UBBL 2021: Part I

Update:

While the Malaysian ‘sugar coated’ the archaic Uniform Building By-laws (UBBL), making it even more ‘regimented’, the United Kingdom (UK) has introduced another legislation called the new Building Safety (UK) Act 2022 (‘BSA 2022’) aims to reform building safety legislation, post Grenfell Tower disaster in 2017 that tragically killed 72 people due to the spread of fire via the cladding as a system, with only a single staircase for escape.[1] It is now law in the UK in 2023, providing legislation and guidance to the existing Fire Safety (UK) Act 2021, help people be and feel safer in their homes and will change the way buildings are designed, constructed, and managed.
 
BSA 2022 focused on:

1. The safety and standards of all buildings.
2. Assuring the safety of higher-risk buildings, both in construction and occupation.
3. Improving the competence of the people responsible for overseeing, managing, and delivering works to higher-risk buildings.
4. Ensuring clearer standards and guidance.
5. Putting residents at the heart of a new system of building safety.

 
Collectively affecting:
 

1. Building owners/managers and the built environment industry;
2. Those who commission building work; and
3. Those who participate in the design and construction process, including clients, designers, and contractors.

 
Key takeaways:
 

1. Applies to new or existing occupied buildings over 18 metres high or seven storeys or more, which contain at least two residential units. Also apply to care homes and hospitals meeting the same height threshold.
2. Creates a universal change in responsibility and culture within the building industry.
3. Establishes a more effective regulatory and responsibility framework for the construction industry and introduces clearer standards and guidance.
4. Puts residents at the heart of a new system of Building Safety.
5. Clarifies who has responsibility for Fire and Building Safety throughout the life cycle of a higher risk building. [UBBL drop shorts of addressing the Building Life Cycle].

 
Two new roles - Building Safety Regulator and Accountable Person(s):
 

1. Described as “the biggest change to Building Safety regulation in a generation”; and

1. The Building Safety Regulator (BSR) – responsible for overseeing the safety and performance systems of all buildings. They will be given powers to enforce the rules and act against those that break them. And for high-risk properties, they will be able to implement more stringent rules, including how they are designed, constructed, and occupied. [In UBBL it creates multiple roles without responsibilities but authorities].

 
The 3 main functions of the BSR:
 

1. Oversee the safety and performance system for all buildings;’
2. Encourage increased competence by setting the direction of an industry-led competence committee and establishing competence requirements for registration of building control professionals; and
3. Lead the implementation of the new regulatory regime for higher-risk buildings, including having the powers to involve other teams, including the Fire Service, when making regulatory decisions regarding Building Safety.

 
The Accountable Person (building owner, freeholder, or Management Company) duties:
 

1. To assess Building Safety risks and provide a ‘Safety Case Report’ which demonstrates how Building Safety risks are being identified, mitigated, and managed on an ongoing basis; and
2. Amendments to the Act have removed the clause which would have required the Accountable Person to appoint a Building Safety manager to support in the planning, managing, and monitoring of the various tasks necessary to ensure that Accountable Persons’ duties are complied with.

 
With such the recent cases in the UK demonstrated that the court assumed that an architect’s duty to exercise reasonable skill and care will include compliance with building regulations, even where there isn’t a strict design obligation to that effect in the relevant contract; especially with regards to fire safety issues.
 
In LDC (Portfolio One) Ltd v George Downing Construction Ltd and European Sheeting Ltd [2022][2], the court held ‘ESL obliged to comply with the provisions of the main contract, and its design work should not have put Downing in breach of the strict obligation in that main contract to comply with the building regulations. The reasonable skill and care clause in ESL’s contract did not supersede the obligations in the main contract. Strict or absolute obligations are not incompatible with an obligation to exercise reasonable skill and care; the two sets of obligations are complementary’
 
In Martlet Homes Ltd v Mulalley & Co Ltd [2022][3], ‘failure of a design to comply with Building Regulations is likely to constitute a breach of a duty to exercise reasonable skill and care, even without the additional strict compliance or performance obligations in a design contract which we often see’
 
Saying of being ‘often’, the ‘Bolam Test’[4] is often used by consultants against allegations of negligence, and essentially relies on evidence of a reasonable body of professional’s standard practices as the basis of ‘duty of care’, where a defendant must demonstrate that it has looked in full at relevant safety risks, and taken a logical and reasonable approach to complying is as what a normal professional would do. However in Martlet, the court has departed from the Bolam Test, where it was held that the building contractor Mulalley had been in breach of its contractual obligation to exercise the same degree of skill and care as an architect or other professional designer.

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[1] https://en.wikipedia.org/wiki/Grenfell_Tower_fire
[2] EWHC 3356 (TCC)
[3] EWCA Civ 32
[4] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

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UBBL 2021: Part I ​

The Uniform Building By-laws (‘UBBL’) has undergone a ‘cosmetic’ makeover from the UBBL 1984 to the UBBL 2021 version. What has amended and what has remained the same?
 
Re-definition for Clarity or More Confusion? :

1. Foremost with the definitions of the salient terms being refined, re-defined and further improved, but to what degree of clarity and consistency applied throughout the by-laws? This remains everybody’s guesses, for examples, ‘communication’ is only defined by ways of The Malaysian Communications and Multimedia Commission (‘MCMC’), instead of the ordinary meaning to the word?
2. Introduction of new ‘role-players’ such as:
   1. ‘Construction project managers’ (‘PM’) registered with the Construction Industry Development Board Malaysia (‘CIDB’);
   2. ‘Inspector of works’ (‘IOW’) registered under Board of Architects Malaysia (‘LAM’)[1] or Board of Engineers Malaysia (‘BEM’) in lieu of ‘registered building draughtsman’ (‘BD’) [2]; and
   3. ‘Site supervisory staff’ (‘Site-Supervisor’), full time staff, probably under employment full time that report to the [undefined roles of] ‘project architect/engineer’[3], may constitute IOW, ‘registered engineer’ or [undefined] BD or [undefined] ‘graduate architect’[4] […], with responsibilities and liabilities, be it ‘vicarious liabilities’[5], remain undefined?
3. The new UBBL also sees the attempt to ‘diplomatically phase out’[6] the ‘BD’ with definition currently, deleted[7], thus undefined. Yet, ‘Principal Submitting Person’ (‘PSP’)[8] must be a ‘Qualified person’ (‘QP’) as per UBBL 7, where such must either be architect[9], engineer[10] or ‘the [undefined] BD’. The conundrum is noticeable when on one hand, such definition of the BD has been deleted while on the other, it has been held as a QP, by token, also a PSP or ‘Submitting Person’ (‘SP’).[11] It is unclear even minute definitions have been given to the obvious role-players such as the architect, engineer and the contractor, but BD is therefore left for everyone’s guesses as nothing whatsoever has been cross referenced to the definition given in the Architects Act 1967.
4. ‘Contractor’ has been defined as a must registered under CIDB, giving the unregistered contractor the ‘leeway’ of not complying with the UBBL, especially so when the entire construct of UBBL 28 differed significantly from its previous incarnation that actually impose liability to person occupying the building without a legitimate CCC and by token constructing without a proper building plan approval.
5. Some clarity and consistency have been given to:
   1. ‘Detached building’ is good enough to also represent ‘Single built detached house’[12];
   2. ‘Permanent load’[13] in lieu of ‘dead load’[14], read together with ‘Pre-stressed concrete’, consistent with engineering terminology;
   3. ‘MS EN’ Malaysian Standard of equal to European Standard, but how about other ISO standards of equivalent to MS?
   4. ‘Disabled person’[15] with physical impairment as per UBBL 34A[16], how about users with ‘autism spectrum disorder’?
   5. New definition to ‘SPAH’ means the ‘Rain Water Harvesting System’ where rainwater is channelled to a ‘rainwater tank’ and stored for use.    

 
Deconstructing and Reconstructing or a Hybrid? :

1. Introduction of UBBL 2A: Demolition of Building [Application of this Part];
2. UBBL 2B: Preparation and Submission, is required in accordance to MS 2318[17] with the relevant Form A;
3. UBBL 2C: Power of Local Authorities (‘LA’), to examine and reject;
4. UBBL 2D: Notice of Commencement and Resumption;
5. UBBL 2E: Methods of Demolition as per MS 2318;
6. UBBL 2F: Duties of Submitting Person (‘SP’), not too sure as to why the Principal SP (‘PSP’) cannot be consistently applied, as it actually provide the procedure of ‘Change of the PSP’; and
7. UBBL 2G: Exemption. In a nutshell the entire construct of UBBL 2A is to introduce the ‘Demolition Work’ to be also govern under the UBBL and the apparent procedure is a mirror of ‘Construction of New Work’, by why an exclusive by-laws with repeated procedurals requirement is required when these could be narrated in-tandem?

 
Roles and Confusing Undefined Responsibilities? :

1. Interestingly, UBBL 3: Submission of Plans is without subsection (d): ‘site plan approved by Planning Authorities’. Planning is no longer relevant?
2. UBBL 5: Supervision of work is now without the QP but strictly the PSP, yet again why the SP is also referred to? Is there a huge implication in terms of liability between the SP and the PSP?
   1. The triangular or triparty relationships among these SP – PSP – QP, must at least, on some point consistently merged and any further deliberations may also mean, the PSP is not a SP, so why a SP thus becomes a Principal, PSP, while a SP is not a QP?
   2. However for all intend and purpose, UBBL 5 underlying concerns are ‘supervision’ is a ‘delegable duty’, thus must the liability be delegable as well? Similarly so, the notion of ‘supervision’ is construe to be ‘full time’ or something else, as how the Architects Rules 1996 [18] fashioned out to be, ‘periodical’ and not full time?
   3. Clarity is now having UBBL 5(2): […] carried out under fulltime supervision of a ‘construction project manager’ and assisted by a ‘construction site supervisor’, accredited by CIDB. Why ‘construction site supervisor’ is nowhere to be found in the definition?
   4. More importantly, there must now be ‘construction project manager’ and ‘construction site supervisor’, both accredited with CIDB to be employed on the work. When liability is to be assigned to, UBBL 5(3): ‘construction site supervisor’ role is just to supervise as per its meaning of UBBL 5: Supervision of work ‘of the contractor’ to ensure compliance to ‘site safety, qualities, specifications of work’, nothing whatsoever mentioned about the liabilities of ‘construction project manager’.
   5. The impending questions with regards to liabilities are who is answerable to who? Is ‘construction site supervisor’ answerable to ‘construction project manager’, in the sense that the supervisor is assisting the project manager?
   6. Alternatively, since he is accredited, he must be held, in law, responsible, yet, individually or jointly?
   7. Will the PSP/SP/QP be free of all liabilities as supervision is only on periodical basis in view that ‘construction project manager’ and ‘construction project manager’, are not under their employment?
   8. Yet, the PSP/SP/QP is the one who signed off the CCC, with the ‘statutory declaration, […] having supervised the works’?
   9. These questions required legal clarity.  

 
Going Green? :

1. UBBL 8: Plans to be deposited, has some ‘sustainable’ improvement where UBBL 8(2A): ‘deemed’ to have been deposited […] at the time the plan have been received by the LA; and the entire UBBL 8(4): […] depositing of additional sets has been deleted, entirely, saving ‘paper’?
2. Similarly so, UBBL 10(x): Rainwater Tank location; UBBL (xi): SPAH elements shall be shown for bungalows [yet no definition on such since ‘Single built detached house’ has been deleted] and semi-detached with ‘roof areas’ more than 100msq, and all ‘Detached building’ with ‘roof areas’ equivalent or more than 100msq. ‘Roof areas’ has no definition, less alone the rationale of using the roof as the basis of measurements, but an assumption that SPAH elements only take into account the ‘collection of rain water’ from the roof.
3. A huge ‘green impact’ has been accorded in UBBL 38A: Energy Efficiency (‘EE’) in Buildings, prescribing for:
   1. (a): air-conditioned space exceeding 4,000 sqm., requirements of MS 1525[19] with regards to Overall Thermal Transfer Value (‘OTTV’)[20] and Roof Thermal Transfer Value (‘RTTV’)[21] shall be complied; with
   2. (b) Energy Management System (‘EMS’) inplaced. In ordinary meaning, the building exceeded the 4,000 sqm., must be accompanied with the calculation for EE; and
   3. The minimum score is UBBL 38A (2):
      1. (a): 0.4 W/m2K for lightweight roof; and
      2. (b): 0.6 W/m2K for heavyweight roof;
      3. Unless provided with other cooling measures.
   4. The apparent provision to comply with EE seems to be going beyond the requirements for ‘safety of the public’.[22]
   5. All these are ‘green building’ scoring components, with UBBL 38B: Protection Against Lightning, seems to be somewhat ‘disjointed’, where:
      1. UBBL 38B(1): MS IEC 62305[23] has to be complied with. Again ‘MS IEC’, unlike, MS EN, has no definition provided. That is where the enormous use of terminologies that were not well defined were found across the many ‘paragraph’ of the UBBL; and
      2. UBBL 38B(2): a special provision has to be provided just to define what is MS IEC meant, i.e. the latest edition of MS which is equivalent to International Electrotechnical Commission.
4. Obviously, UBBL 38: Width of Footway, UBBL 38A: Energy Efficiency and UBBL 38B: Protection against Lightning are unrelated against one another? Undoubtedly, it could well be, ‘for convenience’, these were lump together?       

 
Spring Cleaning CCC? :

1. Most inconsistencies during the transitional phases of the by-laws from the CFO regimes to the CCC regimes had to be ironed out, especially with regards to the CCC and the relevant obsolete forms have been deleted i.e. UBBL 23: Notice of Setting Out and UBBL 24: Notice of completion of excavation of foundation; with UBBL 25: CCC renamed from the previously known Certificate of Fitness for Occupation (‘CFO’) with sub-clause (1),
   1. (a) compliance to all technical conditions;
   2. (b) certified all the 21 Form-G(s);
   3. (c) all essential services provided;
   4. (d) declaration as in Form F is made;
2. Sub-clause (2), acceptance of full responsibilities; subject otherwise to
3. (3) undertakings of trade contractors;
4. (4) 14-days issuance a copy of CCC to the board;
5. (5) rights to inspect by LA;
6. (6) rights to withhold by LA;
7. (7) 21-days to comply with default;
8. (8) notify of making good default;
9. (9) 14-days for re-inspection;
10. (10) Rights to call for re-issuance of CCC;
11. (11) ‘Deeming’ provision of acceptance of CCC;
12. (12) Rights of action to rectify default;
13. (13) Costs reimbursable for rectification of default;
14. (14) Estoppel of issuance of CCC;
15. Sub-clause (15)-(20) are all about external parties certification and support requirements such as:
    1. (15) Requirement for the ‘Certificate of Fire Safety’ (‘CFS’) for Building ‘exceeding 18 meters’[24] from the Fire & Rescue Department of Malaysia (‘JPBM’) to accompany Form G8 and G9;
    2. (16) ‘Certificate of Fitness’ (‘CF’) from Department of Occupational Safety and Health (‘DOSH’) is to accompany Form G11;
    3. (17) ‘Confirmation Letter’ of ‘water is ready for connection’ from Water Utility Authority is to accompany Form G13;
    4. (18) ‘Clearance Letter’ certifying from Sewerage Authority to be attached to Form G14-15;
    5. (19) ‘Confirmation Letter’ of ‘electricity is ready for connection’ from Tenaga Nasional Berhad (‘TNB’) is to accompany Form G16; and
    6. (20) ‘Confirmation Letter’ from Power Work Department Malaysia (‘PWD/JKR’) with a ‘deeming’ provision that post 14-days with no response is deemed given to accompany Form G17.
16. Apparently the core intention of ‘self-certification’ and ‘self-regulation’ of the CCC regimes have been laden with another layers of ‘red-tapes’ in the forms of ‘Certificate of Fire Safety’ (‘CFS’), ‘Certificate of Fitness’ (‘CF’), ‘Confirmation Letter’, ‘Clearance Letter’ and the endless rights to call for inspection, withholding, re-inspection, estoppel and the sorts.
17. As at the time of writing this, there are already individual providing services to obtain DOSH for PSP/SP before they are able to submit in their Form B.
18. Such reincarnation of the previous ‘CFO-regimes’ in a new ‘existence’ has rendered UBBL 25A: CCC obsolete, together with the UBBL 26: Temporary CFO, deleted and replaced with UBBL 27: Partial CCC via Form F1, not to be confused with CCC by ‘sectional completion’ as they meant entirely different things.
19. Among the many other compliances, subsection (2) prescribed ‘essential services’ to be completed and fits for ‘public health and safety’.
20. Again, those relevant certificates, and letter of confirmation/clearance are predominantly required as outlined in subsection (3) – (9), failing which UBBL 28(1): Offences step in, when a default in submitting the CCC within the period stipulated by ‘paragraph 25(4)’ [note, instead of UBBL 25(4), it is now called paragraph] to the relevant bodies such as LAM etc, is an ‘instant breach’.
21. Subsection (2), prescribed the same ‘instant breach’ if rectification of any ‘failure to the building’ has not been rectified or complied with.
22. Care have to be taken in construing the term, ‘failure to the building’, as there is no definition included for clarity. The entire construct of UBBL 28 differed significantly from its previous incarnation that actually impose liability to person occupying the building without a legitimate CCC. 

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[1] Architects Act 1967, s.2: Means a person registered under s.27M.
[2] Architects Act 1967, s.2: Building Draughtsman” means – (a) any person who immediately before the appointed date was a specially authorized person within the meaning of the Architects Ordinance 1951 [Ord. 48 of 1951], registered under Part II of the register kept and maintained under that Ordinance but shall not include any person qualified for registration under the Registration of Engineers Act 1967 [Act 138], or the Quantity Surveyors Act 1967 [Act 487]; and (b) any other person whom the Board in its absolute discretion may deem desirable to register having regard to his qualification and experience and to the requirements of any Building Authority.
[3] Project Architect or Engineer is a ‘job scope’ description that can either be filled in by a registered ‘Professional Architect’; or a ‘Professional Engineer’; or the ‘Graduate member’ of the relevant professional boards.
[4] Architects Act 1967, s.2: Means a person registered under subsection 10(1).
[5] Investopedia, <https://www.investopedia.com/terms/v/vicarious-liability.asp>, accessed 26 Sep 2022: A situation in which one party is held partly responsible for the unlawful actions of a third party.
[6] No new registration for this class has been admitted by LAM as the reason given was to encourage more graduate members to take up the position of registered architect, architectural technologist or even IOW.
[7] Means any ‘building draughtsman’ who is registered under the relevant Act, as included in the 2007 revision.
[8] As per definition in UBBL 2: a QP who submits building plans to the LA for approval […].
[9] Architects Act 1967, s.7: Restrictions on unregistered persons and registered Architects 7. (1) No person shall, unless he is a Professional Architect.
[10] Engineers Act 1967, s.7: Section 7(1) of the amended REA reads as follows; “7(1) No person shall, unless he is a Professional Engineer.
[11] A PSP, as defined in UBBL 2, is the person who sign on to the Form F/F1 while SP, undefined, is taken to be the person presumably who sign on to the relevant Form G(s), although such clarity in definition has not been given in the UBBL.
[12] In other words, a Bungalow.
[13] Designing Building Wiki, <https://www.designingbuildings.co.uk/wiki/Dead_loads>, accessed 26 Sep 2022: Dead loads, also known as permanent or static loads, are those that remain relatively constant over time and comprise, for example, the weight of a building's structural elements, such as beams, walls, roof and structural flooring components.
[14] Merriam-Webster Dictionary, <https://www.merriam-webster.com/dictionary/dead%20load>, accessed 26 Sep 2022: a constant load in a structure (such as a bridge, building, or machine) that is due to the weight of the members, the supported structure, and permanent attachments or accessories
[15] Declaration on the Rights of Disabled Persons, (1975 General Assembly resolution 3447 (XXX)), <https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-rights-disabled-persons>, accessed 26 Sep 2022: The term "disabled person" means any person unable to ensure by himself or herself, wholly or partly, the necessities of a normal individual and/or social life, as a result of deficiency, either congenital or not, in his or her physical or mental capabilities.
[16] MS 1184: Universal design and accessibility in the built environment.
[17] MS 2318:2012. Demolition of buildings - Code of practice, (2012, Standard Malaysia)
[18] An Architect shall inspect the works at periodic intervals as required. 
[19] MS 1525: 2019 – Energy Efficiency and Use of Renewable Energy for Non-Residential Buildings.
[20] Jeyasingh, ‘Concept of Overall Thermal Transfer Value (OTTV) in Design of Building Envelope to Achieve Energy Efficiency’, (Dec 2010 IJTEE): A measure of heat gain into the building through the building envelope.
[21] Fang and others, ‘Performance evaluation of a metamaterial-based new cool roof using improved Roof Thermal Transfer Value model’, (Aug 2019 APPL ENERG): Thermal performance of roofs in numerous Southeast Asia countries
[22] UBBL 27(1): prescribed ‘essential services’ to be completed and fits for ‘public health and safety’
[23] MS IEC 62305: Protection Against Lightning: IEC stands for International Electrotechnical Commission.
[24] Benchmark when external firefighting has reached its limits of effectiveness, i.e. the reaching of the extended arm and throw of the water jet of the fire-brigade reaches its limits and all firefighting would have to be done internally.