The recent establishment of a Memorandum of Understanding (MoU) between the Ministry for Public Works and Planning and the University of Malta signifies a collaborative effort aimed at fortifying construction laws in Malta.

This undertaking recognizes the significance of aligning construction laws with other relevant statutes, thereby fostering coherence and harmony within the legal framework. It emphasizes the importance of comprehensive legal evaluations to address any gaps or potential conflicts that may arise in the implementation of construction regulations. This collaborative initiative undoubtedly represents a significant leap forward, and I am eagerly enthusiastic about the opportunity to contribute to this endeavour. By harnessing the knowledge and enthusiasm of the participating master’s degree students, this collaborative endeavour holds the potential to make meaningful contributions to the ongoing development and improvement of construction laws in Malta.

There are several noteworthy areas of concern that deserve attention in terms of compatibility. For instance, according to the Civil Code, landowners are obligated to construct parapet walls with a maximum height of 1.8 meters to ensure privacy. However, the Planning Authority may face difficulties in granting such permissions due to height restrictions specified in its DC 15 regulations.

Nevertheless, it is essential to recognize that the true challenges within the construction sphere extend beyond these particular issues. The current state of our civil code is outdated and fails to keep pace with the rapid advancements in technology and the evolving realities of construction sites.

Let me cite one scenario –  Article 439 of the Civil Code, mandates a minimum legal distance of seventy-six centimetres to be maintained during excavation works near a party wall. The courts have consistently upheld the strictness of this provision, resulting in a narrow interpretation. In the notable case of A&N Properties Limited et vs Charles Busuttil, the Court explicitly articulated its position by stating:

‘Interessanti kif Sir Adriano Dingli ghazel li jaddotta din il-projbizzjoni assoluta, bl-gheruq taghha fid-dritt Ruman, u mhux ir-regola aktar flessibbli addottata f’kodicijiet kontemporanji ohra, fosthom il-Code Napoleon u l-Kodici Civili Taljan tal-1865.’[1]

The existing legal framework, as discussed, presents a significant obstacle to the implementation of shoring and underpinning techniques for party walls, despite their proven effectiveness in cases where rock foundations lack sufficient bearing strength. However, I firmly believe that a feasible solution to these technical challenges can be found through the amendment of Article 439. Specifically, it should be revised to indicate that the mandated distance of 76 centimetres from the party wall remains in force unless a structural solution is implemented to enhance the wall’s strength. Nonetheless, it is crucial to acknowledge that public acceptance of such changes may remain limited, as concerns may arise regarding potential favouritism towards developers seeking to expand underground spaces for their own benefit. It is hoped that this perception could be positively influenced if students actively participating in this collaborative endeavour advocate for such a suggestion. Their involvement may foster a different perspective and enhance the credibility and impartiality of the proposed amendments.

[1] It is interesting how Sir Adriano Dingli chose to adopt this absolute ban, rooted in Roman law, and not the more flexible rule adopted in other contemporary codes, including the Napoleonic Code and the Italian Civil Code of 1865.