A "significant legislative void" meant that the Building and Construction Authority had no power to oversee the construction site where Jean Paul Sofia was killed and remains unable to enforce laws at free-standing structures to this very day. 

The shocking revelation emerged during the testimony of one of five witnesses summoned by the State Advocate at the fifteenth and closing sitting of the inquiry into the collapse of the Corradino furniture factory that came down, domino-like while under construction, killing the 20-year-old.

“The BCA had no oversight,” said lawyer and university academic Kurt Xerri who, since May has been working on a three-phase project tasked by the minister responsible for the construction industry in an attempt to compile the various laws applicable to the sector and to identify any conflicts therein.

The project took off after the signing of an agreement between the ministry and the University and was “proudly” announced in an internal newsletter circulated by the Faculty of Laws as the organ working on the study, explained faculty Dean Ivan Mifsud.

His testimony served to introduce Xerri as the academic working on the project, spread over three phases, each one lasting three months.

The first phase was to compile all laws orbiting around the Building and Construction Authority, excluding the BCA Act itself.

The second phase was to spot any conflicts between the different pieces of legislation and that stage was now close to completion, paving the way to the final task of suggesting how those conflicts were to be addressed and reconciled.

“BCA was not formally responsible”

Following those preliminaries, the crucial question about which authority had oversight over free-standing properties - like the furniture factory involved in last December’s tragic collapse - inevitably cropped up during the inquiry's questioning.

But that proved a somewhat complex issue which called for some legislative background explaining by the academic.

He said it all started with the Building Regulations Act of 2011, an enabling law intended to serve as a framework for other regulations that were to follow.

Those included the Avoidance of Damage to Third Party Property Regulations, introduced in 2013, which, however, only a scenario where neighbouring property was involved.

A second iteration of those regulations,  in 2019, introduced the concept of a site technical officer (STO).

Board chairman, Ombudsman and Justice Emeritus Joseph Zammit McKeon asked the witness if the 2011 Act envisaged the safety of third parties in case s concerning free-standing buildings. 

“Generically speaking, I would be wrong to say yes,” replied Xerri, delving into greater detail when asked to explain the legislative and enforcement scenario applicable as at December 3, 2022, the date of the Sofia fatality.

On that day, there were two relevant pieces of legislation: the Avoidance of Damage to Third Party Properties and the Construction Site Management Regulations.

While the former did not apply to free-standing structures, the latter were formally set out under the Development Planning Act where the relative authority was the Planning Authority.

Regulations on paper, but they could not be enforced

However, although on paper the PA appeared to be “formally” responsible for enforcing those regulations, in reality “under a ministerial order” issued years ago those regulations were meant to be enforced by the Building Regulations Office.

That meant that those construction site management regulations existed on paper but were not being enforced.

“The law, perhaps through a grave oversight, was not made enforceable by the BRO. There was a ministerial order but the law did not reflect it,” explained Xerri.

“Do you realize the implications of what you’re saying?” interrupted board member and Auditor General Charles Deguara.

“Please explain this very clearly. I want this to be very clear to the media and the family. We’ve heard a lot about abdication of responsibility here,” added Zammit McKeon.

“It was a significant legislative lacuna [void] that was not addressed,” repeated the witness, adding that the gap had only been addressed by shifting those regulations from the Planning Authority to the BCA.

So even if the BCA wanted to enforce those regulations, it lacked the jurisdiction to do so.

It lacked the right to ask for a method statement or a condition report if it were to try to enforce.

Questioned further by the board, the witness said that on the date of the incident, “no one was formally responsible” because the Building and Construction Authority had not absorbed the functions of the BRO.

Since December 16, by means of Subsidiary Legislation 623.08, those Construction Management Site Regulations now fall under the remit of the BCA.

“We finally have an authority to enforce the law.”

BCA still cannot enforce such structures

“So since December 16, is the BCA responsible for free-standing structures?” Zammit McKeon asked again.

But the reply was still surprisingly “no.”

The reason being that those regulations covered matters related to excavation, transportation of materials, road obstruction, site cleanliness, operating hours, and moratorium in tourist areas but said nothing about such structures.

“So according to you, the BCA did not have jurisdiction on December 3 but its jurisdiction started on December 16,” said Zammit McKeon, trying to draw a bottom line.

“Yes, the BCA formally acquired competence over the Construction Management Site Regulations by subsidiary legislation under the Building and Construction Authority Act.”

Rather than a “legislative void” there was a void in the manner of enforcement.

However, that explanation was not acceptable to the Sofia family lawyers.

“Chapter 623, the BCA Act, states that it is an act ‘to regulate and monitor the building and construction industry, to make provisions for the planning, management and control of the sector and for the establishment of an authority with powers relative to building and construction and for matters related therewith or ancillary thereto,” argued lawyer Eve Borg Costanzi, reading out loud the letter of the law.

How could the witness state that the BCA Act did not give the Authority power to enforce? insisted the lawyer.

“That’s a declaration of principle,” came back Xerri, explaining that unless subsidiary legislation was introduced, “the authority can do nothing.”

“On the basis of a declaration of principle the BCA could not enforce.”

And according to Xerri, the authority still lacked power of enforcement as far as free-standing structures were concerned because “there is to date still no regulation.”

That void had not been addressed when the legislator shifted the Construction Management Site Regulations from one chapter of the law, the Development Planning Act to another chapter, namely the BCA Act.

“What worries me is such legislative void. We’re going to fill it up. Rest assured, we will,” remarked Zammit McKeon, evidently perplexed, addressing the State Advocate and another lawyer from his office.

“Isn’t that why we have summoned him [Xerri] to testify,” replied Chris Soler.

“But my son won’t come back,” piped in John Sofia, the victim’s father who had voiced his despair when testifying in the previous sitting.

Faced with such a “void” the chairman once again turned to the State lawyers.

“If you want to wait for another accident to happen, if you wish to wait for this inquiry to be concluded…..rather than introduce a provisional measure…..” remarked Zammit McKeon, cutting short his comments.

Inquiry plans to issue report in late March 2024

As Monday’s session drew to an end, the board pointed out that 69 witnesses had testified- a few more than once- throughout the 15 sessions which started out in August.

Those testimonies amounted to over 1000 pages of transcripts and another 1800 pages of documents which the board will now analyze when wrapping up their conclusions.

The parties are to submit written submissions by the end of December and those will pave the path to the board’s final report which will be handed to the Prime Minister and the family.

The scheduled date for that report is March 28, 2024.

The parties will be updated in case that date is brought forward.

Lawyers Therese Comodini Cachia, Eve Borg Costanzi and Matthew Cutajar represented the family. State Advocate Chris Soler and lawyer Anthony Borg represented the state.