The Tribune

• Institute president to ‘fight’; eyes appeal

• Says profession ‘treated with contempt’

• Judge backs Ministry on engineer review

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A top architect yesterday pledged to fight on after losing a legal challenge to the Government’s decision to halt a building permit application due to “glaring deficiencies and inconsistencies”.

Gustavus Ferguson, the Institute of Bahamian Architects (IBA) president, told Tribune Business he was now taking legal advice on whether to appeal Justice Loren Klein’s January 27, 2022, decision to refuse him permission to bring a Judicial Review action against the Ministry of Works’ building control officer.

The judge declined to let the action proceed on the basis that Mr Ferguson had failed to use the remedies available to him under the Buildings Regulations Act to appeal Building Control’s decision to the minister of works, while also finding that the department and its staff were “simply doing” what the law allows in putting the permit application on hold.

However, Mr Ferguson asserted to this newspaper that his Judicial Review action was targeted at underlying issues that “strangle us as a profession in practicing our craft”. He argued that the halted permit situation exemplified how licensed, qualified Bahamian architects were “always treated with contempt” and their work often-times subjected to excessive scrutiny and over-regulation.

“It is definitely an issue that I feel, from a professional standpoint, has to be dealt with,” Mr Ferguson told this newspaper. “It seems as though we are always treated with contempt in how the agencies deal with us in comparison to other professions; the legal profession, the accounting profession; the medical profession.....

“They always use this guise of protecting the health and safety of the public, as if we architects don’t. We have to take an oath to protect health and safety, and the environment as well.”

Justice Klein’s ruling revealed that Mr Ferguson’s dispute with Building Control stemmed from the use of Nudura, an insulated concrete form (ICF) product, in a townhouse he had designed. The product had been approved for use in The Bahamas by Building Control, subject to certain conditions that included an engineer’s review and the provision of structural details.

Building Control imposed these conditions on Mr Ferguson’s town home permit application, but Justice Klein said the latter was “resolutely of the view, based on an auto-interpretation of the statutory position, that the Building Control Officer’s request is unlawful and irrational, and that such conditions ought not to be super-imposed on to a plan submitted by a licensed architect”.

The IBA president argued that the request, and decision to place his permit on hold, violated the Buildings Regulations Act, Bahamas Building Code, and resulted in the Building Control Officer exceeding his authority. Mr Ferguson’s Judicial Review bid sought the hold’s removal, and an Order compelling the regulator to process his building permit application, as well as damages.

Mr Ferguson submitted the architectural plans for the town house on May 17, 2018, and received the necessary zoning and environmental health approvals within two months. But, after exchanging correspondence with Building Control for more than a year, he was told the application was stayed pending a review of the drawings by an engineer.

“As it was his view that a professional architect could submit drawings without the need for engineering drawings, he eventually filed for Judicial Review,” Justice Klein said of Mr Ferguson. However, Building Control took the view that the ICF product’s use required that a recognised structural engineer ensure the town house’s integrity.

Edwin Yuk Low, a 14-year Ministry of Works veteran and senior structural engineer, reviewed the drawings and “identified a number of shortcomings”. Building Control subsequently conveyed this to Mr Ferguson’s attorney via an August 6, 2019, letter.

“As a result of the glaring deficiencies and inconsistencies found in the architectural drawings and structural details submitted by Mr Ferguson, the application was queried on July 23, 2019, for its structural details to be reviewed and certified by a recognised engineer,” the letter said.

“Hence the building application is held in abeyance until adequate structural details are submitted in compliance with the conditions approved for use of the specific approved product.” Craig Delancy, Building Control Officer, alleged in an affidavit that Mr Ferguson knew well the building permit process and “this is not the first occasion on which the Building Control Officer has flagged issues with architectural drawings which he has submitted”.

Building Control based its case on the rules accompanying the Buildings Regulations Act, which give it the authority to require that a structural engineer perform calculations to address “stresses” if the person submitting the drawings is not an engineer.

However, Mr Ferguson centred his argument on the Bahamas Building Code which stated that engineering calculations “shall be prepared by a licensed architect or architectural technician or an engineer recognised by the minister.

“However, where the preparation has not been done by a person recognised by the minister as an engineer for the preparation of structural design, and the calculations involve structural stresses, the Buildings Control Officer may require that the preparation be done by a person recognised as an engineer.”

Mr Ferguson argued to Tribune Business that there was no difference between “engineering calculations” and “structural calculations”, and that the two terms are “misleading to the public”. He added: “All design is based on structural calculations... That’s part of what we architects do in the design process.

“It’s part of our training, is deeply embedded in our training, and we use it on a daily basis. Engineering calculations and stress calculations are one and the same. We are already calculating for stress in the building system. To say we can provide engineering calculations but cannot provide stress calculations, that’s a bone of contention for myself and the profession. It has to be cleaned up.”

The IBA president also argued that the Building Control Officer “went beyond his powers” in determining who should review his drawings, adding that it would “stagnate the practice of architecture” if drawings had to be constantly reviewed by engineers.

“It seems as if the capacity of architects is being usurped,” Mr Ferguson said, “and as long as I have the power I will fight against such instances. It’s far-reaching, and has to come to an end and stop because it strangles us as a profession with practicing our craft or doing what we’ve been trained to do.”

Not surprisingly, Justice Klein disagreed. “The applicant appears to take umbrage mainly to the requirement for review and certification by an engineer, as he contends that as a qualified architect he is entitled to submit any architectural plan without the need for any ‘review and certification’ by an engineer or any third party,” the judge wrote.

“The applicant fastens on a very narrow interpretation of the provisions to contend that the matter was not one involving ‘calculations’ or ‘[computations based on structural stresses’, and therefore did not require the intervention of an engineer.”

However, Justice Klein found that the rules and Building Code give Building Control “a discretion to request engineering calculations on any portion of a structure that may involve ‘structural design’ issues and computations based on structural stresses and, where requested, he may require that they be done by an engineer”.

Therefore the building control officer was “simply doing what he was statutorily entitled to do”, and Justice Klein declined to let the IBA president’s challenge proceed.