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BCC Ruling No. 15-38-1427

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Ruling No.: 15-38-1427
Application No.: B 2015-37

 

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 Articles 9.8.8.1., 9.8.8.3., and 9.8.8.5. of Division B of the Building Code when considering Part 11 of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Thomas Couchman, home owner, for the resolution of a dispute with Ed VanderWindt, Chief Building Official, to determine whether the proposal to reconstruct the porch columns, guards and railings of a heritage building to the specifications of the existing construction, provides sufficiency of compliance with Articles 9.8.8.1., 9.8.8.3., and 9.8.8.5. of Division B of the Building Code when considering Part 11 of the Building Code at 153 St. Clair Ave, City of Hamilton, Ontario.

APPLICANT

Thomas Couchman
Home Owner
City of Hamilton, Ontario

RESPONDENT

Ed VanderWindt
Chief Building Official
City of Hamilton, Ontario

PANEL

Tony Chow, Chair
Ed Link
Leslie Morgan

PLACE

City of Toronto, Ontario

DATE OF HEARING

December 9, 2015

DATE OF RULING

December 9, 2015

APPEARANCES

homas Couchman
Home Owner
City of Hamilton, Ontario
Applicant

Frank Peter
Supervisor of Plans Examination
City of Hamilton, Ontario
Designate for the Respondent

RULING

 

1. Particulars of Dispute

The Applicant has applied for a building permit under the Building Code Act, 1992, to reconstruct the front porch columns, guard and railings of his heritage home at 153 St. Clair Ave, City of Hamilton, Ontario.

The subject building is an existing 2 1/2 storey, 600 m² residential dwelling, which is a designated heritage building.

The construction in dispute relates to the reconstruction of the columns, guards and handrails located on the front porch of the subject home. The Applicant is proposing to replace the existing columns, guards and handrails with 'like for like' construction in order to maintain the heritage features of the home.

The porch is approximately 2.74 m x 3.96 m (9 feet x 13 feet) in area. There are guards located on either side of the front porch. Each guard is comprised of 3 spindles with two large decorative openings exceeding 100 mm (4 inches) and the height of the guard from the porch floor to the handrail is approximately 812 mm (32 inches). There are also 8 columns in total, situated in pairs at each corner of the front porch. Each pair of columns are spaced approximately 200 mm-230 mm (8-9 inches) apart with no guard in between and further, the columns support the dormers located above the front porch.

Sentence 9.8.8.3.(3) of Division B of the Building Code requires exterior guards serving not more than one dwelling unit to be not less than 900 mm high where the walking surface served by the guard is not more than 1 800 mm above the finished ground level.

Sentence 9.8.8.5.(1) requires that openings through any guard that is required by Article 9.8.8.1. shall be of a size that will prevent the passage of a spherical object having a diameter of 100 mm unless it can be shown that the location and size of openings that exceed this limit do not represent a hazard.

The dispute before the Commission is whether the replacement of the existing porch columns, guards and railings of a heritage building to the specifications of the existing construction, provides sufficiency of compliance with Articles 9.8.8.1., 9.8.8.3., and 9.8.8.5. of Division B of the Building Code when considering Part 11 of the Building Code.

2. Provisions of the Building Code in Dispute

9.8.8.1. Required Guards
  1. (1) Except as provided in Sentences (2) and (3), every surface to which access is provided for other than maintenance purposes, including but not limited to flights of steps and ramps, exterior landings, porches, balconies, mezzanines, galleries and raised walkways, shall be protected by a guard on each side that is not protected by a wall for the length, where,
    1. (a) there is a difference in elevation of more than 600 mm between the walking surface and the adjacent surface, or
    2. (b) the adjacent surface within 1.2 m from the walking surface has a slope of
      more than 1 in 2.

  2. (2) Guards are not required,
    1. (a) at loading docks,
    2. (b) at floor pits in repair garages, or
    3. (c) where access is provided for maintenance purposes only.

  3. (3) When an interior stair has more than two risers or an interior ramp rises more than 400 mm, the sides of the stair or ramp and the landing or floor level around the stairwell or ramp shall be protected by a guard on each side that is not protected by a wall.

  4. (4) Doors in buildings of residential occupancy, where the finished floor on one side of the door is more than 600 mm above the floor or other surface or ground level on the other side of the door, shall be protected by,
    1. (a) a guard in accordance with this Subsection, or
    2. (b) a mechanism capable of controlling the free swinging or sliding of the door so as to limit any clear unobstructed opening to not more than 100 mm.

  5. (5) Except as provided in Sentence (6), openable windows in buildings of residential occupancy shall be protected by,
    1. (a) a guard in accordance with this Subsection, or
    2. (b) a mechanism capable of controlling the free swinging or sliding of the openable part of the window so as to limit any clear unobstructed opening to a size that will prevent the passage of a sphere having a diameter more than 100 mm.

  6. (6) Windows need not be protected in accordance with Sentence (5), where,
    1. (a) the window serves a dwelling unit that is not located above another suite,
    2. (b) the only opening having greater dimensions than those allowed by Clause (5)(b) is a horizontal opening at the top of the window,
    3. (c) the top surface of the window sill is located more than 480 mm above the finished floor on one side of the window, or
    4. (d) the window is located in a room or space with the finished floor described in Clause (c) located less than 1 800 mm above the floor or ground on the other side of the window.

  7. (7) Except as provided in Sentence (8), glazing installed over stairs, ramps and landings that extends to less than 1 070 mm above the surface of the treads, ramp or landing shall be,
    1. (a) protected by guards in accordance with this Subsection, or
    2. (b) non-openable and designed to withstand the specified lateral loads for guards as provided in Article 4.1.5.14.

  8. (8) In dwelling units, glazing installed over stairs, ramps and landings that extends to less than 900 mm above the surface of the treads, ramp or landing shall be,
    1. (a) protected by guards in accordance with this Subsection, or
    2. (b) non-openable and designed to withstand the specified lateral loads for guards as provided in Article 4.1.5.14.

  9. (9) Glazing installed in public areas that extends to less than 1 000 mm from the floor and is located above the second storey in buildings of residential occupancy shall be,
    1. (a) protected by guards in accordance with this Subsection, or
    2. (b) non-openable and designed to withstand the specified lateral loads for guards as provided in Article 4.1.5.14.

9.8.8.3. Height of Guards
  1. (1) Except as provided in Sentences (2) to (6), all guards shall be not less than 1 070 mm high.

  2. (2) All guards within dwelling units shall be not less than 900 mm high.

  3. (3) Exterior guards serving not more than one dwelling unit shall be not less than 900 mm high where the walking surface served by the guard is not more than 1 800 mm above the finished ground level.

  4. (4) Guards for flights of steps, except in required exit stairs, shall be not less than 900 mm high.

  5. (5) Except as provided in Sentence (6), the height of guards shall be not less than,
    1. (a) 920 mm for required exit stairs, and
    2. (b) 1 070 mm around landings.

  6. (6) The height of guards for exterior stairs and landings more than 10 m above adjacent ground level shall be not less than 1 500 mm.

  7. (7) The height of guards for stairs and landings shall be measured vertically from the top of the guard to,
    1. (a) a straight line drawn tangent to the tread nosings of the stair, or
    2. (b) the surface of the landing.

9.8.8.5. Openings in Guards
  1. (1) Except as provided in Sentence (2), openings through any guard that is required by Article 9.8.8.1. shall be of a size that will prevent the passage of a spherical object having a diameter of 100 mm unless it can be shown that the location and size of openings that exceed this limit do not represent a hazard.

  2. (2) Openings through any guard that is required by Article 9.8.8.1. and that is installed in a building of industrial occupancy shall be of a size that will prevent the passage of a spherical object having a diameter of 200 mm, unless it can be shown that the location and size of openings that exceed this limit do not represent a hazard.

  3. (3) Unless it can be shown that the location and size of openings that do not comply with the following limits do not represent a hazard, openings through any guard that is not required by Article 9.8.8.1. and that serves a building of other than industrial occupancy, shall be of a size that,
    1. (a) will prevent the passage of a spherical object having a diameter of 100 mm, or
    2. (b) will permit the passage of a spherical object having a diameter of 200 mm.

3. Applicant’s Position

The Applicant submitted that the subject home was built in 1926 and is a designated heritage building under Part V of the Ontario Heritage Act.

The Applicant explained that the existing wood columns, located on the front porch of the house, along with parts of the guards and railings need to be replaced because they are rotting. The Applicant submitted that to ensure the heritage quality of the home is preserved; approval from the heritage committee is required prior to any construction to the front of the home. As such, the Applicant advised that the heritage committee approved a ‘like for like’ replacement of the columns, guards and railings so that the street-facing side of the home is not altered in its appearance. However, the building permit application to make the repairs was denied by the building department because the reconstruction of the components in a 'like for like' fashion would not meet the minimum requirements for guards and railings as set out in Section 9.8.8. of the Building Code.

The Applicant advised that so far, only the columns on the front porch had been replaced with reinforced steel columns. The Applicant explained that the original columns, which supported the dormers, were rotting and as a result, sagging of the supported structure was becoming apparent. The Applicant submitted that he wished to also replace the rotting guards and railings in a 'like for like' manner to preserve the look of the heritage home. The Applicant reported that to date there have been no concerns for safety or incidents regarding the height of the existing guard or the openings between the spindles of the guard.

In response to questions, the Applicant submitted that the opening between the two pairs of columns located on either side of the front porch stairs was approximately 200 mm (8 inches) and that each guard, located on either side of the porch was comprised of 3 spindles that were 460-510 mm (18-20 inches) apart. He further submitted that the height from the floor of the porch to the top of the handrail was approximately 812 mm (32 inches).

In conclusion, the Applicant submitted that the proposed construction was to replace the existing rotting columns, guards, and railings with new ones that look the same as the original because of the heritage designation of the building.

4. Respondent’s Position

The Designate for the Respondent submitted that the proposed reconstruction of the porch columns, guards and railings, as per the existing construction would not meet the requirements of Part 9 of the Building Code, specifically Section 9.8.8.

The Designate submitted that the existing front porch is approximately 2.74 m x 3.96 m (9 feet x 13 feet) and contains four pairs of columns with each pair spaced approximately 230 mm (9 inches) apart with no handrails or guards in between. Further, the Designate reported that there are two 1.5 m (5 feet) sections of guards, one located on either side of the porch with each guard having two large decorative openings that exceed the Code's 100 mm (4 inches) limit for size of openings. The Designate explained that the existing height of the guard is 812 mm (32 inches) and that no handrail exists for the porch stairs. Further, the Designate submitted that the difference in elevation between the porch floor on the north side is 889 mm (35 inches) and 609 mm (24 inches) on the south side.

The Designate submitted that Sentence 9.8.8.3.(3) of Division B states, "Exterior guards serving not more than one dwelling unit shall be not less than 900 mm high where the walking surface served by the guard is not more than 1800 mm above the finished ground level". He also submitted that Article 9.8.8.5. of the Code requires openings through any guard to be of a size that will prevent the passage of a spherical object having a diameter of 100 mm.

The Designate maintained that the proposed reconstruction of the columns and guards to match the existing construction would not comply with the technical requirements of the Building Code.

The Designate advised that to meet the Code, the minimum height required for the guard would be 900 mm and in this case, the height is 812 mm. He further reported that in accordance with the Code, the openings of the guards cannot exceed 100 mm, which in this case they do. The Designate argued that as the height of the handrails and the size of the openings between guards exceed the minimum requirements of the Building Code, they are deemed to be in non-compliance with the Code and further are deemed to be unsafe.

In response to questions, the Designate submitted that in this case, Part 11 of the Building Code does not provide relief from the Part 9 Code requirements, as the proposed replacement of the existing guards and railings are considered unsafe and further, the proposed construction was deemed to be a new building system. As a result, he maintained that compliance with the requirements of Section 9.8.8. of the Building Code is required.

The Designate reported that Compliance Alternative C113 of Table 11.5.1.1.C of Part 11 of the Code states, "Existing handrails acceptable, unless considered unsafe by the chief building official" and further, Compliance Alternative C114 of Table 11.5.1.1.C of the Ontario Building Code states, "Existing guards acceptance, unless considered unsafe by the chief building official".

The Designate submitted that the Chief Building Official reviewed the proposed reconstruction and in this case, deemed the proposal to be unsafe, as one of the objectives of the Building Code as set out in Table 2.2.1.1 of Part 2, states "An objective of this Code is to limit the probability that, as a result of the designer or construction of a building, a person in or adjacent to the building will be exposed to an unacceptable risk of injury"

In summary, the Designate maintained that the proposed reconstruction of the porch columns, guards and railings, to match the existing construction would not meet the technical requirements of Subsection 9.8.8 of Division B, Part 9 of the Ontario Building Code.

5. Commission Ruling

It is the decision of the Building Code Commission that the proposal to reconstruct the porch columns, guards and railings of a heritage building to the specifications of the existing construction, provides sufficiency of compliance with Articles 9.8.8.1., 9.8.8.3., and 9.8.8.5. of Division B of the Building Code when considering Part 11 of the Building Code at 153 St. Clair Ave, City of Hamilton, Ontario.

6. Reasons

  1. Sentence 1.1.2.6.(1) of Division A states, “Except as provided in Sentence (2), Part 11 of Division B applies to the design and construction of existing buildings, or parts of existing buildings, that have been in existence for at least five years”. As the existing building has been in existence for more than 5 years, the Commission is of the opinion that Part 11 of the Code is applicable to the proposed renovations. There are no additions to the building that are less than 5 years, and the exception in Sentence (2) is not applicable.

  2. Clause 11.1.2.1.(1)(a) and (b) provide that where an existing building is subject to extension, material alteration or repair, the proposed construction shall comply with Section 11.3. and the performance level of the building shall be evaluated and compensating construction shall be undertaken in accordance with Section 11.4.

    The Commission heard that the scope of work proposed consists of the reconstruction of the existing porch columns, guards and railings.

    Based on the evidence and testimony provided, it is the Commission’s opinion that the construction being proposed is considered a repair of an existing building system and Sentence 11.3.1.1.(1) is applicable.

  3. Sentence 11.3.1.1.(1) of the Building Code states, “Where an existing building system is materially altered or repaired, the performance level of the building after the material alteration or repair shall be at least equal to the performance level of the building prior to the material alteration or repair”.

    Sentence 11.4.1.1.(1) specifies that the performance level of a building after construction shall not be less than the performance level of the building prior to construction. Sentence 11.4.1.1.(2) states that for purposes of Sentence (1), reduction of performance level shall be determined in accordance with Subsection 11.4.2.

    Based on the evidence and testimony provided, it is the opinion of the Commission that compensating construction is not required as the proposed construction does not fall into any of the Articles specified in Subsection 11.4.2. and there is no reduction in performance level.

  4. It is the opinion of the Commission that Sentence 11.3.1.2.(1), and consequently Section 11.5. Compliance Alternatives, are not applicable to the proposed construction since the scope of the construction is considered a material alteration or repair of a building system that falls under Sentence 11.3.1.1.(1).

  5. The Commission notes that although the building is considered a heritage building, this had no bearing on the Commission’s decision, as the proposed construction is considered a material alteration or repair of an existing building system that falls under Sentence 11.3.1.1.(1).

Dated at the City of Toronto this 9th day in the month of December in the year 2015 for application number B 2015-37.

Tony Chow, Chair

Ed Link

Leslie Morgan