Regulating the building industry

Regulating the building industry requires the political will to act in an industry that has repeatedly opposed and defied regulation. Last week’s fatal accident at St Ignatius Junction Sliema is the latest incident in an industry in which regulation is still opposed. The political will to regulate is lacking, notwithstanding all the government theatrics, day in day out.

The Chief Executive Officer of the Building and Construction Authority (BCA) has submitted his resignation on Tuesday. This will lead to the appointment of a third CEO in as many years. This is a resignation that has been submitted out of frustration, even though the resignation letter has not been published.

This resignation followed the comments of Robert Abela, Prime Minister, who on Sunday, a few hours after the incident acknowledged that the authorities regulating the building industry do not have sufficient resources to carry out their responsibilities and regulate the industry. However, he failed to state or acknowledge that those whom his government appointed to lead the BCA have time and again requested these resources. The government has, so far, repeatedly ignored these requests.

When giving evidence at the Jean Paul Sofia public inquiry, the former CEO of the BCA, Karl Azzopardi, stated that he had repeatedly requested funds for a staff complement of 300 to regulate the industry through inspections and enforcement. The recruitment process was slow and the funds allocated rarely matched what he considered necessary.

From Azzopardi’s evidence at the public inquiry, it results that there were only 11 inspectors at the BCA against a projected requirement of between 40 and 50. In addition to recruitment, he explained that there was also the requirement to train those selected meticulously, as otherwise, they would not be in any way effective.

Karl Azzopardi was squeezed out of his CEO post by the incoming Minister Stefan Zrinzo Azzopardi, who preferred his own man, Jesmond Muscat, who, however, resigned earlier this week. The BCA, in the meantime, is still without adequate resources as the Prime Minister’s words have so far not been matched with the allocation of the required resources.

The lack of resources allocated to the BCA is a major contributor leading to the frequent construction incidents which are becoming a too frequent occurrence. Without funds for the BCA to hire and train staff to carry out its regulatory duties, we may have more incidents in the weeks and months to come. There is a political responsibility to be shouldered for this lack of funding of the BCA. Prime Minister Robert Abela tried to transmit the subtle message that Minister Zrinzo Azzopardi was shouldering this by removing the building industry portfolio from his Ministerial responsibilities in the last Cabinet reshuffle.

This is however not enough.

The BCA is once more without a CEO, who is quite obviously fed up with being treated as a political football by those appointing him. His letter of resignation was not published, but its timing gives a clear message which cannot be ignored.

As results from the Sofia inquiry report,  the BCA inspectorate was made up of eleven persons! An identical number of persons make up the BCA Board of Directors!  Those are the government’s BCA priorities at this point.

When the government starts adequately funding the BCA, then maybe we can have an inspectorate that acts proactively to identify the abusers in the industry before they lead to more deaths.

published in The Malta Independent on Sunday: 28 April 2024

Unbridled Development: on whose side is the state?

After years of supporting unbridled development the Labour Party in government is trying to signal that, after all, it is on the side of the vulnerable, those who are continuously trampled by developers. Nothing could be further from the truth.

As a result of the Sofia inquiry report, the BCA (Building and Construction Authority), on government’s instructions, issued a call for architects (and lawyers) to offer their services to assist those third parties impacted by development.

The current initiative is a positive step forward but, in my opinion, it is insufficient as it subjects the available assistance to instructions from the BCA. It is the BCA which decides whether and to what extent professional assistance is required.

A 13-page document was issued by the BCA on March 9, entitled “Expression of Interest. Invitation for the Provision of Periti to provide professional assistance to third parties”.

The service to be provided and paid for by BCA shall presumably cover advice relative to a description of the development, as well as the method statements submitted by the developer’s advisors. It will also cover inspections and the required estimates in the eventuality of damage sustained as a result of the development under consideration.

It is however not clear whether taking the BCA itself to task is covered by the said expression of interest. I am saying this because the professional service to be provided is subject to “the specific administrative instructions of the authority” as per paragraph 1.4 of the BCA expression of interest document.  This signifies that the BCA itself must authorize, for example, the seeking of advice to contest the way in which the BCA itself operates as well as to how it decides on specific cases.

This is just one aspect of the problems to be faced. The issues that should have been addressed are much wider and deeper than what is being acknowledged by the conditions of the expression of interest document.

Consider, for example, ground floor properties forming part of a two-storey development originally approved many years ago. When the existing development at first floor (and the overlying airspace) is purchased by developers with the intent to redevelop as a block of flats, it is hell for the ground floor residents. All sorts of pressures are resorted to in order to ensure that, as far as possible, residents acquiesce and shut up.

In such cases the ground/foundation condition reports being submitted leave much to be desired. It is logical that residents in ground-floor properties are reluctant to have their properties subjected to tests and sample boreholes in order that the prevalent geological conditions are identified. In the absence of this information, developers and their advisors are taking short cuts and making several. at times, incorrect assumptions as to the prevalent geological conditions on site. This is being done in order to give a clean bill of health to the proposed development.

Faced with such a situation some succumb to pressure from developers and consider moving out of their homes as a result, providing the desired carte blanche for the developers.

Is this fair? Yet this is what will eventually happen in a number of cases. In fact, it is already happening.

This is not a matter which can be adequately dealt with by the BCA after the development permit has been issued by the Planning Authority. It must be dealt with before the planning application is even submitted. Only then can one safely say that the legislator and the relative authorities are on the side of the downtrodden.

In simple words, it is much better to avoid the creation of a mess then having to deal with the not so pleasant consequences. This is how the vulnerable can be served.

Published in Times of Malta: Sunday 17 March 2024

Blood on their hands

When speaking on the report of the public inquiry into the circumstances which led to the death of Jean Paul Sofia, Robert Abela, the Prime Minister, emphasised that he expected that those who were singled out in the said report are to shoulder their responsibility. He also established a deadline by which he expected that they submit their resignation.

Some have been singled out by name. Others through membership of decision taking bodies whose actions were censored by the Board of Inquiry. In fact, it adds up to more than has been pinpointed by the Prime Minister.

At the time of writing, we were informed that David Xuereb has resigned his Chairmanship of the Occupational Health and Safety Authority (OHSA), Peter Borg has resigned from Deputy Chairman of Malta Enterprise. In addition Victor Carachi and Paul Abela have resigned from the Malta Enterprise Investment Committee and the Committee itself has been abolished.

We were also informed that after the publication of the Inquiry’s report, Kevin Camilleri, the Head of the micro-enterprise unit of Malta Enterprise was dismissed from his post.

The report of the inquiry identified a multitude of persons, executives and institutions who in one way or another contributed to the developing mess which we call the building industry. Each one of them who turned a blind eye, or was absent from his post at crucial moments, or took decisions without a proper consideration of its implications should shoulder his/her responsibilities and resign.

I would go one further step: it is not enough to resign from the posts subject to the inquiry’s scrutiny. Each one of them should resign from all their public postings.

The report of the public inquiry, however went much further than identifying those involved and analysing in depth their operations. It did this in view of the fact that all these appointees where entrusted to ensure that the state shoulders adequately its responsibilities through a focused regulation of the industry.  

Yet we got to know that Jobs Plus has more members on its Board than it has inspectors. Also, we got confirmation that enforcement is weak everywhere, right through the building industry.

The Board of Inquiry has gone through all of the operations and identified those accountable. At the end of the day, when the dust has settled, however, the buck stops on the desk of the Prime Minister and his Cabinet of Ministers. 

The next step is to ask the members of the executive whether they ever sought to ensure that the public officers, executives and other appointees which they entrusted to regulate the building industry carried adequately their assignment. We know, not just through the inquiry’s report, that the executives in charge of the Building and Construction Authority (BCA) and the Occupational Health and Safety Authority (OHSA) have repeatedly requested funding to build up their inspectorate as well as their enforcement capacity. It was not forthcoming. Plans for beefing up the organisations remained a paper exercise.

Are not the respective Ministers accountable for this?

Isn’t Minister Stefan Zrinzo-Azzopardi, until recently politically responsible for the building industry, responsible for the current state of the BCA? In particular for changing without justification its senior executive team in a most critical of times?

Minister Silvio Schembri and Minister Miriam Dalli were at different times responsible for Malta Enterprise and its appendages. At no point in time did they indicate an interest in the manner of operation of the Malta Enterprise Investment Committee and the extent to which public funds were properly used and accounted for. The manner in which the decision relative to the Corradino site was arrived at  is indicative that possibly there could be much more. It is logical to assume that proper oversight is lacking as such blatant irresponsible decisions would not otherwise crop up out of the blue. 

The inquiry, at the end of the day is about the responsibility of the state to regulate the building industry. A responsibility which the state of Malta has failed to live up to. Robert Abela and his team at Castille Place are at the end of the day accountable for this failure. He does not need deadlines to own up to this failure.

Prime Minister Robert Abela tried to avoid all this by forcefully obstructing the commencement of the public inquiry. He knew, generally, what the conclusions would be, as the problems addressed by the inquiry have been with us for ages, ignored continuously. It is a failure in governance, a failure in management of the state of its very basic responsibilities.

Isn’t it about time that Abela and his team at least apologise to the nation for their incompetence? As a result of this, they have blood on their hands.

published in The Malta Independent on Sunday: 3 March 2024

The authorities do not care

The summer months were hell for Xemxija residents. They had to bear continuous excavation works at the former Mistra Village site, notwithstanding that during the summer months such works ought to have been on hold in terms of a tourism related restriction. These works are the cause of nuisance not just to tourists but more to residents in view of both excessive noise and the continuous generation of dust.

Unfortunately, the authorities do not care. Their priorities continuously prefer the building construction industry to the residential community. It is only when they are faced with a serious accident that they try to give the impression that they care. Their crocodile tears, reforms and public inquiries impress no one, nowadays.

The Planning Authority website informs us that the current development planning permit (PA 6747/18) for the Mistra Village project is valid until the 29 April 2024.

 It was approved in February 2019 and  renews a previous permit. Its validity has been contested by Xemxija residents through a planning appeal. The point at issue is that applicable land use planning policies, had, in the meantime, changed. Yet the planning authority rubberstamped a renewed development planning permit notwithstanding that it is obliged in terms of the Development Planning Act to reassess the original application if no works have been taken in hand.

The case ended up at the Court of Appeal, which, on 10 May 2023 identified this shortcoming and sent the case back to be re-examined by the Environment and Planning Review Tribunal (EPRT). In his judgement, Chief Justice Mark Chetcuti pointed out that the presentation by the developer of a commencement notice, on its own, is not sufficient proof that the site is committed. Actual proof of commitment is required. As a result, it is therefore questionable whether such an application for renewal should be exempted from being re-examined by the Planning Authority in the light of new policies.

This is the reason, as a result of which, suddenly, excavation works were taken in hand almost round-the-clock!

Perusal of the Planning Authority website reveals that the Building & Construction Authority (BCA) only authorised the commencement of excavation works in March 2023 just a few weeks before the Chief Justice delivered his verdict, and many months after the permit was actually renewed. The Planning Authority assesses applications haphazardly, continuously favouring developers and ignoring those factors which contribute to a realistic critical analysis of what is being proposed.

In addition, no one is monitoring the excessive noise and dust generated as a result of the development in hand. The noise and dust are causing neighbours in the residential area surrounding the site, unnecessary stress and distress.

All this is being done in order to build more flats and penthouses, a substantial number of which will remain vacant or underutilised, even if sold.

St Paul’s Bay, which is home to Mistra Village at Xemxija,  has 37.3 per cent of its residential units which are either vacant or else underutilised. (Mellieħa is in close second place with 36 per cent of its housing stock in the vacant/underutilised category). The 2021 Census report on residential property published recently identified 7,377 flats and penthouses in St Paul’s Bay which, on Census Day, were either vacant or underutilised. Underutilisation meaning that the property is being used as a secondary residence or for seasonal accommodation.

Where do we go from here?

Part of the current mess would have been avoided if no works commence prior to the conclusion of land use planning appeal proceedings.

The problems however run much deeper than that. The authorities generally act prejudicially in favour of development and developers. It is an almost unconscious attitude which is deeply ingrained within the DNA of the authorities. Residents are considered as a nuisance. They are generally ignored and rarely factored into policies and decisions taken.

At the end of the day, it is no wonder that development and developers run roughshod over our residential communities. They are aware that the authorities are pre-programmed in their favour.

What we need is not just a behavioural change within the institutions. Change within the institutional DNA is the urgent requirement. Maybe having the residents themselves take the decisions on the actual permissible development in their neighbourhood is what is really required. Then we will have the required change. As the authorities do not care.

published on The Malta Independent on Sunday: 1 October 2023

Bdew il-proċeduri legali

Issa li bdew il-proċeduri legali fil-kaz tal-inċident f’Kordin fuq sit ta’ kostruzzjoni fejn miet Jean Paul Sofia, il-Qorti tal-Maġistrati ser tibda tisma’ ix-xhieda kontra l-ħames akkużati. Digà intqal, u dan hu inevitabbli li jsir, li huwa u jiżviluppa l-kaz kontra l-ħames akkużati ser ikun hemm referenzi inevitabbli għall-awtoritajiet regolatorji, fosthom il-BCA (Building and Construction Authority-Awtorità dwar il-Bini u l-Kostruzzjoni). F’dan il-kuntest hi stramba l-posizzjoni tal-avukat David Bonello, wieħed mit-team legali li qed jassisti lil Isabelle Bonnici, omm Jean Paul Sofia. L-avukat Bonello huwa membru tal-Bord tal-BCA fejn gie nominat mill-Kap tal-Opposizzjoni. Bħala membru tal-Bord tal-BCA naraha stramba ħafna li qed jieħu sehem f’dan il-kaz. It-terminu “konflitt ta’ interess” forsi jkun qawwi wisq. Imma ma naħsibx li jkun il-bogħod mir-realta! Wara kollox huwa xogħol il-BCA li tissorvelja l-industrija u mhux li tiddefendi l-partijiet f’xi kaz partikolari!

Mistoqsijiet li jeħtieġu tweġiba

Fid-dawl tar-rifjut kategoriku tal-Gvern li jagħmel użu minn dak li jipprovdi l-Att dwar l-Inkjesti biex permezz ta’ inkjesta pubblika jkunu eżaminati ċ-ċirkustanzi li wasslu għall-mewt ta’ Jean-Paul Sofia nhar it-3 ta’ Diċembru 2022 hemm mistoqsijiet li jeħtieġu tweġiba ċara. Mistoqsijiet li jistgħu jinġabru fi tnejn: lil min qed tipproteġu? u x’qed jinżamm mistur?

Meta tkun konkluża, l-inkjesta maġisterjali ser tidentifika r-responsabbiltajiet kriminali li kkontribwew u wasslu għal dan l-inċident fatali. Possibilment l-inkjesta teżamina l-ħidma tal-Awtorità tal-Ippjanar, tal-Awtorità dwar il-Bini u l-Kostruzzjoni u tal-Awtorità tal-Artijiet fejn din il-ħidma għandha relevanza għall-inċident taħt konsiderazzjoni.

Li hu meħtieġ, iżda, hu eżami fil-fond ta’ ħidmet dawn it-tlett awtoritajiet biex ikun stabilit jekk, tul is-snin, bl-iskuża ta’ attakk fuq il-burokrazija żejda ġie imdgħajjef jew imwarrab il-qafas regolatorja essenzjali. Dan wassal għal falliment tas-sistema regolatorja.

Qed nirreferi għall-prattika li applikazzjonijiet tal-ippjanar tal-iżvilupp ġewwa iż-żona industrijali jiġu indirizzati bi proċedura simplifikata li nirreferu għaliha bħala DNO (Development Notification Order). Riżultat ta’ hekk, dan it-tip ta’ żvilupp ftit jagħti fil-għajn. Anke ir-regolatur stess jagħti importanza inqas lil dan it-tip ta’ żvilupp. Dan iwassal għal nuqqas ta’ attenzjoni fil-pront lill-irregolaritajiet li jista’ jkun hemm!  Fil-fehma tiegħi dan jista’ jkun wieħed mill-fatturi li ikkontribwew għal dan l-inċident fatali. Għandi dubju kemm il-maġistrat inkwirenti ser tagħti piz lil konsiderazzjoni ta’ din ix-xorta. Imma f’inkjesta pubblika, inevitabilment dan il-fattur ikun eżaminat.

L-iżvilupp taħt konsiderazzjoni kien soġġett għal żewġ applikazzjonijiet DNO, it-tnejn li huma approvati: DN360/20 u DN275/22.

Għad mhux ċar kif l-art pubblika fiz-zona industrijali, fejn seħħet id-disgrazzja, spiċċat għaddiet għand l-iżviluppatur.  Hemm bosta allegazzjonijiet jiċċirkulaw dwar il-possibli irregolaritajiet li wasslu għal dan. Jista’ jkun li l-maġistrat inkwerenti teżamina dan kollu, imma s’issa, wara 7 xhur ħadd għad ma jaf xejn fiċ-ċert dwar dan.

Ġie rappurtat mill-medja li l-perit inkarigat mix-xogħol hi perit impjegata ma’ Infrastructure Malta. Fl-istess ħin li terfa’ r-responsabbiltajiet ta’ impieg professjonali fis-settur pubbliku, il-perit għandha prattika privata tagħha.  Hi l-politika kurrenti tal-Gvern li professjonisti fis-settur pubbliku huma permessi li jkollhom l-prattika privata tagħhom.

Hu mistenni li din il-prattika privat ma tkunx żviluppata b’mod li din tkun f’kunflitt mad-doveri fis-settur pubbliku. Ikun raġjonevoli li nassumu li l-uffiċjal pubbliku (il-perit) matul il-ħin normali tax-xogħol ikun mistenni li jissorvelja l-proġetti pubbliċi ta’ Infrastructure Malta. Dan dejjem sakemm il-ġurnata tax-xogħol tal-perit mhiex xi wahda sostanzjalment differenti minn tagħna lkoll!  

L-istampa irrappurtat li l-perit li qed nitkellmu dwarha għandha prattika privata estensiva li żviluppata tul is-snin, anke waqt li hi impjegata full-time ma’ Infrastructure Malta. L-inkompatibilità bejn dawn iż-żewġ rwoli hi tant ovvja li ma teħtieġ l-ebda kumment da parti tiegħi. Dan mhux biss materja ta’ kundizzjoni tal-impieg. Hu fuq kollox materja ta’ etika professjonali.

Bla dubju, inkjesta pubblika teżamina din il-materja u tikkunsidra jekk professjonisti fis-settur pubbliku għandhomx ikollhom il-prattika privata tagħhom ristretta f’dawn iċ-ċirkustanzi. Għandi dubju kemm il-maġistrat inkwirenti tidħol fil-materja, għax primarjament din hi waħda ta’ etika professjonali u probabbilment tmur lil hinn minn dak li hu mistenni mill-maġistrat. Minkejja kollox imma hi materja li għandha impatt sostanzjali mhux biss fuq dan il-kaz, imma fuq bosta oħra ukoll.

Tkellimt dwar tlett punti bażiċi li naħseb li kellhom effett konsiderevoli fuq l-inċident li wassal għall-mewt ta’ Jean-Paul Sofia f’Diċembru li għadda. Bla dubju għad jista’ jkollhom effett fuq iktar każijiet. Inkjesta pubblika urġenti tista’ tindirizza dan kollu, bit-tama li ddaħħal ftit sens f’moħħ ir-regolaturi.

ippubblikat fuq Illum: 16 ta’ Lulju 2023

Questions which require an answer

There are questions to be answered as a result of government’s outright refusal to use its legal powers under the Inquiries Act to examine the circumstances leading to the death of Jean-Paul Sofia on 3 December 2022. These questions can be basically boiled down to two: who is being shielded, what is being hidden?

The magisterial inquiry, when it is concluded, will identify criminal responsibilities which contributed to and led to the fatal accident. It will possibly examine the workings of the Planning Authority, the Building and Construction Authority and the Lands Authority when these are of obvious relevance to the fatal accident under consideration.

What is however required is an in-depth examination of these three authorities to establish, among other issues, whether, under the guise of doing away with unnecessary bureaucratic red-tape, adequate regulatory controls were diluted or discarded over the years, as a result creating a systemic regulatory failure.

I am here referring to the practice of channelling development planning applications in Industrial Estates through the simplified procedure known as DNO (Development Notification Order). As a result, this type of development proposal is placed below the regulators’ radar and consequently irregularities in the construction phase can easily go unnoticed. This, in my opinion could be one of the contributory factors to the fatal accident. I doubt whether the inquiring magistrate would factor this in the considerations of the magisterial inquiry. It would however be a most obvious consideration in a public inquiry.

The development under consideration was subject to two DNO applications, both of which were approved: DN360/20 and DN275/22.

It remains to be seen how the public land under consideration within an industrial estate ended up being transferred to the developer who took works in hand. Various allegations have been made on the possible irregularities in play. Possibly the inquiring magistrate may examine the issue but after more than seven months, we are none the wiser.

The project architect has been reported as being on the books of Infrastructure Malta, running a private practice simultaneously with carrying out the responsibilities demanded of a public sector appointment. It is current public policy to allow professionals in the public sector to juggle their responsibilities between their private practice interests and their public sector employment.

It is expected that their private practice does not conflict with the carrying out of their public sector duties. It would be reasonable to assume that during normal hours the professional at Infrastructure Malta would be expected to supervise public projects, unless the applicable working day is different from that which the rest of us mortals are accustomed to. It was reported in the press that the project architect has a steady private practice which has been developed in parallel with the full-time Infrastructure Malta role. The incompatibility between the roles is too obvious to require comment. It is not just an issue of the applicable employment conditions, but more so one concerning professional ethics.

A public inquiry would look into this specific issue and consider whether public sector professionals should be curtailed in practising their profession privately in such circumstances. I am not sure whether the inquiring magistrate would consider delving into the matter as it is primarily an ethical issue and most probably beyond the magistrate’s remit. It does however have a considerable impact not just on the case under consideration but also in many others.

I have referred to three basic issues which could have had considerable bearing on the Jean-Paul Sofia fatality last December, and other fatalities yet to come. An urgent public inquiry would address these issues, possibly driving in some sense in our regulators and regulatory procedures.

published in The Malta Independent on Sunday: 16 July 2023

ADPD dwar il-ħruġ ta’ liċenzja għall-industrija tal-kostruzzjoni

Ftit iktar minn xahar ilu ħadna sehem fil-konsultazzjoni pubblika dwar ir-riforma meħtieġa fl-industrija tal-bini.

F’dawn is-sottomissjonijiet nemfasizaw li :

• Esperjenza, kwalifiċi u taħriġ – it-taħriġ għandu jkun kriterju essenzjali għall-kisba tal-liċenzja u dan għandu jkun wieħed partikolarment meħtieġ għal min m’għandu l-ebda kwalifika formali;
• Ċertifikat ta’ kondotta – għalkemm hemm numru ta’ reati li jitnaddfu minn dan iċ-ċertifikat wara numru ta’ snin, riżultat tal-liġi dwar iċ-ċertifikati tal-kondotta, il-Bord tal-Liċenzji għandu jara li jikkonsidra l-informazzjoni kollha dwar l-applikanti li tista’ tkun ta’ rilevenza fil-qasam tal-kostruzzjoni;
• Imġiba, ilmenti u inċidenti – l-informazzjoni li l-Awtorità dwar il-Bini u l-Kostruzzjoni takkumula dwar is-siti ta’ kostruzzjoni għandha tingħata importanza kbira għaliex l-imġiba fl-operat ta’ kull applikant għandha jkollha relevanza kbira fid-deċiżjoni dwar il-ħruġ tal-liċenzja;
• Assigurazzjoni – din tista’ sservi bħala double-check fuq is-sistema tal-liċenzjar għax tgħarbel ir-riskju ta’ kull applikant u potenzjalment tista’ tirrifjuta li tassigurah fejn dan ikun meħtieġ.

Jekk trid tara s-sottomissjonijiet ta’ ADPD fid-dettall: agħfas hawn

Licensing the construction industry

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.

published in The Malta Independent on Sunday: 19 March 2023