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BCC Ruling No. 01-06-799

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BUILDING CODE COMMISSION DECISION ON B.C.C. No. 01-06-799

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

AND IN THE MATTER OF Sentences 9.10.11.1.(1), 7.1.6.4.(1) and 7.1.7.2.(1) of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99, 278/99, 593/99, 597/99 and 205/00 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Larry Law, Law Development Group, Thornhill, Ontario, for the resolution of a dispute with Mr. John Wright, Chief Building Official, Town of Markham, Ontario, to determine whether the proposed stacked townhouse units, with property lines occurring on both horizontal and vertical planes between them, comply with the requirements of Sentences 9.10.11.1.(1), 7.1.6.4.(1) and 7.1.7.2.(1) of the Ontario Building Code at the Bur Oak Townhouses, Bur Oak Avenue, Cornell Community, Markham, Ontario.

APPLICANT

Mr. Larry Law
Law Development Group
Thornhill, Ontario


RESPONDENT
Mr. John Wright
Chief Building Official
Town of Markham


PANEL
Dr. Kenneth Peaker, Chair
Mr. Fred Barkhouse
Mr. Donald Pratt

PLACE
Toronto, Ontario


DATE OF HEARING
February 15th, 2001


DATE OF RULING
February 15th, 2001


APPEARANCES
Mr. Randy Brown, President
Randal Brown & Associates
Willowdale, Ontario
Agent for the Applicant


Mr. Chris Bird
Manager of Plan Review
Markham, Ontario
Designate for the Respondent

RULING



1. The Applicant

Mr. Larry Law of the Law Development Group in Thornhill, Ontario, has applied for a building permit under the Building Code Act, 1992 to construct freehold residential townhouses, known as the Bur Oak Townhouses, located on Bur Oak Avenue, in the Cornell Community, Markham, Ontario.

2. Description of Construction

The Applicant is proposing the construction of four blocks containing a total of 34 Group C - residential townhouses. The townhouse blocks are proposed to be a maximum of three storeys in building height. They are to be of combustible construction and have access to two streets. Most of the townhouses are to contain two separate freehold dwelling units each ranging from 83.61 m2 to 130.06 m2 in floor area.

The construction in dispute involves two main areas; fire separation between units and the sharing plumbing services. These disputes arise as a result of the stacked design of the townhouses whereby one unit sits mainly over top of another. Each unit has split levels and has its own at-grade front door and garage, in the front and rear yards respectively. As a result of the stacked design, a property line within the townhouse would be created on both vertical and horizontal planes between each dwelling unit. It is intended that the walls and/or floors occurring at the property lines that are shared by two units will be constructed with a suite-to-suite fire separation having a 1 hour fire-resistance rating.

With respect to the sharing of plumbing services, the Applicant is proposing to service the two freehold units in each townhouse with a single connection to the municipal services. As well, because of the stacked design of the units within the townhouses, the plumbing systems cannot be located exclusively within each individual unit. In addition, unlike in a condominium development or apartment complex, there are no common spaces within the townhouses through which plumbing services could be run. To address this situation, the Applicant is offering to implement reciprocal agreements and mutual easements respecting access to neighbouring dwelling units for repair and maintenance purposes, etc.

3. Dispute

The issue at dispute between the Applicant and Respondent is whether the proposed stacked townhouse units, with property lines occurring on both horizontal and vertical planes between them, comply with the requirements of Sentences 9.10.11.1.(1), 7.1.6.4.(1) and 7.1.7.2.(1) of the Ontario Building Code.

Sentence 9.10.11.1.(1) of the Code requires, with certain exceptions, that party walls on property lines be constructed as firewalls. Sentence 9.10.11.2.(1) outlines one of the circumstances where such a firewall would not be required. It states that, in a residential building where no dwelling unit is located above another dwelling unit, a party wall is permitted to be constructed as a fire separation with a 1 hour fire resistance rating. In the subject situation, as freehold stacked townhouses, units are located upon others and yet, the demising partitions are proposed as 1 hour rated walls and floors. (It should be noted that, as the proposed unit-to-unit configurations are comprised of both horizontal and vertical separations, the concept of party wall is being extended to the separating floor assemblies as well.)

Sentences 7.1.6.4.(1) and 7.1.7.2.(1) deal respectively with the design and installation of piping and the accessibility of fixtures, plumbing appliances, equipment etc. Specifically, Sentence 7.1.6.4.(1) requires that piping in a building be connected to the public services separately from the piping of another building. As noted, the Applicant is intending that both units within each townhouse be legally parcelled and sold as separate properties. The proposed plumbing services, however, are to be shared within each townhouse. Whereas the sharing of plumbing services is common between units in apartment or condominium buildings, it is not permitted between buildings.

Sentence 7.1.7.2.(1) requires that plumbing fixtures etc., be installed so that they are accessible. However, since there is no common space devoted for utilities such as plumbing, it may be necessary to enter one unit to provide service to the other. In lieu of common service spaces, the Applicant has proposed to create binding legal agreements with easements to allow for servicing. Nevertheless, such easements are not addressed in Article 7.1.7.2. of the OBC.

For this development, in determining the construction and life safety requirements, the Applicant has considered the entire block of townhouse units to be one building for the purposes of the Code. The Building Code requirements are proposed to be applied to the group of dwellings rather than the ownership of individual units.

4. Provisions of the Ontario Building Code

9.10.11.1. Required Firewalls

  1. Except as provided in Articles 9.10.11.2. and 9.10.11.4., a party wall on a property line shall be constructed as a firewall.

9.10.11.2. Firewalls Not Required

  1. In a building of residential occupancy in which there is no dwelling unit above another dwelling unit, a party wall on a property line between dwelling units need not be constructed as a firewall provided it is constructed as a fire separation having not less than a 1 h fire-resistance rating.

7.1.6.4. Separate Services

  1. Piping in any building shall be connected to the public services separately from piping of any other building, except that an ancillary building on the same property may be served by the same service. (See Appendix A.)

7.1.7.2. Accessibility

  1. Every fixture, plumbing appliance, interceptor, cleanout, valve, device or piece of equipment shall be so located that it is readily accessible for use, cleaning and maintenance.

5. Applicant's Position

The Applicant submitted that, with the townhouse complex designed to function as one building, the requirements of the Building Code would be met. In this regard, the provisions of the Code would permit walls occurring at a property line to be constructed as a suite-to-suite fire separation. In his opinion "life safety and fire protection requirements are satisfied based upon the relative orientation of dwelling unit to dwelling unit within a building rather than upon the ownership of the individual dwelling unit." In light of this, walls and floors constructed with a 1 hour fire separation of combustible construction would meet the intent of the Code.

The Applicant's position was that the project would provide "a level of life safety equivalent to that which would be found within other multi-unit buildings such as condominiums". He stated that, with respect to the issue of services and accessibility, the reciprocal agreement and mutual easements proposed would satisfy the requirements of the Code. These agreements would alert individual owners to all of the limitations and requirements of purchasing this type of unit. In addition, the agreements could be registered on title for the benefit of any future owner. He also suggests that a Homeowners' Association would be established to enforce access to units for servicing purposes.

In support of their position, the Applicant referred to previous Building Code Commission (BCC) rulings that address the concept of buildings being constructed across property lines where no fire walls were required. As he noted, "(i)n these rulings, the BCC found that these could be treated as one building since they functioned as one building and since agreements were in place regarding the function of the building."

6. Respondent's Position

The Respondent submitted that their primary difficulty with this project is the fact that the units are being offered for freehold ownership. The two issues that present concern are; 1) the requirement of party walls and, 2) the location of the plumbing piping between and throughout the units.

On these issues the Respondent put forward the following arguments:

"In the case of the proposed building, the walls and floors are located on property lines that separate individually owned properties. By virtue of their location (ie. on the property lines) and shared ownership, these walls by definition must be considered party walls. As such, Sentence 9.10.11.1.(1) requires the party walls to be designated as firewalls. Furthermore, notwithstanding the absence of specific requirements pertaining to the unusual location of floors on property lines, similar standards should apply to the design and construction of the floor assemblies in my opinion.

"The provisions of Sentence 9.10.11.1.(1) require party walls to be constructed as firewalls except that the standards applied to party walls can be relaxed in accordance with the requirements of Article 9.10.11.2. in buildings of residential occupancy where there is no dwelling unit located above another dwelling unit. The proposed buildings contain dwelling units located above other dwelling units.

"The applicants proposal is based on the premise that the building will be designed and operated as an integral unit through the establishment of a 'Homeowners' Committee'. The legal basis for the existence of the 'Committee' is unclear as is the relationship between each homeowner and each homeowner and the Committee. Furthermore, the implementation and enforceability of the conditions contained within the 'Reciprocal Agreements' is unclear and is not addressed by the code.

"It is unclear whether the provisions of the 'Reciprocal Agreement' proposed by the applicant provides the level of accessibility to fixtures, plumbing appliances, interceptors, cleanouts etc. required by Sentence 7.1.7.2.(1) of the code."

In reference to the prior BCC rulings advanced by the Applicant, the Respondent cited that the difference between those cases and the proposed development is that the previous decisions were with respect to large commercial buildings. In those instances full scale maintenance agreements were put in place. In this case there is only a reciprocal agreement and easements with no extra protection for the access to, and maintenance of, systems proposed.

In summation, the Respondent advised that they could foresee difficulty with respect to the enforcement of the agreements, in light of the freehold ownership of the units in question. If the townhouses were developed for condominium ownership, the Respondent's position may have been different. In that situation, condominium buildings would have common areas, with ownership by the Corporation, where plumbing could be situated.

7. Commission Ruling

It is the decision of the Building Code Commission that the residential townhouse development at the Bur Oak Townhouses on Bur Oak Avenue in the Cornell Community, Markham, Ontario does not comply with the requirements of Sentences 9.10.11.1.(1), 7.1.6.4.(1) and 7.1.7.2.(1)



8. Reasons

  1. In this particular townhouse development, since dwelling units are proposed to be located over other dwelling units, the exemption from constructing a party wall as a firewall found in Sentence 9.10.11.2.(1) is not applicable. The 1 hour rated separation allowed in that Sentence and proposed between the freehold units within the townhouses, therefore, is not permitted.

  2. Moreover, since the townhouses consist of stacked dwelling units, a firewall is required between the townhouses because they too do not qualify for the exemption in Sentence 9.10.11.2.(1).

  3. The OBC does not recognize a horizontal firewall between suites. As a result, the subject residential townhouses cannot have freehold units stacked above one another.

  4. Plumbing serving an individual freehold unit must be separate from the municipal mains to the unit and also within that unit from the plumbing serving another such unit.

  5. Plumbing fixtures must be accessible. While the proposed easement agreement does offer legal access to service the plumbing, it does not provide direct physical access as would be found in a freehold building or in the service spaces of an apartment or a condominium building.



Dated at Toronto this 15th, day in the month of February, in the year 2001 for application number 2001-09.





_________________________________________________________________

Dr. Kenneth Peaker, Chair





_________________________________________________________________

Mr. Fred Barkhouse





_________________________________________________________________

Mr. Donald Pratt