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BCC Ruling No. 01-05-798

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BUILDING CODE COMMISSION DECISION ON B.C.C. No. 01-05-798

IN THE MATTER OF Subsection 24 (1) of the Building Code Act, 1992.

AND IN THE MATTER OF Article 3.2.2.14. of Regulation 925, as amended by O. Reg. 669/76 (the "1975 Ontario Building Code").

AND IN THE MATTER OF an application by Mr. John Cardillo, CEO, Premier Fitness Clubs, Mississauga, Ontario, for the resolution of a dispute with Mr. Frank Asta, Chief Building Official, Town of Oakville, Ontario, to determine whether the proposed construction of two additions and the subsequent elimination of one of the streets for fire fighting purposes, required in the original building by Article 3.2.2.14. of the 1975 Ontario Building Code, negatively impacts the level of safety in the existing building, and if so, whether remedial construction is required at the Premier Fitness Club, 474 Iroquois Shore Road, Oakville, Ontario.

APPLICANT
Mr. John Cardillo, CEO
Premier Fitness Clubs
Mississauga, Ontario

RESPONDENT
Mr. Frank Asta
Chief Building Official
Town of Oakville

PANEL
Dr. Kenneth Peaker, Chair
Mr. John Guthrie
Mr. Fred Barkhouse

PLACE
Toronto, Ontario

DATE OF HEARING
February 8th, 2001

DATE OF RULING
February 8th, 2001

APPEARANCES
Mr. Demir Delen
Morrison Hershfield Ltd
Toronto, Ontario
Agent for the Applicant

Mr. Frank Asta
Chief Building Official
Oakville, Ontario
The Respondent

RULING

1. The Applicant

Mr. John Cardillo, CEO, Premier Fitness Club, Oakville, Ontario, has applied for a building permit under the Building Code Act, 1992 to construct two additions onto an existing private health and fitness club known as the Premier Fitness Club, 474 Iroquois Shore Road, Oakville, Ontario.

2. Description of Construction

The Applicant is proposing to extend an existing building which serves as a private health and fitness club in order to expand its fitness activities and add a new indoor swimming pool. The building is described as having a Group A, Division 2 - Assembly occupancy and is considered as facing two streets for fire fighting purposes. One street is located at the front or north of the building and the other, situated along the west side of the structure, is a parking lot running the length of the building.

The existing building is two storeys in building height, 2184 m2 in building area, of noncombustible construction, and is equipped with a fire alarm system. It was constructed in 1977. The current proposal, as submitted for building permit, involves the construction of two new additions. The additions will be at the south (rear) and west sides of the first floor. The rear addition will cover an area of 253 m2, whereas the side addition will have an area of 304 m2. With these additions, the building area of the entire building will be increased to 2741 m2. Both additions are one storey in building height and will be provided with a standpipe and hose and sprinkler systems.

The construction in dispute involves the potential affect of the proposed additions on the level of fire safety of the existing building. Specifically, the west addition to the side of the building will project into the western fire access route located in the building's main parking lot. To maintain a six metre wide fire route in this area, the Applicant is proposing to reduce the depth of the parking spaces directly opposite of the intended location of the western addition. At this point, the fire route will jog to the west by a few metres as it passes the proposed addition. Along the western face of the side addition, the new fire route will be located directly adjacent to the expanded building's new wall.

The additions at the rear and side will also impact the travel distance for portions of the existing building. In these locations the distance to an exit door will be increased somewhat.

The Applicant does not intend to increase the occupant load of the entire building by more than 15 percent of the present level and also plans to retain the current major occupancy. No structural changes are intended for the existing building. As well, the Applicant is not proposing to extend the standpipe and hose and sprinkler systems planned for the additions into the existing building.

3. Dispute

The issue at dispute between the Applicant and Respondent is to determine whether the proposed construction of two additions and the subsequent elimination of one of the streets for fire fighting purposes, required in the original building by Article 3.2.2.14. of the 1975 Ontario Building Code, negatively impacts the level of safety in the existing building, and if so, whether remedial construction is required at the Premier Fitness Club, 474 Iroquois Shore Road, Oakville, Ontario.

Article 3.2.2.14. sets out the basic construction requirements for Group A, Division 2, one and two storey buildings. In Sentence (1) of this provision it stipulates that for the subject existing building to qualify for the construction requirements of Sentence (2), the structure must be not less than two storeys in building height and, if unsprinklered (which is the case here), that it not be more than the area limits prescribed in Table 3.2.2.A. For an unsprinklered two storey building facing two streets, the maximum area permitted is 10,000 ft2 (929.4 m2). This area limit is conditional upon facing two streets. Sentence (2) goes on to stipulate the requirement for fire separations and fire resistance ratings in the walls, floors, roof assemblies, etc. of the building.

It appears the dispute the parties have brought to the BCC is one that focusses on whether the existing building, after the proposed work occurs, will stills provides a similar level of safety required of it at the time it was constructed. Put simply, the parties disagree on whether the existing structure will be as safe as it was prior. Moreover, if the building is viewed as being negatively impacted by the additions, they disagree on whether remedial measures are required.

On the question of the safety of the existing building, the Commission considers this to be an issue regarding the technical requirements of the building code and, as a result, falls within the mandate of the BCC. On the latter issue of remedial measures, the task before the Commission is to determine whether any mechanism exists in the OBC that addresses a reduction in the level of fire safety of a building and prescribes compensatory construction measures.

4. Provisions of the 1975 Ontario Building Code

Article 3.2.2.14. Group A, Division 2, 1 and 2 Storeys

  1.  
  2. A building classified as Group A, Division 2 shall conform to Sentence (2) provided the building,

    1. is not more than 2 storeys in building height; and
    2. if unsprinklered, is not greater in building area than the value in Table 3.2.2.A; and
    3. if sprinklered, is not greater than twice the area limits of Clause (b).


    Table 3.2.2.A.

    Forming Part of Sentence 3.2.2.14.(1)

    Unsprinklered Maximum Area sq ft

    No. of Storeys

    Facing

    1 Street
    Facing

    2 Streets
    Facing

    3 Streets
    1

    2
    16,000

    8,000
    20,000

    10,000
    24,000

    12,000
    Column 1
    2
    3
    4



  3.  
  4. The building shall be of combustible or noncombustible construction used either singly or in combination, and
    1. basements shall be subdivided by a 1 hr fire separation into areas not exceeding 5000 sq. ft., or they shall be sprinklered, and
     
    1. all cellars shall be sprinklered.
    1. floor assembles immediately above basements or cellars shall be a 3/4 hr fire separation;

    2. floor assemblies immediately above crawl spaces shall have; if not combustible divided by a 3/4 hr fire separation into area not exceeding 8000 sq. fr; or they are sprinklered.

    3. other floor assemblies shall be a fire separation and, if or combustible construction, shall have a 3/4 hour fire-resistance rating.

    4. balconies and mezzanines shall have, if of combustible construction, a 3/4 hr fire-resistance rating;

    5. roof assemblies shall have, if of combustible construction, a 3/4 hr fire-resistance rating; except that in buildings not exceeding 1 storey in building height, the fire-resistance rating is not required provided that the roof assembly is constructed as a fire-retardant treated wood roof system conforming to Sentence 3.1.12.1.(2);

    6. all loadbearing walls, columns and arches supporting an assembly required to have a fire-resistance rating shall,
      1. have a 3/4 hr fire-resistance rating,
      2. be of noncombustible construction, or
      3. be a combination of (i) and (ii); and

    7. all load bearing walls, columns and arches supporting a required fire separation shall have a fire-resistance rating at least equivalent to that required for the supported assembly.

5. Applicant's Position

The Agent for the Applicant began by describing what he felt was the background to the dispute. He noted that the previous hearing regarding this building dealt only with the dispute surrounding the occupancy classification but he is now seeking a determination on whether the existing building, because of the additions, is required to undergo any work, such as sprinklering. To address this question, he indicated that he wants the hearing to focus on the performance level requirements of the OBC.

Prior to commencing his discussion regarding performance level, the Agent stated that it was his assumption that the existing building, considering its size, was constructed according to Article 3.2.2.15. (and not 3.2.2.14.) of the 1975 OBC. This provision required the building to be of noncombustible construction, but sprinkler protection was not mandatory and the structure was permitted to face one street only. He noted that this assumption was based on the best information available to him. Besides, in the previous hearing, the Respondent indicated at that time Article 3.2.2.15. was the applicable provision.

Turning his attention to performance level, the Agent cited Sentences 2.1.1.7.(1) and 11.3.2.1.(1) of the OBC both of which state that the Code only applies to an existing building where that building is being materially extended, altered or repaired. He noted that in this project no work is being proposed for the existing building. It is not even subject to any renovation. Therefore, the existing building is beyond the purview of any and all OBC requirements.

The Agent submitted that since the additions will not be separated from the existing building by firewalls, their construction requirements will be determined using the total building height and area of the completed building. However, based on the above discussion, the requirements will only be applicable to the additions. This means that only the additions, which are subject to Article 3.2.2.24., will be equipped with sprinklers and a standpipe and hose. As well, the Agent continued, no fire-resistance rating is required in the roofs of the additions as per Sentence 3.2.2.17.(1). Most significant, however, is that "(t)he entire building, including the new additions, is only required to face one street located in conformance with the requirements of Articles 3.2.5.5. and 3.2.5.6., as per Sentences 3.2.2.10.(1) and (2)". Thus, the second fire access route, he argued, is in excess of current and past code requirements.

On the issue of number of streets, the Agent rejected the Respondent's position that the side addition cuts off the western fire access route and thereby reduces the performance level of the existing building. Regarding this discussion he made the following points:

"1. The fire fighting access on the building's western exposure is not cut off by the new side addition. There is still a 6 m wide access route facing the long side of the building that is less than 90 m. The access route is located not less than 3 m and not more than 15 m from the principle entrance and complies with Sentences 3.2.5.6.(1) and 3.2.5.5.(1) of the 1997 OBC.

"2. The building is only required to face one street and has always been required to face one street since it was constructed in 1977. Even if the side addition cuts off a fire access route as suggested by the Oakville Fire Department, the building will still comply with the Code since it is required to face only one street. However, as indicated in item #1 above the building will still face two streets even after the side addition is constructed.

"3. In spite of the above, Part 11 of the OBC requires that the reduction in performance level of a building be determined in accordance with Subsection 11.4.2. and where the proposed construction would reduce the performance level of the existing building, compensating construction (is) to be provided in conformance with Subsection 11.4.3. Nothing in these Subsections address the elimination of a required access route as a reduction of performance level and no compensating construction by sprinklering the existing building is required.

"In reality, no elimination of a required access route exists, since the building (was) required to face only one street when constructed under the 1975 OBC."

The Agent reiterated that there is no mechanism or trigger regarding the existing building to invoke the Code to even begin discussing its performance level. However, if one were to assume for a moment that the existing building should be examined with consideration to Part 11, in particular Subsection 11.4.2., then one can only conclude that the performance level is not reduced. The occupant load is not to increase by more than 15%, nor will there be a change of major occupancy or new uses that would affect the building structurally. When judged against OBC 11.4.2. therefore, there will not be a reduction in performance level. As a result, no compensating construction, such as sprinkler and standpipe and hose systems as requested by the municipal building department, is necessary.

If there are violations in the existing building, the Agent stated, there are avenues, such as the Fire Code, to deal with these alleged problems. In this case, however, the condition of the existing building does not fall within the scope of the OBC. Moreover, since the existing building was built with a permit, the municipality held the responsibility to ensure that it complied with the version of the OBC in effect at that time. He argued that the current Code cannot and should not be used to deal with the sins of the past.

The Agent then suggested that may be the Respondent should be asked whether the original building met the relevant Code provision at the time. After all, they approved it. He acknowledged in fact that he is unsure whether the existing building meets the 1975 Code, but he added that it is not relevant for this discussion because the Ontario Building Code is not the appropriate vehicle to access such deficiencies, if any exist.

In summation, the Agent stated that "it is clear that the Ontario Building Code does not apply retroactively where there is no construction proposed in an existing building." This is the purview of the Fire Code only. There is an important principle at stake here, he argued. Practitioners in the field building and construction need some certainty about the regulatory environment. A decision by the Commission supporting the Respondent's position would cloud matters.

The Agent rejected the view that the building could be considered unsafe. For a building to be unsafe it has to be hazardous under normal, daily circumstances. A structural problem or a missing guard, he suggested, would unsafe during daily usage. A fire, on the other hand, is not a normal daily occurrence, it is an emergency situation. Any building is unsafe when on fire. Thus, it would be unfair to apply the BCA unsafe provisions to such a situation.

Finally, the Agent also argued that municipality bears some responsibility here. For example, why did they not catch the fact that there was no standpipe system during the addition to the building in 1994. If it is determined that a standpipe and hose should have been included in the original building, they will add one because it was a requirement of the time - even though this is something the municipality should have caught. But as far as a sprinkler system for the original building goes, this was not a requirement in 1977 and is still not one now.

6. Respondent's Position

At the outset the Respondent explained that the original 1977 building had been added onto in 1994. Therefore the size of the structure prior to the additions proposed currently was not the size of the original building. The original building was smaller and thereby fit within the area limits set out in Article 3.2.2.14. This difference in building area is the reason why the Applicant thought that the 1977 building was constructed under Article 3.2.2.15.

The Respondent then submitted recent pictures of the site which showed the condition of the existing building. He claimed that there is no rated fire separation between the first and second floor, nor is the roof rated. The existing building, in his view, is unsafe.

With respect to the fire access routes, the entire building must be examined when looking at streets for fire fighting purposes, the Respondent stated. The side addition, he argued, eliminates the western street because the Code requires not just a 6 m wide route, but also a 3 m wide setback between the building and the route. This setback, to allow access into the building, has been deleted. The municipal Fire Department, he noted, even came to the site to test the proposed reduced width and found it was not workable.

At that visit, the Respondent continued, the fire officials also discovered that the hydrants serving the building are a considerable distance away and fighting a fire in the structure would require that the municipal street be blocked off. They also had concerns about the actual occupant load of the building indicating that it is considerably higher than the building can accommodate. He also reported that the fire officials discovered that the rear addition has already been constructed. The Respondent noted that the permit has not yet been issued for these additions.

The fact that the Applicant is proposing to sprinkler the additions does not give him much comfort, the Respondent stated. The only way such a limited system could be of use is if the fire started in the new additions.

In summation, the Respondent stated that the original building is already unsafe and the proposed additions, with the reduction of a fire access route and the lengthening of the travel distance, will simply make a bad situation worse. He noted that the municipality has repeatedly tried to rectify the condition of the existing building but since it has changed ownership so frequently they have been frustrated in this regard. He indicated that their bottom line is that the whole building must be sprinklered and that the current problems of the existing structure be addressed.

Whereas architects, engineers, consultants and even building owners may come and go, the municipality is the entity left at the end of the day responsible for the safety of buildings within their jurisdiction. For this reason, the Respondent concluded that the entire building, especially the existing portions, must be made safer.

7. Commission Ruling

It is the decision of the Building Code Commission that the proposed construction of two additions, especially the side addition, has diminished the original level of fire safety required by the Ontario Building Code for the existing building at the Premier Fitness Club, 474 Iroquois Shore Road, Oakville, Ontario.

Furthermore, in the opinion of the Building Code Commission, due to the aforementioned diminished level of fire safety, the existing building may, under Subsection 15.-(3) of the Building Code Act, be subject to remedial construction measures as determined by the Inspector/Chief Building Official in order to render the building safe.

8. Reasons

  1. The building was originally required to face two streets according to Article 3.2.2.14. of the 1975 Ontario Building Code. The proposed construction of the addition to the side of the existing building eliminates the fire access route along the western portion of the facility. It is considered eliminated because in addition to the Code requiring that such routes be a minimum of 6 m in width (unless lesser widths can be shown to be satisfactory), it also requires that access routes be setback a minimum of 3 m from the closest portion of the exposing building face in order not to block access openings. However, as noted, the proposed reduced-width western access route provides only the minimum width of 6 m, but offers no provision for setback from the building. Moreover, the Applicant has not provided any rationale as to why the minimum access route width should, in this instance, be reduced.

  2. Sentence 2.1.1.7.(1) stipulates that when an existing building is added onto, materially altered or repaired that the Code applies only to the design and construction of those areas of the building that are being added, altered or repaired. According to this division between existing and new, work proposed and no work proposed, the Code may, in some situations, require that only the new portion (e.g., an addition) of a building be equipped with a system such as a standpipe and hose or sprinkler protection while not providing same in the remainder, existing part of the structure. This division of required/not-required work, however, is based on the premise that the safety level of the existing building is not negatively affected. The older portion of the structure should, after the construction is completed, still be able to either meet the specific safety requirements mandated for that building at the time of construction, or at least the spirit of those requirements. In essence, the existing building must be as safe as it was before.

    In the case at hand, however, the reduction of the number of access routes for fire fighting purposes, in the Commission's view, clearly detracts from the level of safety that was present in the existing building. Further, the travel distances in the existing building have also been increased and thereby made potentially more hazardous. Regarding these aspects, the older building no longer complies with either the letter of the 1975 Code requirements nor their intent.

  3. Because of the nature of the diminished safety level involved, i.e., fire safety, there is no specific recourse in the OBC that prescribes compensating construction as found in 11.4.3. Nevertheless, in this instance, if the CBO or inspector, employing their powers in ss. 15.-(3) of the BCA, considers that the reduced level of safety makes the building unsafe, then they can require such construction, e.g., sprinklering the existing building, that they deem necessary to bring the older building's level of safety back into compliance. The Respondent's testimony at the hearing indicated that retrofitting the existing building with standpipe and hose and sprinkler systems are among the measures they are requiring to restore the fire safety level of the building.

    Dated at Toronto this 8th, day in the month of February, in the year 2001 for application number 2001-02.





    _________________________________________________________________

    Dr. Kenneth Peaker, Chair





    _________________________________________________________________

    Mr. John Guthrie





    _________________________________________________________________

    Mr. Fred Barkhouse