Citation: Terpstra v. Dietrich 2023 ONBCC 13

Ruling No.: 23-13-1627

Application No.: S-2023-10

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 8.2.1.3 and Tables 8.2.1.3.A and B of the Building Code Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Miriam Terpstra, for the resolution of a dispute with Brad Dietrich, Chief Building Official, to determine whether the proposed combined daily design sewage flow of less than 10,000 L/day for the existing residences, and proposed lodge, and banquet hall, provides sufficiency of compliance with Article 8.2.1.3 and Tables 8.2.1.3.A and B of Division Building Code, when considering Appendix Notes A-8.2.1.3.(1) and (2) of Division B of the Building Code at 84483 McNaught Lane, RR 3, Brussels, Ontario.

APPLICANT Miriam Terpstra

Property Owner

Brussels, Ontario

RESPONDENT Brad Dietrich

Chief Building Official

Municipality of Huron East

Seaforth, Ontario

PANEL Judy Beauchamp, Chair Designate

PLACE Video Conference

DATE OF HEARING September 7, 2023

DATE OF RULING September 7, 2023

APPEARANCES Miriam Terpstra

Property Owner

Brussels, Ontario

Applicant

Andrew Garland

B.M. Ross and Associates Limited

Goderich, Ontario

Agent for the Applicant

Brad Dietrich

Chief Building Official

Municipality of Huron East

Seaforth, Ontario

Respondent

Jennette Zimmer

Building Inspector

Municipality of Huron East

Seaforth, Ontario

Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant applied for two building permits under the Building Code Act, 1992, one to construct a new sewage system to service a building that is be converted from an office to a 13 bedroom lodge, and the second to service an existing banquet facility, used primary for weddings and similar functions. The system for the banquet facility is to include a balancing tank to reduce flows to the leaching bed.

There would ultimately be four class 4 sewage systems on the property consisting of:

An existing system servicing the existing primary residence;
An existing system servicing a tenant’s residence;
A new system to service the banquet hall; and,
A new system to service a 13 bedroom lodge

To fall within the judication of the Building Code, the total design capacity for the site must be less than 10,000 litres per day. Both parties agree that the issue in dispute is the jurisdiction for the approval of the sewage system, either through the Building Code or the Ontario Water Resources Act of the Ministry of Environment, Conservation and Parks.

Both parties further agree, that if the systems are within the jurisdiction of the Building Code, that there are some outstanding design details to be addressed, but both parties feel that they could resolve these issues once the matter of jurisdiction is resolved.

2. Provisions of the Building Code in Dispute

Division A, Article 1.4.1.2. Defined Terms partially states:

Design capacity means, in the definition of sewage system, the total daily design sanitary sewage flow determined in accordance with Article 8.2.1.3. of Division B.

Sewage system means,

(a) a chemical toilet, an incinerating toilet, a recirculating toilet, a self-contained portable toilet and all forms of privy, including a portable privy, an earth pit privy, a pail privy, a privy vault and a composting toilet system,

(b) a greywater system,

(d) a leaching bed system, or

(e) a system that requires or uses a holding tank for the retention of hauled sewage at the site where it is produced before its collection by a hauled sewage system,

where these,

(f) have a design capacity of 10,000 litres per day or less,

(g) have, in total, a design capacity of 10,000 litres per day or less, where more than one of these are located on a lot or parcel of land, and

(h) are located wholly within the boundaries of the lot or parcel of land on which is located the building or buildings they serve.

Leaching bed means an absorption system constructed as absorption trenches or as a filter bed, located wholly in ground or raised or partly raised above ground, as required by local conditions, to which effluent from a treatment unit is applied for treatment and disposal and that is composed of,

(a) the soil, as defined in Part 8 of Division B, leaching bed fill or other filter media that is contained between the surface on which the sanitary sewage is applied and the bottom of the bed,

(b) the distribution pipe and the stone or gravel layer in which the distribution pipe is located, and

(c) the backfill above the distribution pipe, including the topsoil and sodding or other anti-erosion measure, and the side slopes of any portion elevated above the natural ground elevation.

Division B, Article 8.2.1.3. Sewage System Design Flow states: (1) For residential occupancies, the total daily design sanitary sewage flow shall be

at least the value in Column 2 as determined from Table 8.2.1.3.A. (See Appendix A.)

(2) For all other occupancies, the total daily design sanitary sewage flow shall be at least the value in Column 2 as determined from Table 8.2.1.3.B. (See Appendix A.)

(3) Where a building contains more than one establishment, the total daily design sanitary sewage flow shall be the sum of the total daily design sanitary sewage flow for each establishment.

(4) Where an occupancy is not listed in Table 8.2.1.3.B., the highest of metered flow data from at least 3 similar establishments shall be acceptable for determining the total daily design sanitary sewage flow.

The intent of these provisions is to provide a typical daily design sewage flow for the most common establishments in regard to the daily design flow calculation and sewage system component sizing.

Table 8.2.1.3.A and Table 8.2.3.1.B partially states:

Table 8.2.1.3.A. Residential Occupancy Forming Part of Sentence 8.2.1.3.(1)

Residential Occupancy

Volume, litres

Hotels and Motels (excluding bars and restaurants)

(a) Regular, per room

250

(b) Resort hotel, cottage, per person

500

2 500

Column 1

Establishments(1)

Volume, litres

Assembly Hall - per seat

(a) No food service, or

(b) Food service provided

Table 8.2.1.3.B. Other Occupancies Forming Part of Sentence 8.2.1.3.(2)

Notes to Table 8.2.1.3.B.:

(1) The occupant load shall be calculated using Subsection 3.1.17.

Appendix Note A-8.2.1.3.(1) and (2) Balancing Tanks:

Where variable daily flows or peak flows occur, the flows to the sewage system may be balanced. The sewage system and any pump(s) that are installed to move the sanitary sewage, should be sized to accommodate a daily design sanitary sewage flow at least equal to the average daily sanitary sewage flow for the week. Balancing tanks should be sized in accordance with good engineering practice to ensure that peak flows can be accommodated.

3. Applicant’s Position

The Applicant applied for two building permits under the Building Code Act, to construct a new sewage system to service a building that is to be converted from an office to a 13 bedroom lodge, and to construct a second sewage system to service an existing banquet facility, used primarily for weddings and similar functions. The sewage system for the banquet facility would include a balancing tank to reduce flows to the respective leaching beds.

The Applicant originally sought an approval for the lodge through the Ministry of the Environment, Conservation and Parks, thinking that the design flow would be in excess of 10,000 litres per day. However, during a pre-consultation meeting with the Ministry, staff had indicated that the system could be approved through the Building Code if balancing tanks were used.

Based on the calculations provided, the four systems on the site would have the following design flows:

Primary Residence 1,900 L/day

Tenants Residence 2,600 L/day

Lodge 3,250 L/day

Banquet facility 5,040 L/day reduced to 2249 L/day

Total flows Unbalanced - 12,790 L/day Balanced 9,999 L/day

The Agent for the Applicant provided examples, such as a church, where balancing tanks are used to reduce the size of the leaching bed. The Agent also indicated that the Building Code defines the sewage system for this type of system as a leaching bed system, and the flow to the leaching bed is reduced by the balancing tank.

In response to questions, the Applicant indicated that the existing banquet hall is not being expanded, but the permit for the facility is required to reduce the design flow to meet the Building Code jurisdiction limits (i.e. less than 10, 000 litres per day).

4. Respondent’s Position

The Respondent’s position is that the increase in flow for the new proposed lodge, combined with the banquet hall and existing residences on the property, will raise the total calculated daily flow of the property to over 10,000 litres per day. Therefore, they do not feel that they can issue a building permit as it is not within the jurisdiction of the Building Code.

The Designate for the Respondent indicated that the Building Code does not include exemptions for the use of balancing tanks and that Table 8.2.1.3 must be used.

5. Commission Ruling

It is the decision of the Building Code Commission that the Commission that, under subsection 24(1) of the Building Code Act, 1992, the Commission does not have the jurisdiction to make a determination on the matter raised at 84483 McNaught Lane, RR 3, Brussels, Ontario.

Reasons

i) The Commission heard that there are 4 sewage systems serving 4 separate buildings, which are all located on one lot or parcel of land.

The Commission also heard that both parties agree that the design capacity, when calculated in accordance with Article 8.2.1.3. and Tables 8.2.1.3.A and B of Division B of the Building Code results in a total daily design sewage flow that is in excess of 10,000 L/day.

As per Article 1.4.1.2., design capacity means, in the definition of sewage system, the total daily design sanitary sewage flow determined in accordance with Article 8.2.1.3. of Division B.

It is the Commission’s opinion that the Building Code methodology for calculating total daily design sewage flow in accordance with Article 8.2.1.3. of Division B.

results in a design capacity that is in excess of 10,000L/day.

ii) It is the Commission’s opinion, that although balancing tanks can be used to reduce the size of system components downgradient from the balancing tanks, it can not be used to determine design flow. As a result, it is the Commission’s opinion that the flow from the combined sewage systems is in excess of 10,000L/day and therefore, does not fall within the jurisdiction of the Building Code.

iii) The Commission heard that the Building Code definition of sewage system refers to a leaching bed system, but does not make specific reference to the treatment unit. However, a leaching bed means an absorption system to which effluent from a treatment unit is applied and would therefore, form part of the sewage system.

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 7th day in the month of September in the year 2023 for application number S-2023-10.

Judy Beauchamp, Chair Designate

Terpstra v. Dietrich, 2023 ONBCC 13

Case Summary

BUILDING CODE COMMISSION

1. Particulars of Dispute

2. Provisions of the Building Code in Dispute

3. Applicant’s Position

4. Respondent’s Position

5. Commission Ruling