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BCC Ruling No. 17-07-1471

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Ruling No.: 17-07-1471
Application No.: P 2017-10

 

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 Subsections 8.(2.2) and (2.3) of the Building Code Act, 1992, when considering Sentence 1.3.1.3.(1) and Table 1.3.1.3. of Division C of Regulation 332/12, as amended, (the “Building Code”).

AND IN THE MATTER OF an application by Richard Danielson, for the resolution of a dispute with Guido Mazza, Chief Building Official, to determine whether the Chief Building Official complied with the requirements of Subsections 8.(2.2) and 8.(2.3) of the Building Code Act, 1992, and Division C, Sentence 1.3.1.3.(1) of the Building Code to issue or refuse to issue the permit and, in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal within the time period set out in Table 1.3.1.3. of the Building Code regarding at 217 Maki Avenue, Sudbury, Ontario.

APPLICANT

Richard Danielson
Homeowner
Sudbury, Ontario

RESPONDENT

Guido Mazza
Chief Building Official
City of Greater Sudbury, Ontario

PANEL

Tony Chow, Chair
Rick Mori
Stephen Wong

PLACE

City of Toronto, Ontario

DATE OF HEARING

April 13, 2017

DATE OF RULING

April 13, 2017

APPEARANCES

Richard Danielson
Homeowner
Sudbury, Ontario
Applicant

Peter Best
Best Law Offices
Sudbury, Ontario
Legal Counsel for the Applicant

Guido Mazza
Chief Building Official
City of Greater Sudbury, Ontario
Respondent

Carolyn Dawe
Assistant City Solicitor
City of Greater Sudbury, Ontario
Legal Counsel for the Respondent

RULING

 

1. Particulars of Dispute

The Applicant applied for a building permit under subsection 8.(1) of the Building Code Act, 1992, to demolish an existing deck and construct a new deck and sunroom at the south side of the existing residential dwelling at 217 Maki Avenue, Sudbury, Ontario.

The dispute between the parties involves whether the Chief Building Official (the Respondent) complied with subsections 8.(2.2) and 8.(2.3) of the Building Code Act, 1992, and Division C, Sentence 1.3.1.3.(1) of the Building Code. Specifically, whether the Chief Building Official issued or refused to issue the permit and, in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal, within the time period prescribed in Table 1.3.1.3. of Division C of the Building Code.

2. Provisions of the Building Code in Dispute

Act: subsections 8(2.2) and (2.3)

Decision

(2.2) If an application for a permit meets the requirements prescribed by regulation, the chief building official shall, unless the circumstances prescribed by regulation apply, decide within the period prescribed by regulation whether to issue the permit or to refuse to issue it. 2009, c. 33, Sched. 21, s. 2 (2).

Same, reasons for refusal

(2.3) If the chief building official refuses to issue the permit, he or she shall inform the applicant of all of the reasons for the refusal of the permit and shall do so within the period prescribed by regulation. 2002, c. 9, s. 14 (2).

Building Code: Division C, Sentence 1.3.1.3. (1)

1.3.1.3. Period Within Which a Permit is Issued or Refused
  1. (1) Subject to Sentences (2) and (3) and unless the circumstances set out in Sentence (6) exist, if an application for a permit under subsection 8 (1) of the Act that meets the requirements of Sentence (5) is submitted to a chief building official on or after the day subsection 2 (2) of Schedule 21 to the Good Government Act, 2009 comes into force, the chief building official shall, within the time period set out in Column 3 of Table 1.3.1.3. corresponding to the class of building described in Column 2 of Table 1.3.1.3. for which the application is made,
    1. (a) issue the permit, or
    2. (b) refuse to issue the permit and provide in writing all of the reasons for the refusal.

Table 1.3.1.3.
Period Within Which Permit Shall be Issued or Refused

Forming Part of Article 1.3.1.3.

Item

Column 1

Column 2

 

Class of Building

Time Period

1.

(a) A detached house, semi-detached house, townhouse, or row house where no dwelling unit is located above another dwelling unit.

(b) A detached structure that serves a building described in Clause (a) and does not exceed 55 m2 in building area.

(c) A tent to which Section 3.14. of Division B applies.

(d) A sign to which Section 3.15. of Division B applies.

10 days

2.

(a) Buildings described in Clause 1.1.2.4.(1)(a), (b) or (c) of Division A, other than buildings described in Column 1 of any of Items 1 and 4 of this Table.

(b) Farm buildings that do not exceed 600 m2 in building area.

15 days

3.

(a) Buildings described in Clause 1.1.2.2.(1)(a) or (b) of Division A, other than buildings described in Column 1 of any of Items 1 and 4 of this Table.

(b) Farm buildings exceeding 600 m2 in building area.

20 days

4.

(a) Post-disaster buildings.

(b) Buildings to which Subsection 3.2.6. of Division B or any provision in Articles 3.2.8.3. to 3.2.8.11. of Division B applies.

30 days

3. Applicant’s Position

The Legal representative for the Applicant advised the Commission that a building permit application with drawings were submitted to the City of Sudbury on September 29, 2016. He informed the Commission that the permit application proposed to demolish an existing deck and construct a new deck and sunroom at the Applicant’s home. He explained that the permit application fees were not paid at this time, as the building department advised that the fees could be paid when a building permit is issued.

The Legal representative advised that to the Applicant’s knowledge, the permit application submitted on September 29, 2016 was complete and met the requirements of Sentence 1.3.1.3.(5). Of Division C of the Building Code. He reported that to date, the Respondent had not issued the building permit nor provided the Applicant any written reasons for refusal of the permit application in accordance with Subsections 8.(2.2) and 8.(2.3) of the Building Code Act, 1992 .

The Legal representative reported that he believed the delay in receiving a response from the building department was related to another matter that concerned the neighboring property. He explained that the Applicant’s home and the neighbor’s home immediately to the west, located at 211 Maki Avenue, share water and waste water services. He advised that the shared water and waste water services are located on the Applicant’s property. The Legal representative explained that over the years, the Applicant has paid the costs to repair and maintain the shared water and waste water services. He reported that as part of the proposed construction to construct a new deck and sunroom, the Applicant is proposing to disconnect the water and waste water service line serving the neighboring property at 211 Maki Ave.

The Legal representative maintained that the dispute between the Applicant and their neighbor regarding the shared water services was a private matter, as the services in question are located within the property lines of the Applicant and that to his knowledge; the proposed construction was not in contravention of any applicable laws or Building Code requirements. He argued that if the permit application was deemed complete and not in contravention of any applicable laws or the Building Code, then the permit should be issued. If not, he maintained, the Respondent should provide the reasons for refusal, including the applicable law or Building Code requirements the proposed construction contravenes.

The Legal representative maintained that it has been six months since the permit application and drawings were submitted to the building department and in that time, the Respondent has neither issued the building permit nor refused to issue the building permit with reasons within the prescribed timeframe.

4. Respondent’s Position

The Respondent submitted that the subject building permit application was received on September 29, 2016 without the application fee and further, that the fee is still outstanding.

In response to questions, the Respondent agreed that the building permit application without the associated fees was deemed complete on September 29, 2016.

The Respondent stated that since receiving the permit application, communication between the building department and various municipal departments, as well as the Applicant, have taken place. The Respondent reported that the Agent for the Applicant was advised on September 30, 2016, by the Permit Processing Clerk, of a potential issue concerning required setbacks as per the municipality’s zoning by-law. The Respondent reported that on October 5, 2016, documentation was provided to the building department by the Applicant, which resolved the issue.

The Respondent submitted that the building permit drawings provided to the municipality indicated that the sewer service to the neighboring property, located at 211 Maki Avenue, would be disconnected. On October 12, 2016, the Applicant advised the Permit Processing Clerk that the water service, in addition to the sewer service, would also be disconnected at 211 Maki Avenue. The Respondent reported that no details for how the neighboring dwelling would be serviced have been provided to the municipality.

The Respondent explained that circa 1963 the water and waste water services for both 217 Maki Avenue and 211 Mackie Avenue were installed in a common rock/soil trench within the property lines of 217 Maki Avenue. The Respondent explained that the water and sewer lines split off to service both dwellings from the trench located within the property lines of 217 Maki Avenue. The Respondent reported that a title search was conducted and no easements concerning the joint water services were registered for either property.

The Respondent advised that on November 1, 2016, an e-mail from the Water/Waste Water Services Compliance Officer, in response to earlier e-mails from the Applicant, indicated that alterations to a sewer and water system, such as was noted in the Applicant’s building permit drawings, required an approval to disconnect from the City’s water or sanitary sewer main.

The Respondent maintained that the City of Greater Sudbury has a duty of care to protect and manage the potable water system and wastewater collection system for public safety. He also indicated that the e-mail of November 1st, 2016 from Water/Wastewater Division, clearly noted that a proposal for a resolution of the matter resides with the two property owners and that a proposal would need to be presented to the General Manager of Growth & Infrastructure for approval. The Respondent argued that the municipality has provided the two property owners with the time to negotiate a solution given the unique nature of the situation and the winter season when no solution could be implemented.

The Respondent reported that he is aware that the Applicant has retained a contractor to provide advice on possible alternatives to reach a resolution with the neighbors but to date no agreement has been reached.

The Respondent concluded that the permit application has raised unusual issues for the municipality, including the potential negative impact on City’s water and waste water systems. The Respondent explained that additional time was required for notice to, and consultation with, affected City operating departments regarding the issues raised by the permit application. The Respondent reported that time was also extended so that the Applicant could work with the owner of the neighboring property to achieve the disconnection of water services as reflected in the permit application drawings. As a result, the Respondent advised, the City did not comply with the prescribed time period as set out in Division C, Article 1.3.1.3. of the Building Code.

In response to questions, the Respondent submitted that due to the circumstances described above, he had not to date issued the permit or provided the Applicant the written reasons for refusal of the permit. However, the Respondent stated that he would endeavor to provide a written response to the Applicant within 5 business days from the hearing.

5. Commission Ruling

It is the decision of the Building Code Commission that the Respondent did not comply with the requirements of Subsections 8.(2.2) and 8.(2.3) of the Building Code Act, 1992 and Sentence 1.3.1.3.(1) of Division C of the Building Code. Under these subsections, the Respondent is required to issue or refuse to issue the permit and, in the case of a refusal to issue the permit, to provide in writing all of the reasons for the refusal, within the applicable time period set out in Table 1.3.1.3. of Division C of the Building Code.

Further, pursuant to subsection 24.(3.1) of the Building Code Act, 1992, the Building Code Commission requires the Respondent to comply with subsection 8.(2.2) and 8.(2.3) of the Building Code Act, 1992, and Sentence 1.3.1.3.(1) of Division C of the Building Code for the property located at 217 Maki Avenue, Sudbury, Ontario.

6. Reasons

  1. Sentence 1.3.1.3.(7) of Division C of the Building Code specifies when the time periods set out in Table 1.3.1.3. commence. It states:

    "Subject to Sentence (9) and (10), the time period described in Sentences (1) to (3) and in Clause 6(b) shall begin on the day following on which an application that meets the requirements of Sentence (5) is submitted to the chief building official."

    The Commission heard evidence and testimony that the building permit application was received by the City of Sudbury on September 29, 2016. The Commission also heard the parties agree that the application in question met the requirements of Sentence 1.3.1.3.(5). As a result, it is September 30, 2016, the day following the day on which the application met the requirements of Sentence (5), that the applicable time period set out in Table 1.3.1.3. commenced in this case.

    Based on the evidence and testimony provided, it is the Commission’s opinion that the construction proposed under the application in question was subject to the 10 day time period set out in Table 1.3.1.3. of Division C of the Building Code.

  2. Sentence 1.3.1.3.(8) provides that the time periods described in Table 1.3.1.3. do not include Saturdays, holidays and all other days when the offices of a principal authority are not open for the transaction of business with the public.

    In the present case, the applicable 10 day time period ended on October 14, 2016, and the Respondent was required by that date to issue or refuse to issue a permit in respect of the Applicant’s permit application and, if the permit was refused, to provide in writing all reasons for the refusal.

    The parties agree that the building permit has not been issued and that written communication refusing to issue the permit and providing in writing all the reasons for the refusal was not provided to the Applicant by October 14, 2016. Further, the Commission heard that as of the hearing date, the Applicant has not received a building permit nor has he received written communication from the Respondent providing reasons for refusing to issue the permit.

  3. As stated above, pursuant to subsection 24.(3.1) of the Building Code Act, 1992, the Building Code Commission requires the Respondent to comply with subsection 8.(2.2) and 8.(2.3) of the Building Code Act, 1992, and Sentence 1.3.1.3.(1) of Division C of the Building Code for the property located at 217 Maki Avenue, Sudbury, Ontario.

    Notwithstanding the construction proposed under the application in question is subject to the 10 day time period set out in Table 1.3.1.3. of Division C of the Building Code, following fulfilling Sentence 1.3.1.3.(5), the Commission heard testimony that the Respondent would endeavor to provide a written response to the Applicant within 5 business days from the date of this hearing.

Dated at the City of Toronto this 13th day in the month of April in the year 2016 for application number P 2017-10.

Tony Chow, Chair

Rick Mori

Stephen Wong