Revised excavation laws "raise more questions than they give answers" – Prof. Alex Torpiano

28th June 2019

The past president of the Kamra tal-Periti shared his views on the proposed changes to the law in an opinion piece on The Malta Business Observer.

Changes to Legal Notice 72, Avoidance of Damage to Third Party Property, and the Ministerial Statement made in Parliament earlier this week, raise more questions than they give answers, stated Prof. Alex Torpiano, Dean of the Faculty for the Built Environment at University.

Sharing his views in an opinion piece published in The Malta Business Observer newspaper, Prof. Torpiano, a past president of the Maltese Chamber of Architects, wrote “the impact on the day after the publication is clearly one of confusion, with a crippled BRO, and demolition and excavation works which can be observed proceeding uninterrupted, ignoring completely the new legal requirements.”

“The Legal Notice fails to make a distinction between the Civil Code responsibility for structural integrity of the completed building, that both perit and contractor carry, (currently for a period 15 years), and the responsibilities during construction – which, in theory, is what this particular Legal Notice proposes to addressing,” he added.

Prof. Torpiano stated that the role of what is now to be called Site Technical Officer, (previously, the Site Manager), is not clear, other than to enforce the method statement prepared by the project architect.

KTP

“The Legal Notice insists that the role of Site Technical Officer has to be undertaken by a perit – implying that he has to be capable of understanding technical instructions – and, presumably, of diligently following such instructions, but without interpreting them, or changing them, even if he, as a professional person, feels that such change is warranted,” he wrote.

“This is bound to create confusion on relative roles and responsibilities on site. Furthermore, the Minister added to the confusion because, whilst the Legal Notice insists that such “enforcement” has to be carried out by a perit, the Minister stated that in future this could be done by other professions, including, it seems, mechanical or electrical engineers. It is not clear why the latter professionals are deemed to be capable of “enforcing” method statements, more than, for example, site foremen, with years of experience.”

Prof. Torpiano also highlighted that the Legal Notice does not make a distinction between different scales of project, or different scales of contractor set-up. “Whilst it is normal for major contractors to have their own site management personnel, which normally include senior and experienced periti, it will become very onerous for the smaller contractors – even the diligent ones, who are certainly capable of understanding the perit’s instructions – to engage a perit simply to relay to him the instructions of the project perit. In this sense, the Legal Notice seems to favour large established contractors and penalise the smaller ones. And at the same time, in the absence of a proper licensing system for contractors, which is based on expertise, experience and resources, there is no guidance for a prospective owner on which to base his choice.”

Given the proposed changes, Prof. Torpiano said that rather than having a positive effect on the construction industry, such as increased safety for third parties, “unfortunately, what I expect in the future is more confusion, recrimination, and liability court cases. We are already seeing confusion, as everybody is meant to conform to a Legal Notice which has not been thought through properly. The construction industry will continue to remain in a sad place, unless problems are tackled holistically.”


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