The Malta Independent 14 July 2024, Sunday
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Licensing the construction industry

Carmel Cacopardo Sunday, 19 March 2023, 07:53 Last update: about 2 years ago

Watching the collapse of the structure which killed Jean-Paul Sofia sends shock waves through every bit of my body each time I catch a split-second glimpse of the relative video.

The magisterial inquiry is under way but for some inexplicable reason there is a resistance to a much wider public inquiry. Faced with the resulting death and multiple injuries, the public inquiry is an essential tool which could make it possible to understand what actually happened, beyond the accident itself. The public inquiry could definitely unravel important information on a number of specifics which had a bearing on the accident even if at first glance these are possibly unconnected.

So far no one has been charged. It is not known whether anybody has been interrogated on the incident, except, probably, as part of the magisterial inquiry itself, which is unfortunately taking too long to conclude. It is possible that there are valid reasons for this delay, but we are not aware of these as the magistrate in charge of the inquiry does not normally go around explaining such matters. I believe that it is in the public interest for the Court Registrar to explain matters as we have a right to know, just as much as the Law Courts have a duty to explain.

It has been stated that the licensing of the construction industry will lead to its improvement. This, we are told, would ensure the development of an industry that respects rules and ensures their uniform enforcement, as a result being more protective of life and limb.

I do not think that anyone desires otherwise. However, the proposals in the draft licence regulations do not necessarily lead in that direction. They need much more than fine-tuning.

The proposed regulations list the qualifications and documentation which an applicant for one of the three types of construction licence (demolition, excavation/piling, construction) should comply with. One of these documents is the conduct certificate. The proposed regulations, however, do not clearly spell out whether, and the extent to which, the contents of such a conduct certificate should have a bearing on the adjudication process leading to a decision on the issuing or the withholding of a licence.

Specifically, being bankrupt is a licence disqualification which is clearly spelt out in the proposed regulations. Which conduct or behaviour will be considered as disqualifying an applicant for a licence or its renewal?  Zero tolerance of unacceptable behaviour should be clearly spelt out as grounds for disqualification. We do not need to wait for the ultimate consequences to disqualify an applicant or a licence holder. Acting in a timely manner, before it is too late, should be the objective of the licencing and regulatory process. This should be as clearly spelt out as bankruptcy in the proposed regulations! Being assumed, implied or discretionary is not sufficient.

How about those who have a history of enforcement issues with the Building Construction Authority (BCA)? Should such a history have a bearing on the issuing of a licence or its renewal?  Where do we draw the line? Considering the recorded behaviour of all applicants should definitely be the starting point of the licencing process. Applicants should not be considered as having a clean slate: all their existing baggage should have a direct bearing in the consideration of whether they should be licenced or not. Past behaviour is definitely a guarantee of future patterns of behaviour. If the past is ignored it is bound to be repeated. All this is unfortunately ignored by the draft regulations.

Specifically, the impacts of the whole process of construction on third parties needs to be given considerable importance even as a licencing requirement. Too many building contractors run roughshod over the concerns of neighbouring residents. This is not always satisfactorily addressed by the operators, at times leading to lengthy litigation. This is an area which, with proper enforcement, the licensing process should eventually improve substantially.

Case-law indicates that both the imposition of substantial administrative fines as well as the suspension or withdrawal of licences can be challenged on constitutional grounds. The long-drawn-out legal battles which will inevitably develop will render the regulatory process ineffective and as a result undermining the whole reform.

Likewise, there is serious potential for abuse. Administrative action may be used to intentionally eliminate the possibility for criminal action. The matter has already arisen in an environmental case where criminal action already initiated could not proceed due to the matter having been addressed through the payment of an administrative fine.

Furthermore, the Building and Construction Tribunal which would eventually consider appeals concerning licences, although described as independent and impartial, is nothing of the sort.  It is made up of part-timers who are in full-time private practice which includes advising operators in the building construction industry. This creates legal grounds for the contestation of all its decisions.

The effectiveness of the licencing process will, at the end of the day be dependent on the resources made available to the Building and Construction Authority in order that it can fulfil its regulatory responsibilities. The Authority must be proactive. It can only do this if its inspectors do not await the lodging of a report in order to take action.

Government’s declared willingness to act, regulate and enforce is positive. Only time will however show if this willingness is translated into concrete results. Signs so far are however not promising.

 

An architect and civil engineer, the author is Chairperson of ADPD-The Green Party in Malta.  [email protected] ,   http://carmelcacopardo.wordpress.com

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