Skip to content
You are here > Home > Your Ministry > Ontario Building Code > Appeals & Approvals > Building Code Commission > Rulings of the Building Code Commission > 2001 > BCC Ruling No. 01-02-795

Follow us

BCC Ruling No. 01-02-795

Email this page

BUILDING CODE COMMISSION DECISION ON B.C.C. #01-02-795

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

AND IN THE MATTER OF Subsection 3.2.3. 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. Thomas Phelan, Construction Manager, The Home Depot, Scarborough, Ontario, for the resolution of a dispute with Mr. Gerald Bilous, Director of Building Services, City of Oshawa, Ontario, to determine whether the shade screen, due to its proposed construction and seasonal use, can be viewed as a structure that may be permitted to conform to the construction standards of Section 3.13. Tents and Air Supported Structures of the Ontario Building Code at the Home Depot, 1481 Harmony Road, Oshawa, Ontario.



APPLICANT
Mr. Thomas Phelan, Construction Manager
The Home Depot
Scarborough, Ontario

RESPONDENT
Mr. Gerald Bilous,
Director of Building Services
City of Oshawa

PANEL
Mr. Len King, Vice- Chair
Mr. Michael Steele
Mr. Fred Barkhouse

PLACE
Toronto, Ontario

DATE OF HEARING
January 11th, 2001

DATE OF RULING
January 11th, 2001

APPEARANCES

Mr. Randy Brown
Randal Brown & Associates
Toronto, Ontario
Agent for the Applicant



Mr. Kwan Lo
Manager, Permit Services
Oshawa, Ontario
Designate for the Respondent



RULING



1. The Applicant



Mr. Thomas Phelan, Construction Manager, The Home Depot, Scarborough, Ontario, has applied for a building permit under the Building Code Act, 1992 to construct a seasonal-use shade screen within an outdoor garden centre at the Home Depot, 1481 Harmony Road North, Oshawa, Ontario.


2. Description of Construction

The Applicant is proposing to construct a new shade screen to be used for the sale and display of plant material and agricultural products. The shade screen is to be located within an outdoor garden centre that abuts an existing Home Depot building. The structure is described as L-shaped, unheated, one storey in building height and 613 m2 in building area. It consists of a concrete slab floor and a polyethylene fabric roof supported by a steel frame structure. The fabric has a flamespread rating of 25 based on tests conducted in accordance with CAN/ULC-S109. The roof must be removed in the winter because it is not designed to sustain snow loading.

The shade screen will be positioned such that its length abuts the Home Depot store. A 150 mm (6 in) gap will separate the shade screen from the existing building. The other three sides of the shade screen are to be open. (The ends of the shade screen will not have gables.) The open sides will have at least 3 m horizontal distance to adjacent buildings and property lines. The south end of the shade screen will be enclosed with a high security chain link fence. Beyond the shade screen, the remainder of the garden centre will be used for the open air display of other products, such as landscaping materials.

The existing Home Depot store is described as a one storey, Group E - mercantile occupancy with a building area of 10,754 m2. The building is noncombustible construction, with the exterior walls made of precast concrete having a two hour fire resistance rating. The store is equipped with electrically supervised sprinkler and fire alarm systems. There are also fire hydrants located adjacent to the existing store and the proposed location for the shade screen. The building is considered to face two streets for fire fighting purposes.

The proposed exiting arrangement between the two structures will allow occupants from the store to discharge through two exits into the shade screen area. This will account, however, for no more than 25% of the store's total required exit capacity. The two exit doors will be equipped with close spaced sprinklers. As well, window sprinklers are to be installed on one side of the glazing over the doors. At least two means of egress will be provided for the shade screen area, one of these will be through two doors in the chain link fence which form part of the means of egress. The egress aisles through the garden centre, including the shade screen, will be at least 1.1 m wide.



3. Dispute

The primary issue at dispute between the Applicant and Respondent is whether the shade screen, due to its proposed construction and seasonal use, can be viewed as a structure that may be permitted to conform to the construction standards of Section 3.13. Tents and Air Supported Structures. This Section sets out provisions that govern the use and construction of certain structures, specifically tents and air-supported structures.

If the shade screen does not meet the test of a structure as currently set out in OBC 3.13., then it must be deemed a building under the Code. (The shade screen was not presented by the Applicant as an Article 3.2.2.2. Special and Unusual Structure.) If so, among the provisions of the Ontario Building Code it would be required to comply with would include, but not be limited to, Sections 3.2. Building Fire Safety, 3.3. Safety Within Floor Areas and 3.4. Requirements for Exits.

In the determination of this question, it should be noted that in earlier versions of the Code this Section (known as Subsection 3.1.6. Tents, Air-Supported Structures and Temporary Structures in the 1990 OBC) contained provisions for the construction of temporary structures. This Commission in the past found other similar seasonal-use structures to have sufficiency of compliance with Subsection 3.1.6. with certain conditions (e.g., BCC Ruling 98-11-616). Since that time, Subsection 3.1.6. was amended as one of the revisions to the 1997 version of the OBC. The amendment to Subsection 3.1.6. deleted the entire category of structures described as temporary. The current OBC therefore has no provisions governing such construction.

In pursuing its mandate of determining interpretation or sufficiency of compliance issues regarding the technical requirements of the OBC, the BCC must look to the version of the Code current at the time the permit was applied for or issued or when the order was made. In the case of the subject shade screen, the 1997 OBC is the relevant edition.

The second issue is whether the shade screen, which is to be located approximately 150 mm away from an existing exterior wall, is to be considered as an addition onto the existing store or as a separate structure. This question depends, in part, on the answer to the first issue. If it is deemed not to be a Section 3.13.-type structure, then, as a building, the spatial separation requirements of Subsection 3.2.3. Spatial Separation and Exposure Protection would apply. However, if the shade screen is permitted to conform to OBC 3.13. then the spatial separations would be dictated by provisions in that Section.

If this is the case, regardless of whether the structure is considered a tent or an air-supported structure, the required horizontal separations, if deemed to be a separate structure, are the same - both at 3 m. On the other hand, if the shade screen is viewed as an addition, the requirements for tents and air-supported structures differ. Article 3.13.1.4. (which would be applicable because the shade screen is larger than 225 m2) does not permit a tent occupied by the public to be constructed as an addition to a building. In contrast, Article 3.13.2.3. permits an air-supported structure to be attached to another building, but under certain conditions.



4. Provisions of the Ontario Building Code

Article 3.2.2.2. Special and Unusual Structures

    1. A structure which cannot be identified with the characteristics of a building in Articles 3.2.2.20. to 3.2.2.83. shall be protected against fire spread and collapse in conformance with good fire protection engineering practice. (See A-3, A-3.2.2.2.(1) and A-3.2.5.13.(1) in Appendix A.)

    Sentence 3.2.3.7. (2) Construction of Exposing Building Face


      1. Except as permitted by Sentence (9) and Articles 3.2.3.9. and 3.2.3.10., if a limiting distance shown in Table 3.2.3.1.A. or Table 3.2.3.1.C. for a Group A, B, C, D or Group F, Division 3 to have unprotected openings more than 10% but not more than 25% of the exposing building face , the exposing building face shall

          1. have a fire-resistance rating not less than 1 h, and
          2. be clad with noncombustible cladding.

    Subsection 3.13.1. Tents (Selected Articles)


    Article 3.13.1.1. Application

      1. Except as provided in this Subsection, tents are exempted from complying with the requirements of this Code.

    Article 3.13.1.2. General


    1. Except as provided in Sentence (2), the requirements of this Subsection shall apply to all tents.

    2. Articles 3.13.1.4., 3.13.1.5., 3.13.1.6. and 3.13.1.10. apply to tents that

        (a) do not exceed 225 m2 (2,420 ft2 ) in ground area,
        (b) do not exceed 225 m2 (2,420 ft2 ) in aggregate ground area and are closer than 3 m (9 ft 10 in) apart,
        (c) do not contain bleachers, and
        (d) are not enclosed with sidewalls.

        Article 3.13.1.3. Means of Egress


        1. Except as provided in Sentences (2) and (3), tents shall conform to Sections 3.3. and 3.4.
        2. A tent need not conform to Article 3.4.6.11. except where swing type doors are provided.
        3. Where the area between adjacent tents or a tent and the property line is used as a means of egress, the minimum width between stake lines shall be the width necessary for means of egress, but not less than 3 m (9 ft 10 in).

            Article 3.13.1.4 Clearance to Other Structures


              1. Tents shall not be erected closer than 3 m (9 ft 10 in) to the property line.

              2. Except as provided in Sentences (3), (4) and (5), tents shall not be erected closer than 3 m (9 ft 10 in) to other tents or structures on the same property.

              3. A walkway between a building and a tent occupied by the public is permitted provided,

                (a) the tent is not closer than 3 m (9 ft 10 in) from the building, and

                (b) the walkway conforms to Article 3.2.3.18.


              4. Tents not occupied by the public need not be separated from one another, and are permitted to be erected less than 3 m (9 ft 10 in) from other structures on the same property, where such closer spacing does not create a hazard to the public.

              5. Tents located on fair grounds or similar open spaces, need not be separated from one another provided such closer


            Subsection 3.13.2. Air-Supported Structures (Selected Articles)

            Article 3.13.2.1. Application

            (1) Except as provided in this Subsection, the requirements of the Code apply to air-supported structures.


            Article 3.13.2.2. General

              1. Air-supported structures shall not be used for Groups B, C, or Group F, Division 1 major occupancies or for classrooms.
              2. Except where no fire separation is required between major occupancies, air-supported structures shall contain not more than one major occupancy.
              3. Except as provided in Sentence (5), air-supported structures are exempt from complying with Articles 3.2.2.20. to 3.2.2.83., except for maximum building size.
              4. Air-supported structures may be designed with interior walls, mezzanines, or similar construction.
              5. Interior construction contained within air-supported structures must meet the construction requirements of Articles 3.2.2.20. to 3.2.2.83.


            Article 3.13.2.3. Spatial Separation


              1. Except as provided in Sentences (2), (3) and (4), air-supported structures shall not be erected closer than 3 m (9 ft 10 in) to other structures on the same property or to the property line.
              2. Air-supported structures not occupied by the public need not be separated from one another, and are permitted to be erected closer than 3 m (9 ft 10 in) from other structures on the same property where such closer spacing does not create a hazard to the building occupants or the public.
              3. Except as provided in Sentence (4), an air-supported structure is permitted to be attached to another building provided the building to which it is attached

                1. conforms to the requirements of other Parts of the Code based on the total building areas of the air-supported structure and the attached building,

                2. is sprinklered, and

                3. is separated from the air-supported structure by a fire separation having a fire-resistance rating of not less than 1 h.



            5. Applicant's Position


            The arguments made by the Agent for the Applicant did not specifically address the first issue regarding whether the provisions of Section 3.13. are applicable to the proposed shade screen. He focussed his discussion instead on proving why the shade is not a conventional building and thus should not be subject to the construction requirements of Sections 3.2. to 3.4. To this end he submitted that the shade screen, while fitting the definition of a building found in the Building Code Act since it comprises a roof sheltering an occupancy below, does not have a floor area nor a building area as defined in the OBC because there are no exterior walls. As such, the Agent asserted that to apply the full requirements for a conventional building found in the Code to subject structure would not only be problematic, but also onerous. Further, he noted that in the past the Commission approved numerous such structures.

            The Agent also elaborated on, as he argued, the inherent safety of the shade screen. He noted that three sides were completely open and provided access to an approved open space refuge area. The roof fabric itself, with a low flame spread rating of 25, meets the CAN/ULC-S109 standard. Moreover, the only material stored under the screen will be plants and plant material and not lumber, etc.

            Another argument developed by the Agent was that as a seasonal-use facility, the construction of the structure is not intended to be similar to that of a conventional building. The sole purpose of the shade screen, he noted, was to protect plants from the sun and people from the rain. It is not designed to do more or perform other functions. It is the incongruity between the simple purpose of the shade screen, as proposed, and the standards of a full fledged building that may be at the centre of the subject dispute, the Agent suggested.

            Regarding the issue of whether the shade screen is an addition or a separate structure, the Agent indicated that in his view it is clearly a separate and distinct structure. Whereas this would normally mean that Subsection 3.2.3. is applicable to both buildings, he argued however, in the present instance it does not apply to the shade screen, only to the existing store. As he explained, "(b)y the definition of "exposing building face" in Subsection 3.2.3., since there is no exterior wall, Subsection 3.2.3. is not applicable."

            The Agent further expanded on his position by stating:

            "In order to separate (the) buildings, it is our opinion that the Home Depot store must meet the provisions of the OBC for a building facing an imaginary line which has a 0 m limiting distance for spatial separation purposes. Under Clause 3.2.3.7.(2)(a), this requires the exterior wall of the Group E occupancy adjacent to the shade screen to have a 2 h fire-resistance rating, only (not a fire separation), be of noncombustible construction, and have noncombustible cladding."

            As he continued:

            "The OBC allows two buildings to be created on one property. The requirements of Subsection 3.2.3. for spatial separation are applicable to the Home Depot store which is achieved by the provision of the 2 h fire-rated exterior wall which is of noncombustible construction with noncombustible cladding and has protected openings. The provisions of Subsection 3.2.3. are not applicable to the shade screen since there are no exterior walls and therefore, no exposing building face."

            With respect to the exiting arrangement between the two structures, the Agent argued that the Home Depot store is permitted to egress through the shade screen, but this will be limited to 25 percent of the store's total required exiting capacity. And since these are two separate structures, the travel distance may be measured from the exterior wall of the Home Depot building. As well, the Agent is proposing to protect the two exit doors from the store leading into the shade screen with close space exposure sprinklers on the Home Depot side of the doors. The glazing above these doors is also to be protected from store side with a window sprinkler assembly. These measures, he asserted, will provide a safe interface between these structures at the exit doors.

            Lastly, the Agent also offered to add more pull stations at the exit doors and the paint lines in the garden centre area, including the shade screen, to better articulate the required location and width of the aisles.

            In summation, the Agent stated that it was his opinion that their above interpretation of the OBC is consistent with the life safety and fire protection requirements of that document.





            6. Respondent's Position

            The Respondent submitted that his primary difficulty with the proposal is that he cannot classify it under the OBC and therefore is unable to determine appropriate construction requirements. His position therefore on the first issue was that the shade screen is a structure that is subject to neither the requirements of Section 3.13, nor can it be classified under Articles 3.2.2.20. to 3.2.2.83. or any other provisions in the OBC for that matter.

            The Respondent then explained that while he acknowledges the Agent's arguments regarding the seasonal use of the facility, he is nonetheless concerned because during the months the shade screen and garden centre are in operation the occupant load of those areas will likely be just as high per m2 as the existing store.

            The Respondent stated that prior to appeal being made to the BCC he had offered his own suggestions to the Applicant to achieve equivalency. One of the proposals he put forward included a combination of: maintaining the roof with the flame spread rating of 25 and the store's 2 h noncombustible wall, but limit the openings and protect them as if they were in a firewall; excluding the required exit capacity of the main building that leads into the garden centre; providing sufficient exits from the garden centre and prohibiting storage of any combustible material at any time of year in the shade screen, unless a dry-type sprinkler system is installed. This proposal failed because the Applicant, he explained, could not accept discounting the two store exits from discharging into the garden centre.

            As an alternative, the Respondent indicated that he also suggested that a 4 h rated wall conforming to OBC Subsection 3.1.10. be provided between the two structures. This proposal also was not favoured by the Applicant.

            The Respondent did not pose specific arguments addressing the second issue.

            In conclusion, the Respondent stated that he knows that many of these buildings exist in Ontario. But, in his view, their construction was not supported by the Building Code. He indicated that the Code is either not clear on regulating such structures or simply does not address them. Either way, he hoped that the BCC hearing might provide clarity on the current OBC or lead to a possible Code amendment. He also indicated that he would have accepted the previous BCC rulings as a guide to approve the subject structure, but since the Commission cannot, in a strictly legal sense, set precedent he felt he could not rely on earlier decisions. Moreover, since the Code was amended to remove the provisions regarding temporary structures, he was unsure if those BCC decisions could even be used as de facto precedent.



            7. Commission Ruling

            It is the decision of the Building Code Commission that the proposed shade screen cannot be permitted to conform to the construction standards of Section 3.13. Tents and Air Supported Structures. We hold that the shade screen is not a tent in that it is intended to be a permanent, seasonally used structure. It cannot be regarded as an air-supported structure either. As such, the Commission views the shade screen as a building and since no exceptions are allowed in the Code for such a facility, the requirements of Sections such as 3.2. to 3.4. are applicable. The Commission notes that notwithstanding that these structures have been erected throughout the Province, no special standards exist within the OBC to govern such seasonal-use, permanent buildings.

            Having determined that the structure is a building, the Commission notes that it fails to comply with applicable Code requirements. The following are among some of the deficiencies: The building is not sprinklered in accordance with Article 3.2.2.62., the provision determining the construction requirements of buildings of this size and occupancy. Also, the roof covering does not comply with Subsection 3.1.15., which requires the roof to be classified in accordance with CAN/ULC-S-107-M.

            On the secondary issue, it is the decision of the Building Code Commission that the shade screen, which is to be located approximately 150 mm away from an existing exterior wall, is considered as a separate building, and as a result must meet the spatial separation requirements of Subsection 3.2.3. This is in addition to the existing building also being required to meet the spatial separation standards.



            8. Reasons

              1. While the roof is to be removed in the winter, the construction of the shade screen is permanent. The Commission considers even the use of the facility to be permanent, albeit on a seasonal basis. This permanence precludes the shade screen from meeting the definition of a tent, which the Code clearly requires to be temporary.

              2. The shade screen does not meet the definition of an air-supported structure since it is not supported by air. The roof is held up by steel trusses and other structural framing.

              3. The shade screen is separated from the home depot building by a 150 mm gap. It is not attached as an addition must be.



                Dated at Toronto this 11th day in the month of January in the year 2001 for application number 2000-80.







            ___________________________________________________

            Mr. Len King, Vice-Chair





            ___________________________________________________

            Mr. Michael Steele





            ___________________________________________________

            Mr. Fred Barkhouse