Ruling No.: 20-08-1559
Application No.: B-2019-41
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 Subsection 9.10.15. and Part 11 – compliance alternative C172 of Table 11.5.1.1.C 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 residential building, 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 of Table 11.5.1.1.C 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 Stephen Wong, Chair
Christina Kalt
Elektra Vrachas
PLACE City of Toronto, Ontario
DATE OF HEARING March 6, 2020
DATE OF RULING March 6, 2020
APPEARANCES Charles MacPhail
Charles Linsey & Associates Limited
Waterdown, Ontario
The Applicant
Frank Peter
Supervisor, Plan 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 rear addition and to construct a second-storey addition over the existing building with interior alterations to an existing residential 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. The proposed two-storey rear addition has a building area of 104.6 m2.
The dispute between the two parties centres on the Applicant’s proposal to relocate the glazed openings on the existing building face to the new extended wall face of the addition and whether the proposed design for the two-storey rear addition provides sufficiency of compliance with Subsection 9.10.15. when considering Part 11 – compliance alternative C172 of Table 11.5.1.1.C. of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
DIVISION B
9.10.15.
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 houses which may contain one dwelling unit above another. 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.
9.10.15.2. 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 house, 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 house 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 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 building permit application drawings indicated that on the south elevation of the building, compliance alternative C172, as per Table 11.5.1.1.C. of Part 11 of the Building Code, which permits the redistribution of the existing window openings, was being applied.
The Applicant advised that the municipality issued a subsequent review letter dated August 8, 2019 stating that the use of compliance alternative C172 of Table 11.5.1.1.C. 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 and therefore, no unprotected openings were permitted.
The Applicant submitted that he responded to the municipality, advising that compliance alternatives in Part 11 could be substituted for a requirement in Part 9 of the Building Code and further, compliance alternative C172 of Table 11.5.1.1.C. allows for windows to be relocated to another part of the wall (emphasis added).
The Applicant argued that compliance alternative C172 of Table 11.5.1.1.C. does not differentiate between relocating to existing portions of the wall or to new portions of the wall. He submitted that regardless of where the windows are located, as long as the total area of window openings is not increased, the fire exposure hazard will not increase. The Applicant maintained that in this case, the fire hazard has been reduced, as the entire wall would have the appropriate fire resistance rating.
The Applicant submitted that in order to avoid further delays in the project, the building permit application drawings were revised under protest to show the existing windows in their existing locations and subsequently, resubmitted to the municipality to avoid further delays in the building permit being issued.
The Applicant submitted that the existing south wall window locations are not suitable for the proposed floor layouts. He maintained it was his opinion that compliance alternative C172 of Table 11.5.1.1.C. allows existing windows to be relocated to another part of a wall, including portions of that wall which may be new.
The Applicant stated that he agreed the new wall construction must meet the requirements of Part 9 of the Building Code, and as such, new window openings cannot be installed when they are closer than 1.2 m to the property line. The Applicant maintained that he had not proposed any new window openings, only the redistribution of the existing windows as permitted by compliance alternative C172 of Table 11.5.1.1.C.
The Applicant contended that a requirement of compliance alternative C172 of Table 11.5.1.1.C. is that the existing openings be blocked up to provide the same fire rating as the remainder of the wall. In this case, the remainder of the wall would now be required to have a minimum 45 minute fire resistance rating. Therefore, the Applicant argued that redistributing the window openings throughout the entire south wall (existing and new) would at a minimum be maintaining, if not improving the overall performance level of the wall.
The Applicant submitted that Article 1.1.2.6. of Division A of the Building Code states that if a building has been in existence for at least five years but includes an addition that has been in existence for less than five years, Part 11 of Division B applies to the entire building. Therefore, the Applicant surmised that it would be permissible to redistribute the windows throughout the entire south wall as proposed.
The Applicant submitted that it was his opinion that when compliance alternative C172 of Table 11.5.1.1.C. mentions “the wall” it is intended to mean the entire wall, including existing and new portions of the exterior wall. Further, he added that the existing windows may be redistributed throughout as part of the current project.
In summary, the Applicant submitted it was his position that the proposal to redistribute the windows, while not increasing the total area of glazed openings along the extended south wall face of the building, provides sufficiency of compliance with the Building Code when applying compliance alternative C172 of Table 11.5.1.1.C.
4. Respondent’s Position
The Designate for the Respondent submitted that the project in dispute includes the proposal to construct a two-storey (104.6 m2 building area) rear addition and a second storey addition to an existing one-storey (123.6 m2 building area) residential house.
The Designate advised that the Applicant had submitted a building permit application on June 28, 2019 for a two-storey addition and renovations to the existing one-storey building. He explained that the design proposed to reduce the amount of existing glazing on the south elevation of the house and redistribute the reduction to the new addition. The Designate submitted that the limiting distance of the south elevation of the existing dwelling is less than 1.2 m and as a result, the spatial separation requirements in the Building Code prevented the issuance of the building permit. Subsequently, the Designate explained, the Applicant revised the building permit application drawings by removing the windows from the proposed addition in order to comply with Subsection 9.10.15.4. of the Building Code. As a result, the building permit was issued on October 9, 2019.
The Designate submitted that a revised building permit application was received on December 13, 2019 and review letters were sent to the Applicant on December 16 and 17 of 2019, advising that the new glazed openings are not permitted due to the limiting distance being less than 1.2 m and the openings being unprotected. The Designate indicated that the Applicant is proposing to reduce the area of glazed openings along the southerly side yard of the existing house and redistribute the remaining area of glazed openings to the new rear addition. The Applicant had indicated that the existing single storey dwelling has 8.83 m2 of window area and the new proposal would reduce the size of the windows in the existing building and new windows would be installed in the new addition, for a total area of glazed openings of 7.6 m2.
The Designate advised that as the limiting distance to the southerly side yards of the proposed addition is less than 1.2 m, glazed openings as proposed are not permitted. The Designate argued that Article 11.3.2.1. clearly states that where an existing building is extended, Part 11 of the Building Code is applicable to the existing portion of the building only and the extended portion of the building shall comply with all other Parts of the Code. In conclusion, the Designate submitted it was the building department’s position that, in accordance with Article 11.3.2.1., the new addition must comply with Part 9 of the Building Code, which does not permit glazed openings where the limiting distance is less than 1.2 m and the openings are unprotected.
5. Commission Ruling
It is the decision of the Building Code Commission that as part of a renovation of an existing residential building, the proposal to relocate existing windows to the new extended wall face does not provide sufficiency of compliance with Subsection 9.10.15. when considering Part 11 – compliance alternative C172 of Table 11.5.1.1.C. of Division B of the Building Code, at 173 Emerson Street, Hamilton, Ontario.
6. Reasons
i) The Commission heard that the proposed design includes the construction of a two-storey rear addition and a second-storey addition over an existing one-storey residential house. Part 11 and Part 9 are applicable in the design of the additions and interior renovations.
Sentence 11.3.2.1.(1) of Division B of the Building Code states:
Where an existing building is extended,
(a) this Part applies to the existing portion of the building, and
(b) the extended portion of the building shall comply with all other Parts.
It is the Commission’s opinion that the Building Code is clear in that the proposed additions are considered new construction and therefore Part 9 of Division B of the Building Code applies.
ii) The Commission heard evidence and testimony that the limiting distance for the south wall in question varies from 0.32 m to 0.65 m, as indicated on the project site plan. Part 9 of Division B of the Building Code, as per Table 9.10.15.4. of Subsection 9.10.15. does not permit glazed openings on the exposing building face of houses where the limiting distance is less than 1.2 m.
iii) The Commission heard the Applicant’s argument that, as per compliance alternative C172 of Table 11.5.1.1.C. of Division B of the Building Code which states “existing windows in walls may be relocated to another part of the wall”, glazed openings may be relocated to the new extended south wall face of the additions.
Although the Commission agrees that compliance alternative C172 of Table 11.5.1.1.C. in Part 11 would permit the relocation of the existing windows to another part of the wall, it is the Commission’s opinion that this compliance alternative only applies to the parts of an existing building that are being renovated.
As per Sentence 11.3.2.1.(1), Part 11 of the Building Code only “applies to the existing portion of the building”. Therefore, it is the Commission’s opinion that the existing windows may be relocated on the existing wall of the house as outlined in compliance alternative C172 of Table 11.5.1.1.C. However, a portion of the aggregate area of glazed openings on an existing building face may not be relocated to a new wall that is part of an addition, in particular where the limiting distance is less than 1.2 m and the openings are unprotected.
Dated at the City of Toronto this 6th day in the month of March in the year 2020 for application number B-2019-41.
Stephen Wong, Chair
Christina Kalt
Elektra Vrachas