Third-party damage rules in a shambles, as Malta’s architects sound warning over safety

Malta’s Chamber of Architects has warned that the newly implemented Avoidance of Damage to Third Party Property Regulations will do little to guarantee public safety, “primarily because it further confuses the responsibilities on site.”

The Chamber said the regulations only severed to further confuse persons on site as to who was responsible for safety.

“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 site technical officer is being made to bear the shortcomings of the government to regulate the sector,” the Chamber said.

The Chamber said the legal notice was published without consultation with them, and that questions to infrastructure minister Ian Borg had yet to be answered.

“Responsibility should be clear and unambiguously defined in the interest of public safety,” the Chamber said, adding that any regulation that claims to contradict the Civil Code was 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 Chamber said there was also a third responsibility that needs to be borne, and that is the responsibility to regulate. “This responsibility can only be borne by the government. To date, the government has failed to fulfil its duty to regulate the industry adequately,” it said, pointing at the under-funded Building Regulation Office whose budget of €150,000 was barely equivalent to the salary of six of its employees, “rendering it effectively powerless and ineffective.” 

It said the BRO had not put in place a system for registration and licensing of contractors, exposing the public to inordinate levels of risk; and that the planning process was never clearly separated from the building regulation process, resulting in institutional confusion and inadequate enforcement.

Adding to the confusion were two circulars issued on Tuesday by the Planning Authority on the new rules. 

“Instead of the government investing in developing the BRO’s IT infrastructure, the PA had taken over the implementation of the new regulations from the remit of the BRO, and extended its online planning application system for this purpose,” the Chamber said.

Even worse, there was 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.”

MDA: new rules clairify anomalies

Site managers who represent the contractor on site should be technically qualified persons, but do not have to necessarily be a warranted architect, the Malta Developers Association said.

The MDA said that while the construction industry urgently needed an immediate and more radical change, mooting a development council empowered to licence rock excavators and demolition contractors, such responsibilities were not currently regulated in any way, meaning people without qualifications could take up contracts for such work.

The association added it wanted a register of approved developers to be implemented, something it had been suggesting for a number of years.

The association, contrary to the Chamber of Architects, claimed that the new rules helped clarify many existing anomalies related to the different responsibilities in the construction industry.

“Before these new regulations, owners or developers could engage anyone, competent or incompetent, to carry out works, even against the express advice and discretion of the architect responsible for the works.”

The MDA added that the legal notice however does not imply that “construction works should stop and therefore MDA intends to call an information meeting early next week for all contractors, developers and builders in Malta and Gozo.”

It said that more information would be made available soon.