Ruling No.: 22-10-1602
Application No.: S-2022-18
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 8.8.1.1, 8.8.1.2., 8.2.1.6.A and 8.2.1.6.B of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Barbara Bozikis and Charles Metcalfe, for the resolution of a dispute with Randy Charlton, Chief Building Official, to determine whether the proposal to install a Class 5 sewage system on a vacant property to serve a newly constructed building, provides sufficiency of compliance with Articles 8.8.1.1, 8.8.1.2., 8.2.1.6.A and 8.2.1.6.B of Division B of the Building Code, at 28 Foley Street, Selkirk, Ontario.
APPLICANT Barbara Bozikis and Charles Metclalfe
Owners
Selkirk, Ontario
RESPONDENT Randy Charlton
Chief Building Official
Haldimand County, Cayuga, Ontario
PANEL Judy Beauchamp, Chair Designate
Michael Gooch
Alexander Campbell
PLACE Video Conference
DATE OF HEARING April 5, 2022
DATE OF RULING April 5, 2022
APPEARANCES Babrbara Bozikis and Charles Metcalfe
Selkirk, Ontario
Owners
Randy Charlton
Chief Building Official
County of Haldimand, Cayuga, Ontario
Chief Building Official
Jordan White
Deputy Chief Building Official
County of Haldimand, Cayuga, Ontario
Deputy Chief Building Official
RULING
1. Particulars of Dispute
The Applicant applied for a building permit under the Building Code Act, 1992, to construct a Class 5 sewage system at 28 Foley St., Selkirk, Ontario.
The Class 5 Sewage System is proposed to serve a new one storey, two-bedroom residential building (cottage). The existing building site is a small lot with a high water table and contains poorly draining soils.
The permit application for the Class 5 sewage system was refused by the building department.
Initially, a building permit for a Class 4 Sewage System was issued to serve the new cottage. However, due to the municipality’s request to move the building location 15 feet into the property resulted in insufficient room on the property for the installation of the approved system. As a result, the owners elected to apply for a Class 5 Sewage System which is the subject of the dispute before the Commission.
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.
Division B, Tables 8.2.1.6.A. Minimum Clearance for Treatment Units and 8.2.1.6.B. Minimum Clearance for Distribution Piping and Leaching Chambers, Forming Part of Sentences 8.2.1.6.(1) and 8.2.1.6.(2) states:
(1) Except as provided in Sentences 8.2.1.4.(1) and (2), a treatment unit shall not be located closer than the minimum horizontal distances set out in Table 8.2.1.6.A.
(2) Except as provided in Sentences 8.2.1.4.(1) and (2), the centreline of a distribution pipe or leaching chamber shall not be located closer than the minimum horizontal distances set out in Table 8.2.1.6.B. and these distances shall be increased when required by Sentence 8.7.4.2.(11).
The intention of these tables is to provide minimum clearances (setbacks) for the designated
sewage system from key objects.
3. Applicant’s Position
The Applicant submitted that they purchased the property as a vacant lot on which they wished to construct a new residential building. A variance was required due to the small lot size. In preparation for construction, the owners (through their agents), submitted plans for the property showing the proposed building, its location on the property, and the required building design plans. The owners also submitted a plan for a new septic system for the property to service the new building. Both sets of plans were submitted on the same day and both the Class 4 septic system design and the building construction applications were at some point issued a building permit.
At some point during the plans review process, the municipality advised the owners that the house was too close to the road and needed to be moved a further 15 feet into the property. The owners complied with this request and initiated construction of the building in the new location.
During construction a buried tank was discovered, and the municipal building department advised that this tank needed to be spanned by a beam in the event of failure of the tank. This was done. Later, during a routine inspection of the construction, it was discovered that the location of the building would no longer allow a suitable area for the construction of the proposed Class 4 sewage system. The owners stated that the inspector advised them that they could continue construction of the house.
During a plumbing inspection, the same issue was noted and again the owners contend that the inspector stated they could continue construction. In addition, the owners stated that the Inspector advised them to run the plumbing drain out the front of the building as this is where the future holding tank could go. The owners stated that it was the plumbing inspector who advised them that if the municipality did not issue a permit for the holding tank that it could be taken to the Building Code Commission for a decision.
The owners further advised the Commission that discussions with the municipality had taken place on this matter and the municipality had hired an engineer, Gunnell Engineering, to determine if a Class 4 sewage system could be placed on the property. The engineer had developed a Class 4 sewage system design which would fit on the property, however, the Applicants stated that it would result in a large mound in the rear yard and tank setbacks which do not meet those stated in the Building Code. As a result, they were not prepared to accept this option and applied for a permit to install a holding tank, as per the inspector’s recommendation.
With respect to the existing tank on the property, the owners stated that they had no knowledge of the tank until it was discovered during construction. They also acknowledged that they do not know the purpose of this tank.
In response to questions from the Commission, the Applicant indicated that they did not feel it was necessary to have their septic designer involved in the hearing.
They also indicated that the septic system design they originally proposed was also a raised leaching bed but was raised to 2 ft above ground level not 3 ft.
4. Respondent’s Position
The Respondent advised that in June 2019, the Committee of Adjustment permitted a minor variance for a vacant lot which had frontage on an existing street. The lot would require a Class 4 Sewage System as per the minor variance authorization and set out the minimum setback to the road. In October of 2019, the municipality received 2 applications, one for the building construction which showed a 30 foot front yard in compliance with the minor variance conditions. The septic system plan (received the same day) showed the property with a 15 ft front yard. Both applications were approved as the reviewers looked only at the plans submitted to their respective departments and did not cross-reference the plans.
Once the issue came to light at the Chief Building Official’s office, the following options were proposed as a remedy:
a. Relocate the cottage to a point 15 ft from the property line – this would require a minor variance, and
b. Research another technology which may be able to fit on the property. To this end the municipality engaged Gunnell Engineering for a system design and was provided with a design that satisfied the code functional and objective statements and requirements.
The municipality independently retained Gunnell Engineering, who prepared a Class 4 on-site sewage system design for the property, which would require reduced setbacks.
The Respondent stated that it was his opinion that the engineered design proposed for this property did substantially meet the requirements of the Building Code’s functional and objective statements. As such, he was prepared to issue a permit for this system pending an application from the owners.
At some point, the Respondent was advised that the owners had located an existing buried tank on the property. A review of the municipal files for this property did not reveal that a building permit had ever been issued for the property and further, there was no record of a holding tank for this property. The Respondent then completed a review of historical aerial photos for the area and noted that no building had ever been shown as being on this property as far back as 1955, at which time the entire area was operating agricultural land. While the municipality does not dispute the presence of a tank it does dispute that this tank was used as a sewage holding tank.
Overall, the municipality’s position is that a permit for a Class 5 Sewage System should not be issued, as it is not permitted under the current requirements of the Ontario Building Code.
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 property to serve a newly constructed building, does not provide sufficiency of compliance with Articles 8.8.1.1, 8.8.1.2., 8.2.1.6.A and 8.2.1.6.B of Division B of the Building Code, at 28 Foley Street, Selkirk, Ontario.
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 was constructed on the subject property. Albeit that the construction of the building was completed with approval of the Building Department, the submission of two applications showing different information contributed to a situation in which the approved Class 4 sewage system could not be installed.
With respect to the acceptable installations of a Class 5 Sewage System, the Commission notes the following:
a. As the building constructed is for the express purposes of a seasonal recreational building and is not for a temporary operation the application for a holding tank is not acceptable.
b. The Commission heard no evidence or testimony from the parties that the use of a Class 5 Sewage System at 28 Foley Street was to remedy an unsafe sewage system.
c. The Commission heard no evidence or testimony from either party that the Class 5 sewage system applied for was to upgrade a sewage system serving an existing building where upgrading through the use of a Class 4 sewage system was not possible
d. No evidence or testimony was submitted to indicate that the use of a Class 5 sewage system was for an interim measure until municipal sewers could be provided.
Therefore, based on the above, it is the Commission’s opinion that the proposal to install a class 5 sewage system on this property does not provide sufficiency of compliance with Article 8.8.1.2. of Division B of the Building Code.
ii) The Commission received evidence from both parties that a Class 4 sewage system could be installed on the property. The engineered design, however, showed that the location of the septic and pump tank on the property would not comply with the requirements of Sentence 8.2.1.6.(1) and Table 8.2.1.6 A of the Building Code, which specifies the required setbacks. However, the Respondent stated that it was his opinion that the engineered design proposed for this property did substantially meet the requirements of the Building Code’s functional and objective statements. As such, he was prepared to issue a building permit for this system pending an application. Thus, as the property could be serviced by a Class 4 sewage system the use of a Class 5 system would not be permitted by Article 8.8.1.1
iii) The Applicants’ provided no testimony or evidence that the use of a Class 5 Sewage System for this property should be considered as an Alternative Solution.
Dated at the City of Toronto this 5th day in the month of April in the year 2022 for application number S-2021-16.
Judy Beauchamp, Chair Designate
Michael Gooch
Alexander Campbell