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. 

 

John Ebejer lectures at the University of Malta.  He is the former Chairman and CEO of the Building Industry Consultative Council

Part 1 was published last week