Ruling No.: 19-30-1550
Application No.: B-2019-28
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 with Section 9.10.15. when considering Part 11 – Compliance Alternative C172 of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Charles McPhail, for the resolution of a dispute with Ed VanderWindt, Chief Building Official, to determine whether as part of a renovation of an existing building, the proposal to relocate existing windows to the new extended wall face, provides sufficiency of compliance with Section 9.10.15. when considering Part 11 – Compliance Alternative C172 of Division B of the Building Code at 173 Emerson Street, Hamilton, Ontario.
APPLICANT Charles MacPhail
Charles Linsey & Associates Limited
Waterdown, Ontario
RESPONDENT Ed VanderWindt
Chief Building Official
City of Hamilton, Ontario
PANEL Matthew Graham, Chair Designate
Leszek Muniak
Alexandra Chow
PLACE City of Toronto, Ontario
DATE OF HEARING December 12, 2019
DATE OF RULING December 12, 2019
APPEARANCES Charles MacPhail
Charles Linsey & Associates Limited
Waterdown, Ontario
The Applicant
Jorge Caetano
Manager, Plan Examination
City of Hamilton
Hamilton, Ontario
Designate for the Respondent
Angie Renauld
Plans Examiner
City of Hamilton
Hamilton, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has applied for a building permit under the Building Code Act, 1992, to construct a two-storey addition to a one-storey building at 173 Emerson Street, Hamilton, Ontario.
The subject building is an existing one-storey residential building with a building area of 123.6 m² . A two-storey rear addition having a building area of 104.6 m² is being proposed.
The dispute between the two parties centers on the Building Code requirements for whether the proposal to relocate existing windows to the new extended wall face, provides sufficiency of compliance with Subsection 9.10.15. when considering Part 11 – Compliance Alternative C172 in Table 11.5.1.1.C. of Division B of the Building Code at 173 Emerson Street, Hamilton, Ontario.
At the outset of the hearing, an objection to the proceeding of the hearing was raised by the municipality on a matter of jurisdiction. The Commission sought to hear both parties’ positions on the matter and subsequently determined it did not have the jurisdiction to proceed with the hearing on this matter.
2. Provisions of the Building Code in Dispute
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.
9.10.15.2. Area and Location of Exposing Building Face
(1) The area of an exposing building face shall be,
(a) taken as the exterior wall area facing in one direction on any side of a building, and
(b) calculated as,
(i) the total area measured from the finished ground level to the uppermost ceiling,
(ii) the area for each fire compartment where a building is divided into fire compartments by fire separations with fire-resistance ratings not less than 45 min, or
(iii) where Table 9.10.15.4. is used to determine maximum area of glazed openings, the area of any number of individual vertical portions of the wall measured from the finished ground level to the uppermost ceiling.
(2) For the purpose of using Table 9.10.15.4. to determine the maximum permitted area of glazed openings in an irregularly-shaped or skewed exterior wall, the location of the exposing building face shall be taken as a vertical plane located so that there are no glazed openings between the vertical plane and the line to which the limiting distance is measured.
(3) In determining the required cladding-sheathing assembly and fire-resistance rating for an irregularly-shaped or skewed exterior wall, the location of the exposing building face shall be taken as a vertical plane located so that no portion of the actual exposing building face is between the vertical plane and the line to which the limiting distance is measured.
(4) The required limiting distance for an exposing building face is permitted to be measured to a point beyond the property line that is not the centre line of a street, lane or public thoroughfare if,
(a) the owners of the properties on which the limiting distance is measured and the municipality enter into an agreement in which such owners agree that,
(i) each owner covenants that, for the benefit of land owned by the other covenantors, the owner will not construct a building on his or her property unless the limiting distance for exposing building faces in respect of the proposed construction is measured in accordance with the agreement,
(ii) the covenants contained in the agreement are intended to run with the lands, and the agreement shall be binding on the parties and their respective heirs, executors, administrators, successors and assigns,
(iii) the agreement shall not be amended or deleted from title without the consent of the municipality, and
(iv) they will comply with such other conditions as the municipality considers necessary, including indemnification of the municipality by the other parties, and
(b) the agreement referred to in Clause (a) is registered against the title of the properties to which it applies.
(5) Where an agreement referred to in Sentence (4) is registered against the title of a property, the limiting distance for exposing building faces in respect of the construction of any buildings on the property shall be measured to the point referred to in the agreement.
9.10.15.3. Inadequate Firefighting Facilities
(1) Where there is no fire department or where a fire department is not organized, trained and equipped to meet the needs of the community, the required limiting distance determined from Sentences 9.10.15.4.(2) and (5) and Sentence 9.10.15.5.(6), shall be doubled for a building that is not sprinklered.
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.
9.10.15.5. Construction of Exposing Building Face of Houses
(1) Except as provided in Sentences (2) to (4) and (6), each exposing building face and any exterior wall located above an exposing building face that encloses an attic or roof space shall be constructed in conformance with Subsection 9.10.8.,
(a) for the exposing building face as a whole, or
(b) for any number of separate portions of the exposing building face.
(2) Sentence (1) does not apply where,
(a) the limiting distance is not less than 1.2 m,
(b) the limiting distance is less than 1.2 m but not less than 0.6 m, provided that the exposing building face has a fire-resistance rating of not less than 45 min, or
(c) the limiting distance is less than 0.6 m, provided that the exposing building face has a fire-resistance rating of not less than 45 min and is clad with noncombustible material.
(3) Where the limiting distance is less than 0.6 m, cladding on the exposing building face and on exterior walls located above the exposing building face that enclose an attic or roof spaces need not be noncombustible, provided the cladding,
(a) conforms to Subsection 9.27.12.,
(b) is installed without furring members over not less than 12.7 mm thick gypsum sheathing or over masonry,
(c) has a flame-spread rating not more than 25 when tested in accordance with Sentence 3.1.12.1.(2), and
(d) is not more than 2 mm in thickness exclusive of fasteners, joints and local reinforcements.
(4) The requirements for fire-resistance rating, type of construction and type of cladding need not apply to the exposing building faces of a house and a detached garage or accessory building that face each other, where,
(a) the detached garage or accessory building serves the house or an individual dwelling unit,
(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.
(5) Except for houses, combustible projections on the exterior of a wall that are more than 1 000 mm above ground level, such as balconies, platforms, canopies, eave projections and stairs, and that could expose an adjacent building to fire spread, shall not be permitted within,
(a) 1.2 m of a property line or the centre line of a public way, or
(b) 2.4 m of a combustible projection on another building on the same property.
(6) Heavy timber and steel columns need not conform to the requirements of Sentence (1) provided the limiting distance is not less than 3 m.
11.5.1.1. Compliance Alternatives
(1) A compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 3, 4, 6 or 8 where the chief building official is satisfied that compliance with the requirement is impracticable because,
(a) of structural or construction difficulties, or
(b) it is detrimental to the preservation of a heritage building.
(2) A compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 9 or 12 without satisfying the chief building official that compliance with the requirement is impracticable.
Table 11.5.1.1.C. (Cont'd) Compliance Alternatives for Residential Occupancies Forming Part of Article 11.5.1.1.
C172
9.10.14.4.; 9.10.15.4.
Existing windows.
(a) Existing windows in walls may be relocated to another part of the wall, provided the existing opening is blocked up to provide the same fire rating for the wall, and the projection of the new opening, at a right angle to the property line onto another building, lies no closer than 300 mm from a window in such other building, where the “opposite” window is less than 2 400 mm from the opposite new opening, and
(b) except relocation of units, to be restricted to the same fire compartment and shall conform to the requirements of Article 3.2.3.14. or 9.10.12.3. where applicable, or
(c) where a building does not satisfy the requirements of Subsection 3.2.3. for the amount of openings facing a yard or space that does not have sufficient limiting distance, such existing openings are allowed to be relocated provided:
(i) such openings are not increased in size and they are protected with wired glass in steel frames conforming to Sentence 3.1.8.14.(2), or
(ii) the building is sprinklered.
3. Applicant’s Position
The Applicant advised that he had submitted a building permit application to the municipality on May 23, 2019 for the renovation and addition to an existing one-storey single family dwelling. The Applicant explained that at the end of the project, the house would be two-storeys in building height.
The Applicant indicated that the municipality issued a review letter dated July 16, 2019 stating that the “Unprotected openings are not permitted in a wall face which is less than 1.2 m from the adjacent property. Revise accordingly”.
The Applicant submitted a follow up letter on July 17, 2019 to the municipality explaining that the proposed window openings in the south elevation were a redistribution of the existing window openings. In addition, a note contained in the permit drawings indicated that on the south elevation of the building, Compliance Alternative C172 as per Part 11 of the Building Code was being applied, which permits the redistribution of the existing window openings.
The Applicant advised that the municipality issued a subsequent review letter dated August 8, 2019 stating that the use of Compliance Alternative C172 is only permitted to be used for the existing wall faces and that the addition, which is considered new construction must comply with Part 9 of the Building Code. Therefore, no unprotected opening were permitted.
The Applicant reported that in order to avoid further delays in the project, the permit drawings were revised under protest to show the existing windows in their existing locations. These were subsequently, resubmitted to the municipality to avoid further delays in the permit being issued.
The Applicant submitted that he believes the Commission has jurisdiction to hear the technical dispute, as his position on the applicability of Compliance Alternative C172 to his project has not altered and the issue is still unresolved. Further, the Applicant submitted he had no choice but to submit revised permit drawings in order to obtain a building permit otherwise, his clients would be subject to delays in their construction.
The Applicant maintained that the issue of whether the windows can be redistributed along the wall of the house that is being extended, is a technical issue that still requires a resolution. The Applicant argued that having to submit revised drawings to the municipality before making an application for hearing in order to establish that there is a dispute would cause further delays and inconvenience.
4. Respondent’s Position
The Designate for the Respondent submitted that the project in dispute involves the proposal to construct a two storey, 104.6 m² rear addition to an existing one storey, residential building as well as perform interior alterations to the existing single-family dwelling.
The Designate advised that it was the Chief Building Official’s position that there was no outstanding technical dispute for the Commission to determine, as the concerns that the municipality had regarding the spatial separation requirements of the Code have been resolved.
The Designate advised that the Applicant had revised the building permit application drawings for the subject project, removing the proposed windows from the new addition in order to comply with Section 9.10.15. of the Building Code. As a result, the Designate reported a building permit for the project was issued on October 9, 2019 in compliance with the Ontario Building Code. Therefore, it is the opinion of the Chief Building Official that the matter has been resolved and there is no outstanding dispute for the Commission to determine.
The Designate submitted that should the Commission choose to proceed with the hearing, although there is no outstanding technical dispute, the position of the Chief Building Official is as follows:
Article 11.3.2.1. of Division B clearly states where an existing building is extended, Part 11 applies to the existing portion of the building, and the extended portion of the building shall comply with all other Parts. The Designate contended that the Applicant is proposing to apply Part 11 provisions to the new addition, which is not in compliance with the Code.
5. Commission Ruling
It is the Decision of the Building Code Commission that it does not have jurisdiction to determine the dispute relating to whether as part of a renovation of an existing building, the proposal to relocate existing windows to the new extended wall face, provides sufficiency of compliance with Section 9.10.15. when considering Part 11 – Compliance Alternative C172 of Division B of the Building Code at 173 Emerson Street, Hamilton, Ontario.
6. Reasons
i) The Building Code Commission is a quasi-judicial tribunal whose mandate is set out in Subsection 24(1) of the Building Code Act, 1992.
Subsection 24 (1) of the Building Code Act, 1992, states:
- (1) This section applies if there is a dispute (emphasis added)
(a) between an applicant for a permit, a holder of a permit or a person to whom an order is given and the chief building official, a registered code agency or an inspector concerning the sufficiency of compliance with the technical requirements of the building code; (emphasis added)
The Commission heard that a building permit for the construction at 173 Emerson Street, Hamilton, Ontario, was issued by the municipality based on the review and approval of revised building permit application drawings submitted by the Applicant.
Based on the evidence and testimony provided, the Commission is of the opinion that there is no outstanding technical dispute to determine in this case.
Dated at the City of Toronto this 12th day in the month of December in the year 2019 for application number B-2019-28.
Matthew Graham, Chair Designate
Leszek Muniak
Alexandra Chow