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BCC Ruling No. 14-04-1367

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Ruling No.: 14-04-1367
Application No.: S 2013-35

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 8.2.1.6.(1) and Table 8.2.1.6.A. of Regulation 350/06, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Sarah Denk, Owner, for the resolution of a dispute with Randy Charlton, Chief Building Official, Haldimand County, to determine whether the clearance distance between the as constructed wooden deck and the septic tank of an existing on site sewage system provides sufficiency of compliance with the technical requirements of Sentence 8.2.1.6.(1) and Table 8.2.1.6.A., of Division B, of the Building Code, at 8554 Indian Line, Haldimand County (Hagersville), Ontario.

APPLICANT

Sarah Denk, Owner
Haldimand County (Hagersville), Ontario

RESPONDENT

Randy Charlton, Chief Building Official
Haldimand County, Ontario

PANEL

Eric Gunnell, Chair-Designate

PLACE

City of Toronto, Ontario

DATE OF HEARING

February 20, 2014

DATE OF RULING

February 20, 2014

APPEARANCES

Sarah Denk, Owner
Haldimand County (Hagersville), Ontario
Applicant

Tomas Denk, Owner
Haldimand County (Hagersville), Ontario
Witness for the Applicant

Randy Charlton, Chief Building Official
Haldimand County, Ontario
Respondent

Sara Premi, County Solicitor
St. Catharines, Ontario
Designate for the Respondent

RULING

1. Particulars of Dispute

The Applicant applied for a permit after being given an order to comply pursuant to subsection 12(2) of under the Building Code Act, 1992. The order was given because the property Owners did not apply for a permit before they constructed a new elevated wooden deck to replace an existing at grade wooden deck serving an existing dwelling unit located at 8554 Indian Line, Haldimand County (Hagersville), Ontario.
However, the Respondent has not issued the permit because the new deck is within the minimum horizontal clearance distance for the treatment unit (septic tank) component of an existing on site sewage system. Sentence 8.2.1.6.(1) and Table 8.2.1.6.A, of Division B, of the Building Code, provides that a minimum 1.5 m clearance distance is provided from a treatment unit to a structure.

2. Provisions of the Building Code in Dispute

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 as set out in Table 8.2.1.6.A.

Table 8.2.1.6.A. Minimum Clearances for Treatment Units

Forming Part of Sentence 8.2.1.6.(1)

Object Structure
Minimum clearance, m 1.5

11.4.1.1. Performance Level

(1)  The performance level of a building after construction shall not be less than the performance level of the building prior to construction.
(2)  For the purposes of Sentence (1), reduction of performance level shall be determined in accordance with Subsection 11.4.2.
(3)  Where the proposed construction would reduce the performance level of an existing building, compensating construction shall be required in conformance with Subsection 11.4.3.

11.4.2.5.  Sewage Systems

(1)  The performance level of an existing building is reduced where the existing building is extended or subject to material alteration or repair and a sewage system serving the existing building is adversely affected by the extension, alteration or repair of the existing building.

3. Applicant’s Position

The Owners submitted that they did not realize that they were required to apply for a permit when they undertook to replace an existing wooden deck. After they dismantled the existing at grade wooden deck, they discovered that it had been constructed above the septic tank. Instead of repairing the existing deck, the Owners replaced it with a new elevated wooden deck so that the septic tank was accessible.

 The Designate for the Respondent asked the Owners about the original location of the pre-existing deck and the new deck. The Designate for the Respondent made reference to aerial photographs that the Respondent submitted and photographs taken of the new deck and asked whether both decks had been constructed in the same location. The Owners said that both decks were in similar positions, however the pre-existing deck was constructed close to the existing grade and now the new deck is an elevated deck. The Owners stated the new deck level was between 1.8 m (6 ft) and 2.1 m (7 ft) above the existing grade. The Owners said that they are new Owners of the property and that they did not know that the septic tank was under an existing deck. The Owners were confident that they could dig out the existing septic tank if a future replacement septic tank was required when asked the question by the Respondent. The Owners said they could easily expose the septic tank without disturbing the new deck by using hand shovels, with the assistance of small excavating equipment.

The Owners said that the dwelling unit is about 84 m2 (900 ft2) and the new deck is about 33 m2 (350 ft2). The Owners also said that they were not aware of the 1.5 m (5 ft) minimum horizontal clearance distance when they constructed the new deck, but they wanted the Commission to note the they believed that the existing septic tank is within the minimum 1.5 m clearance distance to the house foundation wall.

 The Designate for the Respondent also asked if the basement was finished and whether it includes any plumbing. The Owners said that the basement was partially finished, but there are no plumbing fixtures. In response to a question about the engineer hired by the Owners, the Owners stated that an engineer’s report was regarding only the deck structure and it did not refer to the septic tank. However, at a later date the Owner received a verbal opinion from the engineer suggesting that the new deck does not impact the existing septic tank.

In summary, the Owners believe that the new deck has not had a negative impact on the septic tank. Their observation of the sewage system is that it functions as it did before the construction of the new deck. They argued that the situation actually improved because access to the septic tank is now available should it need maintenance. They also indicated that they do not believe it would be difficult to remove the septic tank should it need replacing.

4. Respondent’s Position

The Respondent began by saying he received a call from the Owner after an inspection of their new wooden deck. He said that on May 6, 2013, he went to the property and met with the Owner and they had discussion about the construction of the new wooden deck and the Building Code. The Respondent said that he noted the use of undersized lumber and how the posts were set. He also said that he noted his concern about the location of the septic tank. One of the options he provided to the Owners was to seek the advice of an engineer.

The Respondent said that on July 10, 2013, an order to comply was given to the Owners by the Haldimand County Building Controls By-law Enforcement Division. The order required the Owners to submit a permit application for the new deck. The permit application was received on July 31, 2013; however, the department has not issued the permit to date.

The Respondent explained that on August 9, 2013, they sent a letter to the Owners explaining why the permit had not been issued. The only remaining item is the minimum horizontal clearance distance required for the septic tank. The Respondent also explained that he was satisfied with the changes recommended in the engineer’s report, and no longer has concerns about the construction of the new deck.

 The Respondent did note that he measured the vertical clearance between the grade and the underside of the platform and it was about 1.8 m (5 ft 10 in). He indicated he never saw the pre-existing deck and the County never received a permit to construct it. He also said, that based on the description of the pre-existing deck, the previous Owners may not have needed to apply for a permit. The Respondent also expressed concern about the potential liability that would be created for the County if he issued the permit for the new deck, given the location of the existing septic tank. He was concerned that future Owners may blame the County if they encountered difficulties with a future repair or replacement of the septic tank because of the location of the new wooden deck.

In summary, The Respondent argued that a structure cannot be within the minimum horizontal clearance distance of a component of a sewage system unless it can be shown to be unnecessary. In this case, a post supporting the new wooden deck is within the 1.5 m minimum horizontal clearance distance of the septic tank. In addition to the minimum clearance, he is believes that the deck height may constrain any future replacement of septic tank. The Respondent is concerned, if the permit is issued, about the County’s potential liability when there are new Owners.

5. Commission Ruling

It is the decision of the Building Code Commission that the clearance distance between the new “as constructed” wooden deck and the septic tank of the existing on site sewage system provides sufficiency of compliance with the technical requirements of Sentence 8.2.1.6.(1) and Table 8.2.1.6.A., of Division B, of the Building Code, when considering Sentence 11.4.2.5.(1), of Division B, for the property located at 8554 Indian Line, Haldimand County (Hagersville), Ontario.

6. Reasons

  1. Sentence 8.2.1.6.(1), of Division B, of the Building Code, requires that a treatment unit shall not be located closer than the minimum horizontal distances as set out in Table 8.2.1.6.A. The minimum clearance distance for a structure is 1.5 m.
  2. Section 11.4., of Division B, of the Building Code, includes provisions concerning existing buildings and building systems and performance level evaluations before and after construction. Specifically, Article 11.4.1.1., says the performance level of a building after construction shall not be less than the performance level of the building prior to construction. Article 11.4.2.5. also includes provisions about sewage systems. Sentence 11.4.2.5.(1), says where an existing building is subject to construction, the performance level is reduced where a sewage system is adversely affected by the construction.
  3. The Commission heard that the Owners constructed a new wooden deck in a similar location to the pre-existing wooden deck and when that deck was dismantled, the Owners discovered it had been constructed over top of the septic tank. The pre-existing deck was constructed at grade. The new deck has been raised and now provides at least 1.5 m (5 ft) of vertical clearance above the septic tank. The Commission also heard that part of the new deck structure is within the minimum horizontal clearance distance for the septic tank and that the foundation of the house may also be within the same minimum clearance distance.
  4. It is the opinion of the Commission the performance level of the existing sewage system has not been reduced by the construction of the new deck, notwithstanding that part of the new deck structure is within a minimum clearance distance, because the septic tank has not been adversely affected by the construction. The Commission also notes that increasing the vertical clearance distance for the septic tank provides improved access for septic tank maintenance.

 

Dated at the City of Toronto this 20th day in the month of February in the year 2014 for application number S 2013-35.

 

Eric Gunnell, Chair-Designate