Prevention is better than collapse… | Robert Musumeci

Architect and government consultant ROBERT MUSUMECI defends the new construction site management regulations from external criticism, on the grounds that they provide a much-needed framework for effective enforcement

You are an architect with your own private practice; at the same time, you are also a government consultant who helps draw up legislation regulating the architecture profession. Do you see this as a conflict of interest?

As a government consultant, my job is merely to give advice. In all parts of the professional sphere, you will find professionals whose job is also to offer advice. It is a state of fact that legislators rely on advice from professionals in the fields that they regulate. It happens in the financial sector; in maritime law… it is not something out of this world. I think it is natural and normal for anyone who can contribute, because of his or her experience in the field, to offer that type of advice. For instance, right now, new planning policy regulations are being drawn up. I am not involved in it, myself.  But other professionals, who have an interest in the sector, are involved. And rightly so. Because if we want to have good, effective planning policies, I would say we need the input of experienced people who have knowledge of the sector. Another example: many members of parliament are lawyers. They draw up legislation themselves. They are not advisors; they actually write the laws that regulate their own profession. Is that a conflict of interest, too? I don’t think so. I think lawyers have a very valid contribution to make, when drawing up legislation…

You say you’re just an ‘advisor’, but didn’t you also contribute directly to the writing of the new regulations?   

Yes, of course I did….

So you’re effectively also a legislator yourself…

But only in an advisory capacity. At the end of the day, it’s not me who takes the decisions. I suggest how to write the regulations, but it is up to the legislators to decide…

What makes it a possible conflict of interest, however, is that you might be benefitting from the resulting legislation. Between 2008 and 2016, you secured 55 ODZ permits for your clients, after changes to the ODZ regulations that you reportedly helped to draw up…

That is something your newspaper reported [in 2017], but the truth is that I was not involved in drawing up any new ODZ regulations. To this day, people still think I had an input into those regulations… if not that I actually wrote them myself… but it’s not true at all. Not only did I not write any ODZ regulations… but those regulations are now being revised, and once again I have nothing to do with it at all. I am not a planner. My competence is in law, not in planning. When it comes to planning polices… it is simply not my field. 

Very well, let’s turn to the new regulations. According to these rules, if someone is concerned about excavations or construction next door, they can engage an architect for a second opinion regarding the building permit. But the concerned resident (who could be a pensioner living off EUR500 a month) would have to pay for that service. Isn’t this a case of social injustice?

You have to see things in the context of what there was before. Until last week, the situation was that you could wake up any day of the week and find a bulldozer excavating a plot next door. What could you do? Before the new regulations, the developer in question was supposed to engage an architect to prepare a ‘method statement’. But that was it: the law only said ‘method statement’. Nothing more, nothing less. It was up to the architects to interpret it any way they choose. Subsequently, the developer also had to appoint a ‘site manager’ to oversee the works. But again, there was no specification. The site manager could have been literally anyone…. with all due respect, even people who know nothing about architecture or construction. And the job of the site manager is to interpret complex planning permits, and ensure that the conditions were respected. It requires certain expertise. That was the situation, under the previous regulations. What is different today? The method statement still has to be drawn up... with the difference that we introduced a very detailed schedule on how that statement had to be prepared. Where before, it could just be a cut-and-paste job… for example, just use a trencher to cut a trench between the two plots, so that the adjacent building is not affected by vibrations. But what if there was a [geological] fault that was invisible? None of that was addressed in the old regulations. But the new rules outline a very clear, detailed strategy of what needs to be done. The architect who is going to authorise the excavation, is now required to go through all these 13 points [indicating copy of law]. An architect who authorises additional floors, on a building built in the 1960s – before I was even born – now has to do all these additional checks. Until last Monday, all this was arbitrary. Now, there are clear procedures to be followed… and unlike before, when the method statement was very difficult to access… it is now online. The neighbour can gain access just by going online…

All well and good, but it doesn’t answer my question. Once citizens access the method statement… what can they actually do to challenge it? Do they have to pay hefty architectural fees, just to ensure that their own house doesn’t collapse?

Whether we like it or not, this is a technical document. So when you have an issue of a technical/legal nature – for argument’s sake, you’re involved in (God forbid) a car crash, and it’s not your fault… sooner or later, you will have to seek technical/legal advice. And yes, it will have to be paid for…

But developers and contractors make millions out of the construction sector, while the victims of their abuses are rarely able to afford expensive professional services. Where’s the social justice in that?

You are very correct to say that. It’s a very fair comment. But at least, today the citizen does have access to recourses in such cases... 

At an exorbitant, prohibitive cost…

Perhaps, but what do you propose as an alternative?

That, for instance, it should be the developer to pay for the second opinion… seeing as how it is the developers’ actions, at the end of the day, that place other people at risk…

Fair enough, it is something that could be considered. Bear in mind, however, that I’m not a politician. I don’t legislate, myself. The most I can do – and I did it, in this case – is offer technical advice. But this should also be seen as a first step. Before, it was practically a free-for-all; now, there are very clear, very accessible rules of engagement…

What’s the second step?

I was coming to that. Until last Monday, the developer was obliged – at least, on paper – to nominate a ‘site manager’. The law didn’t state anything in so far as competencies were concerned. I don’t know if you’re aware, but the reality on the ground was that the developer could (and often did) simply appoint his own brother, sister, uncle or son as ‘site manager’…. which is a very technical, very delicate position. Now, the ‘STO’ – because we don’t call them ‘site managers’ anymore, they are now ‘Site Technical Officers’, to avoid any confusion with other mentions of ‘site manager’ in other parts of the law. But as the name infers, the STO has to be technically competent. So we created a schedule, and so far, only ‘periti’ [note: ‘perit’ is a legal term encompassing architects, civil engineers, etc.]are entitled to serve as STOs.  Government can, at any time, add other competencies to the list. It can do this instantly, by means of a legal notice. The important thing, however, is that these people have to be technically competent. 

Aside from competence, there is also the question of legal culpability. The Kamra Tal-Periti has objected to its members being saddled with additional legal responsibilities, which are not actually part of their profession. Don’t they have a point?

The responsibility has always existed, however. Even under the old framework, the architect preparing the method statement had a responsibility to ensure that the methods adhered to regulations. Now, the architect at least has proper guidelines to work with. Then we have the contractor, who is obliged to implement the method statement on site; and now, there is an STO who must ensure that the contractor implements all the correct measures… but with a huge difference. If the STO detects that the contractor is not adhering to the statement, then he has an obligation to stop the works…

But that is precisely what the Kamra is objecting to. Since when is it a perit’s job to enforce building regulations?

I’m not denying that it is a huge responsibility. But it’s also reality. The only profession that can really ensure that a construction site complies with its technical obligations, is that of a perit… who speaks the same language.  And even if we extend the schedule to include other professions – for instance, engineers – the responsibility will still be there….

At the same time, however, the STO is engaged by the developer. Does this mean that the developer is ultimately responsible for overseeing his own construction site?

That was the situation before the new rules came into force. Now, under the new rules, the STO is engaged by the contractor, not the developer…

But the contractor still works for the developer… 

We took this cue from the Kamra Tal-Periti. Initially, the idea was for the STO to be appointed by the architect drawing up the method statement. But that idea was very much resisted by the Kamra; and I think they were correct. Because ultimately, the STO has to work with the contractor, not with the architect. So it has to be the contractor to seek guidance from the STO. The Kamra’s arguments were very logical, I would say. 

Turning to the issue of the excessive case-load of pending applications: Prime Minister Muscat has admitted that he construction sector growth outstripped by far the growth of the enforcement capability. Isn’t that just another way of saying that too many building permits are being issued, too quickly?

That’s a question to ask of a planner. I am not a planner…

No, but you do apply for planning permits on behalf of your clients. Surely you have an opinion about the sustainability of the machinery that churns out permits at such an exponential rate?

What made it unsustainable was the lack of a proper enforcement infrastructure. But that is the whole point of these new regulations: they introduce the necessary framework to bring the sector in line…

Do they really, though? Both the PA and BRO are severely understaffed, and already struggle to cope with the ever-growing caseload. These new regulations place further stress on the system, without any additional investment in resources for the regulatory authorities. What’s the point in, for example, ‘increasing penalties’… if the enforcement section is underequipped to actually enforce the law?

I can’t speak on behalf of the executive… but I am aware that government is committed to increasing the resources available to the authorities. So much so, that the next step is to create a new authority precisely to manage all this…

But there already is an authority for that: the Buildings Regulation Office. What sense does it make to create a new authority, because the first one was too under-resourced to function? Wouldn’t we end up with two dysfunctional regulators, instead of only one?

You are right to highlight the need for a structure to implement these changes. Because it is not easy to manage all this. But the Kamra itself agrees with the setting up of a new authority. And if the new laws are onerous – which they are – well, they had to be, because of how the situation was before. We didn’t want to come up with a half-baked measure…

Some argue that it Is a half-baked measure, though. The consultation period was only four days. Why such a rush?

Yet again, the deadlines were set by others, not by me. 

I am aware of that, but it still creates the impression that government’s interest was just to make a big show of taking action… while not addressing the real causes for concern…

Is it just a ‘big show’, however? I admit that the new rules are very onerous… but I invite anyone to contest any technical issue with these regulations; to highlight any proviso which they think should be removed or amended. It’s an open invitation: I would be willing to listen, and relay the message to the executive so that they can decide. If there’s anything people feel doesn’t make sense… come forward. To date, however, I haven’t heard any technical objections to any part of the bill…

Isn’t it a bit late for that, with the consultation period closed?

I am sure – convinced, actually – that government will still listen. If there is a technical flaw, which could put people in danger… government will definitely listen. Of that, I have no doubt whatsoever.

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