Site excavations - avoiding a close shave

Last week people were surprised by a snap decision taken by the prime minister to order a moratorium on site excavations until further notice during which time consultations with stakeholders will be conducted.

Fingers were pointed to the Kamra tal-Periti. Quite a few expect it to be responsible for proper governance and due diligence over its members in executing their professional duties. The reply from Simone Vella Lenicker, president of the Kamra tal-Periti, was that new proposals to tighten up regulations were proposed by an extraordinary general meeting of the chamber held last November.

Moving on to the reaction by the Malta Developers Associations, one notes an expression of its solidarity towards residents who suffered from such unfortunate incidents. It wholeheartedly supports any action taken by government to safeguard public safety. Draft regulations have just been announced which place more onus on architects and site managers.

The new kid on the block is geotechnical design reports. Core samples from the site need to be taken and examined scientifically to be interpreted as to the geometry, existence of fissures in rock substrata and to comment on the strength of adjoining buildings.

This report must now be submitted by the architect before excavation occurs.

A method statement is to be followed scrupulously. It is the responsibility of the site manager (appointed by the developer) to make sure the method statement is adhered to. It is obvious that due to the building frenzy at the moment there is an acute shortage of warranted architects needed to service the ever-growing flow of new building permits. So in practice, this rule seems to be difficult to implement unless foreigners are recruited.

With a shortage of qualified site managers, how can one expect that each building site will be adequately supervised?

The plight of site managers increases heavily when adding to their duties the onus to order a cessation of works once the project is served with an enforcement notice. Fines for breaching the method statement have now been raised to €10,000, whereas ignoring an enforcement order carries a penalty of €50,000. There has been a substantial increase in insurance cover with the minimum starting from €750,000.

Time will tell if such rules will solve the problem of adequate supervision and timely initiatives taken to curb abuses. A positive step is that geotechnical investigations on building sites became mandatory. There should be no excuse for cutting corners.

But one may ask, why do we need more regulations when existing ones are adequate yet there are instances they are incuriously ignored?

The law is abundantly clear - quoting article 439 of the Civil Code of Malta it states that it is not lawful for any person to dig in his own tenement, any well, cistern or sink, or to make any other excavation for any purpose whatsoever at a distance of less than seventy-six centimetres from the party-wall.

Today, hardly anyone follows this rule and all excavations in the rock foundations are shaved within inches of the third-party wall. The present law on the retention of seventy-six centimetres from the adjacent third-party wall was introduced in 1868. Another solid reason for this law was to protect individual wells cut into the rock. Who bothers today, to keep a distance between one well and the other of 152 cm.

Experts recommend well over 30 metres would be needed in the case of clay.

Rarely do these rules apply today, when land is so expensive. Again, contractors argue that as a result of new technology in rock-cutting equipment such precautions are redundant. Widespread non-observance of the law has been partly blamed for the structural instability in the rock formation when a neighbour decides to carry out deep excavation works.

Over the past few years excavation has been going deeper and deeper, which recently resulted in the collapse of five residences in different parts of the island. To aggravate matters, so as not to lose any valuable land, certain developers first construct their basement up to the level of the adjacent foundations: they then either construct the party wall exactly adjacent to the other building, or else make use of half of the party wall, which may have been constructed a long time previously without the adequate measures to take additional loadings.
Some developers lament that the one-size-fits-all rule is dangerous.

While the new rules are still to be enacted, will there be enforcement to make sure that each developer appoints a structural engineer who, together with a geological engineer, assesses the ground formation and calibrates the strength of the adjacent building structures. The present law permits the excavation, say five storeys deep, next to a party wall of an existing block of apartments without taking into consideration the ground formation, being fissured rock, soft rock (turbazz) or clay.

The jury is out and we may ask what are the directives that currently regulate this sector. The laws are ample, but one may specifically refer to the construction and site management regulations issued in 2105.

One salient rule states inter alia, that where the Director or his delegated representative deems that the cessation of construction activity is to be immediate because of imminent danger or grave nuisance to the public, or third parties, an enforcement notice and the required preventive measures may be issued.

Another rule states that if the stability of adjoining buildings, walls or services may be endangered by excavation works, adequate underpinning, shoring and bracing shall be provided to prevent damage to, or movement of, any part of adjacent properties, or the creation of a hazard to third parties or the public.

An important safeguard is the law for the Avoidance of Damage to Third Party Property which came into force in 2013. One poignant rule, states that the developer shall carry out an appropriate geological investigation of the area to be excavated.

The geological investigation must be carried out following the demolition of a building overlying the area to be excavated. Prior to commencement of excavation works, the developer shall submit to the Director the results of the investigation and, if necessary, an amended method statement based on the results of the investigation.

So the law is clear but accidents continue to happen.

It is obvious that the problem lies not in the absence of adequate rules but to the heightened frenzy of building activity and the laissez faire attitude that prevails. All to the detriment of hapless residents who in the past weeks woke up to find their abode has collapsed around them.

The urgency to remedy the dire situation is now bigger due to a flood of permits for high rise projects sanctioned close to densely built areas.

One cannot underestimate the lobbying power of developers (a multi-million euro sector) who are perceived to set the tune.

To conclude, it is laudable for government to halt the party and carry out urgent consultations with experts and stakeholders. It is true that the proliferating construction industry is the proverbial goose that lays the golden egg.

They wield a strong argument, but health and safety of citizens should always be our top priority.