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BCC Ruling No. 16-11-1439

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Ruling No.: 16-11-1439
Application No.: B 2015-44

 

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 Clause 3.12.2.1.(4)(b) and Sentence 3.12.2.1.(5) of Division B of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by John Matas for the resolution of a dispute with John Tutert, Chief Building Official, Town of Oakville, to determine whether the width of the east side of the as-constructed spa deck provides sufficiency of compliance with Clause 3.12.2.1.(4)(b) and Sentence 3.12.2.1.(5) of Division B, when considering the definition of “public spa” as defined in Article 1.4.1.2. of Division A of the Building Code at 205 Lakeshore Road West, Oakville, Ontario.

APPLICANT

John Matas
General Manager, Grandview Living Inc.
Town of Oakville, Ontario

RESPONDENT

John Tutert
Chief Building Official
Town of Oakville, Ontario

PANEL

Tony Chow, Chair
Ed Link
Susan Friedrich

PLACE

City of Toronto, Ontario

DATE OF HEARING

March 10, 2016

DATE OF RULING

March 10, 2016

APPEARANCES

John Matas
General Manager, Grandview Living Inc.
Town of Oakville, Ontario
Applicant

Roland Guy
President, Service Plus Aquatics Inc.
Mississauga, Ontario
Agent for the Applicant

John Tutert
Chief Building Official
Town of Oakville, Ontario
Respondent

David Silva
Manager, Building Inspections
Town of Oakville, Ontario
Designate for the Respondent

RULING

 

1. Particulars of Dispute

The Applicant has received a building permit under the Building Code Act, 1992, to construct a four storey residential building at 205 Lakeshore Road West, Oakville, Ontario.

The subject building is a four storey, 1900 m², Group C occupancy building containing 33 residential units. The building is comprised of non-combustible construction, and is equipped with a sprinkler system, a standpipe and hose system, and a fire alarm system.

The construction in dispute relates to the width of the decking surrounding the public spa that has been constructed on the roof top of the subject building.

Article 1.4.1.2. of Division A of the Building Code defines public spa in part as a hydro-massage pool that contains an artificial body of water, that is intended primarily for therapeutic or recreational use and that is not drained, cleaned or refilled before each use.

Clauses 3.12.2.1.(4)(a) and (b), of Division B of the Building Code requires a public spa to be surrounded by a hard-surfaced pool deck having a minimum clear deck space of not less than 1.8 m at the main entrance point and a clear deck space of 900 mm on all other sides.

In this case, the main entrance of the public spa has been provided with a 1.8 m clear deck space and two of the remaining three sides have been constructed with a clear deck space of 900 mm. However, on the fourth side, referred to by the parties as the "east side" of the spa, a two level deck has been constructed. Immediately adjacent to the spa is a hard surfaced deck with a width between 300-400 mm and immediately adjacent to that is a lower level deck with a width of 965 mm.

Therefore, the dispute before the Commission is whether the width of the east side of the as-constructed spa deck provides sufficiency of compliance with Clause 3.12.2.1.(4)(b) and Sentence 3.12.2.1.(5) of Division B of the Building Code.

2. Provisions of the Building Code in Dispute

Division A

1.4.1.2. Defined Terms
  1. Public spa means a hydro-massage pool that contains an artificial body of water, that is intended primarily for therapeutic or recreational use, that is not drained, cleaned or refilled before use by each individual and that utilizes hydrojet circulation, air induction bubbles, current flow or a combination of them over the majority of the pool area, but does not include,
    1. (a) wading pools, or
    2. (b) spas operated in conjunction with less than six dwelling units, suites or single family residences, or any combination of them, for the use of occupants or residents and their visitors.

Division B

3.12.2.1. Construction Requirements
  1. (4) A public spa shall be surrounded by a hard-surfaced pool deck that,
    1. (a) shall have a minimum clear deck space of not less than 1.8 m at the main entrance point,
    2. (b) shall have a clear deck space of 900 mm on all sides, except as required by Clause (a) and permitted by Sentence (5)
  1. (5) One section of the hard-surfaced pool deck that does not exceed 25% of the perimeter of the public spa may have a minimum clear deck space of not more than 300 mm if,
    1. (a) the public spa has an area less than 6 m², and
    2. (b) the public spa has no interior dimension more than 2.5 m.

3. Applicant’s Position

The Agent for the Applicant submitted that a public spa has been constructed on the roof top of a new four storey residential building for the recreational use of the residents of the condominium.

The Agent submitted that three sides of the constructed spa deck have been deemed to be in compliance with the Building Code by the Respondent. The Agent explained that the entrance to the spa has been constructed with a clear deck space of 1800 mm and that two of the remaining three sides have been constructed with a clear deck space of 1150 mm, and 900 mm respectively. However, the Agent reported that for the fourth remaining side, which is located on the east side of the public spa, a two level deck has been constructed.

The Agent explained that the two level deck adjacent to the public spa has been constructed with 400 mm on one level and 965 mm on a lower level. The Agent advised that the bi-level deck on the east side of the spa is located next to a set of stairs. The Agent explained that the hard surfaced deck space provided for the public spa on the east side is in fact 1365 mm when you consider the combined width of both levels of the deck. The Agent argued that the Building Code does not indicate at what level a pool or spa deck must be constructed adjacent to a pool. The Agent maintained that, it is his opinion, the deck, provided on two levels adjacent to one side of the spa, sufficiently complies with the Building Code.

Further, the Agent submitted that the public spa is a limited use spa, as it is a swim-spa designed to be used by a single person to swim against a current. The Agent maintained that the spa's design and relatively small size is not conducive to multiple people as they could collide when swimming. The Agent argued that when considering the relatively small size of the spa, which has a width of 2.2 m and a 7m² area, a person inside the spa could be rescued with a reaching pole and could be safely extracted from the side of the spa where the deck is widest.

In response to questions, the Agent for the Applicant stated he was willing to provide a hand grip and an extra rescue pole in the spa area as compensating measures.

The Agent argued that, considering the limited use of the spa, the compensating measures, along with the relatively small dimensions of the pool, sufficiency of compliance with the Building Code has been achieved.

4. Respondent’s Position

The Respondent submitted that the subject spa is intended to serve the residents of the building for recreational use, and further, as the spa will not be drained, cleaned or refilled before use by each individual that utilizes it, the spa is considered a ‘public spa’, as defined by the Building Code. Therefore, the Respondent submitted that the ‘Public Spa and Deck Design and Construction Requirements’ of Section 3.12.2. of Division B are applicable in this case.

Article 3.12.2.1. of Division B requires that a public spa be constructed with a hard surfaced pool deck having a minimum clear deck space of not less than 1.8 m at the main entrance and a clear deck space of 900 mm on all sides except as required by Clause 3.12.2.1.(4)(a) and permitted by Sentence 3.12.2.1. (5). He maintained that in this case one of the public spa sides has not been constructed with the required 900 mm clear deck space on one of the sides, as required by Article 3.12.2.1. of the Building Code.

The Respondent confirmed that the main entrance to the public spa meets the required minimum 1.8 m clear deck space and further, that two of the remaining three sides meet the required minimum 900 mm of clear deck space. However, the Respondent explained that the remaining side of the public spa's clear deck space measures 300 mm, and therefore, it does not meet the Building Code's minimum 900 mm clear deck space requirement specified in Clause 3.12.2.1.(4)(b) of the Building Code.

The Respondent acknowledged that the Building Code provides an exemption to the above requirement under Sentence 3.12.2.1.(5), which permits one section of the hard surface spa deck to be 300 mm if certain criteria are met. However, he indicated that in this case, as the subject spa has an area greater than 6 m² and an interior dimension greater than 2.5 m, the exemption is not applicable in this case.

Further, the Respondent submitted that the objectives and functional statements associated with Clause 3.12.2.1.(4)(b) include:

  • Further, the Respondent submitted that the objectives and functional statements associated with Clause 3.12.2.1.(4)(b) include:To facilitate emergency and timely response to incapacitated public spa users and to minimize the risk of injury to persons as a result of tripping slipping, falling, contact, drowning or collision, and to minimize the risk of injury to persons using the public spa, as a result of unfamiliarity with the public spa.
  • To limit the probability that, as a result of the design or construction of a public spa, a person in or adjacent to the public spa will be exposed to an unacceptable risk of injury due to hazards caused by tripping, slipping, falling, contact, drowning or collision and to hazards caused by persons being delayed in or impeded from moving to a safe place during an emergency.

The Respondent submitted that the Applicant has proposed to construct a railing on the side of the public spa where the 300 mm clear deck space is proposed. As a result, the Respondent argued that access to the public spa would be limited to three sides, and as such, limiting access to the public spa could impede a rescue.

Further, the Respondent submitted that he did not consider the combined widths of the bi-level deck to satisfy the 900 mm clear deck space the Building Code requires. One reason for this is that the lower deck serves as the landing for the stairs adjacent to the spa.

The Respondent concluded that it was his opinion the east side of the spa, which in his opinion is provided with a clear deck space of 300 mm, does not comply with the requirements of Article 3.12.2.1. of the Building Code.

5. Commission Ruling

It is the decision of the Building Code Commission that the width of the east side of the as-constructed spa deck provides sufficiency of compliance with Clause 3.12.2.1.(4)(b) and Sentence 3.12.2.1.(5) of Division B, when considering the definition of “public spa” as defined in Article 1.4.1.2. of Division A of the Building Code at 205 Lakeshore Road West, Oakville, Ontario on condition that:

  1. (a) A hand grip shall be provided and attached to the east side of the pool deck along the length of the of the spa, where the clear deck space is less than 900 mm, and
  2. (b) An extra rescue pole shall be provided in the spa area.

6. Reasons

  1. Article 3.12.2.1. of Division B of the Building Code outlines the design and construction requirements for a public spa and deck. Clauses 3.12.2.1.(4)(a) and (b) states that a public spa shall be surrounded by a hard-surfaced pool deck that shall have a) a minimum clear deck space of not less than 1.8 m at the main entrance point shall and b) have a clear deck space of 900 mm on all sides, except as required by Clause (a) and permitted by Sentence (5).

    The Commission heard that a clear deck space greater than 900 mm has been provided on three sides of the as-constructed spa. The Commission heard evidence that a clear deck space of 1800 mm has been provided at the main entrance point of the spa, and that 1150 mm and 900 mm clear deck space have been provided on two of the remaining three sides. However, the third side of the spa deck has been constructed with a clear deck space that is less than 900 mm.

    Sentence 3.12.2.1. (5) permits one side of a spa deck to have less than a 900 mm clear deck space for relatively small public spas.

    The Commission heard evidence that the as-constructed spa has an area that is only marginally larger than what is permitted in Sentence 3.12.2.1.(5).

  2. The Commission heard evidence that the spa is relatively shallow and that the width of the public spa is 2.2 m. In the opinion of the Commission, the shallow and narrow design of the subject spa meets the intent of the Code with respect to facilitating an emergency response to a person in distress.

  3. The Commission heard evidence that the public spa is a limited use spa, and is intended to be used by a single person.

  4. It is the opinion of the Commission that the relatively, small, narrow and shallow design of the spa, along with adherence to the conditions outlined above, provides sufficiency of compliance with the Building Code.

Dated at the City of Toronto this 10th day in the month of March in the year 2016 for application number B 2015-44.

Tony Chow, Chair

Ed Link

Susan Friedrich