Ruling No.: 19-22-1542
Application No.: B-2019-10
BUILDING CODE COMMISSION
IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.
AND IN THE MATTER OF Sentences 9.10.14.4.(1) and 9.10.14.4.(2), 9.10.14.5.(3) and Article 9.10.15.4 of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Sunjay Gandhi, for the resolution of a dispute with Sheila Daubeny, Chief Building Official, to determine whether the as-installed glazed openings located on the west wall of a one storey accessory building, provides sufficiency of compliance with Sentences 9.10.14.4.(1) and 9.10.14.4.(2), 9.10.14.5.(3) and Article 9.10.15.4. of Division B of the Building Code at 15 Annavita Court, Whitby, Ontario.
APPLICANT Sunjay Gandhi
Homeowner
Whitby, Ontario
RESPONDENT Sheila Daubeny
Chief Building Official
Town of Whitby, Ontario
PANEL Stephen Wong, Chair
Leszek Muniak
David Annable
PLACE City of Toronto, Ontario
DATE OF HEARING August 29, 2019
DATE OF RULING October 10, 2019
APPEARANCES Paul Lafrance
Lafrance Group
Whitby, Ontario
Agent for the Applicant
Terri Fahad
Plans Examiner
Town of Whitby, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has received a building permit under the Building Code Act, 1992, to construct a four-season accessory building at 15 Annavita Court, Whitby, Ontario.
The subject building is a one storey recreational accessory building with a building area of 38.8 m2. It is comprised of combustible construction and is located on the west side of the property. The subject accessory building has 3 installed glazed openings located on the west wall that are in dispute due to the proximity to the property line.
More specifically, the construction in dispute involves the as-installed glazed openings located on the west wall of the accessory building, and further whether the area of the glazed openings provides sufficiency of compliance with Sentences 9.10.14.4.(1) and 9.10.14.4.(2), 9.10.14.5.(3) and Article 9.10.15.4. of Division B of the Building Code.
- Provisions of the Building Code in Dispute
9.10.14.4. Openings in Exposing Building Face
(1) Except as provided in Sentences (3) to (7) and Sentence 9.10.14.6.(1), the maximum aggregate area of unprotected openings in an exposing building face shall,
(a) conform to Table 9.10.14.4.,
(b) conform to Subsection 3.2.3., or
(c) where the limiting distance is not less than 1.2 m, be equal to or less than,
(i) the limiting distance squared, for residential occupancies, business and personal services occupancies and low hazard industrial occupancies, and
(ii) half the limiting distance squared, for mercantile occupancies and medium hazard industrial occupancies.
(2) Except as provided in Sentence 9.10.14.6.(1), openings in a wall having a limiting distance of less than 1.2 m shall be protected by closures, of other than wired glass or glass block, whose fire protection rating is in conformance with the fire-resistance rating required for the wall.
9.10.14.5. Construction of Exposing Building Face and Walls Above Exposing Building Face
(3) Except as provided in Sentence (4), where a garage or accessory building serves a house or an individual dwelling unit in a house and is detached from the house and any other building, the exposing building face,
(a) need not conform to the minimum required fire-resistance rating in Table 9.10.14.5., where the limiting distance is 0.6 m or more,
(b) shall have a fire-resistance rating of not less than 45 min where the limiting distance is less than 0.6 m, and
(c) need not conform to the type of cladding required in Table 9.10.14.5. regardless of the limiting distance.
9.10.15.1. Application
(1) This Subsection applies to houses that are not designed in accordance with Subsection 9.10.14. (See Appendix A.)
A-9.10.15.1.(1) Application of Subsection 9.10.15.
Subsection 9.10.15. applies to the spatial separation between buildings of residential occupancy where there is no dwelling unit above another dwelling unit. Such buildings include detached houses, semi-detached houses (doubles) and row houses, where there is no dwelling unit above another dwelling unit. The designer has the option of using either Subsection 9.10.14. or Subsection 9.10.15. for the determination of spatial separation requirements for these types of buildings. However, the requirements of these two subsections cannot be mixed.
9.10.15.4. Glazed Openings in Exposing Building Face
(1) Except as provided in Sentences (3) to (5), the maximum area of glazed openings in an exposing building face shall,
(a) conform to Table 9.10.15.4.,
(b) conform to Subsection 3.2.3. as if the glazed openings were unprotected openings, or
(c) where the limiting distance is not less than 1.2 m, be equal to or less than the limiting distance squared.
Table 9.10.15.4. Maximum Area of Glazed Openings in Exterior Walls of Houses Forming Part of Sentences 9.10.15.4.(1) and (2)
Maximum Total Area of Exposing Building Face, m²
Maximum Aggregate Area of Glazed Openings, % of Exposing Building Face Area
Limiting Distance, m
Less than 1.2
1.2
1.5
2
2.5
3
4
6
8
10
12
16
20
25
10
0
8
12
21
33
55
96
100
15
0
8
10
17
25
37
67
100
20
0
8
10
15
21
30
53
100
25
0
8
9
13
19
26
45
100
30
0
7
9
12
17
23
39
88
100
40
0
7
8
11
15
20
32
69
100
50
0
7
8
10
14
18
28
57
100
100
0
7
8
9
11
13
18
34
56
84
100
Over 100
0
7
7
8
9
10
12
19
28
40
55
92
100
Column 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
(2) Where the limits on the area of glazed openings are determined for individual portions of the exterior wall, as described in Subclause 9.10.15.2.(1)(b)(iii), the maximum aggregate area of glazed openings for any portion shall not exceed the values in the row of Table 9.10.15.4. for the total area of the entire exposing building face based on the limiting distance of the individual portion. (See Appendix A.)
(3) The limits on the area of glazed openings shall not apply to the exposing building face of a house facing a detached garage or accessory building, where,
(a) the detached garage or accessory building serves the house or an individual dwelling unit in the house,
(b) the detached garage or accessory building is located on the same property as the house, and
(c) the house is the only major occupancy on the property.
(4) Except as provided in Sentence (5), openings in a wall having a limiting distance of less than 1.2 m shall be protected by closures, of other than wired glass or glass block, whose fire-protection rating is in conformance with the fire-resistance rating required for the wall.
(5) An opening in an exposing building face not more than 130 cm2 shall not be considered an unprotected opening.
3. Applicant’s Position
The Agent for the Applicant submitted that there are currently 3 windows installed in the west wall of the recreational accessory structure that do not meet the criteria set out in Table 9.10.15.4. of the 2012 Ontario Building Code. The Agent indicated that the location of the as-installed windows of the accessory structure do not pose any threat to any neighboring properties. He explained that at the west side of the subject property, there are lands owned by the Town of Whitby, that have been designated as a conservation area. As a result, he contended that any future development on the Town’s land is highly unlikely. The Agent argued that the spirit of the Building Code provisions in dispute is to stop the spread of fire to a neighboring property where another structure could be put at risk and in this case, there are no existing structures that are at risk and likely to be no future structures built close to the property line that would be at risk.
The Agent submitted that the building department had proposed the installation of fire shutters to comply with sentence 9.10.15.4.(4) of the Building Code. However, the Agent maintained that in this case the Applicant is seeking relief from the Code requirements due to the unique nature of this situation, where there isn’t any threat to any surrounding structures.
The Agent explained that an application for a minor variance was applied for and subsequently approved by the Town, on condition that the building code requirements are satisfied. The Agent submitted that there are numerous examples of residences that have large size windows on walls where the actual setbacks from the property line are less than the required limiting distance to permit such percentages of unprotected openings. As such, neighboring structures are potentially exposed to fire hazards from these residences. The Agent argued that in this case, no other structures are at risk by the location of the as-installed windows on the accessory structure.
The Agent submitted that it was his opinion that Articles 9.10.14.4. and 9.10.14.5, and 9.10.15.4. do not apply in this case as the building in question is an accessory structure and not a house. The Agent explained that Article 9.10.15.1. states, “This subsection applies to houses…” and therefore, he argued Table 9.10.15.4. for calculating the maximum area of glazed openings in exterior walls of houses is not applicable to this accessory structure.
In response to questions, the Agent confirmed that the accessory structure is intended to be a four-season recreational accessory structure as indicated on the drawings. He also submitted that the property line does not run parallel to the accessory building but rather runs on an angle, which results in a varying limiting distance from the west wall of the accessory structure to the property line. As a result, each of the three windows is at a different limiting distance from the property line.
Following the adjournment of the hearing and in response to the Commission’s request for further information, the Agent submitted that he agreed with the calculations for the maximum allowable area of unprotected openings provided by the Designate for the Respondent and that in accordance with Article 9.10.14.4. the as-installed windows would be considered oversized. However, the Agent argued that it was his opinion that Article 9.10.14.4. would not be applicable to an accessory structure. The Agent submitted that both he and the Designate agreed that this area of the Code and whether it would be applicable to an accessory structure is somewhat grey and ambiguous.
The Agent maintained that the spirit of the of law for which this section of the Code is written, is not in violation, as there is no danger to any neighboring properties. Further, the Agent submitted that installing fire shutters is not physically possible without reconstructing the roof, due to the proximity of the of the existing sloped soffit presenting an immovable obstacle that would not allow for the installation of fire shutters. Therefore, the Agent submitted that it was his opinion that the existing windows meet the intent of the Building Code.
4. Respondent’s Position
The Designate for the Respondent submitted that in October 2017 a building permit was applied for to construct a four-season accessory structure. The Designate explained that the permit drawings submitted did not indicate any windows on the rear wall of the structure and the drawings were found to be in compliance with the Building Code and applicable laws. As a result, a building permit was issued in November 2017.
The Designate reported that the construction commenced, and inspections were conducted. However, on the final exterior inspection conducted in August of 2018, three windows were found to be installed on the rear exterior wall of the accessory building. At that time, the building department advised the Applicant to submit revised drawings showing the new installed windows for review.
The Designate explained that upon review of the revised drawings by the Town of Whitby’s Zoning Officer, the Applicant was advised that a minor variance application would be required, as the Town’s zoning by-law does not permit openings in an accessory structure facing a property line unless the setback conforms to the minimum rear yard setback requirements which is 7.5 m for this property. The Designate submitted that the minor variance application was approved by the Committee of Adjustment in December 2018 with a condition that the openings in the exposed building face conform to the Building Code and that all other requirements of the building department are satisfied.
The Designate submitted that Building Code does not permit unprotected openings when the exposing building face is less than 1.2 m to the property line. The Designate explained that the Code states the intent of this requirement is to retard the effect of fire on areas beyond its point of origin and to protect adjacent buildings from an unacceptable risk of damage due to fire impacting areas beyond the building of origin.
The Designate reported that the Applicant was advised that, per Sentences 9.10.15.4.(4) of the Building Code, openings in a wall having a limiting distance of less than 1.2 m must be protected with closures of other than wired glass or glass block, where the fire protection rating of the closure is in conformance with the fire resistance rating required for the wall. The Respondent submitted that the Applicant was not agreeable to providing the required closures or removing the windows, as per the original permit drawings.
The Designate submitted that although the property line does not run parallel to the exposing building face in question, and that there would be a certain percentage of allowable glazed openings, they have been greatly exceeded in this case.
Following the adjournment of the hearing and in response to the Commission’s request for further information, the Designate submitted calculations for allowable area of unprotected openings based on the area of the entire wall and based on the varying limiting distances along the wall, The Designate concluded that the total allowable area of unprotected openings is 1.4 m2 and the existing total area of unprotected openings is 8.79 m2. The Agent for the Applicant was in agreement with these calculations.
In summary, the Designate submitted it was the building department’s position that the existing unprotected openings do not comply with the requirements of the Building Code.
5. Commission Ruling
It is the decision of the Building Code Commission that the as-installed area of glazed openings located on the west wall of a one storey accessory building, does not provide sufficiency of compliance with Sentences 9.10.14.4.(1) and 9.10.14.4.(2), 9.10.14.5.(3) and Article 9.10.15.4. of Division B of the Building Code at 15 Annavita Court, Whitby, Ontario.
6. Reasons
i) Further to a request for further information by the Commission, the parties submitted agreed upon calculations for the percentage of allowable unprotected openings as per Table 9.10.14.4. of the Building Code. It is the Commission’s opinion that as per the submitted calculations, the as-installed area of glazed openings substantially exceed the allowable area of unprotected openings as per Table 9.10.14.4. of the Code, which is applicable in this case, and therefore, does not achieve sufficiency of compliance.
ii) No compensating measures were offered to offset the substantial discrepancy between the allowable area of glazed openings permitted by the Code and the existing total area of glazed openings installed on the recreational accessory building.
Dated at the City of Toronto this 10th day in the month of October in the year 2019 for application number B-2019-10.
Stephen Wong, Chair
Leszek Muniak
David Annable