Skip to content
You are here > Home > Your Ministry > Ontario Building Code > Appeals & Approvals > Building Code Commission > Rulings of the Building Code Commission > 2000 > BCC Ruling No. 00-30-762

Follow us

BCC Ruling No. 00-30-762

Email this page

BUILDING CODE COMMISSION DECISION ON B.C.C. #00-30-762

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

AND IN THE MATTER OF Sentence 9.10.14.12.(5) 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. Lou Squazzin, Construction Manager, Kenmore Homes (1987) Inc., London, Ontario, for the resolution of a dispute with Mr. R. Cerminara, Chief Building Official, City of London, Ontario, to determine whether the existing exposing building face that does not offer a fire-resistance rating of 45 minutes and is clad with combustible siding, but which has been built with a zero metre limiting distance, provides sufficiency of compliance with Sentence 9.10.14.12.(5) of the Ontario Building Code for at Lot 191, 331 Whitesands Drive, London, Ontario.

APPLICANT
Mr. Lou Squazzin, Construction Manager
Kenmore Homes (1987) Inc.
London, Ontario

RESPONDENT
Mr. Rocky Cerminara
Chief Building Official
City of London

PANEL
Dr. Kenneth Peaker, Chair
Mr. Fred Barkhouse
Mr. Len King

PLACE
Toronto, Ontario

DATE OF HEARING
June 29th, 2000

DATE OF RULING
June 29th, 2000

APPEARANCES
Mr. Lou Squazzin
Kenmore Homes (1987) Inc.
London, Ontario
The Applicant

Mr. Rocky Cerminara
Chief Building Official
City of London
The Respondent

RULING

  1. The Applicant

Mr. Lou Squazzin, Construction Manager, Kenmore Homes (1987) Inc. London, Ontario, has received an order to comply under the Building Code Act, 1992, to remedy certain perceived deficiencies at Lot 191, 331 Whitesands Drive, London, Ontario.

  1. Description of Constrution

The Applicant has recently constructed a new, detached Group C - residential building. The dwelling is described a 1 ? storey backsplit house with a building area of 111 m2 and is of combustible construction.

The north facing wall of the house has a limiting distance of zero metres to the lot line. The one storey western portion of this wall, located to the front of the dwelling, is clad with a veneer of brick. The 1 ? storey rear, or eastern portion, of the wall is clad with brick veneer on the lower third while the upper two thirds is vinyl siding. The construction of the wall assembly where the siding is located is (from interior to exterior); 12.7 mm drywall, 6 mm poly, fibreglass batt insulation, 2" by 4" wood studs, Cladmate sheathing, building paper, and vinyl siding. The fire-resistance rating of this exposing building face is not considered to be at least 45 minutes.

The distance between the rear of the subject house, where the siding is located, and the adjacent house is 4.15 m. A 1.8 m wide municipal easement located directly beside the disputed building runs the entire length of the lot line on the neighbouring property. This easement, created by by-law, provides for municipal access onto this property for servicing purposes.

The construction in dispute involves the as-constructed combustible exposing building face built with a limiting distance of zero to the lot line.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the existing exposing building face that does not offer a fire-resistance rating of 45 minutes and is clad with combustible siding, but which has been built with a zero metre limiting distance, provides sufficiency of compliance with Sentence 9.10.14.12.(5) of the Ontario Building Code. This provision permits the effective limiting distance to be projected to a point beyond a property line under certain conditions, namely that the owners of the affected properties and the municipality enter into an agreement to do so and that this agreement be registered on title.

The Applicant proposes that the 1.8 m wide easement, which has been created by a municipal by-law and is registered on title of both properties, be substituted for the legal agreement specified in Sentence 9.10.14.12.(5). The appropriate limiting distance necessary to ensure conformance for the approximately 18 m2 vinyl siding portion of the wall is 1.2 m as per Sentence 9.10.14.12.(2).

While the substitution of a municipal easement in lieu of an agreement conforming to Sentence 9.10.14.12.(5) is a significant question, it is, in the Commission's view, predominantly a legal, not a technical, consideration. Since the mandate of the BCC is to deal with the technical requirements of the OBC, the Commission will therefore focus on the technical issue of whether sufficient protection with respect to the subject exposing building face has been provided.

At issue thus, is whether adequate compensatory measures are being offered in lieu of providing a legal agreement as required in Sentence 9.10.14.12.(5).

  1. Provision of the Building Code

Sentence 9.10.14.12.(5) - Exposing Building Face of Houses

(5) The required limiting distance for an exposing building face is permitted to be measured to a point
beyond the property line that is not the centre line of a street, lane or public thoroughfare if;

  1. the owners of the properties on which the limiting distance is measured and the municipality enter into an agreement in which such owners agree that,

i. each owner covenants that, for the benefit of land owned by the other covenantors, the owner will not construct a building on his or her property unless the limiting distance for exposing building faces in respect of the proposed construction is measured in accordance with the agreement,

ii. the covenants contained in the agreement are intended to run with the lands, and the agreement shall be binding on the parties and their respective heirs, executors, administrators, successors and assigns,

iii. the agreement shall not be amended or deleted from title without the consent of the municipality, and

iv. they will comply with such other conditions as the municipality considers necessary, including indemnification of the municipality by the other parties; and

  1. the agreement referred to in Clause (a) is registered against the title of the properties to which it applies.

  1. Applicant's Position

The Applicant acknowledged that they do not have a written legal agreement as stipulated in Sentence 9.10.14.12.(5) of the Ontario Building Code. He argued, however, that since no construction will occur in the easement on the neighbour's property directly beside the subject house, the agreement is unnecessary. The easement, in fact, accomplishes everything that would an agreement referred to in Sentence 9.10.14.12.(5). To this end he offered the following statement:

"We feel sufficiency of compliance with the technical requirements of Section 9.10.14.12.(5) of the building code have been met for this home. The limiting distance for the North wall of this home we believe can be measured to a minimum distance of 1.2 meters (sic) into the 1.8 meter (sic) easement along the North side of this property on the adjacent property which is registered to both property owners. Construction on this easement is protected from construction as outlined in the City of London By-law Z-1, Section 5(3). This By-law is only able to be removed by the City of London if they decide to amend the By-law. Thus, we feel that a sufficient agreement is in place to prevent the construction on this easement without written consent from the City. We feel all requirements have been met to show sufficiency of compliance of Section 9.10.14.12.(5)."

In support of this argument, the Applicant submitted two other documents. The first was a letter expressing an opinion by his legal counsel that reiterated the position that the situation with respect to building encroachments between the two properties is governed by the By-Law. The letter, he noted, states that the easement is sufficient to allow the City to prevent construction. The second item was a copy of the By-Law which demonstrated the requirement to register these easements on title. Attached to that was a copy of the actual deed of land for the subject property showing the easement it enjoys on the neighbouring land as well as an easement the adjacent owner on the other side of the property has on the opposite side of the disputed lot.

  1. Respondent's Position

The Respondent submitted that, in their view, there are two ways the subject zero lot line exposing building face can comply with the Ontario Building Code. The first is by conforming to the construction requirements in Sentences 9.10.14.12.(2) and (3), which in the present case would mean that the wall assembly would have to provide a minimum fire-resistance rating of 45 minutes. This could be achieved, he noted, by removing the siding and building paper and adding a layer of 12.7 mm (? in) drywall on the outside of the studs. The second way is to enter into an agreement as stipulated in Sentence 9.10.14.12.(5). Since neither of these alternatives have been met, the Respondent indicated that the exposing wall was in violation of the Code.

On the question of whether an easement can be substituted in lieu of a legal agreement between the property owners and the municipality (which he described as a "no build agreement"), the Respondent stated that the Code specifically asks for an agreement. He argued that a literal reading of the Code clearly does not allow easements to be used in place of a Sentence 9.10.14.12.(5) agreement.

Nevertheless, the Respondent recognized that the easement prevents the neighbouring owners from building in that area, and as a result he expressed a degree of support for the Applicant's position. Indeed, he indicated that the Applicant has raised an important question as to whether an easement as such can in fact replace the legal agreement set out in Sentence 9.10.14.12.(5). He added that it was his hope that the Commission could provide some direction on this issue.

  1. Commission Ruling

It is the decision of the Building Code Commission that the existing exposing building face that does not offer a fire-resistance rating of 45 minutes and is clad with combustible siding, but which has been built with a zero metre limiting distance, does not provide sufficiency of compliance with Sentence 9.10.14.12.(5) of the Ontario Building Code for at Lot 191, 331 Whitesands Drive, London, Ontario.

  1. Reasons

i. Since a legal agreement between the relevant parties and the municipality has not been prepared the proposal does not meet OBC 9.10.14.12.(5).

ii. No compensating measures were proposed.

  1. Recommendation(s)

The BCC recommends that this issue be examined by the Branch to determine if an agreement between adjacent property owners, as referenced by Sentence 9.10.14.12.(5), is necessary where there is an easement in place created by municipal by-law.

Dated at Toronto this 29th day in the month of June, in the year 2000, for application number 2000-31.





____________________________

Mr. Kenneth Peaker, Chair





_______________________

Mr. Fred Barkhouse





__________________________

Mr. Len King