Citation : Campbell v. Freeland 2022 ONBCC 08
Ruling No.: 22-08-1600
Application No.: S-2022-01
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 1.2.1.1.(1)(b) of Division A, Article 2.1.1.1. of Division C, and Clauses 8.7.3.2.(2)(b) and 8.7.3.2.(2)(d) of Division B of the Building Code.
AND IN THE MATTER OF an application by Denise Campbell for the resolution of a dispute with Laura Freeland, Chief Building Official, to determine whether the proposed leaching bed piping layout for a Class 4 sewage system, which will serve a 2 storey residential dwelling with 2 bedrooms, provides sufficiency of compliance with Article 1.2.1.1.(1)(b) of Division A, Article 2.1.1.1. of Division C, and Clauses 8.7.3.2.(2)(b) and 8.7.3.2.(2)(d) of Division B of the Building Code, at 56 Ontoro Blvd, Ajax, Ontario.
APPLICANT Denise Campbell Owner Pickering, Ontario
RESPONDENT Laura Freeland Chief Building Official Durham Region Health Department, Whitby Ontario
PANEL Judy Beauchamp, Chair Designate Alex Campbell Michael Gooch
PLACE Video Conference
DATE OF HEARING March 2, 2022
DATE OF RULING March 2, 2022
APPEARANCES Denise Campbell, Owner Pickering, Ontario The Applicant
Anne Eagan, P.Eng., R.J. Burnside & Associates Limited Mississauga, Ontario The Agent for the Applicant
Leslie Kennedy Senior Public Health Inspector Durham Region Health Department Whitby, Ontario The Respondent
Robert Woon Legal Counsel Durham Region Health Department Whitby, Ontario Counsel for the Respondent
Kelly Rodrigues Legal Counsel Durham Region Health Department Whitby, Ontario Counsel 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 new onsite sewage system at 50 Ontoro Blvd, in the Town of Ajax.
The subject building is a new house constructed with a new sewage treatment system at the rear of the property. The proposed sewage system is a class 4 system consisting of a balancing tank, Waterloo Biofilter system, and modified shallowed buried trench system located in two cells. The lot is serviced with an existing municipal water supply.
The property is located on a lot adjacent to the shoreline of Lake Ontario. A previous residence was located on the site which was serviced with a prior conventional septic system. This system was reported to be showing signs of stress and was reported to need replacement.
A new home is to be constructed in a similar location to the previous residence. However due to the required setbacks, the available options for a sewage system are restricted. The Applicant and the Respondent have corresponded regarding various design alternatives, but the application was ultimately rejected by the Town of Ajax (Durham Regional Health Department.)
The Applicant and the Respondent have agreed on some reduced setbacks, with compensating measures. However, they disagree on the design of the shallow buried trench system, including the layout of the trenches and the spacing between trenches or cells.
The dispute centres on whether or not the proposed layout of the shallow buried trench system proposed provides sufficiency of compliance with Article 1.2.1.1.(1)(b) of Division A, Article 2.1.1.1. of Division C, and Clauses 8.7.3.2.(2)(b) and 8.7.3.2.(2)(d) of Division B of the Building Code.
2. Provisions of the Building Code in Dispute
Division B, Article 8.7.3.2. Absorption Trenches, Sentence 8.7.3.2.(2). states:
(2) Absorption trenches constructed as a shallow buried trench shall be,
(a) approximately the same length and not more than 30 m in length,
(b) not less than 300 mm and not more than 600 mm in width,
(c) not less than 300 mm and not more than 600 mm in depth,
(d) centred not less than 2 000 mm apart,
(e) not less than 900 mm at all points on the bottom of the absorption trench above the high ground water table or rock, and
(f) backfilled, after the installation of the distribution pipe with leaching bed fill, so as to ensure that after the leaching bed fill settles, the surface of the leaching bed will not form any depressions.
Division A, Article 1.2.1.1. Compliance with Division B partially states:
(1) Compliance with Division B shall be achieved,
(a) by complying with the applicable acceptable solutions in Division B, or
(See Appendix A.)
(b) by using alternative solutions that will achieve the level of performance required by the applicable acceptable solutions in respect of the objectives and functional statements attributed to the applicable acceptable solutions in MMAH Supplementary Standard SA- 1, “Objectives and Functional Statements Attributed to the Acceptable Solutions”. (See Appendix A.)
Appendix Note on Article: 1.2.1.1.(1) (b):
A-1.2.1.1.(1)(b) Compliance Via Alternative Solutions.
Where a design differs from the acceptable solutions in Division B, then it should be treated as an “alternative solution”. A proponent of an alternative solution must demonstrate that the alternative solution addresses the same issues as the applicable acceptable solutions in Division B and their attributed objectives and functional statements. However, because the objectives and functional statements are entirely qualitative, demonstrating compliance with them in isolation is not possible. Therefore, Clause 1.2.1.1.(1)(b) identifies the principle that Division B establishes the quantitative performance targets that alternative solutions must meet. In many cases, these targets are not defined very precisely by the acceptable solutions - certainly far less precisely than would be the case with a true performance code, which would have quantitative performance targets and prescribed methods of performance measurement for all aspects of building performance. Nevertheless, Clause 1.2.1.1.(1)(b) makes it clear that an effort must be made to demonstrate that an alternative solution will perform as well as a design that would satisfy the applicable acceptable solutions in Division B - not “well enough” but “as well as”. In this sense, it is Division B that defines the boundaries between acceptable risks and the “unacceptable” risks referred to in the statements of the Code’s objectives, i.e. the risk remaining once the applicable acceptable solutions in Division B have been implemented represents the residual level of risk deemed to be acceptable by the broad base of Canadians who have taken part in the consensus process used to develop the Code.
3. Applicant’s Position
The Agent for the Applicant stated that the existing dwelling is a 4 bedroom, 3 bathroom residence with an existing conventional septic system of unknown age. The septic system has reached the end of its functional life.
The lot itself is quite small and there are several required setbacks that limit the location of both the proposed new building and any proposed onsite sewage system. The proposed new house will have a similar footprint to the previous house but will have fewer bedrooms and fixtures to reduce the design flow.
Knowing that there were several site constraints, the Agent approached the Durham Region Health Department for pre-consultation to discuss methods to deal with the restrictions. Several options were developed and reviewed including an option for effluent discharge to Lake Ontario. The Applicant submitted that they had considered a holding tank but felt it was not an environmentally friendly solution.
The preferred servicing option is with a class 4 system consisting of a balancing tank, Waterloo Biofilter system, and modified shallow buried trench system located in two cells.
The Agent reviewed the various proposed components of the recommended system and indicated that they had resolved several aspects of the design with the Respondent but the remaining dispute centres on the proposed layout of the shallow buried trench system. The system is a hybrid shallow buried trench/area bed system constructed using imported sand fill. The following summaries the design of the trench system:
The total sand area is 60 m2
The two trenches are proposed, each with an approximate length of 15 m
The two trenches or cells are placed 2 m apart
Each individual trench folds back along itself creating an infiltration area
The reason for the unusual layout is to meet clearance distances from lot lines and to provide the minimum total trench length as per requirements defined in Clause 8.7.3.2.(1)(a). It is the Applicant’s position that the total trench area of 60 m2, is 25 % more than the area that would be provided under a more typical trench design of 45 m2.
The Agent also referred to the design as being an alternative solution design and listed the Objectives and Functional Statements in their application.
4. Respondent’s Position
The Respondent indicated that they had been working with the Applicant and reviewed several sewage system designs for the proposed residence. Although they had resolved some setbacks issues, they still have concerns with the layout of the shallowed buried trenches and had denied the application on that basis.
The Respondent indicated that the Applicant had submitted the design as a hybrid between a shallow buried trench system and an area bed. The chambers of the proposed system do not meet the requirements of OBC Clauses 8.7.3.2.(2)(b) and (d). The two individual runs are designed as pods with 180° bends in the distribution pipe resulting in the chambers being directly adjacent with no separation distance. The distribution pipe in each run or “pod” does not meet the OBC spacing requirement of at least 2 metres. The alternative solution proposed is the addition of a basal sand layer with the same area used in area beds.
The Respondent has concerns with the arrangement of the individual shallow buried trench runs as pods. While they acknowledge that the overall loading area of the imported sand layer provides more area than the overall loading area when 2 m spacing is applied, they are concerned with the separation between the chambers. Specifically, the Respondent is concerned that there may be horizontal interference between the adjacent chambers leading to insufficient treatment and possible malfunction.
The Respondent indicated that the submission did not provide any test, studies, simulations etc. to demonstrate the proposed design will work when installed. Although the design was prepared by an Engineer with significant experience and knowledge of sewage systems, they considered a request for a third-party review to ensure that the Engineer’s reasoning and theory is accurate, and that the proposed alternative solution will meet the level of performance of the acceptable solution.
The Respondent also indicated that the application did not identify Objectives and Functional Statements or identify how the modified shallow buried trench layout would meet these Functional Statements.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposed leaching bed piping layout for a Class 4 sewage system, which will serve a 2 storey residential dwelling with 2 bedrooms, does not provide sufficiency of compliance with Article 1.2.1.1.(1)(b) of Division A, Article 2.1.1.1. of Division C, and Clauses 8.7.3.2.(2)(b) and 8.7.3.2.(2)(d) of Division B of the Building Code, at 56 Ontoro Blvd, Ajax, Ontario.
6. Reasons
i) The adjacent layout of the shallow buried trench chambers as proposed may impede the flow of adequate air into the chambers.
ii) The trench layout doesn’t meet the 2 m separation required by Clause 8.7.3.2. (2)(d) and this may impact the effectiveness of the shallow buried trenches.
iii) The compensating measure of a sand layer is not considered sufficient to allow for the close spacing of the chambers.
iv) Given the lot restriction and the relatively small area available, it may not be feasible to provide a class 4 system that provides sufficiency of compliance with the Building Code.
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 2nd day in the month of March in the year 2022 for application number S-2022-01.
Judy Beauchamp, Chair Designate
Alex Campbell
Michael Gooch