Citation: Forwell v. Maxwell 2024 ONBCC 8

Ruling No.: 24-08-1642

Application No.: B 2024-03

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 7.1.5.4. of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by WalterFedy for the resolution of a dispute with Beth Maxwell, Chief Building Official, City of Waterloo, to determine whether the proposed sanitary and storm services for a new 12 storey, Group C, residential building known as ‘Tower 2’, which is proposed to connect to the municipal sanitary and storm sewer mains that service the property through existing private sewers, provides sufficiency of compliance with Article 7.1.5.4. of Division B of the Building Code at 464 Columbia Street West, Waterloo, Ontario.

APPLICANT Shelly Forwell WalterFedy Kitchener, Ontario

RESPONDENT Beth Maxwell Chief Building Official The Corporation of the City of Waterloo Waterloo, Ontario

PANEL Stephen Wong Elektra Vrachas Leszek Muniak

PLACE Via video conference

DATE OF HEARING June 11, 2024 and June 13, 2024

DATE OF RULING June 13, 2024

APPEARANCES Maxwell Reedijk Senior Associate Dentons Canada LLP Toronto, Ontario Agent for the Applicant

Michael Beeforth Partner Dentons Canada LLP Toronto, Ontario Agent for the Applicant

Shelly Forwell Site Development Manager, Partner WalterFedy Kitchener, Ontario The Applicant

Beth Maxwell Chief Building Official The Corporation of the City of Waterloo Waterloo, Ontario The Respondent

Susan Smith Assistant City Solicitor The Corporation of the City of Waterloo Waterloo, Ontario Designate for the Respondent

Observers: Muhammand Raza Owner 2560390 Ontario Limited

Craig Robson Robson Carpenter LLP, Counsel for the Owner Ayr, Ontario

Rushin Khakharia Site Development Practice Lead, Partner WalterFedy Kitchener, Ontario

Brandon Thompson Manager of Plans Examinations Building Services Department The Corporation of the City of Waterloo Waterloo, Ontario

Mandy Harris Municipal Building Official II, Technical Specialist Building Services Department The Corporation of the City of Waterloo Waterloo, Ontario

Kerri Armstrong Plans Examiner Building Services Department The Corporation of the City of Waterloo Waterloo, Ontario

RULING

1. Particulars of Dispute

The Applicant applied for a permit under the Building Code Act, 1992, to construct a residential building on a property with the municipal address of 464 Columbia Street West, Waterloo, Ontario.

The subject site under development is proposed to have three residential towers, known as Tower 1, Tower 2, and Tower 3. Tower 1 with the municipal address of 460 Columbia Street West has been constructed and obtained permission to occupy, Tower Two with the municipal address of 464 Columbia Street West is in the building permit review and approval stage and Tower Three will be constructed at a later date and no building permit has been applied for.

The building in dispute is identified as Tower 2. It is a 12 storey, Group C, residential major occupancy building with one level below grade. The building will contain 238 residential units.

The construction in dispute involves the connection of the sanitary and storm water drainage systems from Tower 2 to private sewers, which are not contained within a single property. The proposed design includes interconnection of the service piping for Tower 2 with sanitary and storm service pipings that serve buildings on other properties under separate ownership (440, 450 and 470 Columbia Street West), prior to connecting to the municipal public services.

Sentence 7.1.5.4.(1) of Division B of the Building code requires that piping in buildings must discharge to public services separately from piping of any other building, except as permitted in Sentences 7.1.5.4.(2) and (3), which require the serviced buildings to be on the same property.

The dispute for the Commission to determine is whether the proposed sanitary and storm services for Tower 2, which are proposed to connect to the municipal sanitary and storm sewer mains that service the property through existing private sewers that are not located on the same property, provides sufficiency of compliance with Article 7.1.5.4. of Division B of the Building Code.

2. Provisions of the Building Code in Dispute

7.1.5.4. Separate Services

(1) Except as provided in Sentences (2) and (3), piping in any building shall be connected to the public services separately from piping of any other building. (See Appendix A.)

(2) An ancillary building on the same property as the main building may be served by the same service.

(3) Water service pipes or building sewers serving buildings located on the same property may connect into a private water supply or a private sewer conforming to Article 7.1.5.5.

(4) No plumbing serving a dwelling unit shall be installed in or under another unit of the building unless the piping is located in a tunnel, pipe corridor, common basement or parking garage, so that the piping is accessible for servicing and maintenance throughout its length without encroachment on any private living space, but this Sentence does not prevent plumbing serving a unit located above another unit from being installed in or under the lower unit.

Appendix Note A-7.1.5.4.(1) Separate Services

Building sewers and water service piping serving buildings that are not located within the same property may be interconnected if the owners of the properties and the municipality enter into an agreement that is registered against the title to which it applies.

3. Applicant’s Position

The Agent for the Applicant (the Agent) led the Applicant through a detailed description of the property under development and the drainage systems serving Tower 1, and what are proposed for Tower 2. The Applicant described the manner in which the sanitary and storm water drainage systems were designed and the manner of their intended function.

The Applicant explained that the proposed development site is bounded by properties at 440, 450 and 470 Columbia Street West. The proposed development site was originally agricultural land, whereas 440 and 450 are commercial properties, and 470 is a municipal fire station.

The Applicant advised that there is no existing municipal sanitary sewer on Columbia Street and that an existing private sanitary sewer collects sanitary drainage from the buildings at 440 and 450 as well as the fire station at 470 Columbia Street. This private sewer connects with a municipal sanitary sewer on Gatestone Boulevard to the west of the properties, and also with a municipal sanitary sewer on Fischer-Hallman Road to the east of the properties.

Similarly, the storm water management system for the properties discharges storm water from a storm water pond through two separate private sewers with one discharging to Gatestone Boulevard and the other to Fischer-Hallman Road. The two private storm sewers are not interconnected.

The Applicant stated that in the absence of municipal sewers on Columbia Street West, the sanitary and storm water sewers from Tower 2 will be connected directly to the private sanitary and storm water sewers from adjacent properties crossing the rear of the subject site under development.

The Applicant noted that the essence of the dispute is the interconnection of the building sanitary and storm water sewers directly into the private sewers rather than directly to municipal sewer infrastructure.

The Applicant noted that the position of the building department is that, in order to comply with Sentence 7.4.5.1.(1) of Division B of the Building Code, the building sewers must connect directly to the municipal sewers and that a private sewer must serve buildings only on the same property. The Building Department considers the proposal to connect the building sewers to a private sewer and then to a municipal sewer is not in compliance with Sentence 7.1.5.4.(1) of the Building Code, since the building sewers are deemed to be interconnected through a private sewer which serves buildings on other properties.

The Applicant contended that connecting building sanitary and storm sewers to private sewers is equivalent to connecting building sewers to municipal infrastructure sewer systems. The Applicant informed the Commission that the private sewers are designed to the same requirements as municipal sewers as both are governed by the same Standard, MOE PIBS 6879, “Design Guidelines for Sewage Works”.

The Applicant described the manner in which the Objectives and Functional Statements associated with Sentence 7.1.5.4.(1) of the Building Code are met in the design of private sewers.

The Applicant further described how the Building Code defines terms including: building sewer, private sewer, sanitary drainage pipe, and storm drainage pipe. The Commission heard that the Applicant is of the opinion that the Building Code does not forbid sewer discharge from a building to be connected to private sewers where the private sewers also accept sewage from other buildings and other properties.

The Applicant explained that the design parameters of the private sanitary and storm sewers are adequate and will sufficiently accommodate sanitary and storm drainage flows from all three towers at the subject site as well as the buildings on the 440, 450 and 470 properties. The Applicant also explained that the detailed design of the private sanitary and storm sewers was fully described in the Functional Services Report prepared by WalterFedy for Tower 1 and subsequently for Towers 2 and 3 on the subject site under development, and that the Functional Services Report was found adequate and acceptable by the City of Waterloo Engineering Department when the building permit for Tower 1 was approved.

The Applicant indicated that, even though the Appendix Note for Sentence 7.1.5.4.(1) speaks to shared services agreements with the Municipality where private sewers are designed to collect discharge from several buildings on different properties, the information in the Appendix is not a mandatory part of the Building Code and is included as explanatory material only.

The Applicant informed the Commission that site servicing agreements among the owners of the properties at 440, 450, 460 (Tower 1) and 470 Columbia Street West are in place for the private sewers that collect sanitary sewage and storm water discharge from these properties. The Applicant indicated that the Municipality is party to the agreement relating to 470 Columbia Street, through ownership of the property, but not party to the agreements on other properties.

4. Respondent’s Position

The Respondent and the Respondent’s Designate (the Designate) submitted that the proposed sanitary and storm sewer pipings for Tower 2 are not in compliance with Article 7.1.5.4. of Division B of the Building Code for separate services. The proposed design includes interconnection of the service piping for Tower 2 with sanitary and storm service pipings that serve other buildings on separate properties under separate ownership (440,450 and 470 Columbia Street West), prior to connecting to public services.

The Respondent submitted that in accordance with Sentence 7.1.5.4.(1), piping in buildings must discharge to public services separately from piping of any other building, except as permitted in Sentences 7.1.5.4.(2) and (3). Both exceptions outlined in Sentences (2) and (3) require serviced buildings to be on the same property. Where the exceptions do not apply, compliance with the most stringent code requirement, Sentence 7.1.5.4.(1), is mandatory.

The Respondent submitted that site services, serving buildings on the same property, are permitted by Sentence 7.1.5.4.(3), to connect into a private sewer designed in accordance with Article 7.1.5.5. However, this configuration is not what is being proposed for the buildings at 460 and 464 Columbia Street West, as the sanitary and storm service pipings serving these 2 buildings also serve buildings on the 440, 450 and 470 Columbia Street West Properties, interconnecting with each other prior to connecting to public services.

The Respondent explained that portions of the existing private storm and sanitary sewer systems located at the rear of the 460 Columbia Street West property are proposed to serve all 3 building towers on the subject site under development, as well as buildings on the adjacent properties at 440, 450 and 470 Columbia Street West prior to discharging to public services, which is not permitted by Article 7.1.5.4.

The Respondent advised that where building sewers connect to private sewers, the municipality is concerned about the potential absence of unimpeded emergency and maintenance access to the private sewers, the lack of control over continual required maintenance of private sewers, and the appropriate provision of cost-sharing among private owners for repairs and required maintenance of private sewers. The Respondent explained that if the building sewers discharge into private sewers without having a shared services agreement in place, then the municipality has no oversight of or control over the proper maintenance, operation, and functionality of the private sewers.

The Respondent indicated that the Appendix Note for Sentence 7.1.5.4.(1) does explain and give guidance that a way to permit the connection of building sewers to private sewers, where the buildings are not on the same property, is when the owners of the properties and the municipality enter into an agreement that is registered against the building title to which it applies. By this mechanism the municipality would have third party control and oversight of the private sewers.

The Respondent advised that the matter of the interconnection of private sewers creating a potential Building Code noncompliance issue was first identified in 2012. Subsequent discussions with the Ontario Large Municipalities Chief Building Officials (OLMCBO) and the Ministry of Municipal Affairs and Housing confirmed the interpretation of potential noncompliance by the Respondent.

5. Commission Ruling

It is the decision of the Building Code Commission that the proposed sanitary and storm services for a new 12 storey, Group C, residential building known as ‘Tower 2’, which is proposed to connect to the municipal sanitary and storm sewer mains that service the property through existing private sewers, does not provide sufficiency of compliance with Article 7.1.5.4. of Division B of the Building Code at 464 Columbia Street West, Waterloo, Ontario.

6. Reasons

i. Sentence 7.1.5.4.(1) of Division B of the Building Code requires that piping for a building be connected to public services separately from piping of any other building.

The Commission heard that pipings of multiple buildings on separate properties are connected to an intermediary private sewer piping that cross over different properties before discharging into municipal public services. It is the Commission’s opinion that the Functional Services Report does not adequately address how compliance with Article 7.1.5.4. Separate Services was achieved in the design of the building sewer systems.

Based on the evidence presented, Sentences 7.1.5.4.(2) and (4) of Division B of the Building Code are not applicable in this case.

The Commission heard that the Applicant is of the opinion that the proposal complies with the exception provided in Sentence 7.1.5.4.(3) of Division B of the Building Code.

Sentence 7.1.5.4.(3) states:

Water service pipes or building sewers serving buildings located on the same property may connect into a private water supply or a private sewer conforming to Article 7.1.5.5.

The Commission heard evidence and testimony that the proposed building sewer pipes serving 464 Columbia Street West will tie into piping of a private sewer that also serves several adjacent buildings on different properties before being discharged into the piping of the municipal system. Therefore, it is the Commission’s opinion that, since multiple buildings on separate properties are connected to the same private sewer system, compliance with Article 7.1.5.4. is not achieved.

ii. Although it is the Commission’s opinion that sufficiency of compliance with the prescriptive requirements of Article 7.1.5.4. of Division B has not been achieved, the Commission notes that Sentence 1.2.1.1.(1) of Division A of the Building Code provides a code user an alternative pathway to comply with Division B of the Building Code. Sentence 1.2.1.1.(1) permits the use of an alternative solution that provides the same level of performance required by the prescriptive solutions as set out in Division B by demonstrating compliance with the objectives and functional statements attributed to the applicable acceptable solutions in MMAH Supplementary Standard SA-1.

The Commission heard that both parties acknowledge that the proposed construction may be brought into compliance by way of an alternative solution permit application through Division A, using the proposed piping design and layout. The Respondent indicated that the City of Waterloo has a process for reviewing and accepting alternative solutions.

iii. The Commission also notes that Appendix A-7.1.5.4.(1) Separate Services, though not forming part of the regulation, provides guidance and explanatory notes to a code user for consideration. It states:

Building sewers and water service piping serving buildings that are not located within the same property may be interconnected if the owners of the properties and the municipality enter into an agreement that is registered against the title to which it applies.

The Ministry’s Technical Background Information report (Exhibit #3) explains in part:

This Article indicates that piping in any building is required to be connected to public service separately from piping of any other building, except that water service pipe or building sewers serving buildings on the same property may be connected into private water supply or a private sewer.

The Commission heard that owners of the adjacent properties, which share the existing private sewer that crosses property lines, have entered into easement agreements, which are registered on title. However, the Commission also heard that the municipality is not a party to these agreements, with the exception of 470 Columbia Street West, which the City of Waterloo currently owns, but would no longer be a party upon selling this property.

The Commission understood that the City of Waterloo wishes to be a party on all agreements pertaining to the shared storm and sanitary sewers that serve the properties of 440, 450, 460, 464 and 470 Columbia Street West which eventually tie into the municipal services, in order to ensure the health and safety of the occupants of all the buildings in question.

Dated at the City of Toronto this 13th day in the month of June in the year 2024 for application number B-2024-03.

Stephen Wong, Chair

Elektra Vrachas

Leszek Muniak