This article was written by Joshua Chircop and Nadia Abela.
Overview and scope
The ‘Avoidance of Damages to Third Party Property Regulations’ (L.N. 136 of 2019) (the ‘Regulations’) have been enacted by the Minister responsible for the building industry in virtue of the powers vested in him under the Building Regulation Act, after consultation with the Building Regulation Board (BRO).
The scope of the Regulations is to ensure 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 damages to third party property or injury to persons that may result from the proposed works.
The Regulations apply to all construction work which involves:
- (a)any excavation which includes third party property in its affected zone;
- (b)the demolition or removal of any existing structure, or roof or structure contiguous to or occupied by third parties. This includes toothing work with existing buildings;
- (c)the building of additional storeys or load-bearing walls or structures over any property belonging to or occupied by third parties; or
- (d)the construction of new buildings or additional storeys adjacent to existing third-party property.
This L.N. repeals L.N. 72 of 2013, Subsidiary Legislation 513.02, similarly titled the ‘Avoidance Of Damage To Third Party Property Regulations’. The new Regulations are to apply to works of excavation, demolition and construction, that would have started but are not complete on the date of 25th June 2019, as well as those works of excavation, demolition and construction that have yet to start.
The developer must ensure that all reasonable precautions are taken so as to avoid damage to contiguous property. Such damage includes damage from water infiltration.
The developer must make sure that the aforementioned construction works are comprehensively insured, with the minimum insurance amount set at €750,000. Such insurance is to cover any damage that can arise, be it to property or to people, and must subsist for the whole course of the project. A copy of the said insurance policy is to be submitted to the Director of the BRO (the ‘Director’).
The developer is to submit a bank guarantee for all construction activities. This requirement can be waived by the Director if the developer presents to the former a certified statement by the insurance company which declares that the developer has adequate insurance which can cover all damages that might arise. In this case, a bank guarantee still needs to be submitted to the Director which is to be equivalent to the maximum amount in excess as shown in the insurance policy. The guarantee will only be released once works are completed and following 3 months from notification of completion of works during which no claims are filed.
On completion of the project, the developer shall, within 2 weeks, submit a certification issued by the perit in charge of the project that the works have been completed. Completion of the project means the completion of all structural and other works including the roof, screed of roofs, terraces and yards, the closure of apertures and other works to render the building sealed against the ingress of water.
The developer must submit to the Director a condition report of the property which is located opposite, overlying, or underlying any site on which construction works are going to be carried out. In the case of excavation, the condition report must also include the properties which fall within the affected zone of excavation. Developers are to submit these at least 2 weeks before the works commence. A copy of said report must be sent to the owners or to the respective occupants who should in turn inform the owner of the relevant property, by means of a registered letter.
Where any problems pertaining to the write up of this report are encountered, the perit should insert a detailed written declaration with reference to this. If the owner(s)/occupant(s) disagree with anything contained in this report, they should give notice to the Director within 2 weeks. Failure to act will imply acceptance of the report. When notice is indeed given, the perit in charge of the project and the perit of the third party can consult so as to issue a second report. If no agreement is reached, then the Director can order an inspection.
Site technical officer
The perit is responsible for the approval of a site technical officer who is to be nominated by the contractor. This role is to replace that of a site manager under the previous regulations and is now more regulated.
The perit is responsible for the submission of a method statement which should be drawn up in collaboration with the site technical officer and the contractor. However, the perit will retain the ultimate responsibility for the method statement, whilst responsibility for its enforcement lies with the site technical officer, and responsibility for its implementation lies with the contractor. Therefore, where the site technical officer is in doubt as to how works are to proceed, work is to be stopped and direction from the perit should be awaited. Where the contractor is not fulfilling his obligations, the site technical officer is to report this to any perit in charge and to the BRO.
A method statement needs to be submitted within a minimum of 2 weeks before any work starts. If an interested third party would like the Director to review this statement, they need to submit a detailed report by a perit which should indicate the technical reasons which may be of concern to the said third party or to his property. Certain prescribed owners/occupants may also request a partial method statement at any time during the project. Fines for not complying with a method statement have been increased to €10,000, and to a further fine of €500 for each day the offence continues.
Responsibilities of the Director of the BRO
The responsibilities of the Director for any of the above-listed works are:
- a)to verify that the method statement has been submitted in accordance with the above;
- b)to review the method statement if this is disputed by a third party;
- c)to verify that the insurance policy is in place in accordance with the Regulations;
- d)to monitor methodologies being carried out on site to see that they are in line with the method statement submitted and in accordance with the Regulations.
If any of the above are not adhered to, or if for some other reason the Director feels that it is so appropriate, he can issue an enforcement notice to halt or stop the work from being started. Upon being served with such an enforcement notice, the site technical officer shall immediately communicate this notice to the contractor and to any perit and see to it that this order is complied with. This is done by ceasing the demolition, excavation and/or construction activity, as applicable.
Additionally, if an infringement of the Regulations poses a serious threat to safety, the Director has the power to take urgent interim measures. These powers can be delegated to another person by the Director. Furthermore, the Director may impose administrative penalties for infringement of any provision or failure to abide with his instructions. An increase in fines also applies if one acts in breach of an enforcement notice issued by the BRO.
This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr Dorita Cardona and Dr Joshua Chircop.