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BCC Ruling No. 00-44-776

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-08-664

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

AND IN THE MATTER OF Article 8.8.1.2. of Regulation 61, 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. William Hawryluk, cottage owner, 170 Anton Street, Thunder Bay, Ontario for the resolution of a dispute with Mr. Allan Campbell, Director - Public Health Inspection, Thunder Bay District Health Unit, Thunder Bay, Ontario to determine whether the proposed installation of a Class 5 sewage system for a seasonal dwelling provides sufficiency of compliance with Article 8.8.1.2. of the Ontario Building Code at Lot No. 27, Plan W-786, Fire Number 730, Cloud Lake Road, Township of Crooks, District of Thunder Bay, Ontario.

APPLICANT
Mr. William Hawryluk, cottage owner
170 Anton Street
Thunder Bay, Ontario

RESPONDENT
Mr. Allan Campbell
Director - Public Health Inspection
Thunder Bay District Health Unit

PANEL
Mr. Roy Philippe, Chair
Mr. Bryan Whitehead
Mr. Doug Robinson

PLACE
Toronto, Ontario / Thunder Bay, Ontario / Mesa, Arizona

DATE OF HEARING
February 11, 1999

DATE OF RULING
February 11, 1999

APPEARANCES

APPLICANT
Mr. William Hawryluk cottage owner
cottage owner
Thunder Bay, Ontario

RESPONDENT
Ms. Lisa Kellogg, Field Supervisor
Thunder Bay District Health Unit
Thunder Bay, Ontario

RULING

1. The Applicant

Mr. William Hawryluk, cottage owner, has applied for a building permit under the Building Code Act, 1992 to install a Class 5 (holding tank) sewage system at his seasonal residence at Lot No. 27, Plan W-786, Fire Number 730, Cloud Lake Road, Township of Crooks, Ontario.

2. Description of Construction

The Applicant is proposing to install a new Class 5, or holding tank, sewage system at his recently built two storey, detached Group C - occupancy seasonal dwelling unit located on Cloud Lake. The building is described as an A-frame style cottage, having 8.5 fixture units, three bedrooms, and a total finished area of 102 m2 (1094 ft2). The total daily design flow rate is calculated at 1,600 litres per day. The cottage is intended to be used by five people. The property is currently served by a Class 1 earth pit privy sewage system.

The proposed new sewage system would consist of a 11,000 L (2,400 gallon) concrete holding tank. The effluent would be disposed to the holding tank from the cottage by means of gravity. The tank would be located to the west of the structure, and would be easily accessible from the driveway. The holding tank is placed on the site such that adequate clearance distances are maintained to the site=s lot lines. A holding tank service agreement has been entered into with a local sewage hauler.

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The site is very steep, with a slope exceeding thirty percent, and has an approximate area of 2,147 m2 (23,100 ft2). There is a small plateau on which the cottage was built. The native soils are described as rocky clay. The entire property, with the exception of the building and driveway, is treed.

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The water supply provided to the subject residence is a pressurized system that will be pumped from the lake.

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3. Dispute

The issue at dispute between the Applicant and Respondent is whether the proposed installation of a Class 5 holding tank is permitted at this site under Article 8.8.1.2. of the OBC. This provision sets out the conditions under which a Class 5 system may be installed. The intent of this Article seems to be to restrict the installation of new holding tanks, especially when serving seasonal recreational uses, unless extraordinary circumstances exist. If the proposal at issue cannot demonstrate compliance with one of the criteria set out in Article 8.8.1.2. then a holding tank is not allowed.

4. Provisions of the Ontario Building Code

Article 8.8.1.2. Acceptable Installation

(1) A Class 5 sewage system may be installed in the following circumstances:

  1. where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration,
  2. to permit the extension of an existing single-family dwelling provided that
  3. the extension will not increase the wastewater load, and
  4. the building is already served by a Class 5 sewage system,
  5. to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,
  6. to upgrade a sewage system on an existing lot or parcel of land, where upgrading through the use of a Class 4 sewage system is not possible due to lot size or clearance limitations, or
  7. as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.

(2) Where a Class 5 sewage system is installed, a written agreement for the disposal of sanitary sewage from the sewage system shall be entered into with a hauled sewage system operator

5. Applicant's Position

The Applicant submitted that he should be allowed to install a holding tank since, in his view, he conforms with Clause (1)(d) of Sentence 8.8.1.2. After a brief description of the site and its historical development, he introduced the mayor of the municipality and its Chief Building Official, who appeared as witnesses on his behalf.

The Chief Building Official noted that Clause 8.8.1.2.(1)(d) allows an upgrading of an existing sewage system to a Class 5 holding tank when a Class 4 system is not possible due to lot size or clearance limitations. The Chief Building Official indicated that this current Class 1 system constituted an existing facility as required under Clause 8.8.1.2.(1)(d), and it is this system that the Applicant intends to upgrade. Furthermore, he argued that the intent behind Clause 8.8.1.2.(1)(d) is to allow upgrades to a Class 5 system where there are tangible site constraints that would preclude the installation of a Class 4 system.

Bearing this in mind, he went on to argue that this site's constraint was the severe slope of his property, that ranges between 30 to 40 percent. A Class 4 system would not function and is not allowed to be installed on such a slope. While excessive slope is not specifically mentioned in Clause 8.8.1.2.(1)(d), the slope condition at this property, the Chief Building Official pointed out, certainly negates the option of installing a Class 4 system just as not being able to meet the lot size or clearance limitations standards would do likewise. He concluded that a holding tank would provide less hazard to the land and lake below than the current Class 1 system.

The Applicant also argued that the installation of a holding tank, from an environmental point of view, would vastly improve the current situation. He indicated that there are other cottages in the area that have holding tanks that function well. As a result, he noted that the area is well served by experienced and licenced sewage hauling operators. The Applicant stated that he had already entered into a service agreement with a local sewage hauler in accordance with Sentence 8.8.1.2.(2).

6. Respondent's Position

The Respondent submitted that a holding should not be allowed for the subject property according to Article 8.8.1.2. She discussed the five conditions under which a holding tank would be acceptable and the proposal at issue did not conform to any. Nevertheless, regarding the Applicant=s arguments concerning Clause 8.8.1.2.(1)(d), she indicated that she agreed that upgrading an existing system could encompass improving from a Class 1 system, for which no permit is necessary, to a Class 5 facility. In her view, the earlier Class 1 system on the site does represent an existing situation.

However, she noted that the subject OBC Clause 8.8.1.2.(1)(d) listed only two specific conditions, lot size and clearance limitations, as the qualifying site constraints and no others. She further noted that slope is not listed. For this reason, the Respondent felt that the Code did not allow her to approve this proposed holding tank installation. To do so would be beyond her jurisdiction.

The Respondent then raised the issue that if holding tanks were to be more widely available this could cause a problem since no facility existed yet in the municipality to handle the hauled liquid waste.

Having made this case, the respondent indicated that she sympathized with the Applicant=s predicament. The difficulties with the site meant that basically no sewage system could be approved. Considering this from a practical standpoint she felt that a holding tank would be appropriate in this situation, especially since a pressurized system pumping water from the lake has already been installed in the cottage.

Finally, the Respondent expressed some uncertainty as to why a permit was issued for the construction of the building prior to the resolution of the sewage issue.

7. Commission Ruling

It is the decision of the Building Code Commission that the proposed installation of a Class 5 sewage system for a seasonal dwelling provides sufficiency of compliance with the Article 8.8.1.2. of the Ontario Building code at Lot No. 47, Plan W-786, Township of Crooks, District of Thunder Bay.

8. Reasons

  1. A Class 5 sewage system may be installed to upgrade a sewage system on an existing lot or parcel land where upgrading through the use of a Class 4 system is not possible due to a lot size or clearance limitations. It is the opinion of the commission that this condition exists on this site since the only areas suitable by slope, for a Class 4 system are too close to the dwelling.
  2. A Class 1 system and cottage existed on the site at the time of application and therefore Clause 8.8.1.2.(1)(d) applies.

Dated at Toronto this 11th, day in the month of February in the year 1999 for application number 1998-62..

_______________________________________________

Mr. Roy Philippe, Chair

_______________________________________________

Mr. Bryan Whitehead

_______________________________________________

Mr. Doug Robinson