Judge underscores developer's responsibilities during construction work

Property developers have the responsibility to prevent any foreseeable danger on site and, if they do not, they too are criminally responsible for any damage that might occur, a court has ruled.

Mr Justice Joseph Galea Debono noted that when something went wrong on a building site, the responsibility was not limited to the contractors and architects but extended onto the developer - unless the contractors and architects abused their position.

The ruling was handed down in an appeal case filed by property developer Adrian Fenech and contractor Christopher Muscat.

They had both been jailed for two months after the Magistrates' Court found them guilty of causing damage to a property, neighbouring a construction site, through their negligence.

The Magistrates' Court had also given them four months to fix any damages caused.

Mr Fenech and Mr Muscat appealed, arguing, among other things, that they were not criminally responsible for the damage caused.

Following an onsite inquiry in Lapsi Street, St Julians, the judge noted there was no doubt that the neighbouring building had been damaged as a result of demolition, excavation and rock cutting.

In Mr Muscat's case, the judge noted he had only been contracted to carry out works at a late stage of the project. Two other contractors before him had seen to the demolition and excavation and the judge could not understand why the prosecution had only taken legal action against Mr Muscat.

He cleared Mr Muscat of all charges as it had not been proven that the work carried out by him was in any way connected to the damage caused.

This did not apply in the case of Mr Fenech. He was claiming that, since he had commissioned professional contractors and architects to oversee his project, he was not criminally liable for the damage. The judge disagreed, noting that Mr Fenech, as the developer, was also responsible at law especially because it resulted that he had allowed his workers to dig four feet deeper than allowed in the permit.

The judge noted that, following this, the Malta Environment and Planning Authority sanctioned the excessive excavation by approving it as a "minor amendment" - something that seemed to have become Mepa procedure, the judge added.

He said that when construction works caused damage to property or injury to people, the criminal responsibility extended onto the developer who should ensure that any foreseeable danger is prevented.

Of course, the developer would be exempt from this responsibility if it resulted that contractors or architects had abused their position without his knowledge. This had not been the case.

The judge therefore ruled that Mr Fenech was not criminally exempt and so confirmed his guilt. He ruled that jailing Mr Fenech would go against everyone's interests as he would not be able to repair the damages from prison.

The judge therefore suspended Mr Fenech's two-month jail term for four years and ordered him to repair the damages caused, within six months.