The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

THE Institute of Bahamian Architects (IBA) president has pledged to “definitely” use any available appeal options after a court found there was “an abundance of evidence” to reject his building permit Judicial Review.

Gustavus Ferguson told Tribune Business he would need to first meet with his attorneys, and determine whether there were any avenues for appeal, after the Court of Appeal upheld the Supreme Court’s decision not to allow him to bring proceedings against the Government’s building control officer.

Appeal justice Jon Isaacs, in a February 8, 2023, verdict unanimously backed by his fellow judges, determined that it was “reasonable” for then-buildings control officer, Craig Delancey, to require one of Mr Ferguson’s building permit applications to first be reviewed by a structural engineer after it raised concerns and unanswered questions with the regulator.

The buildings control officer was said to be empowered by the Buildings Regulations Act and Bahamas Building Code to do so, but Mr Ferguson told this newspaper he still disagrees with such findings despite the verdict of both courts. “I would hope there’s an option to appeal it,” he said.

“If the option is there, definitely that will be taken. I will likely not hesitate to use it of available. That’s certainly one of the questions I will be asking the lawyer to elaborate on. Time is of the essence and the clock is already ticking. Hopefully I will be in a position to speak with him this week.

“As far as I’m concerned, it was a one-off case. I took this case because of a client of mine. We were being put through unprecedented procedures that were really unheard of. I took it through the court system because we had exhausted all other avenues to have it resolved. The whole issue was that the Building Code speaks to architects, engineers and technicians being able to submit structural applications. It’s not just limited to engineers. That’s the real bone of contention.”

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 he took the position that such conditions ought not to be imposed on 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. But Edwin Yuk Low, a 14-year Ministry of Works veteran and senior structural engineer, reviewed the drawings and “identified a number of shortcomings” that totalled nine in all. Building Control subsequently conveyed this to Mr Ferguson’s attorney via an August 6, 2019, letter.

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”.

Appeal justice Isaacs, reviewing the Act, Code and accompanying rules, found: “It is readily apparent that the Buildings Control Officer must be allowed to perform his statutorily mandated duties with the least amount of interference, and the only limitation placed upon him when he is considering an application for a building permit is that any request for information or particulars about the building operation he makes must be reasonable....

As I see it, the one issue that requires our attention under this ground is: Was the Buildings Control Officer’s requirement that a recognised structural engineer design and provide specific structural details about the proposed building system reasonable in the circumstances?”

Turning to the arguments, he said of Mr Ferguson’s position: “The appellant’s position is that [the] Bahamas Building Code allows him, as a licensed architect, to submit an application for a building permit where engineering calculations are required to be supplied by the applicant, and that it is only in those instances where mechanical or electrical installations are intended to be placed within any portion of the building and there are calculations to be made that involve computations based on structural stresses calculations, that the Buildings Control Officer can properly require that an engineer recognised by the minister prepare those calculations.

“This is an attractive argument but it ignores section 5(2) of the Buildings Regulation Act which says, inter alia, that an applicant is to ‘furnish such other or further information or particulars relating to the building operation as the Buildings Control Officer may reasonably require’. Notwithstanding that the Code may avail him in his challenge to the request, he must demonstrate that the requirement for an engineer’s input is unreasonable in the circumstances.”

Mr Ferguson had failed to do this, according to the Court of Appeal, with appeal justice Isaacs finding: “The appellant contended that the deficiencies identified by Mr Low could have been explained by him. That may well be so, but it does not detract from the Buildings Control Officer’s power and discretion to require conformity with the conditions for the use of the approved product.

“The appellant is not an engineer, locally recognised or otherwise. Hence, he is not qualified to provide the certification required by the Buildings Control Officer as a condition for the issuance of a permit. Far from the evidence not supporting the judge’s decision, there is an abundance of evidence that clearly support it. In the premises, I am satisfied that this ground is without merit.”