The Tribune

• Asserts that profession is 'under attack'

• Appeal Court rejects Privy Council bid

• Case based on engineer review 'chagrin'

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Institute of Bahamian Architects (IBA) president says his legal battle with Building Control "can't be let go" for the profession's greater good after he was refused permission to appeal to the Privy Council.

Gustavus Ferguson told Tribune Business that "the practice of architecture is under attack" after the Court of Appeal unanimously rejected his bid to be heard by the Bahamian judicial system's highest court on the basis that the case raised no legal issues of wider "importance" to the general public.

Appeal justice Jon Isaacs, in a written ruling on Mr Ferguson's latest attempt to revive his Judicial Review challenge against the Building Control Officer, wrote that the matter stemmed from the IBA president's "chagrin" that the regulator had mandated an engineer review his drawings and designs before the necessary permits would be issued.

Finding Mr Ferguson's appeal to be "without merit", appeal justice Isaacs added: "What is important to the general public is that buildings are constructed safely and are fit for purpose so that both occupants and visitors are protected from less than adequately constructed buildings or structures." However, he left the door open for the IBA president to apply directly to the Privy Council for permission to bring his appeal.

Mr Ferguson told Tribune Business that while he was still reviewing the Court of Appeal's decision with his attorneys, and has yet to decide how to proceed, "more than likely we will use all of the avenues available to us to bring some resolution to this long-standing issue with Building Control. It affects the profession and, most importantly, how the practice of architecture is done in the country".

Having signalled his intent to apply directly to the Privy Council, the IBA president said his greatest concern is that the Building Control Officer's decision in his case effectively renders licensed, qualified architects as the only professionals whose work can be subject to review by others outside the industry.

"It opens up the door to other professions, architects not practicing in the way they're supposed to," he argued. "The practice of architecture is under attack with respect to the powers of Building Control. The requirement that we engage other professions to review, despite being licensed to submit applications....

"We are the only profession asked by a government agency to go to another profession to review our work, and a profession that has a limited idea of what we do as architects. Once I have sat down with my legal team I will certainly have a response based on their advice. More than likely this whole issue of Building Control, and in general the practice of architecture has to come to a conclusion.

"That is what laws are for. It provides you with other avenues to find some resolution to these issues. It cannot be let go because of the importance to the profession and industry in general. It's important to the practice of architecture and the industry, and that's the reason why I can't let it go," Mr Ferguson continued.

"The truth is that the Government could have intervened. We consider it an affront to the practice of architecture, Building Control and how they operate, and we have presented our concerns to government in the past. With a stroke of the pen, the Government could correct all these issues that are long-standing. It's only a matter of the minister and government in general signing-off."

Mr Ferguson sought to appeal to the Privy Council after both the Supreme Court and Court of Appeal denied him permission to bring his Judicial Review challenge against the Building Control Officer. Appeal justice Isaacs, recalling the dispute's origins, said it had its roots in the May 17, 2018, architectural plans that Mr Ferguson submitted to Building Control for its approval.

"When the application was being reviewed, it was noted that the structural design was to incorporate the materials and methods of an ‘insulated concrete form’ (ICF) building system which is designated as an approved product, to wit, 'Nudura'," Appeal justice Isaacs noted.

"As an approved product, a condition of its use is that a recognised structural engineer design and provide specific structural details on the building system based on the engineer’s calculations on each building design to ensure the structural integrity and compliance with the manufacturer’s specification.

"Edwin Yuk Low, a senior engineer with the Ministry of Works, advised the applicant of certain 'deficiencies and inconsistencies' he had noted in the submitted drawings and structural details, and requested the applicant to provide structural drawings signed off by a structural engineer. The applicant’s building application was 'held in abeyance' pending receipt of the requested material," the ruling added.

"The applicant took the position that, as a licensed professional architect, he did not need to provide the engineer’s drawings save in one instance, namely, and he made repeated attempts to have his position accepted by the respondent. However, the respondent remained unmoved by the applicant’s protestations. As a consequence, the applicant resorted to the courts for resolution of the impasse.

"He was unsuccessful in the Supreme Court, and on his appeal to the court against the decision of Justice Klein, he was again unsuccessful. Thus he aspires to take his case even higher. To do so he must overcome the hurdles placed in his path by the Act and the Order and the authorities."

Mr Ferguson, in his appeal, argued that the Bahamas Building Code's section 302.5(a) created an "exception" or carve out from the Building Regulations Act empowering the Building Control Officer with the ability to demand "further information or particulars" to support a permit application. He also argued it was wrong for the Court of Appeal to rely on an engineer's opinion over an architect's, and not vice versa, when both are equally qualified.

Clinton Clarke, Mr Ferguson's attorney, argued that his client was legally entitled to submit drawings and plans for approval without requiring an engineer's approval except in one circumstance. However, the fact Mr Ferguson is the IBA's president made no impression with the Court of Appeal.

"Mr Clarke adverts to a possible increased cost of the provision of architectural services due to the decision taken by the respondent as one reason the court should consider this a case of public importance," Appeal justice Isaacs said.

"His second point, as he puts it in his written submissions, 'is a more direct relationship of a question of overall public policy which would concern all professional architects in The Bahamas (again note the applicant is the president of the IBA)'. The significance of the applicant being the president of a professional body that is not a party before the court escapes me. His position as president adds nothing to this application."

Noting that the Building Regulations Act is superior to the Bahamas Building Code, the Court of Appeal added: "The applicant’s difficulty with the court’s decision is that based on the use of the approved product in the construction of his proposed building, he had to submit designs by an engineer. [It] appears to stem from chagrin, i.e., that he, a licensed, professional architect, is not considered as competent as an engineer to satisfy the Building Control Officer's inquiries.

With the Building Code secondary to the Act, appeal justice Isaacs said Building Control's ability to demand additional information "cannot be cut down". He added: "The applicant has chosen to use an approved product in the construction of his building. That product may be incorporated into a design but the input of an engineer is a condition for its use.

"Thus, the nub of the applicant’s application for leave to appeal is premised on the Building Control Officer's decision that an engineer’s input is required for the building application to be considered for approval. I do not find that the circumstances of this case give rise to any issue of law of general public importance."