AVOIDANCE OF DAMAGE TO THIRD PARTY PROPERTY REGULATIONS

THIRD PARTY PROPERTY

SUBSIDIARY LEGISLATION 623.06

AVOIDANCE OF DAMAGE TO THIRD PARTY

PROPERTY REGULATIONS

25th June, 2019

LEGAL NOTICE 136 of 2019, as amended by Legal Notices 180 of

2019, 409, 426 and 468 of 2021 and 37 of 2024.

The title of these regulations is the Avoidance of Damage

to Third Party Property Regulations.

(Regulation 3)

1. Public footpaths and pavements.

2. Services underlying public footpaths and

pavements, within the immediate vicinity of the frontage of the

construction site.

(1)

The scope of these 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 through the proposed

works.

(2)

The provisions of these regulations shall in no way be

construed as having any bearing on the responsibilities related to the

design of buildings and construction activity emanating from other

legislative instruments.

(Regulation 8)

Developer's name and surname;

Perit/i in charge of the project;

Perit responsible for the demolition method statement;

Perit responsible for t he excavation method statement

Perit responsible method statement for building works

Site technical officer during demolition;

Site technical officer during excavation;

Site technical officer during building works

Contractor and/or sub-contractor responsible for demolition;

Contractor and/or sub-contractor responsible for excavation;

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Contractor and/or sub-contractor responsible for building works

Project supervisor as provided for in Legal Notice 88 of 2018 or

subsequent amendments

Site manager as provided for in Legal Notice 295 of 2007 or

subsequent amendments.





Substituted by: 

In these regulations, unless the context otherwise

requires

"the Act" means Building Regulation Act;

"Building and Construction Authority" means the same

as the definition provided in the Building and Construction

Authority Act;

"building work" means construction work excluding

excavation work and demolition work but includes structural

alterations;

"construction work" means that it includes all

construction works carried out on the structure of the fabric of a

building or on a civil engineering structure, including

alterations on existing buildings, demolition or excavation

activities taking place on a development site, streets, open

spaces and shall also include tunnelling works;

"contiguous property" means immediately adjacent to

third party property, including any building sharing a dividing

party wall with the site, whether on the side or back of the site,

or overlying or underlying third party property, excluding those

listed in the First Schedule;

"contractor" means the person engaged by the developer

in order to execute the works;

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"demolition" means the pulling down or removal of

structural elements which form part of the building;

"developer" means the person in whose name the

application had been submitted for a development permit, in

accordance with the provisions of the Development Planning

Act or in accordance with the provisions of the regulations made

thereunder;

"Director" means the Director responsible for the

Building and Construction Authority or any public officer duly

delegated by the Director to act on his behalf;

"enforcement notice" means the same as the definition

assigned to it in article 14 of the Act;

"excavation" means the cutting or removal of rock, clay

and any other natural or human placed material, that forms part

of the land, or the removal of any consolidated material;

"excavation affected zones" means, a zone surrounded by

excavation, that reaches a distance of not more than the

equivalent measure for the height proposed for the excavation,

far from the limits of the excavation;

"method statement" means a report prepared by a perit

and shall have the meaning assigned to it in these regulations;

"Minister" means the Minister responsible for the

building industry;

"particulars of a person" means that it includes the name

and surname, Identity Card number, address and a twenty-four

(24) hour contact number as well as the email address of a

person;

"perit in charge of the project" means the perit that is

going to assume responsibility for the execution of the project

approved in the development permit;

"Planning Authority" means the Authority as established

under the Development Planning Act;

"pneumatic drill" means equipment driven by compressed

air or other means, used for drilling or breaking of hard

materials such as rock or concrete;

"site technical officer" means a person carrying out the

duty or duties derived from the provisions of these regulations.

Such person shall be

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(a)

nominated by the contractor and shall be

accepted by the perit in charge of the project;

(b)

competent as provided in the Third

Schedule;

(c)

responsible for the enforcement of the

method statement covering the works which the

contractor who nominates him is responsible for.

(d)

present on site whenever decisions are

being taken that influence the risk of damage to third

party property or injury to persons that may be caused by

the works;

"sub-contractor" means the person engaged by the

contractor in order to execute the works. Such a person has no

juridical relationship with the developer. The sub-contractor is

subject to the same obligations that are impinged on the

contractor in these regulations with the exception that the

nomination of the site technical officer shall remain the

responsibility of the contractor;"third party" means a person

having a legal title over property or making use of the property

by other lawful means, contiguous to a construction site,

excluding those properties listed in the First Schedule.

L.N. 180 of 2019.

(Regulation 3)

(Competence of Site Technical Officer)

(Competence of Site Technical Officer)

In the case of demolition

-

Perit

-

A person who is in possession of a Bachelors degree in

Engineering

In the case of excavation

-

Perit

-

A person who is in possession of a Bachelors degree in

Engineering

In the case of building works

-

Perit

-

A person who is in possession of a Bachelors degree in

Engineering

These regulations shall be applicable to any construction

work which involves

(a)

excavation, that in its affected zone includes third

party property; or

(b)

the demolition or removal of any existing

structure, or roof or structure abutting with, or immediately

adjacent to, or underlying or overlying any property belonging

to or occupied by third parties or toothing work with existing

buildings; or

(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.

(Regulations 7 and 8)

(Method Statement for Demolition Works)

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1. The commencement date of the works.

2. The identification of risks involved.

3. The proposed methodology, supported by any other

documentation as may be required, which should specify

(a)

the risks involved after taking account of the

structural condition of the construction itself and

contiguous structures;

(b)

the sequence of works to be undertaken;

(c)

measures to safeguard the stability of the works

being undertaken, the stability of contiguous

structures or terrain as the case may be;

(d)

the type of machinery equipment that is allowed

to be used;

(e)

the type of machinery equipment that is not

allowed to be used;

(f)

if applicable, the type of crane to be used, the

location where this is to be set-up, the

methodology for setting up the crane, information

about ground conditions below the proposed crane

locations, and other relevant information relating

to the crane that may be supported by certification

by a warranted engineer;

(g)

the precautions and safeguards to be adopted

(i)

against instability of the structure;

(ii)

for parts thereof being demolished;

(iii)

for any contiguous structures;

(iv)

for the safety of persons.

(4)

Procedure to be adopted for the loading and carting away

of the resulting debris.

(1)

The contractor shall nominate a site technical

officer, after he has been accepted by the perit in charge of the project.

(2)

If the developer has changed when construction works

are still to be carried out or are being carried out, such new developer

shall abide by these regulations.

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(3)

The developer shall 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.

(Regulations 7 and 8)

(Method Statement for Excavation Works)

1. The commencement date of the works.

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2. A description of the affected zone of the excavation,

explained schematically in inclusive of a dimensioned

plan that includes the following

(a)

the limits of excavation;

(b)

the depth of each part of the excavation;

(c)

the affected zone of the excavation, shown shaded

and dimensioned;

(d)

the properties and buildings belonging to third

parties that fall within the affected zone of the

excavation.

Figure 2.1 Definition of the affected zone.

3. A description of the loads acting on the ground within the

affected zone shown in Figure 2.1, referenced to the

condition reports as per Seventh Schedule.

4. A description of the ground conditions. This should include

the following

(a)

identification of ground materials through the

geological map of the Maltese Islands;

(b)

information from any ground investigation reports

that fall within the immediate surroundings,

specifically within the affected zone;

(c)

information from other periti who have built or

supervised excavation in the immediate

surroundings, after having obtained the necessary

consent to use this information;

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(d)

if information requested in items (b) or (c) is not

available,

information

from

a

ground

investigation that would need to be commissioned

for the proposed project. This investigation shall

be carried out from within the site that is to be

excavated. In the case of excavations not

exceeding 2m in depth, such information may be

obtained from trial pits, whereas borehole drilling

with full recovery shall be required for all other

proposed excavation depths. If agreement is

reached with the neighbouring third parties within

the affected zone, boreholes shall be drilled,

inclined, from within the site that is to be

excavated, into the ground beneath the

neighbouring third party properties.

5. Identification of the risks involved in carrying out the

excavation, taking into account the expected strength of

the ground materials, the presence or otherwise of

fissures, and the loads within the affected zone.

6. A signed declaration by the perit responsible for the

method statement stating that after having had regard for

the requirements of items 2, 3, 4 and 5, the excavation

works are possible and can be safely executed.

7. If ground improvement or underpinning is not considered

necessary, a signed declaration by the perit responsible

for the excavation method statement stating why a

ground improvement intervention or an underpinning

intervention is not necessary.

8. proposed methodology of excavation, supported by any

other documentation as may be required, which should

specify

(a)

where the excavation is to be started from;

(b)

any phasing required to achieve the required rock

buttressing;

(c)

the levels that should be attained in each stage of

the excavation;

(d)

the type of machinery equipment that is allowed

to be used;

(e)

the type of machinery equipment that is not

allowed to be used;

(f)

if applicable, the type of crane to be used, the

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location where this is to be set-up, the

methodology for setting up the crane, the relevant

ground conditions below the crane, and other

information relating to the crane that may be

relevant, supported by certification by a warranted

engineer;

(g)

the precautions and safeguards to be adopted

(i)

against instability of structures falling

within the affected zone;

(ii)

for the safety of persons.

9. Procedure to be adopted for the loading and carting away of

resulting debris.

10. Subject to the provisions of the Civil Code (Cap. 16.),

where underpinning is to be undertaken, full details of how

the underpinning works are to be executed, supported by

scaled plans, sections and detailed drawings. A description

of how the underpinning works are to be phased in relation

to other excavation work needs to be described.

11. Issues to be observed during the excavation.

12. A signed declaration by the perit responsible for the

excavation method statement stating that the contents of the

excavation method statement were discussed with the site

technical officer and the contractor/subcontractor

undertaking the works, who have accepted to proceed with

the works according to the method statement.

13. Any monitoring readings that are required to be undertaken

during the excavation, describing where, how and what is

to be measured and what results are to be tolerated prior to

taking ulterior action.

(1)

Repealed by Legal Notice 37 of 2024.

(2)

Repealed by Legal Notice 37 of 2024.

(3)

The developer shall submit a bank guarantee to the

Director, for all construction activities, other than those listed in

regulation 26. The value of the bank guarantee shall be of three

thousand euro (€3,000) for each storey of developed third party

property or properties which is or are contiguous to a development site,

for the first five (5) properties and a further one thousand euro (€1,000)

for each additional contiguous property, up to a maximum of forty

thousand euro (€40,000)

Provided that the Director shall exempt the developer

from the submission of a bank guarantee, as indicated, if the developer

submits to the Director a certified statement issued by an insurance

company attesting that the developer is insured in such a manner as to

cover indemnity for damages to third party property, including

damages of a minor nature

Provided further that the developer shall submit in this

case, a bank guarantee to the Director, equivalent to the maximum

amount in excess indicated in the insurance policy.

(4)

Any third party having a claim for damages against the

developer shall immediately inform the Director and the developer. The

Director shall retain either the full bank guarantee up to the maximum

of forty thousand euro (€40,000) calculated according to sub-regulation

(3), or a part thereof equivalent to the amount being claimed by third

parties until such time that a court of law or arbitral award decides on

the matter, by means of a judgement or award, which is final

Provided that in the case where an amicable settlement is

reached with respect to such claim for damages, the parties shall submit

to the Director the settlement agreement, which shall also make a clear

provision for the bank guarantee withheld by the Director and its

release.

(5)

Should a court of law or arbitral award liquidate damages

against the developer, the bank guarantee shall be forfeited in favour of

the Director, who will in turn, under the order of the court or in terms of

the arbitrations award, shall effect payment to any party awarded

damages, in accordance with the judgement of the court or the award of

the arbitration.

THIRD PARTY PROPERTY

(6)

On completion of the project, the developer shall, within

two (2) weeks, submit a certification issued by the perit in charge of

the project that the works have been completed. For the purpose of this

sub-regulation project completion shall mean 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.

(7)

The Director shall, as soon as he is in receipt of the

certification from the perit in charge of the project, mentioned in sub-

regulation (6), immediately place on a website prescribed by the

Director, a notice giving the date of notification of project completion.

The perit in charge of the project shall also within (2) two weeks,

notify all the owners and occupiers of those properties, for which a

condition report had been submitted by the developer’s perit, with the

details of such certification regarding project completion.

(8)

Following a request made by the owner of a contiguous

property, the Director shall retain the bank guarantee in those cases

where such owner submits proof that judicial or arbitral proceedings

for compensation of damages caused to the property have been

initiated.

(9)

Unless such a request from the owner is received by the

Director within three (3) months from the date of notification of

project completion, the Director shall release the bank guarantee

Provided that a bank guarantee shall be released if the

Director has been informed in writing by the owners of the contiguous

property, as indicated in the method statement, that they do not have

ulterior claims.

(Regulations 7 and 8)

(Method Statement for building works)

1. The commencement date of the works.

2. Checks showing that any existing floors are capable of

sustaining the additional load being imposed by the new

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construction these should include

(a)

an estimate of existing and proposed loads in

every floor, and a declaration that the structural

elements of each individual floor are capable of

sustaining the additional loads when checked in

accordance with established codes of practice;

(b)

a description of any additional reinforcement

work that may be necessary in each floor.

3. Checks showing that the foundations of the building are

capable of sustaining any additional loads placed over the

existing storeys. These should include

(a)

an estimate of the existing and proposed loads at

foundation level;

(b)

information about the nature of the foundations of

the building, including type and dimensions;

(c)

information on the nature of the ground,

supported by the respective ground investigation

reports that shall be attached to the method

statement.

4. Identification of risks involved. If any of the information

required in items 2 and 3 is not available, then the method

statement shall contain a declaration by the perit

responsible for the project that he/she is assuming full

responsibility for the structural capacity of the building,

the safety of its occupants, and the safety of operatives

working on its construction, notwithstanding the missing

information that precludes the necessary checks from

being made.

5. Proposed methodology, supported by any other

documentation as may be required, which should specify

(a)

the risks involved after taking account of the

structural condition of the construction itself and

contiguous structures;

(b)

the sequence of works to be undertaken;

(c)

measures to safeguard the stability of the works

being undertaken, the stability of contiguous

structures or terrain as the case may be;

(d)

the type of machinery equipment that is allowed

to be used;

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(e)

the type of machinery equipment that is not

allowed to be used;

(f)

any specific interventions required during the

course of works;

(g)

if applicable, the type of crane to be used, the

location where this is to be set-up, the

methodology for setting up the crane, the relevant

ground conditions below the crane, and other

information relating to the crane that may be

relevant, supported by certification by a warranted

engineer;

(h)

the precautions and safeguards to be adopted

(i)

against instability of the structure;

(ii)

for parts thereof being demolished;

(iii)

for any contiguous structures;

(iv)

for the safety of persons;

6. Procedure to be adopted for the loading and carting away of

the resulting debris.

(1)

Not later than two (2) weeks before the

commencement of any works of excavation, demolition or construction,

the perit in charge of the project shall submit the relative method

statement in accordance with the Fourth, Fifth and Sixth Schedules

and a report on the condition of the property according to the Seventh

Schedule that has been issued in the English language only, on the

website prescribed by the Director.

(2)

Any interested third party may request the Director to

review any method statement that is submitted provided the third party

submits a detailed report drawn up by a perit indicating the technical

reasons which may be of concern to the safety of such third party or

his property.

(3)

Following a written request by a third party owner or

occupant of any property abutting, overlying or underlying any site, on

which construction works are to be undertaken, and in the case of

excavation, a third party who is the owner or occupant of any property

that falls within the affected zone of excavation, the Director may

THIRD PARTY PROPERTY

request from the developer the submission of a partial method

statement at any stage. Such method statement shall be submitted

within three (3) weeks from the date when the developer receives the

request. In his request, the Director shall indicate the details that are to

be included in the partial method statement.

(4)

The developer shall also be required to submit to the

Director, the report on the condition of the property which is located

opposite, overlying or underlying any site, on which construction

works are going to be carried out, and in the case of excavation, the

properties which fall within the affected zone of excavation, on a

website prescribed by the Director, by not later than two (2) weeks

before the works are commenced. A copy of the report must be sent

to the owners or the respective occupants of the relative property by

means of a registered letter.

(5)

If the owner or occupant of such third party property does

not agree with the condition report of the property, he shall give notice

to the Director within two (2) weeks. If no corrections or no other

condition report are submitted to the Director within such time from

receipt thereof by the owner or occupant of third party property, it shall

be understood that the owner or occupant of such property agrees with

the condition report submitted by the developer.

(6)

In the eventuality of corrections, or another condition

report being submitted by third parties, the Director may, at his

discretion, ask the perit in charge of the project to consult with the perit

of the owner or occupant of third party property to review the condition

report and, should parties reach agreement, resubmit to the Director a

new report signed by both (2) periti.

(7)

Should the developer and the owner of third party

property fail to reach an agreement as described in sub-regulation (6),

the Director shall commission an inspection to be carried out by the

Building and Construction Authority, to issue a final report. The costs

of such an inspection report shall be shared equally by the developer

and by the third party owner or occupant.

(8)

Where a third party owner or occupant refuses entry to the

developer’s perit, or where the perit in charge of the project is unable to

obtain access to contiguous property, or where the identity of the owner

or, occupant of contiguous property is unknown or cannot be traced, for

the purpose of preparing the condition report, such perit shall make a

written declaration giving details of his attempts to be allowed access

to the neighbour’s property, including the notification or attempts of

notification by registered mail, for the purpose of preparing the

condition report and include such details in the method statement.

(9)

Where the occupant of a property for which a condition

report is required is not the owner, the occupant shall

THIRD PARTY PROPERTY

(a)

inform the owner that a perit responsible for the

project, acting on behalf of the developer of a contiguous

development site, has requested access to the property for

purposes of preparing a condition report; and

(b)

forward the condition report to the owner upon its

receipt from the developer.

(10) The Building and Construction Authority reserves the

right to have any information provided verified by independent persons.

(11) (a)

Wherever more than fifty percent (50%) of the

total number of owners of any one complex which falls within an

excavation affected zone as defined in these regulations are in

disagreement with the condition reports and, or method statements

prepared by the perit on behalf of the developer in terms of these

regulations, they may elect to engage one perit of their choice to

review the said condition reports and, or method statements that were

prepared by the perit on behalf of the developer and may make a claim

for disbursement as provided in this sub-regulation.

(b)

The amount claimed for disbursement in terms of

paragraph (a) shall not exceed five hundred euro (€500) exclusive of

VAT for any one complex.

(c)

The developer shall deposit a bank guarantee to

the Building and Construction Authority equivalent to five hundred

euro (€500) exclusive of VAT for each complex situated within the

excavation affected zone to make good for any claims made in terms

of paragraph (a). No clearance to commence works shall be given by

the Building and Construction Authority unless the relative sum is

deposited in full.

(d)

Any claim made in terms of paragraph (a) by an

owner of a complex situated within the excavation affected zone shall

be made to the developer and notified to the Building and Construction

Authority. Payment by the developer shall be made against an

authentic copy of the fiscal receipt issued by the perit appointed to

review the condition reports and, or method statements. The Building

and Construction Authority shall, within two (2) weeks, after the perit

in charge of the project submits a certification that the works have

been completed together with the authentic copy of the fiscal receipts

related to the payments done by the developer with respect to all

claims, release back to the developer the bank guarantee raised in

terms of paragraph (c).

(e)

The perit appointed to review the condition

reports and, or method statements shall not be prohibited from making

other independent arrangements with the owner or owners of the

complex appointing him or her, for any fees that are considered over

THIRD PARTY PROPERTY

and above the said amount.

(f)

For the purpose of this sub-regulation, "complex"

means any property on one or more levels sharing the same footprint or

part thereof and having access onto a street and where more than fifty

percent (50%) of the total number of owners elect to commission the

same perit to review the condition reports and, or method statements

that were prepared by the perit on behalf of the developer

Provided that each un-divided co-owned property having

independent access within a complex is considered to be owned by one

owner for the purpose of computing the total number of owners in

paragraph (a).

(12) The commencement of any works of excavation,

demolition or construction may take effect only after the Building and

Construction Authority provides clearance in writing.

(13) When a stop order issued by the Director is revoked, the

resumption of any works of excavation, demolition or construction

described in that order may take effect only after the Building and

Construction Authority provides clearance in writing.

(Regulation 7)

(Condition Reports)

1. Details of property.

2. Description of the structure system used for floors (e.g

reinforced concrete slabs, stone slabs on timber beams,

concrete frame, etc).

3. Description of the structure system used for transmitting

vertical load (e.g. masonry walls, concrete columns, etc).

4. Brief description of finishes and their general condition.

5. Brief description of the condition of existing services,

including, but not limited to, any leakages, blockages etc.

6. Sketch plan of property.

7. List of observed defects, by room, cross-referenced to

photos.

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8. In the case of properties falling within the affected zone of

excavations, the report shall, in addition to items 1 to 7,

include

(a)

A dimensioned sketch plan of the lowest floor of

the building.

(b)

Clear identification of the structural system of the

building, within this zone, describing how load is

transmitted to the foundations.

(c)

An estimate of the load reaching foundation level,

in kN/m or kN.

(d)

Identification of the type and dimensions of

foundations within this zone.

(e)

An estimate of the bearing pressure at foundation

level in kN/m2 in the case of strip footings, pad

footings and raft foundations.

9. In the case of buildings over which additional floors are to

be constructed, the report shall, in addition to items 1 to 7,

include

(a)

dimensioned sketch plan of all floors of the

existing building.

(b)

Clear identification of the structural system of the

building, within all floors describing how load is

transmitted from floor to floor and to the

foundations.

(c)

An estimate of the loads at floor level of each

floor, and reaching foundation level, in kN/m or

kN.

(d)

Identification of the type and dimensions of

foundations of the existing building.

(e)

An estimate of the bearing pressure at foundation

level in kN/m2 in the case of strip footings, pad

footings and raft foundations.

10. If information about the foundations of the building is not

readily available, this is to be clearly stated in the report,

and the assumptions made in calculating the bearing

pressure are to be described, for both of the above cases.

(1)

The method statement shall be prepared by a perit in

collaboration with the site technical officer and the contractor who are

responsible for the works covered by such statement.

(2)

The method statement shall include the information

requested in the Second Schedule.

(3)

Not later than two (2) weeks prior to the start of

demolition works, the relative method statement shall be sent with the

information requested in the Fourth Schedule, that has been issued in

the English language only.

(4)

Not later than two (2) weeks prior to the start of any

excavation works, the relative method statement shall be sent with the

information requested in the Fifth Schedule, that has been issued in the

English language only.

(5)

Not later than two (2) weeks prior to the start of

construction works, that don’t include excavation and demolition, the

relative method statement shall be sent with the information requested

in the Sixth Schedule, that has been issued in the English language

only.

(6)

It shall not be lawful to make use of

(a)

a mechanical excavator with a hydraulic hammer

attachment; or

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(b)

a pneumatic drill,

before half past seven in the morning (7.30a.m.) and after four

in the afternoon (4.00p.m.) and all day on Sundays and public

holidays

Provided that the Director may, at his own discretion,

either waive the condition set out in this sub-regulation, following a

request in writing from the site technical officer, or impose further

restrictions on the time at which this equipment can be used, with

respect to specific sites

Provided further that the Director may exempt certain

works from the provisions of this sub-regulation, such certain

emergency works of an infrastructural nature, including drainage

works, as well as mechanical and electrical works, and works

undertaken to eliminate danger to the public, such as those related to

the outbreak and spread of fire and, or where there is an imminent

danger of collapse of buildings or structures

Provided further that this sub-regulation does not apply

when, in the opinion of the Minister, the works are deemed of a public

interest.

Professional responsibility for the method statement

remains with the perit who prepares it. The responsibility for the

enforcement of the method statement rests with the site technical officer,

and the implementation of the measures in the method statement, lies

with the contractor.

(1)

When the site technical officer is in doubt about

how works are to proceed, he shall stop the works and request

direction from the perit who would have prepared the method

statement.

(2)

The site technical officer shall ensure that the contractor is

complying with all their obligations as provided for in these regulations.

If the site technical officer notices any violation of these regulations, he

shall immediately stop the works and notify the perit(i) in charge and the

Building and Construction Authority.

(3)

Upon being served with an enforcement notice issued by

the Director, the site technical officer shall immediately communicate

this notice to the contractor and the perit(i) and see to it that this order is

complied with by ceasing the demolition, excavation and/or

construction activity, as applicable.

These regulations do not exempt the developer, the perit

in charge of the project, the site technical officer and contractor or the

sub-contractor from observing other obligations and provisions of the

law that are regulated by other laws.

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The Director shall, for construction works which fall

within any one (1) category of the works listed in regulation 4

(a)

verify that the method statement has been

submitted in accordance with these regulations;

(b)

review the method statement, if a submission is

received from a third party claiming that the method statement

does not provide for adequate safety and, or is not in accordance

with these regulations;

(c)

verify that demolition, excavation and, or

construction works are covered by a third party insurance policy,

in accordance with these regulations; and

(d)

monitor methodologies being carried out on site

and see that they are in line with the method statement submitted

and in accordance with these regulations.

(1)

The Director shall have the power to issue an

enforcement notice in any one (1) of the following circumstances

(a)

if the method statement has not been submitted in

accordance with these regulations; or

(b)

if no third party insurance is submitted for the

construction works in accordance with these regulations; or

(c)

if the demolition, excavation or construction works

are not being carried out in accordance with the method

statement or in accordance with regulations; or

(d)

if, irrespective of the adherence or otherwise to the

method statement and relevant regulations, the Director is of the

opinion that the demolition, excavation or construction works

are likely to cause material damage to third party property or

will result in danger to workers or to third parties.

(2)

The Director may delegate to officers of the Building and

Construction Authority and any person appointed by him the power to

issue on his behalf an enforcement notice.

(3)

Should a person who is served with an enforcement notice

fail to abide by the provisions of that notice or cease operations as

requested in the notice, the Director or his delegated representative

shall call for the presence of the Force of Order who shall for such

purpose exercise such powers as are vested in them at law to assist the

server of the enforcement notice in ensuring that the said notice is

complied with

Provided that should the Director or his delegated

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representative decide not to issue an enforcement notice, this shall not

be construed as a form of endorsement of the method statement, nor

shall it be construed as an endorsement of the work methodology being

carried out on site.

(4)

All expenses reasonably incurred by the Director in the

exercise of his power under this regulation shall be recoverable as a

civil debt by the Director from the person or persons to whom the

enforcement notice is issued, subject to any right of recovery such

person or persons may have against any other person.

(1)

Where the Director holds that an infringement of

these regulations represents a serious threat to the safety of third

parties or to the safety of third party property, he may take urgent

interim measures which may include requesting the developer to

remedy the situation in advance of reaching a final decision, or the

imposition of administrative fines, or both.

(2)

If any steps or other action, including discontinuance or

stoppage required by an enforcement notice issued, to stop any

construction activity from being started or to cease all or part of a

construction activity, have not been taken within the time specified

therein, the Director may enter the development site and take such

steps or other action he deems necessary, including the disabling or

removal of any equipment, machinery, tools, belongings, vehicles or

other objects that may be on the site and the carrying out of any works

that may be necessary to comply with what is requested in the

enforcement notice and may for such purpose request the assistance of

the force of order to exercise such powers as are vested in them at law.

(3)

All expenses reasonably incurred by the Director in the

exercise of his powers under this regulation shall be recoverable as a

civil debt by the Director from the developer subject to such right of

recovery which the developer may have against any other person.

(4)

The Director or any delegated official or perit shall not

be liable for any damages as a result of the exercise of his powers

under this regulation unless it is proved that such damage resulted

from gross negligence on the part of the Director, his delegate or other

official of the Building and Construction Authority.

(1)

The Director shall, before proceeding to take any

of the measures envisaged under regulation 14, inform the developer,

the perit in charge of the project, the site technical officer and the

15. person carrying out the construction works, warning them of the

measure that may be taken and the specific reason as to why it may be

taken. The Director may order the developer to cease or to rectify any

act or omission and, or to make submissions thereto within such period

of time not being less than seven (7) days, which period may be

abridged if the Director considers that the continuance of the

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infringement represents an immediate and serious threat to public

safety or public health, and, or warrants the immediate intervention of

the Building and Construction Authority

Provided that where the measure is or includes an

administrative fine the person concerned shall also be informed of the

amount of the fine

Provided further that when issuing a warning under this

sub-regulation, the Director may impose such conditions as he may

consider reasonable in the circumstances.

(2)

If the developer remedies the infringement within the

period established by the Director in accordance with sub-regulation

(1), and agrees in writing to abide with any condition that the Director

may impose, the Director may desist from proceeding any further,

without prejudice to any regulatory measures that may have already

been imposed.

(3)

If, after the lapse of the period mentioned in sub-

regulation (1), the Director considers that the developer has not given

any valid reasons to demonstrate why no measure should be taken

against him, the Director shall notify in writing, specifying the nature

of the infringement, stating the measure being taken and, if the measure

is or includes an administrative fine, stating the amount of the fine

being imposed

Provided that the notification mentioned in this sub-

regulation shall be in the form of a judicial act and the fines provided

for in these regulations shall be due to the Government as a civil debt

and following the service of a judicial act, in terms of article 466 of the

Code of Organization and Civil Procedure, which is either not opposed

or the opposition of which is denied, according to the provisions of the

said article, the same administrative fine shall constitute an executive

title for all the effects and purposes of Title VII of Part I of Book

Second of the Code of Organization and Civil Procedure.

(1)

The Director may delegate to another person the

responsibilities pertaining to the Director in regulations 13 and 14, and

the person thus delegated shall be responsible for such delegated

matters.

(2)

The Director or any delegated official or representative

shall only issue an enforcement notice to stop the construction works

after verifying and taking into consideration the provisions of

regulation 14.

(3)

Where an enforcement notice is issued by the delegated

official or representative, a copy of the enforcement notice shall be

submitted to the Director as soon as possible, after the serving of the

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notice, but not later than close of business of the first full working day

after the serving of the notice.

(1)

An enforcement notice shall include

(a)

an instruction to the developer, site technical

officer and the contractor and the perit in charge of the project

not to initiate any construction activity or to cease all or part of

a construction activity;

(b)

the reasons as to why the notice is being issued,

including where necessary for technical reasons, a technical

report supported by photos of the construction activity which is

deemed to be unsafe, or not in accordance with the method

statement, or not in accordance with these regulations, and

which technical report is to be signed by a perit;

(c)

instructions (if any) to prevent further damage or

danger to the public or to third parties.

(2)

When the Director or his delegated representative deems

that the cessation of construction activity is to be immediate because

of imminent severe damage to contiguous properties or danger to the

public, or third parties, the enforcement notice and the required

preventive measures may be issued on site in a verbal manner and later

confirmed in writing within twenty-four (24) hours of the issuance of

the said notice.

An enforcement notice may only be withdrawn by the

Director, provided that a new method statement indicating all

necessary remedial works and precautionary measures is submitted to

replace the original method statement.

Members of the public or their appointed perit or lawyer

may submit to the Director contestations on any method statement, or

complaints relating to the lack of safety of a construction activity

Provided that the Director may decide not to consider

complaints or contestations which do not provide a technical

justification for the contestation or concern.

(1)

The developer shall take all reasonable

precautions to ensure that the construction activity will not result in

damage to contiguous properties, including damage that may result

from the infiltration of water.

(2)

Any dispute regarding building construction, not being

one in connection with a claim for personal injuries, but being a

dispute arising from damage to third party property resulting from

construction activity on a contiguous site shall be referred to

arbitration. The rules contained in the Arbitration Act or made

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thereunder relating to mandatory arbitration shall apply

Provided that

(a)

the damage incurred by the third party does not

impair the stability of his property nor endangers its users; or

(b)

the cost of damages being claimed by the third

party does not exceed one million euro (€1,000,000).

(1)

Any person who acts in contravention of the

provisions of regulation 6 shall be guilty of an offence in terms of these

regulations and shall be liable on conviction to a fine (multa) not

exceeding five hundred euro (€500) and in the case of a continuing

offence, to a further fine (multa) of one hundred euro (€100) for each

day the offence continues.

(2)

The submission of a method statement which, in the

opinion of the Director, is significantly lacking when compared to the

requirements as set out in these regulations shall also be considered as

an offence in terms of sub-regulation (1) and shall be liable to the fines

set out in the said sub-regulation.

(3)

Any person who fails to comply with a method statement

in terms of these regulations shall be guilty of an offence and shall be

liable, on conviction, to a fine (multa) not exceeding ten thousand euro

(€ 10,000) and in the case of a continuing offence, to a further fine

(multa) of five hundred euro (€500) for each day the offence continues.

(4)

Any person who fails to abide by the provisions of an

enforcement notice in terms of these regulations or to cease operations

as requested in the notice or adopts any interim measures without the

permission of the Director or in any other manner acts in contravention

of regulations 14 and 15, shall be guilty of an offence in terms of these

regulations and shall be liable, on conviction, to a fine (multa) not

exceeding fifty thousand euro (€50,000) and in the case of a continuing

offence, to a further fine (multa) of one thousand euro (€1,000) for each

day the offence continues.

(5)

Any person who makes a false declaration for the

purposes of these regulations shall be guilty of an offence and shall be

liable, on conviction, to a fine (multa) not exceeding one thousand five

hundred euro (€1,500), without prejudice to any other punishment for

which the applicant may have become liable under any other law.

(6)

Notwithstanding the provisions of the Criminal Code,

proceedings for an offence against these regulations are to be taken

before the Court of Magistrates (Malta) or the Court of Magistrates

(Gozo), as the case may be, and they shall be in accordance with the

provisions of the Criminal Code that regulate the procedure of those

as courts of criminal judicature.

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(7)

Notwithstanding the provisions of the Criminal Code, the

Attorney General shall always have a right of appeal from any

judgement given by the Court of Magistrates (Malta) of the Court of

Magistrates (Gozo), in respect of proceedings for any offence against

these regulations.

(1)

Without prejudice to regulation 16 and any other

provisions under these regulations which the Director is entitled to

enforce, the Director may impose an administrative penalty in

accordance with the provisions of this regulation, in respect of any

person who infringes any provision of these regulations, or who fails

to comply with any directive or decision given by the Director.

(2)

Any person who fails to comply with the provisions of

regulations 6, 7, 8 and 10 or refuses to comply with an enforcement

notice or the method statement and any person who fails or refuses to

adopt urgent interim measures in terms of these regulations or shall

commit an infringement of these regulations, shall be liable to the

imposition of an administrative fine from the Director.

(3)

An administrative penalty imposed under this regulation

shall not exceed one-half of the maximum fine (multa) which the

offender may be liable to, for the corresponding offence, in accordance

with the provisions of regulation 21

Provided that it shall always be at the Director's sole

discretion as to whether to offer the offender the payment of the

administrative penalty or to commence criminal proceedings against

him for the commission of the offence.

(4)

In all cases where the Director imposes an administrative

penalty in respect of anything done or omitted to be done by any

person and such act or omission also constitutes a criminal offence, no

proceedings may be taken or continued against the said person in

respect of such criminal offence

Provided that all the fines provided for in this regulation

shall be due to the Government as a civil debt and following the

service of a judicial act, in terms of article 466 of the Code of

Organization and Civil Procedure, which is either not opposed or the

opposition of which is denied, according to the provisions of the said

article, the same administrative penalty shall constitute an executive

title for all the effects and purposes of the Code of Organization and

Civil Procedure, Book Second, Part I, Title VII.

(5) The payment of an administrative fine as a penalty shall

not prejudice the duty of a person to undertake any measure which

may be requested of him, whether such duty arises out of these

regulations, or out of an order issued by the Director through an

enforcement notice or to adopt an interim measure in terms of these

regulations.

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Where, following the payment of a penalty, the violation

of any provision of these regulations persists, regardless of any

instructions the Director may have given for the redress of same, the

Director may refer the matter to the police to institute proceedings

referred to in regulation 22 for such continuing violation.

Without prejudice to the provisions of regulations 15, 16

and 23, any decision taken by the Director in terms of these regulations

shall be subject to the right of appeal before the Building and

Construction Authority, in terms of articles 12 and 13 of the Act.

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 still need to begin, fall under the provisions of

these regulations

Provided that the Director of the Building and

Construction Authority reserves the right to issue appropriate orders

according to the requirements and nature of the particular site.

When before the start of works, the perit in charge of the

project certifies, after giving clear reasons, that the structural

interventions will not affect third party property, the provisions of

regulations 4, 5, 6, 7 and 8 do not apply

Provided that if requested by the Director, the developer

shall submit a method statement and, or a copy of the insurance that

covers third parties and, or the bank guarantee and, or the condition

report of the contiguous property according to the provisions of the

regulations

Provided also that nothing will prevent, apart from the perit

in charge of the project, the appointment of a site technical officer or

officers to assume responsibility in terms of these regulations.

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