 January, the five-month period [allocated to the inquiry] ends. We will inform the Prime Minister that an extension is required. By 28 March, 2024 the Inquiry Report will be sent to the Prime Minister. If it is completed before, we will inform the parties of this.”