Ruling No.: 20-02-1553
Application No.: S-2019-35
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 of Division B and Subclause 3.2.5.1 (3) (b) (i) of Division C of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Robert L. Hooshley for the resolution of a dispute with Bill Goodale, Chief Building Official, to determine whether the proposal to install a class 5 sewage system on a vacant lot to serve a future dwelling unit, provides sufficiency of compliance with Article 8.8.1.1. of Division B and Subclause 3.2.5.1.(3)(b)(i) of Division C of the Building Code at lot 200, Plan 1702, Township of Tiny, Ontario.
APPLICANT Robert L. Hooshley
Mississauga, Ontario
AND
RESPONDENT Bill Goodale
Chief Building Official
Township of Tiny, Ontario
PANEL Katherine Rentsch, Chair Designate
PLACE City of Toronto Ontario
DATE OF HEARING February 6, 2020
DATE OF RULING February 6, 2020
APPEARANCES Robert L. Hooshley
Mississauga, Ontario
The Applicant
Bill Goodale
Sewage System Inspector
Township of Tiny, Ontario
The Respondent
RULING
1. Particulars of Dispute
The Applicant applied for a Building Permit to install a Class 5 sewage system (holding tank) to service a proposed new cottage on the vacant lot at Lot 200 Plan 1702, Oliver Drive, Balm Beach, in the Township of Tiny. The application was denied based on non-compliance with Articles 8.8.1.1 and 8.8.1.2 of the OBC. The Applicant is proposing a Class 5 system in lieu of a Class 4 system, because of the setbacks to the dug wells on the neighbouring lots.
The subject property is a vacant lot approximately 0.068 ha in size. There are currently dwellings on the adjacent lots to the north and south.
The current owner of the lot resides in the United States and the Applicant has a conditional offer to purchase the property, conditional on the ability to obtain approval for a sewage system. The Applicant is proposing a 2-story cottage with 4 bedrooms, 1 ½ washrooms, and a living area of 124 m2.
Based on a local water well record, the soils in the area may be a 2m layer of sand overlying clay to more than 15 m.
The size of the lot is limited and may or may not permit the installation of a Class 4 septic system.
The dispute centres on whether or not, the proposal to use a Class 5 system at the vacant lot, where the required setback of 30 m from the neighbours existing dug well cannot be achieved for the installation of a Class 4 system, provides sufficiency of compliance with Sentence 8.8.1.1 Division B of the Building Code.
The Commission noted that Article 3.2.5.1.(3) of Division C of the Building Code is not a technical requirement of the Building Code and therefore, is outside of the Commission’s jurisdiction.
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.
Division C, Article 3.2.5.1(3) General partially states:
(1) Except as provided in Sentence (3), a person who carries out design activities but is not required under Sentence 3.2.4.1.(1) to be registered with the director under Sentence 3.2.4.2.(1) must have the following qualification:
(a) the person must be registered with the director under Sentence 3.2.5.2.(1).
(3) A person is exempt from the requirement to comply with the qualifications in Sentence (1), if his or her design activities relate only to,
(a) design activities in respect of which a person described in Clause 3.2.4.7.(1)(c) or who has the qualifications required under Sentence (1) will review and take responsibility,
(b) construction of,
(i) a detached house, semi-detached house, townhouse or row house owned by the person and containing not more than two dwelling units in each house, or
(ii) an ancillary building that serves a building described in Subclause (i).
3. Applicant’s Position
In July of 2019, the Applicant submitted a conditional offer for purchase of the vacant lot at Lot 200 Plan 1702, Oliver Drive, Balm Beach, in the Township of Tiny. The lot has a 15 m frontage and a depth of 45 m, which is similar in size to many of the small lots in this area. The offer is conditional on the approval of a sewage system.
The Applicant indicated that he was proposing to build a new cottage on the lot and investigated the possible methods of servicing the proposed home. The lot is quite small and is further impacted by setbacks to adjacent water supply wells. Of particular concern are the existing wells on the adjacent lot to the north, which are assumed to be dug based on the construction of the casing. The Commission heard that the method of well construction was not confirmed. A water well record for a well in the area was provided which appears to be for a drilled well. There is also a potential conflict with a well to the west however the Applicant did not approach this property owner to confirm the construction method of the well. The Applicant commissioned a survey plan to determine the setback limits. It is noted that the location of one of the wells was hand sketched and not been captured in the survey. Based on this, the Applicant determined a Class 5 system (holding tank) would be suitable and commissioned a design and grading plan for this system.
The Applicant indicated that the subject property is regulated by the Township’s bylaw 06-001 which allows vacant lots to be developed on Class 5 systems. However, the Applicant was advised by the Respondent that the OBC does not permit vacant lots to be developed on Class 5 systems.
The Applicant further indicated that he had approached the neighbour to the north and volunteered to construct a drilled well for them to replace their existing dug well, to reduce the potential setback distances. However, the neighbour would not agree to this proposal. In response to questions the Applicant acknowledged that he had not approached the neighbour to the west to upgrade their well, as he was of the opinion that the wells to the north are more critical.
The Applicant also attempted to obtain approval for the Class 5 system as an alternative solution, but this has also been denied. The Commission heard that the alternative solution provided was for Clause 8.8.1.2.(1)(b), which permits the use of a holding tank to remedy an unsafe condition. The Applicant stated he was referring to a future unsafe condition.
The Applicant’s position is that the lot is zoned for residential use and the zoning does not permit the use of trailers, tents or motor homes i.e. a temporary structure is not permitted. The Applicant’s position is that the Township has some obligation to ensure the lot can be serviced.
In response to the arguments put forward by the Respondent, the Applicant offered the following comments:
Proposal does not comply with OBC Articles 8.8.1.1 and 8.8.1.2 – The Applicant acknowledges this, and has attempted to find alternative solutions:
Applicant hasn’t considered other options – The Applicant indicated that he was under the impression that a Class 1, 2 or 3 sewage system would still require the same setback distances.
The application is not complete – The Applicant acknowledged that he did not provide final house plans, however, he provided a design for a sewage system to service a future 4-bedroom dwelling with up to 20 fixture units.
Test holes were not completed – The Applicant indicated that the Respondent required test hole in the area of the proposed leaching bed and a leaching bed is not used in a Class 5 system (holding tank.) He did have his contractor dig a test pit in the area proposed for the tank, but this was not viewed by the Township.
The designer must be the Owner to be exempt from qualifications. - The Applicant has an offer conditional on servicing the lot and will be the owner prior to construction of the sewage system.
The Applicants position is that due to lot restrictions and the required setbacks, it is not possible to install a Class 4 sewage system, and a Class 5 system is the appropriate system to service the lot.
4. Respondent’s Position
The Respondent indicated that they received a building permit application for a Class 5 system (holding tank) to service a proposed new dwelling. The permit was denied as this does not comply with the acceptable solutions found in the Ontario Building Code.
The Respondent indicated that the proposed installation of a Class 5 system is not incompliance with Article 8.8.1.1 and Article 8.8.1.2., which lists the only situations where a Class 5 system may be used. The Building Code does not permit any “grey area” in this situation.
The Respondent indicated that the neighbour to the west would be open to having their well upgraded to the drilled well. He also confirmed that the wells to the west are dug. One of these wells could also potentially be removed.
The Respondent acknowledged that the Applicant also attempted to obtain approval through the Alternate Solution method, however there is no objectives or functional statements for the clause in dispute (8.8.1.1.) and felt that the Applicant did not consider all the implications of the solution such as the ultimate final location of the sewage, after the tank is pumped out. Given that the Township of Tiny does not have any municipal wastewater treatment facilities, the sewage from the holding tank will ultimately be hauled to another municipality for treatment and disposal.
The Respondent also felt the Applicant had not fully considered other alternatives such as Class 1 and Class 2 sewage systems. The Respondent indicated that the minimum setback distance to any well for a Class 2 system is 15 m. Some types of Class 1 systems require a 30 m setback distance. In the Respondent’s opinion, these systems could be accommodated on the lot. He acknowledged however, that a Class 1 or 2 system would not meet the zoning requirements.
The Respondent further indicated that the application was incomplete as it did not provide final plans for the dwelling unit, and that there were discrepancies with the building plans and the application, including the number of bedrooms and the number of fixture units. The Township also requires that a test pit be provided for inspection to determine the soil conditions and high-water table elevation. This was not provided.
In the submitted application for the sewage system, it was stated that the designer is exempt from the registration and qualification requirements. However, the Applicant stated that he is not the property owner thus, as required in Clause 3.2.5.1.(3)(b), he cannot perform the design of the sewage system for the property he does not own.
The Respondent indicated that the Applicant had tried various avenues and arguments to obtain approval, however, the Respondent does not foresee a situation where they would approve the development of a vacant lot with a holding tank. The Respondent further noted that based on his preliminary sketch, a Class 4 sewage system could potentially be squeezed into the available area where setback distances allow, provided that an advanced treatment system is utilized. If the proposed house size were reduced than the potential to accommodate a Class 4 system would likely increase. In response to questions the Respondent indicated that a municipal water supply is not proposed for this area.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal to install a class 5 sewage system on a vacant lot to serve a future dwelling unit, does not provide sufficiency of compliance with Article 8.8.1.1. of Division B of the Building Code at lot 200, Plan 1702, Township of Tiny, Ontario.
6. Reasons
i) Article 8.8.1.1. Prohibited Installation of Division B of the Building Code states:
(1) Except as provided in Article 8.8.1.2., a Class 5 sewage system shall not be installed.
Article 8.8.1.2. Acceptable Installation, of Division B of the Building Code 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.
The Commission heard that a permanent, seasonal dwelling is proposed on a lot that is currently vacant and that municipal sewers are not proposed in the area.
The Commission also heard that both parties agree that none of the above conditions set out in Article 8.8.1.2. have been met. Therefore, it is the Commission’s opinion that the proposal to install a class 5 sewage system on the vacant lot does not provide sufficiency of compliance with Article 8.8.1.2.of Division B of the Building Code.
ii) There was insufficient information to support any alternative solutions application.
It should be noted 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 6th day in the month of February in the year 2020 for application number S-2019-35
Katherine Rentsch, Chair Designate