Malta: Avoidance Of Damage To Third Party Property Regulations

Last Updated: 3 July 2019
Article by George Bugeja

Most Read Contributor in Malta, July 2019

The main scope of these Regulations is that of ensuring that before the start of any type of works consisting of any demolition, excavation, or construction, methodologies that are technically secure are prepared in order to minimise the risk of damage to third party property or injury to persons that may result through the proposed works.


Applicability

The Regulations took effect on the 25th June 2019, and apply to all excavation, demolition and construction works, including works which had already commenced (but were not complete) before the said date. The Director of the Building Regulation Office ("BRO") is however authorised to issue appropriate orders in this respect, according to the requirements and nature of a particular site.

The Regulations apply to construction work which involves:

  • Excavation which takes place in the vicinity1 of third party property2;
  • The demolition or removal of any existing structure which is contiguous to, overlying, or underlying, property belonging or occupied by third parties;
  • The building of additional storeys or load-bearing walls or structures over any property belonging to or occupied by third parties; or
  • The construction of new buildings or additional storeys adjacent to existing third party property.

A number of exemptions to the obligations imposed by the Regulations also apply if the perit in charge of the project certifies, giving clear reasons, that the structural interventions will not affect third party property.


Main Stakeholders

The Regulations regulate the interplay between a number of different stakeholders involved in a project, as follows:

  • Perit in charge of the project – the perit who will assume responsibility for the execution of the project approved in the development permit;
  • Developer – the person for whose benefit a project would be carried out;
  • Contractor – the person engaged by the developer in order to execute the works; and
  • Site Technical Officer – a perit appointed by the contractor and approved by the perit in charge of the project, who is responsible for the enforcement of the method statement covering the works.


Site Technical Officer

One of the main changes introduced by the Regulations is the replacement of the role of a "site manager", with that of a "site technical officer". Whilst according to the 2013 Regulations any person could have carried out the role of a site manager, the Regulations now establish that the site technical officer can only be a warranted perit. This has therefore resulted in a shift in responsibility from the site manager (or the developer, in the absence of a site manager having been appointed), to the perit who will now be appointed as the site technical officer.

Furthermore, whilst according to the 2013 Regulations it was the developer who was responsible for appointing a site manager, the responsibility for appointing a site technical officer now rests with the contractor. A site technical officer will also need to be approved by the perit in charge of the project, in order to be appointed to this role.

The site technical officer will be the person responsible to ensure that method statements are adhered to. Furthermore, the site technical officer will also be required to be on site whenever decisions are taken that influence the risk of damage to third party property or injury to persons that may be caused by the works.

Furthermore, the site technical officer is required to stop works and request the direction of the perit in charge of the project when in doubt as to how works should proceed. In the event that the site technical officer notices any violation of the Regulations, the site technical officer is to stop the works and notify the perit in charge of the project and the BRO of this.

Though the Regulations separate the role of the perit in charge of the project, from the role of the site technical officer, the Regulations do not prohibit the same perit from carrying out both roles.


Developer

Though a number of responsibilities have now shifted onto the site technical officer, the developer still remains responsible to take all reasonable precautions to ensure that the construction activity will not result in any damage to contiguous properties, including damage that may result from the infiltration of water.

The developer is also required to ensure that demolition, excavation and construction works are covered by an insurance cover of not less than €750,0003, and which shall continue to be renewed until such time when all work is certified as complete by the perit in charge of the project. A bank guarantee up to a maximum of €40,000 may also need to be provided as security for damages which may occur to third party property, depending on whether this is also covered by the developer's insurance cover, and as the Director of the BRO may determine.


Method Statement and Condition Report

The Regulations provide specific detail as to what the contents of a method statement are to contain, with different details being required according to whether the works will consist of demolition, excavation or building. Similarly the Regulations also specify what the contents of condition reports of neighbouring properties are to contain.

Of particular interest is that method statements for excavation works will also require an identification of the ground conditions by obtaining information from any ground investigation reports carried out within the immediate surroundings; or from information from other periti who have built or supervised excavation in the immediate surroundings. In the absence of this information being available, ground investigation would need to be carried out on the site that is to be excavated.

The method statement and condition reports are to be submitted to a website which will be prescribed by the Director of the BRO at least 2 weeks before the commencement of works. Third parties are also given the opportunity to ask for amendments to be made to method statements and condition reports.

Method statements are to be prepared by a perit in collaboration with the site technical officer and the contractor. The said perit drawing up the method statement will therefore be responsible for the contents of the method statement, whilst the site technical officer will be responsible for the enforcement of the method statement. The contractor will be responsible for the implementation of the measures mentioned in the method statement.

The Regulations have also increased the fines for not complying with a method statement to €10,000, and to a further fine of €500 for each day the offence continues4.

___

1 The "vicinity" is calculated according to the envisaged depth of excavation.

2 The definition of "third party" property adopted here excludes pavements, public footpaths, and services underlying pavements and public footpaths.

3 The 2013 Regulations required the minimum insurance cover to amount to €500,000.

4 Higher fines also apply if one acts in breach of an enforcement notice issued by the BRO.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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