Ruling No.: 19-24-1544
Application No.: S-2019-21
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 Article 8.8.1.1 and 8.8.1.2 of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Richard Zhivko for the resolution of a dispute with Randy Charlton, Chief Building Official, to determine whether the proposed Class 5 Sewage system provides sufficiency of compliance with Section 8.8., Articles 8.8.1.1. and 8.8.1.2. of Division B of the Building Code at 123 Lakeshore Road, Selkirk, Ontario.
APPLICANT Richard Zhivko Owner Hamilton, Ontario
RESPONDENT Randy Charlton, Chief Building Official Haldimand County, Ontario
PANEL Judy Beauchamp, Chair Designate
PLACE City of Toronto Ontario
DATE OF HEARING October 24, 2019
DATE OF RULING October 24, 2019
APPEARANCES The Applicant Randy Charlton Hamilton, Ontario
The Respondent A.J.Thellefsen, Building Inspector Haldimand County, Ontario
Designates for the Respondent Kate Ballantyne Building Inspector Haldimand County, Ontario
Lindsey Everets Building Inspector Haldimand County, Ontario
RULING
1. Particulars of Dispute
The Applicant applied for a Building Permit to construct a cottage on a small lot fronting on Lakeshore Road in Selkirk, Ontario. The cottage is proposed to be a 2-story all season cottage, with a finished floor area of 179 m2 and 18.5 fixture units, to be serviced with a cistern and Class 5 sewage system (holding tank).
Although there was a previous cottage located on the site, it was demolished, and the property was subsequently deemed by the municipality to be vacant.
The lot is very small, and both parties agree that it is too small for the installation of a Class 4 septic system.
The dispute between the two parties centers on whether the proposal to use a Class 5 sewage system to service a new cottage provides sufficiency of compliance with Articles 8.8.1.1. and 8.8.1.2. of the OBC.
2. Provisions of the Building Code in Dispute
Division B, Article 8.8.1.1. Prohibited Installation states:
(1) Except as provided in Article 8.8.1.2., a Class 5 sewage system shall not be installed.
Division B, Article 8.8.1.2. Acceptable Installation states:
(1) A Class 5 sewage system may be installed in the following circumstances:
(a) where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration,
(b) to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,
(c) to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations, or
(d) as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.
(2) Where a Class 5 sewage system is installed, a written agreement for the disposal of sanitary sewage from the sewage system shall be entered into with a hauled sewage system operator.
3. Applicant’s Position
The Applicant stated he owns the property at 123 Lakeshore Road in Selkirk and is proposing to construct a 2-story dwelling on the lot. The old cottage that was originally on the site had been in the family for more than 40 years. The property is zoned seasonal residential.
The Applicant submitted that the lot is very small, and it is not possible to service it with a Class 4 system. The original cottage was serviced with a cistern and holding tank. The neighbouring lots are also small and are also serviced with cisterns and holding tanks.
The Applicant indicated that he began the project to build a replacement cottage in 2017 and had contacted the municipality at that time about servicing the site. He was told at the time that a cistern and holding tank would be acceptable, given that this was the current servicing situation. He subsequently applied for a demolition permit in 2018, and in accordance with the demolition permit removed the old cottage and the existing holding tank and cistern.
Once the original cottage had been removed, the Applicant applied for building permits for the new cottage and holding tank. However, he was informed by the municipality that the property was now deemed to be “vacant” and was denied a permit to construct a Class 5 system. He was told that a holding tank could not be constructed on a vacant parcel to permit development.
The Applicant’s position is that given that a cottage was originally on the site, and serviced with a Class 5 system, this should be adequate to service the proposed dwelling. The Applicant further indicated that the Municipality had required a demolition permit to remove the existing cottage, which rendered the lot vacant, and that it was agreed before the demolition permit was issued that a new cottage would be constructed in its place.
4. Respondent’s Position
The Respondent indicated that the Applicant applied for a demolition permit in May 2018, to remove the existing single family seasonal dwelling. The Respondent noted that the County record show that the cottage was originally built in 1960.
Following this the Applicant was in the process of applying for 2 building permits, to upgrade the existing holding tank, and for a new single-family dwelling. The building permits had not been issued due to missing information about the cistern design. The Respondent agreed that a Class 4 sewage system could not be accommodated on the site.
The Respondent stated that the Applicant demolished the cottage about January 2019, and the demolition rendered the property vacant.
The Respondent submitted that the circumstances in which the Applicant now finds themselves, does not permit a holding tank to be installed. The circumstances for allowing a holding tank are set out in Sentences 8.8.1.1.(1) and 8.8.1.2.(1) of the OBC and this site does not fit any of these circumstances.
In response to questions, the Respondent stated that had the Applicant upgraded and/or replaced the holding tank first, and then removed and replaced the cottage, or vice versa, the property would not have been deemed vacant and the Applicant would have been able to service the dwelling. The Respondent acknowledged that installing the holding tank before reconstructing the cottage could constrain the construction of the cottage or cause potential damage to the tank.
The Respondent indicated that they did not expect any significant negative environmental impacts from the use of the holding tank, and that there are sufficient local sewage haulers to adequately provide sewage pump out services. The Respondent also acknowledged that several existing cottages in the area are serviced by sewage holding tanks and cisterns.
The Respondent’s position is that using a holding tank to service a new building on a vacant lot does not meet the requirements of 8.8.1.2.(1) and 8.8.1.1.(1).of the OBC. The Respondent maintains that removing the tank and the cottage at the same time renders the property vacant.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal to use a Class 5 Sewage system provides sufficiency of compliance with Section 8.8., Articles 8.8.1.1. and 8.8.1.2. of Division B of the Building Code at 123 Lakeshore Road, Selkirk, Ontario.
6. Reasons
i) The Commission heard that the previous dwelling on the site had been serviced by a Class 5 system which was demolished to upgrade the dwelling, and the new dwelling would be serviced with the same type of system.
In addition, the Commission heard both parties agree that a Class 4 System can not be accommodated on this site.
The Commission heard that the servicing is similar to other lots in the areas.
The Commission also heard that there would not be any significant negative environmental impacts from the use of the holding tank.
Therefore, it is the Commission’s opinion that based on the testimony and evidence provided, sufficiency of compliance Articles 8.8.1.1. and 8.8.1.2. of Division B of the Building Code has been achieved.
The Commission notes that this ruling is specific to the facts of this dispute and property and the above reasons should not be interpreted as precedent setting statements.
Dated at the City of Toronto this 24th day in the month of October in the year 2019 for application number S-2019-21
Judy Beauchamp, Chair Designate