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BCC Ruling No. 16-15-1443

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Ruling No.: 16-15-1443
Application No.: S 2016-04

 

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 8.8.1.1.(1), 8.2.2.4.(2), 8.8.2.2.(1), Clause 8.8.1.2.(1)(c) 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 John Casson, for the resolution of a dispute with Andy Harrison, Chief Building Official, to determine whether the proposal to replace an existing Class 4 sewage system, which serves an existing 3 bedroom, 200 m² cottage, with a new Class 5 sewage system provides sufficiency of compliance with Sentence 8.8.1.1.(1), 8.2.2.4.(2), 8.8.2.2.(1), Clause 8.8.1.2.(1)(c) and Table 11.5.1.1.C when considering Part 11 of Division B of the Building Code at 156 Onderdonk Lane Ameliasburgh, Ontario.

APPLICANT

John Casson
Owner
Mississauga, Ontario

RESPONDENT

Andy Harrison
Chief Building Official
County of Prince Edward, Ontario

PANEL

Judy Beauchamp, Chair-Designate

PLACE

City of Toronto, Ontario

DATE OF HEARING

April 11, 2016

DATE OF RULING

April 11, 2016

APPEARANCES

John Casson
Owner
Mississauga, Ontario
Applicant

Andy Harrison
Chief Building Official
County of Prince Edward, Ontario
Respondent

RULING

 

1. Particulars of Dispute

The Applicant has applied for a permit to install a Class 5 Sewage System at 156 Onderdonk Lane, Ameliasburgh, Ontario.

The subject building is an existing 3 bedroom, 200 m² cottage served by a Class 4 sewage system that was originally constructed in 1961.

The construction in dispute involves the proposal to replace an existing Class 4 sewage system, with a new Class 5 sewage system.

The Building Code prohibits the installation of a Class 5 sewage systems except under the circumstances that are specified in Article 8.8.1.2. of the Building Code. Part 8 of the Building Code addresses the construction of new sewage systems. Part 11 of the Building Code applies to the design and construction of buildings that have been in existence for at least five years. The term “building” is a defined term in the Building Code and it includes sewage systems. Part 11 of the Code addresses existing sewage systems that are subject to replacement, material alteration or repair. Part 11 also provides compliance alternatives for requirements in Part 8 of the Building Code where a Chief Building Official is satisfied that compliance with the requirement is impracticable because of structural or construction difficulties or it is detrimental to the preservation of a heritage building.

The dispute for the Commission to determine is whether the proposal to replace an existing Class 4 sewage system with a new Class 5 sewage system provides sufficiency of compliance with the Building Code.

2. Provisions of the Building Code in Dispute

8.8.1.1. Prohibited Installation
  1. (1) Except as provided in Article 8.8.1.2., a Class 5 sewage system shall not be installed.
8.2.2.4. Holding Tanks
  1. (1) All holding tanks shall be of such design and construction as will allow the complete removal of solid matter that can be expected to settle in the holding tank through an apparatus or device suitable for allowing the contents of the holding tank to be removed from the holding tank.
  2. (2) A holding tank shall have a working capacity of not less than 9 000 L.
8.8.2.2. Sizing of Holding Tanks
  1. (1) All holding tanks used in residential dwellings shall have a minimum 7 day holding capacity based on the total daily design sanitary sewage flow.
8.8.1.2. Acceptable Installation
  1. (1) A Class 5 sewage system may be installed in the following circumstances:
    1. (a) where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration,
    2. (b) to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,
    3. (c) to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations, or
    4. (d) as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.
  2. (2) Where a Class 5 sewage system is installed, a written agreement for the disposal of sanitary sewage from the sewage system shall be entered into with a hauled sewage system operator.

 

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 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 Applicant submitted that the existing Class 4 sewage system, currently serving a 3 bedroom rental cottage, which was installed circa 1961, has failed. The Applicant submitted that he is proposing to install a holding tank to replace the failed system as permitted by Clause 8.8.1.2.(1)(c) of the Building Code. He explained that Clause 8.8.1.2.(1)(c) of the Building Code permits the installation of a Class 5 sewage system “to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations”.

The Applicant submitted that he applied for a building permit to replace his existing, failed Class 4 sewage system with a Class 5 sewage system. He advised that the municipality refused to issue a building permit for a Class 5 sewage system, as their policy is to require a Class 4 sewage system over a Class 5, provided that Quinte Conservation would permit the installation of a Class 4.

The Applicant indicated that in this case, Quinte Conservation approved a Class 4 sewage system to be constructed on the property to replace the existing system, but it would require a raised septic bed to meet the requirements in the Building code. The Applicant maintained that the raised nature of the septic bed was not acceptable to him due to the small lot size, and the negative impact the raised system would have on the safety, utilization and value of the property.

The Applicant submitted that he was seeking a variance from the requirements of the Building Code to allow him to replace the failed Class 4 sewage system with a Class 5 sewage system or holding tank. The Applicant maintained that as the property was located entirely on a flood plain, a Class 5 sewage system would be the most reasonable environmental solution. The Applicant argued that due to the property size, and location of the cottage, the new Class 4 sewage system couldn’t be positioned so that it would meet all the clearance distances required by the current Building Code. The Applicant stated that he was advised that the municipality could relax some of the clearance distance requirements in order to accommodate a replacement Class 4 sewage system, although they could not relax the Code requirement for a raised bed. The Applicant indicated that the municipality’s position was that the septic bed would have to be raised 1.22 m to meet the Building Code.

The Applicant indicated that there was only one location on the property where the raised bed could be installed and this would be directly between the cottage and the water. The Applicant argued that installing a Class 4 sewage system with a 1.22 m raised bed in this location would ruin the recreational use of the property, and significantly reduce the value of the property. The Applicant also stated that, “as the property had a dug well, there was concern that a raised bed could cause the septic runoff to flow south and contaminate the well”. The Applicant also indicated that due to a number of large willow trees, a Class 4 sewage system would be negatively impacted by their roots, which would eventually lead to failure of the replacement Class 4 sewage system.

The Applicant advised that Quinte Conservation issued an approval that would allow for either a replacement sewage system or a holding tank to be installed on the property, and in light of the above, the Applicant maintained that a holding tank would be the best solution.

The Applicant also submitted that as an alternative to the holding tank, he would be willing to install a replacement Class 4 sewage system, if the municipality would reduce the raised bed requirement, allowing for a system that is fully in ground, like the current system.

4. Respondent’s Position

The Respondent submitted that the subject Class 4 sewage system serves an existing cottage rental property, which is rented approximately 8 weeks in the summer. The Respondent advised that the property was located within the area regulated by the Quinte Conservation Authority and that a permit from the Conservation Authority is required by an Applicant prior to obtaining a building permit from the municipality. The Respondent indicated that in this case, the Conservation Authority issued an approval permit for a replacement Class 4 sewage system on the subject property, which is within the 1:100 year floodplain.

The Respondent pointed out that Sentence 8.8.1.1.(1) of the Building Code states, “Except as provided in Article 8.8.1.2., a Class 5 sewage system shall not be installed”. He submitted that Clause 8.8.1.2.(1)(c) allows a holding tank to be installed to upgrade a sewage system serving an existing building where upgrading through the use of Class 4 sewage system is not possible due to lot size, slope or clearance limitations. In light of the Conservation Authority’s approval to permit the installation of a replacement Class 4 sewage system in the same location, he submitted the Applicant’s building permit application for a Class 5 sewage system was denied as the exemption in Clause 8.8.1.2.(1)(c) was not applicable.

The Respondent further submitted that Part 11 of the Building Code allows for the use of existing clearances where a sewage system is replaced with another sewage system within the same class and where the capacity of the replacement system does not exceed the capacity of the existing system as per Table 11.5.1.1.C.

Therefore, the Respondent concluded that, as the Conservation Authority issued an approval to permit the installation of a new Class 4 sewage system to replace the existing sewage system, there is sufficient area to install a new class 4 sewage system.

5. Commission Ruling

It is the decision of the Building Code Commission that the proposal to replace an existing Class 4 sewage system, which serves an existing 3 bedroom, 200 m² cottage, with a new Class 5 sewage system, does not provide sufficiency of compliance with Sentence 8.8.1.1.(1), 8.2.2.4.(2), 8.8.2.2.(1), Clause 8.8.1.2.(1)(c) and Table 11.5.1.1.C when considering Part 11 of Division B of the Building Code at 156 Onderdonk Lane Ameliasburgh, Ontario.

6. Reasons

  1. The Building Code prohibits the installation for a Class 5 sewage system except as permitted in Article 8.8.1.2.

    Sentence 8.8.1.2.(1) of the Building Code states that a Class 5 sewage system may be installed in the following circumstances:

    1. where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration,

    2. to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,

    3. to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations, or

    4. as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.

    The Commission heard that the existing Class 4 sewage system serving the cottage has failed. Based on the evidence and testimony provided, the Commission believes that Clauses b) and c) could be applicable in this case.

    However, it is the Commission’s opinion that insufficient evidence was provided to demonstrate that the installation of a Class 4 sewage system is impracticable, as specified in Clause 8.2.1.2.(1)(b) or further to demonstrate, that a Class 4 system is not possible due to lot size, site slope or clearance limitations.

Dated at the City of Toronto this 11th day in the month of April in the year 2016 for application number S 2016-04.

Judy Beauchamp, Chair-Designate