In recent days and weeks there has been a lot of debate on construction, almost all which has focused on how construction sites can be made safer for third-party properties. The collapse of a neighbouring building is a very serious matter but it is not the only consequence of bad practices in the construction industry. Construction sites sometimes cause severe inconvenience to neighbours and passers-by because of dust emission, noise and the blocking of pavements.
The problems in the construction industry are complex and deeply ingrained. Tweaking the legislation and forcing architects to complete endless forms will do little to address issues of safety, nor will it resolve the many inconveniences that are caused to neighbours. What is needed is a culture change that comes with long-term sustained action by the authorities, including legislation, enforcement, communication to stakeholders, the training of construction workers and contractor registration.
In this article, I will write about the new legislation that was enacted between 2007 and 2013. I was involved between 2008 and 2013, first as Chairman and CEO of the Building Industry Consultative Council and then as technical advisor to the relevant Ministry. I explain the thinking behind the then-new legislation and how it was being developed as part of a culture change process. These reflections are based on my own past experience in this sector and I write in the hope that they will help to better inform decisions that are, and that will be, taken in the coming weeks and months on building regulations.
The problem of safety to third party property is not new. Following a very serious incident in 2004, the relevant government agencies at the time took the initiative to enact new legislation. Apart from safety, another concern was that there was no mechanism that enabled neighbours to voice their concerns about the safety of construction sites nor was there any means for the authorities to intervene in situations of evident danger.
The 2013 legislation on safety to neighbouring properties
The Avoidance of Damage to Third Party Regulations (ADTP) was enacted in 2013. As the name suggests, the intention was to create a mechanism which would make the damage to third party property far less likely. The requirement of a written method statement was intended to ensure clearer communication between the architect and the contractor, while at the same time making the relevant information accessible to the regulator (Building Regulations Office, BRO) and to the owners/occupiers of neighbouring properties. The regulations required the placement of the method statement on the website of the BRO. The transparency would help mitigate some of the fears that neighbours would inevitably have. More crucially, transparency empowered the Building Regulations Office to intervene if it was not convinced about the method statement and/or adherence to it.
The ADTP regulations also required the appointment of a site manager whose responsibility it was to ensure that the method statement was adhered to. This was debated at length. Having a competent site manager was preferable but making this obligatory would have created other difficulties, including how to legally define ‘competent’ and whether there would be enough people to carry out that role. Another concern was that requiring a competent person to act as site manager would have made it easier for some developers to avoid compliance.
A main strength of the regulations was that it gave neighbours a mechanism for voicing their concerns. The first point of reference was the site manager. Neighbours could also view the method statement, which the developer was obliged to make available on the website of the Building Regulations Office. If still not satisfied, neighbours could then make a formal complaint to the BRO, which was obliged to investigate it.
The legislation empowered the BRO to seek more information from the project architect and/or the contractor and to make specific demands to increase safety. If this did not achieve the desired result, the BRO could take the ultimate action and stop the work. Regrettably, things did not happen this way because the authorities chose not to enforce the legal requirements, especially those relating to the method statement and site manager. Neighbours were left without any means of redress.
The overriding objective of the ADTP regulations was to increase safety to third party properties. Intrinsic to this objective, the regulations sought to achieve better on-site communication and better workmanship through the method statement mechanism. They also sought increased transparency, making it easier for neighbours to voice their concerns and for the regulator to take action where necessary. These principles and objectives were established in a process of extensive consultations with all interested parties.
The ADTP regulations were drafted by a team of architects and engineers, of which I am proud to have been the coordinator, under the political direction of the then-Minister George Pullicino. We were very fortunate to have the excellent legal support of Works Division legal officer Dr Franca Giordemaina. The same team of experts was also responsible for the Construction Site Regulations and the Building Regulations Act, about which I will talk further on.
Main considerations in the drafting of the 2013 legislation
When drafting the ADTP regulations, the team of technical experts had to keep in mind a wide range of considerations. A major concern was that important decisions on demolition and excavation were being taken by the project perit, without having enough information to take these decisions. Excavation changes the force dynamics within rocks. The internal forces in the ground change over time as the rock warms and cools, is wetted and dries out and as it is loaded with vertical and lateral forces. With better information on ground conditions, incidents of collapse are less likely to occur.
In spite of their importance, however, developers were often resisting demands by the project perit for the appropriate studies to be carried out. For this reason, the ADTP regulations made geological studies obligatory. Another concern was the enforcement of the eventual regulations. Enforcement requires resources and to increase the likelihood of enforcement, the procedures were designed to impose the least possible demands on the regulator, the BRO. As a minimum, the BRO was required to ensure that the method statement was submitted, the site manager nominated and the construction site insured. Being administrative processes, the demand on human resources would be limited. In addition, the BRO would be involved when complaints were submitted by neighbours. The BRO investigates and take action in accordance with the regulations, if and when those complaints were found to be justified. In addition, the BRO could also inspect some sites selected at random.
Another concern was the costs that the ADTP regulations would impose on the industry. The introduction of new requirements would inevitably impose extra costs on the developers (for example, the appointment of a site manager, geological studies, etc.). The team of experts’ view was that these costs were necessary if the objectives of the legislation were to be achieved. On the other hand, we were very careful not to impose additional costs that were not absolutely necessary. The dictum was that if you want to kill a fly, don’t use a machine gun – use a fly swatter.
In drafting the 2013 regulations, the team of experts was very careful not to disrupt the respective responsibilities between the contractor and architect, as specified in the Civil Code.
Another important provision was the requirement of each construction site to be insured, which inevitably met with resistance from some quarters. Needless to say, the team of experts considered this an essential part of the legislation in order to provide some cover, should an incident happen. It was also useful, as serious insurers would thoroughly vet the contractor to establish the risks involved. Representatives of insurers assured us that contractors who get a bad reputation would risk not finding an insurer and hence not be able to work. The very process of obtaining insurance cover could be a way for contractors to improve their work practices if they wanted to avoid problems with their insurers.
Other legislation regulating building construction activity
The ADTP regulations were part of a broader legal framework on building regulations. The Construction Site Regulations of 2007 promote appropriate construction work practices as a means of reducing nuisances caused by construction sites. Contractors are required to close off a construction site with hoarding. Other requirements include the reduction of dust emission, the reduction of noise and the provision of appropriate walkways for pedestrians.
A vital piece of legislation was the Building Regulations Act (BR Act) which became law in 2011. This had been pending for decades with successive Ministries refusing to take the plunge because of some contentious issue that remained unresolved. Consultation with interested stakeholders took several years, but was essential to unblock the impasse leading to eventual Parliamentary approval. The BR Act is an enabling law in that it allows the responsible Minister to pass regulations without having to go back to Parliament for endorsement. This was an important milestone as it greatly facilitated matters as and when new building regulations were needed.
Registration of contractors
Even before the enactment of the BR Act in 2011, work started on regulations for the registration of contractors. A draft was prepared and was discussed with the various stakeholders. The discussions with stakeholders focused on a crucial difficulty, namely how to certify a contractor as being sufficiently competent to be included in the register. For those without formal training, the draft regulations proposed that the contractor’s track record, as certified by architects, would be the means for establishing a contractor’s competence. Unfortunately, work on contractor registration was discontinued after 2014 and the work that had been done up until then was lost.
In recent discussions with government, the Kamra tal-Periti rightly insisted on the need for the registration of contractors. Initially, the government resisted that argument and made it seem that the problem regarding the safety of third party properties would be addressed solely by amending the regulations. In a press conference on 5 July, the authorities spoke about legal amendments within a wider context of reform that includes registration of contractors. This change of approach is welcome and it is hoped that the authorities will follow through on these commitments.
The registration of contractors should be organised and managed by a public authority. The loyalty of public officials is to the public interest and hence it would be reasonable to expect public officials to operate a registration system in a fair and equitable manner. More crucially, the registration of contractors has to be done within a proper legal framework that clearly sets out the process and also defines the criteria on how applications for registration will be assessed. As already indicated, contractor registration is not an easy task and is made even more difficult by the many years of lack of regulation. There will be contractors who have no formal training but who have acquired enough experience to operate competently and such contractors should be registered. On the other hand, there may be contractors with little or no competence who would expect to be registered merely because they had carried out one or two jobs. For the latter, an interim form of registration may be considered, one in which they will be carefully monitored. Permanent registration would be accepted if and when they complete a number of jobs in a competent manner.
According to its FaceBook page: “The Malta Developers Association (MDA) in agreement with the Building Regulation Office (BRO) is producing a register of Economic Operators engaged in rendering Demolition, Excavation and Construction services.” This is not the right way to go about it. A contractor registration system needs clear criteria as to who will be registered. Moreover, this initiative is being taken without the proper legal backing of regulations. If and when an incident occurs, will the MDA take responsibility for the action of a registered, yet incompetent, contractor? Moreover, the MDA is not a public authority and, to make matters worse, there is a conflict of interest as some MDA members are themselves contractors.
A critique of the 2019 legal amendments
The regulations enacted last month are being widely referred to as ‘new’ but in fact they are existing regulations that have been amended. Legal Notice 72 of 2013 became Legal Notice 136 of 2019. To avoid confusion, I will refer to the latter as the 2019 amendments.
There are several reasons why the 2019 amendments to the building regulations are ill-advised and generally harmful to stakeholders and to the construction industry.
First of all, there was no effort to identify the source of the current problem, or to understand the circumstances that led to the three recent incidents. The 2013 ADTP regulations in vigore until last month were fine. The problem was that there was little effort by the authorities to establish the mechanisms as set out in the 2013 ADTP regulations. Had the procedures been established and followed, one or more of the three incidents would have been averted. Another major weakness is that anyone can work as a contractor on a construction site, without the need for certification. This means that the developer and the project architect are not guaranteed that the contractor will carry out the work according to best practice and in line with the instructions of the perit. An incompetent contractor is much more likely to commit errors that will affect the security of third party property.
Second, the 2019 amendments do not take a holistic approach. They try to address one particular issue (safety to third party property) without considering a wide range of other issues. Legislation should be part of an overall process that brings about a culture change. The measures taken by the government focused exclusively on legal changes without considering other important aspects of the process including enforcement, communication with stakeholders, the training of people and contractor registration. The legal changes were a one-off, knee-jerk reaction dealing with one piece of the jigsaw puzzle while completely ignoring the whole picture.
Third, last month’s legislative changes had a very short time frame imposed, which meant that no meaningful consultation with stakeholders was possible. Any changes to legislation, even minor ones, will have implications on many stakeholders. Often, the implications (or ‘side-effects’) may be difficult to foresee. The legislation enacted between 2007 and 2013 involved extensive consultations with developers, architects, contractors and insurers within the forum of the Building Industry Consultative Council and also in other fora. Various drafts were put forward for discussion before the final drafts were agreed upon and approved. Evidently this did not happen in the 2019 amendments.
Fourth, the 2019 amendments disrupts the responsibilities of the perit and the contractor as set out in the Civil Code. With these amendments, the architect can request an exemption from certain provisions of the law but to do so he is required to sign a declaration that the work will not affect third party property. The signing of any non-technical declaration by the architect effectively changes the responsibilities for the site and places on the shoulders of the architect liabilities that were not envisaged in the Civil Code.
Fifth, in the 2019 amendments, there are legal clauses, and also forms, that are poorly drafted, making them difficult to understand and interpret. Precise legal wording is essential to avoid ambiguities and different interpretations. Precise wording is also needed to ensure that what is specified in the law is technically relevant and a true reflection of the dynamics that happen on the ground.
Sixth, there is confusion in the legislators’ minds on what the construction site responsibilities should be. For example, one of the forms (I hope it has been changed by now) implies that the project architect is responsible for the health and safety of the construction site workers. This is ridiculous. Health and safety is another field of work that falls under the responsibility of the contractor, or his project manager. Another area of confusion in the legislators’ minds is between building regulations and planning law. The 2016 Planning and Development Act includes provisions on building regulations duplicating and changing sections of the Building Regulations Act of 2011. This created untold confusion in peoples’ minds and is a reflection of how poorly the legislator understands what building regulations are all about.
Seventh, the 2019 amendments impose bureaucracy that is totally unnecessary for less difficult construction projects. They subject all sites to the same amount of paperwork, irrespective of the complexity of the project. No two construction sites are the same. The technical complexity of a construction activity can vary from the most simple (such as opening a doorway in a wall) to the most complex, with difficult site rock conditions, significant vertical and lateral loads, restrictions on access to site and so on. The 2019 amendment ignores these differences and treats all construction activity in a similar way. The ADTP regulations of 2013 required the submission of a method statement but it did not specify the information and level of detail that was required. That was at the discretion of the project architect, depending on the complexity of the construction activity. The BRO could intervene if it felt that the method statement was not technically adequate.
The situation was aptly summed up by the Council of the Kamra tal-Periti on 5 July as follows: “This Legal Notice departs from historically established lines of responsibilities and creates inconsistencies in terms of roles of the primary actors on the site: the perit and the contractor. It is also in conflict with standard forms of contract which are today commonplace in the industry. It is also contradictory to the basic realities of site management principles that are adopted across the country, particularly on medium to large-scale projects. It imposes requirements on projects which are irrespective of their size and complexity, …… It has not considered the implications on Professional Indemnity Insurance provision, nor have its effects on the industry as a whole been properly and closely studied. The Council is also concerned that periti are making declarations which expose them to potential litigation and attribution of tort in case of incidents such as the ones that occurred in recent weeks.”
Suggested way forward
For reasons explained above, the 2019 legal amendments have made the situation more difficult for all stakeholders and it is debatable whether or not the intended objective of greater safety for neighbouring properties has been achieved.
In the 2007-2013 legislation, a holistic approach was adopted. The legislation was one part of a much broader, long -term strategy that sought to bring about a culture change in construction. Based on that experience, my suggestion for the way forward is the following:
The authorities need to take a holistic view of the issues and understand that these cannot be addressed merely by amending the law. Action is also needed to reduce inconveniences from construction sites and not just to improve safety for neighbouring properties.
On the Avoidance of Damage to Third Party Regulations, the authorities must stop trying to burden the architects with responsibilities that are not theirs and the bureaucracy that has been introduced with the 2019 amendments should be significantly reduced. The authorities must shoulder their responsibility for enforcement and that includes a significant increase in human resources and the appropriate training of staff. The enforcement should focus on ensuring that procedures are adhered to (method statement, site manager, insurance, geological studies). Better work practices on construction sites should be encouraged by enforcing all relevant regulations, including those on construction site management. Adequately competent persons should also be allowed to be site managers, and not just periti. The process of registration of contractors needs to be started in earnest, with appropriate criteria and procedures set out in legislation. Different categories of contractor licensing are required, including construction, excavation and demolition.
For a culture change to happen, this has to come from the top. The authorities should devise a long-term strategy on building regulations that is not limited to legal changes but that also encompasses enforcement, public awareness campaigns, better communication with stakeholders, the training of construction workers and contractor registration. Such a strategy requires a thinking process that is appropriately informed through consultations with all stakeholders.
Part 2 will be published next week
John Ebejer lectures at the University of Malta. He is the former Chairman and CEO of the Building Industry Consultative Council