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BCC Ruling No. 99-73-729

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-73-729

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

AND IN THE MATTER OF Sentence 9.8.8.5.(1) of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99 and 278/99 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Brian Crann, President, 1115572 Ontario Inc., O/A Southridge Building Company, Tillsonburg, Ontario for the resolution of a dispute with Mr. Douglas Robertson, Chief Building Official, Town of Tillsonburg, Ontario to determine whether a guard with a bottom rail, measured at more than 100 mm to its top, complies with requirements of Sentence 9.8.8.5.(1) of the Ontario Building Code at 49 Trillium Drive, Tillsonburg, Ontario.

APPLICANT
Mr. Brian Crann, President
1115572 Ontario Inc., O/A Southridge Building Company
Tillsonburg, Ontario

RESPONDENT
Mr. Douglas Robertson
Chief Building Official
Town of Tillsonburg

PANEL
Mr. Kenneth Peaker (Chair-Designate)
Mr. Robert De Berardis
Mr. James Lischkoff

PLACE
Toronto, Ontario

DATE OF HEARING
December 2, 1999

DATE OF RULING
December 2, 1999

APPEARANCES
Mr. Brian Crann, President
1115572 Ontario Inc., O/A Southridge Building Company
Tillsonburg, Ontario
The Applicant

Mr. Douglas Robertson
Chief Building Official
Town of Tillsonburg
The Respondent

RULING

  1. The Applicant

Mr. Brian Crann, President, 1115572 Ontario Inc. O/A Southridge Building Company, Tillsonburg, Ontario has received an order to comply under the Building Code Act, 1992 to remedy an exterior guard at 49 Trillium Drive, Tillsonburg, Ontario.

  1. Description of Construction

The Applicant has recently constructed a new, detached single storey Group C - residential occupancy with a building area of 172 m2.

The construction in dispute involves the guard located on a deck at the rear of the house. The guard is composed of vertical pickets supported at the top and bottom by a horizontal rail. Specifically at issue is the height of the bottom horizontal rail, the top of which is measured at 138 mm in height from the surface of the deck. The underside of the rail from the deck surface is 100 mm.

The subject guard is required since the surface of the deck is more than 600 mm above the adjacent grade level.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether a guard with a bottom rail, measured more than 100 mm to its top, complies with the requirements of the Sentence 9.8.8.5.(1) of the Ontario Building Code. The provision stipulates that guards constructed in residential occupancies shall be designed in a way so that no member, attachment or opening located between 100 mm and 900 mm can be used to facilitate climbing. The guard, as constructed, has a height of 100 mm to the bottom of the lower rail and 138 mm to the top of this rail. At issue therefore is whether the horizontal bottom rail, located within the 100 to 900 mm range specified in Sentence 9.8.8.5.(1), can be considered as a climbable feature of the guard.

  1. Provisions of the Ontario Building Code

Sentence 9.8.8.5.(1) - Design to Prevent Climbing

(1) Guards required by Article 9.8.8.1. and serving buildings of residential occupancy shall be designed so that no member, attachment or opening located between 100 mm (4 in) and 900 mm (2 ft 11 in) above the floor or walking surface protected by the guard will facilitate climbing.

  1. Applicant's Position

The Applicant submitted that the as-constructed guard, measuring 138 mm in height from the top of the bottom rail to the porch surface below, complies with Sentence 9.8.8.5.(1) of the OBC. He argued that this provision of the Building Code is intended for situations where a guard design includes another member, attachment, etc., found within the 100 to 900 mm range, besides those required to support the pickets, that could be used for climbing. He stated that he does not believe that the Code can be interpreted as to mean that if the thickness of the bottom rail extends into the 100 to 900 mm range then it is considered climbable. In other words, the 100 mm limitation above the deck should apply to the underside of the rail, not the top. He added that, in his view, Sentence 9.8.8.5.(1) is to be applied where optional design features of a guard may create the opportunity for climbing. In the present case, he noted, the bottom rail is not an optional feature, it is essential to hold the pickets in place.

The Applicant explained that he felt two provisions of the Code were at odds with each other. Specifically, he wondered how it can be possible to have a 100 mm opening under the bottom rail as allowed under the Code, but at the same time not have a climbable member within the 100 to 900 mm range.

The Applicant also argued that he simply assembled the railing as it was manufactured. He indicated that wood railing manufacturers produce railings to meet the required 900 mm guard height and that the factory produced spindle length dictates how far apart the top and bottom rails are constructed. However, since the spindle length is only approximately 825 mm this makes it necessary to raise the bottom rail in order to meet the overall guard height requirement measured at the top rail. He noted that in his experience such railing production is widespread and if proven not to comply with the OBC then he felt that the manufacturers should be so informed.

  1. Respondent's Position

The Respondent submitted that the as-built guard on the rear porch does not comply with Sentence 9.8.8.5.(1) of the OBC. He argued that the lower rail is clearly within the 100 to 900 mm range specified in Sentence 9.8.8.5.(1). As a result, he stated that in his view the subject guard is climbable.

The Respondent rejected the Applicant's interpretation that this provision of the Code is intended to prevent the design of guards that include another member, attachment, etc., beyond the lower rail necessary to support the pickets, that could be used for climbing from being located in the indicated range. As he noted, Sentence 9.8.8.5.(1) does not make any suggestion of "another member", it simply says "no member" will be located in the 100 to 900 mm range.

On the issue of manufactured products and building materials that do not meet Code, the Respondent submitted that this is not the first time he has this experience. He stated that railing manufacturers should make their pickets longer so that this situation does not occur.

Lastly, the Respondent indicated that Articles 9.8.8.4. and 9.8.8.5. are critical for life safety in the home. He has sought clarity on these issues over the years. He noted that Appendix A and the Illustrated Guide to the 1997 OBC have helped in this regard. He hoped that the subject hearing would also provide an interpretation on Sentence 9.8.8.5.(1).

  1. Commission Ruling

It is the decision of the Building Code Commission that the guard with a bottom rail, measured at approximately 138 mm to its top, does not comply with the requirements of Sentence 9.8.8.5.(1) of the Ontario Building Code.

  1. Reasons

(1) The Ontario Building Code states that a guard shall have no climbable member between 100 mm and 900 mm from the floor surface. A horizontal bottom rail within that range could be used for the purposes of climbing the guard.



Dated at Toronto this 2nd day in the month of December in the year 1999 for application number 1999-81.





____________________________

Mr. Kenneth Peaker, Chair-Designate





_______________________

Mr. Robert De Berardis





__________________________

Mr. James Lischkoff