Note: This article first appeared in the bi-monthly publication “Chamber News & Views”, Volume 13 – September/October 2002 edition, published by the Chamber of Commerce Aruba (www.arubachamber.com). It is published with the permission of the author, Mr. H.T.B. (Jossy) Figaroa. Mr. Figaroa is currently the director of the Department of Public Works.

Our building codes, archaic or not?

By Ir. H.T.B. (Jossy) Figaroa

Our current building codes, which include the Building and Housing Ordinance (Bouw- en woningverordening) and the Construction Resolution / Decree (Bouwbesluit), date from 1935. The Building and Housing Ordinance is the main legislation containing general regulations while the Construction Resolution regulates the technical requirements. The old text has only been adapted slightly since its introduction, leaving the building regulations practically unchanged. The changes made were mostly related to the constitutional developments since 1935. For example, when the powers of the central government of the Netherlands Antilles were delegated to the insular governments and when Aruba obtained its Status Aparte in 1986.
The following examples represent some of these changes; In the text of 1935 (Publication Aº, 1935 Nº 64) the Building and Housing Ordinance was proclaimed by the Governor of Curaçao, after obtaining approval from the Colonial Council. In the text of 1952 ((Publication Aº, 1952 Nº 14) the Building and Housing Ordinance was proclaimed by the Governor of the Netherlands Antilles, upon recommendation by the member of the Council of Government. And in 1999, in the Aruban version of the text (Publication Aº 1999 Nº GT. 9), the Building and Housing Ordinance was proclaimed by the Governor of Aruba, upon recommendation by the Minister of Justice and Public Works.

Furthermore, should one take into consideration that the Dutch Housing Law from 1901 was used as the premise for our current building ordinance, it is clear to see that these building regulations need revision and updating.
For example, Article 61 of the old law of 1935 states that the fine for non-compliance with the regulations of the building codes may be a maximum of 300 guilders. To date the maximum fine is still 300 guilders. Today this fine should be increased by at least a multiple of nine (9) to have the same deterring effect. Another example, Article 54 of the existing Building and Housing Ordinance, states that the owner of a residence of a minimum 100 m² (square meters), built within the city limits, is required to provide at least one lavatory either within the residence or within close proximity for use by the tenants, free of charge. In addition, for residences less than 100 m² (square meters) each, built in a cluster, the homeowner is required to provide one lavatory for every 100 m² (square meters) of living area, for use by the tenants, free of charge. With other words if there were three houses, two of 60 m² (square meters) and one of 80 m² (square meters), built near each other by the same homeowner, the law would only require two lavatories for the three residences.
These examples clearly indicate that these laws resulted from a different time period and different social circumstances and therefore need legislative revision. Our society is more conscious and critical, and expects clear and public administration. However, by way of the Administrative Legislative Ordinance (Landsverordening Administratieve Rechtspraak, LAR), citizens have the right to appeal decisions (or untimely decisions) by a government office. Such as in the case of a denial of a building permit or the untimely response by the Department of Public Works to a building permit request.

Today’s society is also more conscious of its community and surroundings. Therefore, when evaluating building permits it is not only important to look at structural integrity, however also to consider social safety and the sense of community.
In practice the Department of Public Works has adapted as much as possible to the technical and social developments, even though at times the legal basis therefore was missing. For example, for many years the ‘Building Commission’, also known as the “Bouwcommissie” or “Schoonheidscommissie”’, has existed and functioned, although there was no legal provision in the Building and Housing Ordinance to do so. The need for a “Building Commission” was a response to Article 22 of the Building and Housing Ordinance. This article stipulates that a building permit may be denied when “the building or part of the building does not correspond with its context due to either architectural style, the location, may become a nuisance to its environment, or may be a fire hazard”. Evaluation of aesthetic quality is a subjective matter, therefore making it necessary to establish a committee that would advise the Minister through the Director of the Department of Public Works, on aesthetic issues. The establishment of a committee of experts and professionals aimed at arriving at an objective resolution on the aesthetic aspects or value of a building.
It has only been recently that the so-called “Building Commission” was instituted by means of a Ministerial Decree in which the instructions for the committee and the criteria to judge the aesthetic aspects of a building were clearly described. However, it is important to have this criteria established in a legislative format in a new building ordinance. This in turn will provide the citizens better protection against arbitrariness and a better understanding of the grounds on which a building permit may be denied.

Practice has proven that in some building projects phasing of the building permit process is necessary. This is especially true in the case of larger and more complicated projects. Although it lacks a legal basis the possibility exists to present a preliminary design to be reviewed by the Building Commission. Once the Committee has approved the preliminary design, the final construction drawings, specifications, and calculations can be submitted for approval.
The present Building and Housing Ordinance stipulates that a decision has to be made within one month after a request for a building permit has been submitted. This time frame is attainable for the Department of Public Works, when it concerns simple buildings and when the location does not pose serious obstacles, such as drainage issues. However, larger and more complicated projects with problematic locations, requiring the advice from other agencies, the one-month period is not enough.
In addition, the lack of land-use and zoning ordinances makes it even more difficult to make a timely decision in these complicated cases. The lack of coordination between the building laws and other relevant laws, especially the Property Issuance Ordinance (‘Landsverordening Uitgifte Eigendommen’) and the Permitting Ordinance (’Vergunningverordening’) is also a restricting factor at this time. Furthermore, legal verdicts based on the so-called LAR Ordinance have made it necessary to establish clear procedures for the building permit process.

Due to the rapid development in computer and information technology in the past years, many building plans are drawn using the computer. One may suspect that in the future building plans may not be submitted in hard copy format, rather on a diskette or electronically. As a result, the legal basis for these new procedures will need to be adapted in order to keep up with the continuing development of new technology.
It is understood that developments in building techniques and building materials have been enormous since 1935. The technical rules and regulations of the Construction Resolution were intended to guarantee the construction of safe buildings that do not pose any danger to the users or its surroundings and among other things insure fire prevention. The current Construction Resolution describes in a practical way the technical requirements that a building has to comply with, however these requirements are outdated. A rather arbitrary distinction is made between buildings less than 100 m² (square meters), for which requirements are much more lenient and buildings larger than 100 m² (square meters), which have to comply with stricter conditions. For smaller buildings, the Construction Resolution consists of only six articles containing straightforward technical specifications. On the other hand, the technical requirements for larger buildings are more elaborate and quite antiquated. For example, specifications for the tensile strength of reinforced concrete still refer to the requirements established by the Dutch Society of Engineers in 1930.
Due to the development and introduction of new building materials and new building techniques these antiquated technical regulations can occasionally become an obstacle for the development of new building methods that are more suitable to our local conditions.
However, this is not just a matter of updating technical regulations, which would only require a revision of the Construction Resolution and would be far easier legally than having to revise the Building and Housing Ordinance. The changes in society, on the other hand require a more serious revision of the legal requirements. In today’s society one has to take into consideration adjustments and accessibility for both the elderly and handicapped.

During the fifties, there was a need both in Curaçao and in Aruba to modernize the building laws, and several attempts were made to do so. These attempts in practice proved not to be feasible. According to L.V. Brown, in his thesis at the Technical University Delft, (“Aanzet tot een: Model Bouwverordening Nederlandse Antillen”) this unsuccessful attempt to modernize the building laws was due to the rigid structure in which the new building regulations would be embodied thereby loosing the necessary flexibility of the technical building codes.

Notwithstanding all previous arguments the fundamental principle of the Building and Housing Ordinance, still is as valid today as it was in 1935: the obligation of the responsible government agency to exercise a preventive control on construction in order to protect public safety in general and to have safe and sound buildings. In 1935 the building laws were necessary to prevent unsafe and unacceptable building practices and housing conditions. The establishment at that time of oil refineries in Curaçao and Aruba resulted in an explosion in population, caused by the immigration of foreign workers. This in turn increased the demand for housing and the risk of developing unacceptable living conditions and the creation of shantytowns. Although the building laws do contain many technical rules and regulations, they are essentially social laws. The earlier mentioned Article 54 of the Building and Housing Ordinance, concerning water closets, is an example in the building laws of those times (1935) where priority was placed on the social well being of the tenant rather than on the (economic) interests of the Landlord. During those times Landlords were not required to provide lavatories in the residences and much less free of charge.

Once more Aruba is coping with the consequences of an explosive population growth, this time due to the immigration of foreign workers and their families, following the economic boom of the nineteen nineties. Situations similar to those after the opening of the Lago oil refinery are occurring again, both at the social level and with regard to housing. The increase of illegal construction paired with the risk of creating slum dwellings is symptomatic of this growth. Considering the larger population and population density in comparison to the limited size of our Island, our present day situation may be even more critical than during the first half of the last century.

The Department of Public Works has the responsibility to ensure and guide, in a planned and organized manner using the adequate legal means, a high quality and regulated infrastructure to enhance the quality of life and well being of the Aruban community and its guest at large. For some time now the Department of Public Works together with the Department of Legislation has been preparing a draft for a modern Building and Housing Ordinance to replace the existing one. The Association of Aruban Architects and Engineers (ADIAA) has also been involved in this process. During the preparation of the new building codes it is important to keep in mind the social and physical requirements with which the new legislation has to comply. Among other things, it is very important that these laws are well tailored to our specific situation and needs and are in balance with the capacities of the institutions that have to uphold these laws. The new codes have to be simple and clear, both for the government agency that has to enforce them and for the public that has to understand them, and they have to be accepted by the community in general.
The wording of the technical regulations has to be flexible enough in order to allow for rapid adaptation of building codes to technological innovations and new construction techniques.

An important aim of the old building codes was to promote systematic building and efficient land use. This was done for example, by creating the possibility of prohibiting construction in areas destined for installing, broadening or improving roads, and also by introducing the concept of a building set-back line (the so-called ‘rooilijn’). In addition, there are requirements for roadways to all residences, and requirements to parcel properties with more than three houses into individual lots. So, although the existing building ordinance may not have been specific, it hinted towards the concept of urban and site planning. In conclusion, the existing ordinance contains important elements that should be part of the new legislation and therefore calling the existing building ordinance archaic may not be entirely fair.

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