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BCC Ruling No. 99-01-657

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-01-657

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

AND IN THE MATTER OF Sentence 3.8.2.1.(3). of Regulation 403, as amended by O. Reg. 22/98, 102/98 and 122/98 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Tim Gorley, Project Manager, Page + Steele Architects Planners, Toronto, Ontario, for the resolution of a dispute with Mr. Yaman Uzumeri, Chief Building Official, City of Toronto, Ontario to determine whether the proposed dwelling unit balconies, which are not intended as areas of refuge, are required to be barrier-free when considering Sentence 3.8.2.1.(3) of the Ontario Building Code at 550 Queen's Quay West, Toronto, Ontario.

APPLICANT

Mr. Tim Gorley, Project Manager
Page + Steele Architects Planners
Toronto, Ontario

RESPONDENT

Mr. Yaman Uzumeri
Chief Building Official
City of Toronto

PANEL

Mr. Roy Philippe (Chair)
Ms. Susan Friedrich
Mr. Cliff Youdale

PLACE

Toronto, Ontario

DATE OF HEARING

January 12, 1999

DATE OF RULING

January 12, 1999

APPEARANCES

Mr. Allan Larden, Principal
Larden Muniak Consulting Inc.
Toronto, Ontario
For the Applicant

Mr. Wade Tam
Building Engineer
City of Toronto
For the Respondent

RULING

  1. The Applicant

Mr. Tim Gorley, Project Manager, Page + Steele Architects Planners, 95 St. Clair Avenue West, Toronto, Ontario, has applied for a building permit under the Building Code Act, 1992 to construct a 12 storey, residential condominium building at 550 Queens Quay West, Toronto, Ontario.

  1. Description of Construction

The Applicant is proposing to construct a new 12 storey, Group C - Residential condominium structure, with a building area of 2,148 m2. The building is to be constructed of noncombustible construction, and will be equipped with a fire alarm system, a standpipe and hose system, but not a sprinkler system.

The exterior balconies of the subject building are proposed to be built with a curb or upstand at the threshold of the doorway. The balconies are not intended as areas of refuge, therefore the Applicant does not intend to make them barrier-free.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the proposed dwelling unit balconies, which are not intended as areas of refuge, are required to be barrier-free when considering Sentence 3.8.2.1.(3) of the Ontario Building Code. In other words, the issue centres on whether this provision applies only to balconies that are built specifically to meet the barrier-free path of travel fire protection requirements of the 1997 OBC, in particular Article 3.3.1.7., or whether it applies to all dwelling unit balconies, including those in the subject building. If the latter is found to be the interpretation of the Code, modifications to the balconies would be necessary.

  1. Provisions of the Building Code

Article 3.3.1.7. Protection on Floor Areas With a Barrier-Free Path of Travel

(1) Except as provided in sentences (2) and (3), every floor area above or below the first storey that has a barrier-free path of travel shall

(a) be served by an elevator

(i) conforming to Sentences 3.2.6.9.(4) to (6),

(ii) protected against fire in conformance with Clauses 3.2.6.9.(3)(b) or (c), and

(iii) in a building over 3 storeys in building height, protected against smoke movement so that the hoistway will not contain more than 1% by volume of contaminated air from a fire floor during a period of 2 h after the start of a fire, assuming an outdoor temperature equal to the January design temperature on a 2.5% basis determined in conformance with Subsection 2.5.1., or

(b) be divided into at least 2 zones by fire separations conforming to Sentences (4), (5) and (6) so that

(i) persons with physical disabilities can be accommodated in each zone,

(ii) the travel distance from any point in one zone to a doorway leading to another zone shall be not more than the value for travel distance permitted by Sentence 3.4.2.5.(1) for the occupancy classification of the zone, and

(iii) a barrier-free path of travel is provided to an exit.

(2) In residential occupancies, the requirements of Sentence (1) are waived if a balcony conforming to Sentence (7) is provided for each suite, except for suites on the storey containing the barrier-free entrance described in Article 3.8.1.2.

(3) The requirements of Sentences (1) and (2) are waived when the building is sprinklered.

Sentence 3.8.2.1.(3)Areas requiring Barrier-Free Path of Travel

(3) Where a balcony is provided in a dwelling unit, access shall be provided to the balcony

(a) by a doorway with a clear width of not less than 800 mm (2 ft 7 in) when the door is in the open position, and

(b) such that no projection above the walking surface is more than 13 mm (« in).

  1. Applicant's Position

The Applicant submitted that Sentence 3.8.2.1.(3) of the OBC is not applicable to all residential unit balconies, it is only meant for balconies which are designed with the intention of satisfying the requirements of Article 3.3.1.7.

In his view, Sentence 3.8.2.1.(3) and Article 3.3.1.7. should be considered together, not in isolation, since the two provisions are integrally linked. As the Applicant noted, Article 3.3.1.7. mandates a requirement for certain fire protection measures on floor areas with a barrier-free path of travel. This provision, however, offers several compliance options. These are; to provide a firefighters' elevator [3.3.1.7.(1)(a)], to subdivide the floor area with fire separations [3.3.1.7.(1)(b), to provide a balcony that can act as a fire refuge [3.3.1.7.(2)], or to sprinkler the building [3.3.1.7.(3)]. Sentence 3.8.2.1.(3), the Applicant argued, simply followsfrom the compliance choice found in Sentence 3.3.1.7.(2) and sets out a specific standard detailing the construction of a balcony that has been designed as a method of conforming to the general requirement for fire protection on floor areas with a barrier-free path travel. He stressed that Sentence 3.8.2.1.(3) should not be viewed as a stand alone requirement dictating the design of balconies that are not intended as barrier-free areas of refuge.

The Applicant argued that his interpretation of Sentence 3.8.2.1.(3) and Article 3.3.1.7. are based on the historical development of these particular Code provisions in both the National Building Code (NBC) and the OBC. He presented an historical overview of the development of these provisions.

By way of background, the Applicant discussed the lack of clarity in the 1990 versions of the NBC and OBC that surrounded the issue of accessibility to balconies that were intended as areas of refuge. The problem, as the Applicant described it, was that the subject balconies were built large enough to accommodate wheelchairs, but that the curb constructed at the threshold to the balcony did not allow for wheelchair access. The 1995 NBC attempted to address this by modifying its Clause 3.3.1.7.(5)(a) to stipulate that a balcony had to provide "direct barrier-free access from the suite or floor area". While not providing precise construction standards, the Applicant noted that this provision did require that the balconies referred to in that Article had to be accessible.

When Ontario modified its Building Code in 1997, it chose not to amend Article 3.3.1.7., instead, partly due to its attempt to consolidate the barrier-free requirements, Ontario chose to modify Article 3.8.2.1. (found within Section 3.8, Barrier-Free Design) by adding a new Sentence (3). This Sentence also required access to the balcony and, in fact, went further by including precise construction requirements. The obvious intent behind this revision to the OBC, the Applicant argued, was to follow the NBC lead in developing provisions to help clarify Article 3.3.1.7. regarding balcony access, the main difference being that the OBC clarification change was made specifically to the section regarding barrier-free standards. Unfortunately, the Applicant indicated, the OBC change did not cross-reference Article 3.3.1.7. as the NBC change had done.

The Applicant also presented evidence in the form of a statement from the Chair of the 1997 Barrier-Free OBC Committee indicating that the members on that panel did not anticipate that their discussions and considerations of Sentence 3.8.2.1.(3) were intended to apply to balconies that were not designed as areas of refuge.

The Applicant also argued that it was not the intention to amend the OBC to require universal balcony accessibility because a new change of that magnitude would have gone through an extensive consultation process. This issue had no consultation, and was not discovered by Code users until after the 1997 OBC came into effect.

The Applicant asserted that many practical problems would arise if the Respondent's interpretation concerning barrier-free accessibility to all balconies was correct. Specifically, without a curb at the threshold water penetration would likely occur. In turn, this wouldcause difficulties for condominium owners/tenants and would probably result in lawsuits and/or claims with designers, builders and the New Home Warranty Program. Design solutions to deal with water penetration are problematic and expensive, he indicated.

The 13 mm (1/2 in) allowable difference between interior and exterior grades causes other problems too. Floor finishes, for example, must be restricted to thin materials only, otherwise the 13 mm restriction will be exceeded. As well, considering usual construction tolerances, the Applicant noted that a 13 mm variation between grades is difficult to achieve. Having no sizeable threshold also causes difficulties regarding installation of baseboard heating elements. Finally, if all balconies must meet the standards for accessibility, the Applicant pointed out that smaller balconies would not be possible because they could not accommodate a wheelchair, although many such balconies have been designed and built in Ontario.

Lastly, the Applicant concluded by stating that the Respondent's position was based on a much too literal reading of the OBC. This has led to an interpretation of the Code that ignores the intent behind the said provisions. For the reasons stated above, he believes that the intent of OBC 3.3.1.7. and 3.8.2.1.(3) does not require all balconies, including those in dispute, to be barrier-free, only those that intended as areas of refuge.

  1. Respondent's Position

The Respondent submitted that all balconies are required to be barrier-free. In his view, the Code is quite clear. Sentence 3.8.2.1.(3) explicitly states that dwelling units that have balconies must have a doorway with a clear width of at least 800 mm (2 ft, 7 in), and that no projection above the walking surface be more than 13 mm. In other words, there can be no curb or upstand at the threshold. He argued that, as an enforcement official, he must rely on the plain meaning of the provisions as set down in the OBC. As a result, he believes that Sentence 3.8.2.1.(3) requires the subject balconies to be barrier-free.

  1. Commission Ruling

It is the decision of the Building Code Commission that the requirements of Sentence 3.8.2.1.(3) of the Building Code apply only with respect to balconies provided to satisfy Sentence 3.3.1.7.(7) of the Building Code.

  1. Reasons

1) The introduction of the requirements in Sentence 3.8.2.1.(3) for balcony access was based on the 1995 NBC change series which clearly limits the application of balcony access to Article 3.3.1.7., "Protection on Floor Areas With a Barrier-Free Path of Travel."

2) The application of Sentence 3.8.2.1.(3) to all balconies would be contradictory to Clause 3.8.2.1.(2)(k) which exempts barrier free access within suites of residential occupancy.

3) Editorial changes to Sentence 3.8.2.1.(1) and Sentence 3.3.1.7.(7) are required for clarification purposes.

4) The Commission reviewed Appendix A to the Building Code under Sentence 3.8.2.1.(2) for direction on the intent of the code, which is consistent with the decision.

5) It is the assessment of the Building Code Commission that the intent of the Building Code in reviewing all evidence presented is that Sentence 3.8.2.1.(3) applies only to balconies used as required in Article 3.3.1.7.

Dated at Toronto this 12th day in the month of January in the year 1999 for application number 1998-68.

Mr. Roy Philippe, Chair

Ms. Susan Friedrich

Mr. Cliff Youdale