A legal lacuna, which meant that there was no authority overseeing the standards of construction in free-standing buildings such as the one which collapsed and killed youngster Jean Paul Sofia still exists, the CEO of the Building Construction Authority Jesmond Muscat told The Malta Independent on Sunday.

However, the recent contractors licensing reform has meant that the BCA now vets contractors working on such sites in order to ensure that they have applied for a licence to operate.

“No, it hasn’t changed,” Muscat said in a wide-reaching interview with The Malta Independent on Sunday when asked whether there had been any legal changes to react to a lacuna which was pointed out by witnesses during the Sofia inquiry.

“What we have done is that if a contractor is working on a free-standing building, then he must have insurance on it – but that insurance does not protect the workers. We are not the authority that protects workers: that is the OHSA’s competence. I’m not trying to brush it off, and we tried to introduce an employer’s liability, but there isn’t a market for it,” Muscat said.

“We tried everything to help, and thanks maybe to the fact that we didn’t manage to agree on this insurance we managed to achieve other important things such as the third-party cover – but when it comes to standalone buildings, up until today we have done what we could… this is as far as we can get,” he said.

Muscat noted that the Construction Site Management Regulations, which were transferred from the Planning Authority to the BCA on 16 December 2022 – 13 days after Sofia died in the Corradino collapse – would not have changed anything in this regard even if they had come earlier.

However, the new contractors’ licensing reform, which stipulates that as of 31 October of this year any contractor wishing to operate in either demolition, excavation or construction had to have applied for a licence – means that the BCA does now check to make sure that the contractors involved on a site, even if that is a free-standing building, has applied.

Asked though which authority is responsible for enforcing that a free-standing building is being constructed in accordance with the right standard, Muscat said that it is up to the architect who has a warrant, and all the responsibilities which come with it.

Moving onto the contractors’ licensing reform, Muscat said that some 3,700 applications have been submitted thus far, and noted that there is still a small number who are yet to sign up, clarifying that as of 31 October those yet to apply for a licence are not allowed to operate within the industry.

“I think those who are good and responsible will keep working – which is what we want – and those who are less responsible will soon see that they have to either fix how they work or they will not be able to continue in the industry,” Muscat said.

Asked how the BCA will be ensuring that those who apply for a licence have an adequate knowledge of the health and safety standards that are required from the industry, Muscat noted that while health and safety is not under the BCA’s remit, the authority has done what it can to help in this area.

Insurance is a key part of the new reform, he continued, saying that the BCA is now saying that when an architect declares that there are third parties who may be affected by works then there is now an obligation for insurance to be in place.

“We are obliging contractors for there to be insurance for these works: now whether the contractor does it, or the developer, or anyone else… even though the law didn’t stipulate this, we tried to include that third parties – and this can include even pedestrians, but not workers – are covered,” he said.

A matter which Muscat also mentioned in this topic was the Skills Card, and he said that talks are ongoing with the OHSA, which is the authority responsible for regulating health and safety on any workplace in the country, on how there can be more integration between it and the BCA.

The Skills Card, Muscat continued, will allow the BCA to establish the profession of those within the industry; but he stresses that the first step had to be the licensing for contractors so that it can be ensured that there is a responsible person on every site.

He also noted that when it comes to Skills Cards, the demographics of who this would apply to would likely be quite different than when it comes to the licensing of contractors, because the majority of contractors are Maltese.

“The audience is a bit different and you need to see how to reach it. It’s futile creating a Skills Card and then segregating the sector – if anyone is here and working in it, they are helping,” he said.

Enforcement, meanwhile, has always been the great buzzword when it comes, particularly, to the construction industry. Many say that there simply isn’t enough of it, and Muscat himself said that one can never have enough people working in this area.

But before coming to resources, Muscat is asked what type of enforcement the BCA carries out when looking at construction sites, and what type of penalties somebody who isn’t up to scratch may face.

The first step with the contractor’s licence reform, Muscat began, is through the BCA’s Permitting section – a section which he describes as being extremely important.

This section is responsible for approving – or refusing – clearance for works to begin on a site. Since the licensing reform made a differentiation between demolition, excavation and construction works, this has been reflected in the paperwork which has to be filed for each site.

In this sense, the name of the contractor responsible for each of those three must be stipulated, and the permitting section then cross-checks the contractors against the list of licensed contractors to ensure that they are registered, he explained.

The same section would also check the method statement, guarantees and insurances before and then, if everything is in order, give the go-ahead.

Moving onto enforcement on the ground, Muscat continued that in-line with the BCA’s responsibilities set out in the law, the authority’s inspectors look at whether there may be damage to third parties and also look at compliance when it comes to things such as pavements and dust emerging from the site.

If something doesn’t appear to be in order, the inspector then goes back to the permitting section to check the site’s documentation, and acts accordingly from there, Muscat continued.

As for the consequences, Muscat noted that the BCA can issue administrative penalties or request the Commissioner of Police to initiate legal action against a culprit. If found guilty, the Courts of Law may impose fines.

“Today I think the thing which costs the most money is time. We can issue administrative penalties. The BCA is also empowered to stop partial, or all works, until the culprit rectifies the situation. The latter is the most effective measure,” he said.

“A penalty is issued, works stop and cannot continue until the penalty is settled. They can appeal if they want, but more often than not, depending on the case, they will pay it and become compliant,” he said.

Giving figures on how the BCA’s enforcement work has improved since the Authority was established in April 2021, Muscat said that there were 68 penalties issued between April and December 2021, this number rose to 129 in 2022 and to 647 between January and November of this year.

The increase in penalties issued has meant that the work for the Building Construction Tribunal, which handles appeals against these penalties, has also increased, Muscat pointed out.

Data in fact shows that while there were 25 Tribunal sittings throughout 2022, there were a mammoth 141 sittings this year up until mid this month. The workload has increased so much that, Muscat said, a second Tribunal may be appointed to handle the volume of cases.

Inspections have also increased, going from 6,286 between April and December 2021, to 10,298 in 2022 and 11,854 between January and November of this year.

At core, however, Muscat stressed that it is education which is key.

“If there are 250,000 drivers on the roads, I don’t think that there can be another 250,000 Transport Malta officials on the roads keeping an eye on them. Whatever there is [in terms of human resources], it’s never enough. The more inspectors I have, the better, but it is education that we have to emphasise on with everyone – be it contractors, architects, developers and even the general public so they are aware of what the BCA does and can do,” he said.

Asked whether the BCA is looking into more innovative ways, perhaps through the use of technology, in order to improve its enforcement capabilities, Muscat said that the thinking is there and there is potential, but the necessary IT systems need to be in place to do it.

An exercise which is currently ongoing, he said, is one to integrate the work of the BCA and the OHSA together “so that our economies of scale are utilised better”.

Muscat explained that the BCA employs a health and safety officer who accompanies inspectors on sites and informs the OHSA if he sees something which warrants action from a health and safety standpoint.

“The exercise needs fine-tuning, but I think it worked,” Muscat said.

This aspect of collaboration brings about a question raised during the Sofia public inquiry by the president of the Chamber of Architects Andre Pizzuto, who suggested that there were too many different authorities with their finger in the proverbial pie when it comes to overseeing the construction industry.

Pizzuto suggested that there should be a “mega-authority”, which in his mind should be the BCA, to handle the industry as a whole.

Asked about this, Muscat agreed with the fact that there needs to be more synchronisation between different authorities, but is more cautious on the concept of there being a mega-authority.

“I agree with what Pizzuto is saying in the sense that we need more synchronisation so that workers are used in the most efficient manner possible, but I don’t agree with a mega-authority,” he said.

Asked to elaborate as to why he disagrees, Muscat said that the paths which different authorities must operate on are different.

“If you look at the Planning Authority for example, the only thing we can maybe work together on is enforcement, but even then, a PA enforcement officer does not check whether a building could damage third parties, but looks at its design and whether it’s being according to approved drawings and related conditions,” he said.

“Our enforcement is alive… we are coming up to Christmas; we cannot afford to close, but the PA closes for a week. A PA official who finds something wrong can take a week or two to look into it and communicate with the architect to see the way forward when it comes to sanctioning and such – we cannot; we need to act there and then,” he continued.

There are other functions within each authority which mean that “the roads are different”, he said.

Enforcement was a key topic during the Sofia public inquiry, and it took renewed importance when certain key stakeholders within the industry such as the Malta Developers Association and the Chamber of SMEs, which represents most smaller-scale contractors, said that it was their belief that the industry was at a point where it was “self-regulated”.

Asked whether he agrees with this statement, Muscat admits that the industry was indeed self-regulated.

“You have an architect who has a warrant and has his responsibilities; you have a mason – there should have been one with a licence on each site. There were some sort of laws, but it’s futile having those and not enforcing them because otherwise you end up being self-regulated,” Muscat said.

He referred to the contractors licensing reform, saying that this can be dated as far back as 2007 when the first regulations for the Registration of Building Contractors was drafted, followed by the work by the MDA, the Chamber of Architects and the work done in the previous two legislatures.

“I started here a year-and-a-half ago: the challenge was there, I gathered everything and we moved forward with the licensing of contractors. Why did this take that long? I cannot answer you on that. But the need for the industry to not remain self-regulated has been there for a long time,” he said.

From a regulation perspective, the public inquiry board also heard from architect Martin Debono from the BICC, who said that a set of building codes had been ready since 2019 but were shelved by the BCA.

Asked whether this was true, Muscat said that there are a lot of building codes, but the reference here is to those pertaining to demolition, excavation and construction.

“These came to my desk in February,” he says as he indicates to a thick stack of papers bound together. “They were presented to us then – Debono was present – and until then, and I shared emails by my predecessor Karl Azzopardi with the board showing this, they were never closed nor agreed upon,” he said.

“It’s useless doing Building Codes, which will affect architects if they disagree with them, or for the people out there but they haven’t seen them or will likely disagree with them,” he said.

Muscat said that he sent his thoughts on the proposed codes a month later, but noted that he believes that the attention needs to be put firmly on the repercussions that the codes would have and, more so, if there will be a specific authority enforcing them.

“You asked earlier about the standards of buildings; who is going to look at these when a lot of them concern safety? Will it be the OHSA? What do they do abroad? There has to be an agreement on the responsibilities that these things bring… it’s not just a matter of saying Building Codes and that’s it,” he said.

He said that the BCA is now waiting for feedback from the Chamber of Architects and the Chamber of Engineers “because at the end of the day we need to work hand in hand with them”.

He emphasised though “the Building Codes were not ready, they came to be in February this year and up till this day they are still not ready”.

As the interview came to an end, Muscat said he wanted to make a more general remark, noting he had made these observations to the public inquiry as well.

“My background is of a planner. I worked in it since I was 18 years old, graduated in Malta and abroad… there are maybe 100 planners in Malta. We spoke about work, enforcement and responsibilities during this interview… the architects are over-burdened because the system forces on them the responsibility of other professions. There are so few people in everything,” he remarked.

“These people are squashed,” he said of architects. “They are doing the work of construction site management, planners, landscaping, going to the Planning Authority… I say this constructively because thank God they do this, but do they have time to do what is actually their job as architects?”

“The challenge is so big that we cannot just look at enforcement. If there isn’t any planning on what we have to do, we aren’t going to get anywhere. You need to see the whole picture,” he concluded.