Ruling No.: 23-08-1622
Application No.: S-2023-03
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 Article 8.2.1.5., Table 8.2.1.6.B, Section 11.5., and Table 11.5.1.1.C, of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Roel Teunissen, for the resolution of a dispute with Richard Auld, Chief Building Official, to determine whether the proposed clearance distance of the Class 4 treatment unit and disposal system to the surface well, provides sufficiency of compliance with Article 8.2.1.4, Table 8.2.1.6 B, Section 11.5. and Table 11.5.1.1.C of Division B of the Building Code at 3969 Chief Lake Road, Sudbury, Ontario.
APPLICANT Roel Teunissen
Homeowner
Sudbury, Ontario
Agent Bruce Tait
Bruce Tait Construction
Sudbury, Ontario
RESPONDENT Richard Auld
Chief Building Official
Public Health Sudbury
Sudbury, Ontario
PANEL Judy Beauchamp, Chair Designate
Michael Gooch
Alexander Campbell
PLACE via video conference
DATE OF HEARING June 22, 2023
DATE OF RULING June 22, 2023
APPEARANCES Bruce Tait
Sudbury, Ontario
The Agent for the Applicant
Richard Auld
Chief Building Official
Public Health Sudbury, Sudbury Ontario
The Respondent
RULING
1. Particulars of Dispute
The Applicant applied for a building permit under the Building Code Act, 1992, to construct a new Class 4 sewage system to replace the existing Class 5 System at 3969 Chief Lake Road, Sudbury, Ontario.
The existing Class 5 System (holding tank) was constructed in 1984/85 to service the existing residence, which includes 2 bedrooms, one bathroom group and approximately 93 m2 of finished area. At this time, no additions to the residence are proposed; however, the applicant would like to upgrade his system to a Class 4 system using an advanced treatment system (Enviro Septic System, BMEC Authorization 18-05-386.)
The site is constrained by the location of two dug wells, (one belonging to the owner and another on the adjacent property), the Maki Creek which runs through the rear of the property, and lands regulated by Conservation Sudbury. As a result, there is limited area available for the installation of an onsite sewage system.
Although there was no written denial of the application by the Sudbury and District Health Unit, both parties agreed that the application had been denied based on the clearance distances to two nearby wells.
2. Provisions of the Building Code in Dispute
Division A, Article 1.4.1.2. Defined Terms partially states:
Division B, Article 8.2.1.4. Clearances states: Article 8.2.1.4. Clearances (See Appendix A.)
(1) Unless it can be shown to be unnecessary, where the percolation time is 10 minutes or greater, the location of all components within a sewage system shall be in conformance with the clearances listed in Article 8.2.1.5. or 8.2.1.6.
(2) Unless it can be shown to be unnecessary, where the percolation time is less than 10 minutes, the clearances listed in Articles 8.2.1.5. and 8.2.1.6. for wells, lakes, ponds, reservoirs, rivers, springs or streams shall be increased to compensate for the lower percolation time.
(3) No building shall be constructed closer to any part of a sewage system than the clearances listed in Article 8.2.1.5. or 8.2.1.6.
(4) If more than one sewage system is located on a lot or parcel of land, there shall be no overlap of any part of the systems.
Division B, Article 8.2.1.6. Clearances for a Class 4 or 5 Sewage System partially states:
8.2.1.6. Clearances for a Class 4 or 5 Sewage System
(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.
Table 8.2.1.6.A
Minimum Clearance Distances for Treatment Units
Forming Part of Sentence 8.2.1.6(1)
Item
Column 1
Object
Column 2
Minimum Clearance, m
Structure
1.5
Well
15
Lake
15
Pond
15
Reservoir
15
River
15
Spring
15
Stream
15
Property Line
3
(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).
Table 8.2.1.6.B. Minimum Clearances for Distribution Piping Forming Part of Sentence 8.2.1.6.(2)
Object
Minimum Clearance, m
Structure
5
Well with a watertight casing to a depth of at least 6 m
15
Any other well
30
Lake
15
Pond
15
Reservoir
15
River
15
Spring not used as a source of potable water
15
Stream
15
Property Line
3
Column 1
2
(3) Except as provided in Sentences 8.2.1.4.(1) and (2), a holding tank shall not be located closer than the minimum horizontal distances set out in Table 8.2.1.6.C.
Table 8.2.1.6.C. Minimum Clearances for Holding Tanks Forming Part of Sentence 8.2.1.6.(3)
Object
Minimum Clearance, m
Structure
1.5
Well with a watertight casing to a depth of at least 6 m
15
Any other well
15
Spring
15
Property Line
3
Column 1
2
Division B, Article 11.5.1.1. Compliance Alternatives partially states:
(1) A compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 3, 4, 6 or 8 where the chief building official is satisfied that compliance with the requirement is impracticable because,
(a) of structural or construction difficulties, or
(b) it is detrimental to the preservation of a heritage building.
(2) A compliance alternative shown in Table 11.5.1.1.A., 11.5.1.1.B., 11.5.1.1.C., 11.5.1.1.D/E. or 11.5.1.1.F. may be substituted for a requirement contained in Part 9 or 12 without satisfying the chief building official that compliance with the requirement is impracticable.
Table 11.5.1.1.C. (Cont'd) Compliance Alternatives for Residential Occupancies Forming Part of Article 11.5.1.1.
NUMBER
PART 8 REQUIREMENTS
PART 11 COMPLIANCE ALTERNATIVE
C99
8.2.1.4.
Existing clearances are acceptable where a sewage system is replaced with another sewage system within the same class and the capacity of the replacement sewage system does not exceed the capacity of the existing sewage system.
C100
8.2.1.4.
Existing clearances are acceptable where a replacement sewage system requires lesser clearances than those required in Part 8 for the existing sewage system.
Column 1
2
3
3. Applicant’s Position
The Agent for the Applicant submitted that the owner purchased the property in 1989. The residence is serviced with a holding tank, which was installed on the property in 1984-1985. This Class 5 system replaced a much older onsite sewage system. The owners currently wish to replace the holding tank with a Class 4 system consisting of a septic tank and advanced treatment system (Enviro Septic System, BMEC Authorization 18-05-386.)
The owner is not currently proposing any expansion to the residence or increased sewage flow.
The Agent indicated that there are two dug wells of concern, one located in the neighboring property and one on the Applicant’s property. These limit the available area for a sewage system. The Enviro Septic System was selected as it does not require a mantle to be used.
It was also inferred that Enviro Septic pipes are classified as treatment units and as such the clearance distance shall be a minimum of 15 m from the shallow wells in accordance with Table 8.2.1.6. A, in lieu of Table 8.2.1.6.B. Given the proposed Enviro Septic system design, they could obtain a clearance of 16 m to the owners well and 24 m to the neighbouring well.
The Agent also indicated that alternatively, Part 11 of the Building Code should apply, which could reduce setbacks, as the system is considered an upgrade from the existing holding tank.
Ultimately the Agent and the Health Unit could not reach an agreement that would be approved by the Sudbury and District Health Unit.
In response to questions, the Agent indicated that the existing holding tank consists of three 1,000 Igal tanks for a total of 3,000 Igal (11,360L), and that there may be some type of leaching pit or older leaching bed somewhere on the property that takes a small flow. He indicated that the existing holding tank is not recorded to have required frequent pumping.
The Agent was also asked if they considered replacing the 2 dug wells with drilled wells, and he responded that they had approached the neighbour but there was no interest.
4. Respondent’s Position
The Sudbury and District Health Unit received the permit application for a new Class 4 sewage system from the Applicant in August of 2022. As part of their review process, they researched the previous approvals for the property and discovered the permit for the holding tank, approved in September 1985. There was also a previous application for the Class 4 system in 1984 which was not approved because of the setback distances, upon which the Applicant instead installed a Class 5 system (holding tank).
The Health Unit refused the permit for the proposed new class 4 sewage system on the basis that the required clearance distances for the shallow wells could not be met. Their opinion was that clearance distance from the distribution pipe to each well should be 30 m as per the requirements listed in Table 8.2.1.6.B.
The Health Unit indicated that they do not consider the Enviro Septic System as treatment units, but as distribution pipes and as such the setback distances from the Enviro Septic pipes should be 30 m and not 15 m. They also noted that the Enviro Septic System Design and Installation Manual, referenced the incorrect Table from the Building Code, Table 8.2.1.3.B (which references wastewater flows and not clearance setbacks.)
In response to the request to use Part 11 Table 11.5.1.1.C. to reduce the setback distances, the Health Unit indicated that this would only apply to replacement systems that are of the same Class as the existing system.
5. Commission Ruling
It is the decision of the Building Code Commission that the clearance distances of the proposed Class 4 treatment unit and disposal system does not provide sufficiency of compliance with Article 8.2.1.4, Table 8.2.1.6 B, Section 11.5 and Table 11.5.1.1C of Division B of the Building Code, at 3969 Chief Lake Road, Sudbury, Ontario.
6. Reasons
i) The Enviro Septic System is considered to be both a treatment and disposal system, and as such the setbacks to the distribution portion of the system must meet Table 8.2.1.6.B. (30 m for a shallow/dug well).
ii) Part 11 section 8.2.1.4 partially states that “Existing clearances are acceptable where a sewage system is replaced with another sewage system within the same class and the capacity of the replacement sewage system does not exceed the capacity of the existing sewage system.” The existing holding tank is a Class 5 system and the proposal is for a Class 4 system, therefore these are not the same class.
iii) The Commission heard from both parties that the clearance distances to the existing wells could not be met.
iv) Given the duty to protect the existing water supply wells, a reduction of 15 m from 30 m was not considered acceptable.
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 22nd day in the month of June in the year 2023 for application number S-2023-03.
Judy Beauchamp, Chair Designate
Michael Gooch
Alexander Campbell