Ruling No.: 22-17-1609
Application No.: B-2022-03
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 Sentence 9.10.8.9.(1) and Sentence 9.18.1.1.(1) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Don Husack for the resolution of a dispute with Allan Shaw, Chief Building Official, to determine whether the ceiling height of three of the five unfinished basement units in a three-storey residential building provides sufficiency of compliance with Sentence 9.10.8.9.(1) and Sentence 9.18.1.1.(1) of Division B of the Ontario Building Code at 290 Barton Street West, Hamilton, Ontario.
APPLICANT Don Husack Dawn Victoria Homes (Brantford) Ltd. Burlington, Ontario
RESPONDENT Allan Shaw Chief Building Official City of Hamilton, Ontario
PANEL Stephen Wong, Chair Christina Kalt Michael Gooch
PLACE via Teams Video Conference
DATE OF HEARING August 9, 2022
DATE OF RULING August 9, 2022
APPEARANCES Don Husack Dawn Victoria Homes (Brantford) Ltd. Burlington, Ontario The Applicant
Tim Owen Staff Engineer Burlington, Ontario Agent of the Applicant
George Wong Chief Building Engineer City of Hamilton, Ontario Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has received a building permit under the Building Code Act, 1992 to construct a stacked townhouse block at 290 Barton Street West, Hamilton, Ontario.
Three townhouse units were constructed with ceiling heights that were less than the minimum required for a basement but exceeded the maximum height for a crawl space.
The dispute between the parties centres on whether the unfinished basement ceiling heights of three of the five units in the three-storey residential building complies with Sentence 9.10.8.9.(1) and Sentence 9.18.1.1.(1). of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
9.10.8.9. Crawl Spaces
(1) Where a crawl space exceeds 1 800 mm in height or is used for any occupancy or as a plenum in combustible construction or for the passage of flue pipes, it shall be considered as a basement in applying the requirements in Article 9.10.8.1.
9.18.1.1. Application
(1) In this Section, a crawl space refers to an enclosed space between the underside of a floor assembly and the ground cover directly below, with a clearance less than 1800 mm in height.
3. Applicant’s Position
The Applicant indicated that there were restrictions on site permitting excavations to only go to a certain depth, which did not allow for full basements in all units. Therefore, crawl spaces were proposed in three of the five units. The as-built clear height in the below-grade levels of Units 1, 4 and 6 are as follows:
Unit 1 1830 mm
Unit 4 1930 mm
Unit 6 1910 mm
The Applicant indicated that there was no public concern over how the units were built and the owners are satisfied with the as-built condition. The Applicant stated that the issue is with interpretation of the Building Code. While the heating system has been installed in the below-grade levels and the ground cover is finished slab-on-grade, the Applicant submitted that the below-grade levels of Units 1, 4 and 6 are not to be used for occupancy and should be considered as crawl spaces; and therefore Sentence 9.10.8.9.(1) does not apply.
The Applicant also indicated that while there was a window in some of the below-grade levels for Units 1, 4 and 6, there was no intent to finish the space for human occupancy.
4. Respondent’s Position
The Designate for the Respondent submitted that the original permit was issued on August 11, 2018, with a clear height of 2 312 mm in the basements.
A revision to the permit was issued on February 23, 2019, with an amendment that changed the basements to crawl spaces with clear height in the below-grade levels of Units 1, 4 and 6 reduced to less than 1 800 mm.
According to the Designate, the as-built clear heights in these below-grade levels exceed the allowable clear height for crawl space of 1 800 mm as defined in Sentence 9.18.1.1.(1). Similarly, the as-built clear heights for these units do not meet the minimum clear height requirement for basements as stipulated in Sentence 9.5.3.1.(1). and Table 9.3.5.1 of Division B of the Building Code.
In summary, it is the Respondent’s position that in order to qualify as a crawl space, the clear height in these below-grade levels must be reduced to less than 1 800 mm, as defined in Sentence 9.18.1.1.(1) of Division B of the Building Code.
5. Commission Ruling
It is the decision of the Building Code Commission that the ceiling heights of three of the five unfinished basement units in a three-storey residential building provide sufficiency of compliance with Sentences 9.10.8.9.(1) and 9.18.1.1.(1) of Division B of the Building Code at 290 Barton Street West, Hamilton, Ontario.
6. Reasons
i) The Applicant confirmed that the floor assembly over the as-built crawl spaces has the fire-resistance rating required by Article 9.10.8.1. as referenced in Sentence 9.10.8.9.(1) of Division B of the Building Code.
ii) The Applicant confirmed that the as-built crawl spaces in Units 1, 4 and 6 are not to be used for human occupancy.
iii) The parties confirmed that a building permit will be required in order to change the crawl spaces in Units 1, 4 and 6 to basements for occupancy purposes in the future.
iv) The Commission is of the opinion that in consideration of the as-built clear heights of the below-grade levels in Units 1, 4 and 6, being 1 830 mm, 1 930 mm and 1 910 mm respectively, these three below-grade levels can reasonably be considered crawl spaces where there is no human occupancy, as confirmed by the Applicant. Section 9.18., as referenced by Sentence 9.18.1.1.(1), applies to crawl spaces with a clearance less than 1 800 mm in height.
Dated at the City of Toronto this 9th day in the month of August in the year 2022 for application number B-2022-03.
Stephen Wong, Chair
Christina Kalt
Michael Gooch