Wallman and David v. Johnston, 2021 ONBCC 2

Citation: Wallman and David v. Johnston 2021 ONBCC 02

Ruling No.: 21-02-1176

Application No.: B-2020-23

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 Articles 9.8.2.2., 9.8.7.1. and 9.8.6.4. of Division B of the Building Code of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application submitted by Rudy Wallman and Suzanne David, for the resolution of a dispute with Will Johnston, Chief Building Official, to determine whether the interior stair of a 3 storey detached residential building, which provides access to an unoccupied flat roof by way of an openable skylight in order to access service equipment, provides sufficiency of compliance with Articles 9.8.2.2., 9.8.7.1. and 9.8.6.4. of Division B of the Building Code at 31 Albemarle Avenue, Toronto, Ontario.

APPLICANT Rudy Wallman and Suzanne David

Homeowners

Toronto, Ontario

RESPONDENT Will Johnston

Chief Building Official

City of Toronto, Ontario

PANEL Matthew Graham, Chair Designate

Andrew Steen

Michael Gooch

PLACE City of Toronto, Ontario

DATE OF HEARING January 14, 2021

DATE OF RULING January 14, 2021

APPEARANCES Rudy Wallman and Suzanne David

Homeowner

Toronto, Ontario

The Applicants

Gordana Tijanic

Principal

Sanez Consulting Ltd.

Toronto, Ontario

The Agent for the Applicants

Selva Panchanatham

Manager, Plan Review

Toronto Building

Toronto, Ontario

Designate for the Respondent

Arturo Simon

Building Plans Examiner

Toronto Building

Toronto, Ontario

Designate for the Respondent

Natasha Zapulla, District Manager

Toronto Building

Toronto, Ontario

Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicants received a building permit under the Building Code Act, 1992, to construct a new house at 31 Albemarle Avenue, Toronto, Ontario. The Applicants also received an Order to Comply from the City of Toronto.

The subject building is a new three storey, Group C occupancy building, having a building area of approximately 70 m², and therefore Part 9 is applicable to the construction of this building.

The building permit issued for the house did not show an access from the flat roof to the interior of the building, nor did it show any mechanical equipment on the flat roof. Subsequent to the building permit being issued, the Applicant constructed the following without being in receipt of a revised building permit: a stair on the third floor leading to the flat roof, a clear skylight at the top of the stair, which opens onto the roof, as well as, mechanical equipment installed on the roof.

The construction in dispute involves the clearance height provided over the as-constructed stair, the clear height over the landing, and whether or not a handrail is required throughout the full height of the stair, which is inhibited by the as-installed skylight over top of it.

More specifically, the dispute for the Commission to determine is whether the interior stair, which provides access to an unoccupied flat roof by way of an openable skylight in order to access service equipment, provides sufficiency of compliance with Articles 9.8.2.2., 9.8.7.1. and 9.8.6.4. of Division B of the Building Code.

2. Provisions of the Building Code in Dispute

9.8.6.4. Height Over Landings

(1) The clear height over landings shall be not less than,

(a) 1 950 mm for landings serving a single dwelling unit, and

(b) 2 050 mm for landings not serving a single dwelling unit.

9.8.2.2. Height Over Stairs

(1) The clear height over stairs shall be,

(a) measured vertically, over the clear width of the stair, from a straight line tangent to the tread and landing nosings to the lowest point above, and

(b) not less than,

(i) 1 950 mm for stairs serving a single dwelling unit, and

(ii) 2 050 mm for stairs not serving a single dwelling unit.

9.8.7.1. Required Handrails

(1) Except as provided in Sentences (2) to (4), a handrail shall be installed on stairs and ramps in conformance with Table 9.8.7.1.

Table 9.8.7.1. Handrails for Stairs and Ramps Forming Part of Sentence 9.8.7.1.(1)

Location of Stair or Ramp

Handrails Serving Stairs

Handrails Serving Ramps

Stairs < 1 100 mm Wide

Stairs 1 100 mm Wide

Ramps < 1 100 mm Wide

Ramps 1 100 mm Wide

Straight

Curved

All

Straight or Curved

All

Number of Sides Required to have a Handrail

Within a dwelling unit

1

1

1

1

2

All other locations

1

2

2

2

2

Column 1

2

3

4

5

6

(2) Where a stair or a ramp is required to be at least 2 200 mm wide due to the occupant load, a handrail shall be installed such that no position on the stair or ramp is more than 825 mm from a handrail.

(3) A handrail is not required for stairs and ramps serving a single dwelling unit, where,

(a) interior stairs have not more than two risers,

(b) exterior stairs have not more than three risers, or

(c) ramps rise not more than 400 mm.

(4) Only one handrail is required on exterior stairs having more than three risers, provided such stairs serve a single dwelling unit.

3. Applicant’s Position

The Agent for the Applicants submitted that the subject building is a three-storey, single family house with a building area of approximately 70 m². The Agent reported that the roof of the building is a flat unoccupied roof with service equipment and further, the roof can be accessed via an interior stair. The Agent submitted that as the building is not more than three storeys in building height and has a building area not more than 600 m², the building is governed by Part 9 of the Building Code.

The Agent indicated that Part 9 of the Building Code relative to single family dwellings does not specifically address access or means of egress to a flat roof for personal servicing of roof-top equipment except that Sentence 9.19.2.1.(1) addresses access to an attic or roof space, allowing access to be provided by an access hatch.

In this case, the service equipment is located on the flat roof of the building. As such, the Agent contended access to the roof by hatch would be considered Code compliant.

The Agent argued that the as-constructed interior stair with openable skylight, which is intended to provide access to the roof for the servicing of roof-top equipment, offers a safer condition than a movable ladder and hatch.

The Agent explained that during the construction of the subject building, it was recognized that the service equipment had to be installed on the exterior of the building. The Agent stated that based on a letter submitted by the Applicants, the roof will have limited access and will not be occupied.

In response to questions, the Applicants stated that they had initially intended to use the rooftop as an amenity space but due to various regulatory restrictions, the installed stair and skylight is intended to be used only to provide access to the flat roof for maintaining an air conditioning unit and heat pump and will not be used for any other purpose.

The Agent explained that a stair enclosure on the roof could not be constructed to full height due to the zoning requirements, which restricts the building height. Construction of a roof top vestibule would not be permitted. This constraint was resolved by installing an openable domed skylight over the stair.

In order to access the roof for maintaining and servicing the rooftop mechanical equipment, the main stair was extended to an openable skylight. The Agent reported that the openable skylight at the top of the stair enclosure has an area of approximately 4 m².

The Agent submitted that Article 9.19.2.1. of Division B of the Building Code sets out the requirements for accessing an attic or roof space. The Agent submitted that in accordance with the Building Code, access to an attic or roof space could be met by a 550 mm x 900 mm hatch. The Agent explained that in order to access such a hatch, a ladder would be required, as is the case with most houses.

The Agent maintained that a stair, as is the case here, is much safer than a ladder. She further contended that the skylight, whose opening is about 4 m² and is equipped with a powered opener, presents a safer means of access to and from the flat roof for the benefit of mechanical equipment maintenance.

The Agent submitted that when the skylight is closed, the minimum clear height over the stair is not achieved. Further, the required handrail is not continuous and cannot be extended the full length of the stair due to the limited height.

In response to questions, the Applicants stated that they are prepared to install a handrail extension beside the skylight so that a person can hold on when going down the stairs from the rooftop.

In addition, the Applicants stated they would be prepared to install a gate equipped with a lock at the foot of the stair, which would restrict access to the stair and alert a person to the reduced headroom clearance at the top of the stair. The Applicant pointed out that full headroom clearance is provided when the skylight is in the open position. The Applicants acknowledged that based on the building permit approval process the flat roof is not permitted to be used as amenity space.

The Agent contended that the configuration of the stairs providing access to the service area would be acceptable on a building governed by Part 3 of the Code, where according to Sentence 3.3.1.13.(2), stairs providing access to service rooms or service spaces are exempted from confirming with Code requirements listed under Section 3.4. of the Code such as headroom clearance, which is more restrictive than Articles 9.8.2.2. and 9.8.6.4., which are in dispute in this case.

The Agent submitted that the objectives and functional statements associated with Sentence 9.8.2.2.(1), Sentence 9.8.6.4.(1) and Sentence 9.8.7.1.(1) were analyzed. The Agent reported that the proposed stair and skylight used for accessing the roof for the servicing of roof top equipment, will provide better conditions for timely movement of persons to exit the building in case of emergency, than a ladder and hatch.

4. Respondent’s Position

The Designate for the Respondent submitted that the Applicants constructed an internal stairway from the third floor of the new house leading to the roof, contrary to the approved building permit and subsequently, Toronto Building Department issued an Order to Comply.

The Designate reported that a revised building permit application was submitted on June 1, 2020 for the new stairway from the third floor to the roof. However, based on the building department’s review, a deficiency notice was sent to the applicants on July 29, 2020.

The Designate submitted that the Applicant has failed to demonstrate compliance with Section 9.8. of the Ontario Building Code. The Designate submitted that Items deemed to be non- compliant with the Building Code include but are not limited to:

• Missing guard around the stair-shaft when the operable-skylight is in the open position

• Protection measures are missing for children and other family member's safety while accessing the non-compliant stair with operable skylight to a finished roof deck which is a safety concern.

The Designate submitted that the design concept proposed by the Applicant, shows that the roof floor level is to be accessible and to be used as a rooftop amenity space (i.e. a roof terrace).

As the building permit was issued for a newly constructed building, it is reasonable for the construction to comply with the Building Code, as there are no construction difficulties that would impede meeting the prescriptive requirements of the Code.

The Designate indicated that their particular concern is that if and when the property changes ownership or if it is rented out in future, the constructed stairway would continue to provide unrestricted access to the roof, via a stairway that does not meet the Building Code. The Designate submitted it was the building department’s position that providing a gate at the bottom of the stair does not meet the requirements of the Code and is not enforceable and further, the proposal of a gate is not indicated on the submitted drawings.

The Designate explained that in a single-family dwelling, there is no control over the use of a permanent staircase. A remote-controlled skylight only increases the risk of unauthorized access to the roof via the non-compliant stairs. The remote-controlled operation of the skylight also promotes ease of access to the roof level and increases the risk of someone being injured.

The Designate submitted that the openable skylight prevents the headroom clearance and handrail requirements of the Building Code being met.

In summary, the Designate submitted that the Applicant has failed to demonstrate that the as-constructed stairs comply with Section 9.8 of the Building Code.

5. Commission Ruling

It is the Decision of the Building Code Commission that the as-constructed interior stair of this 3 storey residential building, which provides access to the unoccupied flat roof by way of an openable skylight for the sole purpose of servicing the existing heat pump and air conditioning unit , provides sufficiency of compliance with Articles 9.8.2.2., 9.8.6.4. and 9.8.7.1. of Division B of the Building Code, at 31 Albemarle Avenue, Toronto, Ontario on condition that:

a. A lockable gate is installed at the bottom of the stair, as proposed by the Applicant and

b. A handrail extension is installed on the existing stairs above the roofline, as proposed by the Applicant

6. Reasons

i) The Commission notes that Part 9 of the Building Code does not regulate access to a flat roof from the inside of a house.

Article 9.19.2.1. of Division B of the Code sets out requirements for accessing an “attic” or “roof space” via an access hatch measuring 550 mm x 900 mm. In order to access such a hatch, a ladder would be required; as is the case with most houses. However, this Article does not apply in this case, as the subject building’s flat roof has no “attic” nor a “roof space” as defined by the Building Code.

The Commission heard evidence that an interior stair has been constructed to provide access to the flat roof.

It is the Commission’s opinion that access to the roof for servicing mechanical equipment via an interior stair with a handrail is a safer condition than a ladder and access hatch arrangement.

ii) The Commission heard testimony from the Applicants that the roof space will only be used for the purpose of maintaining the equipment located on the roof associated with heating and cooling of the building and offered to provide a locked gate at the bottom of the stairs to ensure access to the roof is restricted to only persons servicing the equipment.

In the absence of a roof top vestibule to provide access to the flat roof from inside, it is the Commission’s opinion that when considering the regulated use of the flat roof, in addition to the restricted access provided by a locked gate, the use of the subject stairs and skylight offers a safer condition than that of a ladder and access hatch as prescribed for attic spaces by Part 9 of the Code.

iii) Article 9.8.2.2. of Division B of the Code specifies the minimum required clear height over stairs and Article 9.8.6.4. of the Code specifies the minimum required clear height over landing.

The Commission heard evidence and testimony that a roof top vestibule could not be constructed due to municipal zoning requirements, which restricts building height. The Commission heard from the Applicant that this constraint was resolved by installing an operable domed skylight over the stair.

It is the Commission’s opinion that the headroom clearance is acceptable when the skylight is in the open position and further, as per condition a) above, when the skylight is in the closed position a locked gate will restrict access to the stair.

iv) Article 9.8.7.1. requires a handrail for the stair at the roof level. It is the Commission’s opinion that the compensating measure to provide an extension to the existing handrail above the roofline, as per condition b) of this ruling, will mitigate safety concerns for service personnel accessing the equipment on the flat roof.

v) Although Section 9.8. of the Building Code was raised in the ‘Confirmation of Dispute’ submitted by the Respondent, the Commission received evidence and arguments from the parties pertaining to matters specifically related to Articles 9.8.2.2., 9.8.7.1. and 9.8.6.4. of Division B of the Building Code and therefore, the Commission has limited the scope of this ruling to the same.

Dated at the City of Toronto this 14th day in the month of January in the year 2021 for application number B-2020-23.

Matthew Graham, Chair Designate

Andrew Steen

Mike Gooch