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BCC Ruling No. 00-43-775

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BUILDING CODE COMMISSION DECISION ON B.C.C. #00-43-775

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

AND IN THE MATTER OF Sentences 11.4.2.5.(3) and 11.4.3.6.(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. David M. Bath, Homeowner, 208 Upper Mount Albion Road, Stoney Creek, Ontario, for the resolution of a dispute with Mr. Henry Dekker, Chief Building Official, City of Stoney Creek, Ontario, to determine whether the performance level of the existing sewage system, when considering the proposed renovation that will increase the number of bedrooms and the total finished area by more than 15%, provides sufficiency of compliance with Sentences 11.4.2.5.(3) and 11.4.3.6.(1) of the Ontario Building Code at 208 Upper Mount Albion Road, Stoney Creek, Ontario.

APPLICANT
Mr. David M. Bath, Homeowner
208 Upper Mount Albion Road
Stoney Creek, Ontario

RESPONDENT
Mr. Henry N. Dekker
Chief Building Official
City of Stoney Creek

PANEL
Mr. Bryan Whitehead, Vice Chair
Mr. Bill Fellner
Mr. Frank Wright

PLACE
Toronto, Ontario

DATE OF HEARING
August 24, 2000th, 2000

DATE OF RULING
August 24, 2000th, 2000

APPEARANCES
Ms. Cynthia Woods
Barrister & Solicitor
Toronto, Ontario
Agent for the Applicant

Mr. Collin Potter
Plans Examiner, Building Inspector
City of Stoney Creek
Designate for the Respondent

The Respondent

RULING

1. The Applicant

Mr. David Bath, Homeowner, Stoney Creek, Ontario, has received an order to comply under the Building Code Act, 1992 to up-grade the existing sewage system at 208 Upper Mount Albion Road, Stoney Creek, Ontario.

2. Description of Construction

The Applicant is constructing a new addition to his one storey Group C - residential building. The existing building has an area of 83.24 m2 and accommodates two bedrooms. The new addition includes the expansion of the main floor and the construction of a second floor that will house an extra bedroom. With this, the total finished area of the dwelling will increase to 239.22 m 2. The calculated daily design sewage flow is 2000 litres. The total number of plumbing fixture units, as reported by the Respondent, is 13.

The existing building was constructed before 1950. The Applicant bought the house in 1982. In 1995, he decided to customize the house. In 1996, the Applicant discussed his proposal for a new addition with the then-enforcement authority for regulations governing on-site sewage systems (the Ministry of the Environment). A response from the Health Unit, at that time, indicated that he did not need to obtain a Certificate of Approval for a new sewage system as he was only proposing to enlarge the first floor without any additional plumbing fixture units. In 1997, the Applicant constructed the footings without a building permit. In 1998, after a "stop work order" was issued by the municipality, the Applicant formally applied for a building permit and received a conditional permit. At this time, the septic regulations were transferred to the Ministry of Municipal Affairs and Housing. For this reason, later in November of 1999, when the Applicant applied for a building permit and submitted the working drawings for his proposal to finish the construction, he was required to upgrade the existing sewage system. The Applicant continued the construction of the new addition until he was issued an "order to comply" and a "stop work order" both in March of 2000.

The construction in dispute involves the adequacy of the existing septic system in servicing the enlarged dwelling

Two different drawings were submitted to demonstrate the existing septic system, which is described as an in-ground absorption trench system consisting of a 4500 litre septic tank and a leaching bed. The leaching bed was described as consisting of six tile runs and nine tile runs in different drawings. The septic tank, as shown in the drawings, is set back 3m from the existing building and 1.5 m and 2.4 m from the new addition. The clearance distance between the absorption trenches and the new construction is 0.6 m. The total length of the absorption trenches is 64 m for the six-tile run bed. During the hearing, the Applicant indicated that there is also a greywater system connected to the leaching bed. However, he did not know where exactly it is located nor its capacity.

The subject site has an area of 1393 m2 and a slope of three percent. The native soil is reported to be clay soil with a percolation time of more than 50 min/cm.

The water supply to the site is provided by municipal water supply.

3. Dispute

The issue at dispute between the Applicant and Respondent is whether the performance level of the existing sewage system, when considering the proposed renovation that will increase the number of bedrooms and the total finished area by more than 15%, provides sufficiency of compliance with Sentences 11.4.2.5.(3) and 11.4.3.6.(1) of the Ontario Building Code.

Sentence 11.4.2.5.(3) sets out the situations that would reduce the performance level of an existing dwelling. These situations include an addition of more than 15% to the building area of an existing dwelling, an increase in the number of the plumbing fixture units, and an increase in the number of bedrooms that together, or alone would result in a daily design sewage flow in excess of the designed capacity for any component of an existing sewage system. In other words, if the resultant increase in the daily design sewage flow, due to any of the above conditions, exceeds the capacity of one component or the whole septic system, the performance level of the dwelling is reduced.

Sentence 11.4.3.6.(1) requires up-grading of an existing septic system to comply with requirements of Part 8, if the performance level of the dwelling is reduced. In other words, this sentence applies, if one of the conditions specified in Sentence 11.4.2.5.(3) leads to a reduction in performance level of an existing dwelling.

In the present case the addition to the subject building area is more than 50 percent and the number of bedrooms is increased from two to three. There is no change in the total number of plumbing fixture units, which is reported to be six by the Applicant, but 13 by the Respondent.

Therefore, at issue is whether the subject additions negatively affect the performance level of the existing building and, as a result, require that the existing septic system be upgraded.

4. Provisions of the Ontario Building Code

Sentence 11.4.2.5 Sewage Systems

(3) The performance level of an existing dwelling unit is reduced where proposed construction which,

  1. increases the number of bedrooms in the dwelling unit,
  2. exceeds 15% of the gross area of the dwelling unit, or
  3. adds new plumbing fixtures to the dwelling unit, will result in the total daily design sanitary sewage flow of the dwelling unit, calculated in accordance with Article 8.2.1.3., exceeding the capacity of any component of a sewage system the dwelling unit.

Sentence 11.4.3.6. Sewage Systems

(1) Where the performance level of an existing building is reduced under Article 11.4.2.5., upgrading of a sewage system which is adversely affected by a construction, increase in occupant load, increase in the total daily design sanitary sewage flow or change in amount or type of sanitary sewage shall be required in conformance with Part 8

5. Applicant's Position

The Agent for the Applicant submitted that the construction of the new addition started in 1996 and continued as funds became available. He was not informed of any time restriction for a building permit nor was he aware of the transfer of the septic regulations to the Ministry of Municipal Affairs and Housing.

The Agent argued that the municipality had not informed the Applicant about the reasons for what the conditional building permit was issued. Had he (the Applicant) been informed about this, he would not have continued the construction.

The Agent then stated that she believes that there should be a mechanism to allow the Applicant to finish the construction. If the sewage system does not function properly, then the Applicant should be required to upgrade the system. With a system that is functioning well for years and with the possibility of municipal sewers coming to the site soon, the upgrading of the system imposes an unnecessary burden on her client, she argued.

The Agent proposed that the Applicant be allowed to finish the roof to protect the constructed parts, on the condition that the newly built areas are not occupied.

6. Respondent's Position

The Respondent submitted that the application for a building permit was submitted in 1998. Therefore, it should be processed under current regulations that require upgrading of the existing septic system.

The Respondent stated that the conditional permit was issued to legitimize what was already in the ground. The application for the building permit with the drawings were submitted in November 1999. At this time, the foundation walls had also been constructed.

The Respondent argued that it was after examining the building drawings that the addition of a new bedroom was discovered. In addition, the increase in building area is significant. For all these reasons, it was their position that the performance level of the existing building is reduced and the existing septic system is required to be upgraded to comply with the requirements of Part 8 of the Ontario Building Code.

7. Commission Ruling

It is the decision of the Building Code Commission that the performance level of the existing dwelling is reduced by construction of the proposed additional bedroom and floor area. The sewage system must be upgraded to service the proposed construction.

8. Reasons

i. The sewage load for the proposed house far exceeds the capacity of the existing system.

ii. The existing sewage system does not meet the setback requirements from the new foundation and appears to be constructed in soils with a percolation time greater than permitted for a trenched inground leaching bed.

iii. There was no demonstration that the existing leaching bed is functioning adequately except for the comment that there is no seepage.

iv. The greywater system does not meet the requirements of the Ontario Building Code.

Dated at Toronto this 24th, day in the month of August in the year 2000 for application number 2000-25.

_______________________________________________

Mr. Bryan Whitehead, Vice Chair

_______________________________________________

Mr. Bill Fellner

_______________________________________________

Mr. Frank Wright