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BCC Ruling No. 99-74-730

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BUILDING CODE COMMISSION DECISION ON B.C.C. #99-74-730

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

AND IN THE MATTER OF Article 1.1.3.2. 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. Peter Turner, Principal, Turner Fleischer Architects Inc., Toronto, Ontario for the resolution of a dispute with Mr. Yaman Uzumeri, Chief Building Official, City of Toronto, Ontario to determine whether the proposed live/work units measuring 146.7 m2 in area, excluding stairs and unfinished basements, comply with the definition of live/work units provided in Article 1.1.3.2. of the Ontario Building Code at 1590 O'Connor Drive, Toronto, Ontario.

APPLICANT

Mr. Peter Turner, Principal
Turner Fleischer Architects Inc.
Toronto, Ontario

RESPONDENT

Mr. Yaman Uzumeri
Chief Building Official
City of Toronto

PANEL

Mr. Kenneth Peaker (Chair-Designate)
Mr. John Guthrie
Mr. Fred Barkhouse

PLACE

Toronto, Ontario

DATE OF HEARING

December 9, 1999

DATE OF RULING

December 9, 1999

APPEARANCES

Mr. Randal Brown, President/Consulting Engineer
Randal Brown and Associates Ltd.
Toronto, Ontario
Agent for the Applicant

Mr. Eric Tsotsos
Senior Field Officer
City of Toronto, East District
For the Respondent

RULING

  1. The Applicant

Mr. Peter Turner, Principal, Turner Fleischer Architects Inc., Toronto, Ontario has applied for a building permit under the Building Code Act, 1992, to construct a townhouse condominium project at 1590 O'Connor Drive, Toronto, Ontario.

  1. Description of Constrution

The Applicant is proposing to construct 12 new, Group C (residential) condominium townhouse structures. The buildings are described as three storeys (plus basement) in building height, having various sized building areas (all are Part 9 buildings) and are constructed of combustible construction. A total of 94 units are proposed for the project, with 31 one of these to be built on the concept of live/work spaces.

All of the live/work units of the project face onto O'Connor Drive, a large commercial street. The work portion of the live/work are proposed to be located at the front of the ground floor only and would have a direct entrance onto O'Connor Drive. Another ground floor entrance, for the residential portion of the units, is to be located at the rear of each unit.

The Applicant is also proposing to separate the work component from the residential area of the units by constructing the walls and ceiling of the work area as a one hour fire separation.

The construction in dispute involves the area of the proposed live/work units. As measured without factoring in the stairs and the unfinished basement, the typical live/work unit will have an area of 146.7 m2. When the excluded areas, the stairs and basement, however, are added, the calculated area of the live/work units increases to approximately 204 m2.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the proposed live/work units measuring 146.7 m2 in area, excluding stairs and unfinished basements, comply with the definition of live/work units provided in Article 1.1.3.2. of the Ontario Building Code. The OBC definition of a live/work unit, as shown below, limits the "area" of such a unit to 150 m2. The total area of the proposed units, at roughly 204 m 2, exceeds the 150 m2 limit by 54 m2, or 36 per cent.

The intention of the 150 m2 area limit, as stated in the Housing Development and Buildings Branch's Technical Background Information memo, is "to restrict the size, fire load and hazard associated with these special units. The size limit also has the practical effect of helping to ensure live/work units are used as residential units, rather than Group D or Group F, Division 3 occupancies with subsidiary sleeping areas."

The OBC does not contain a definition of area as it pertains specifically to a live/work unit. It does contain a definition of floor area (also shown below) which offers a method of calculating the space on the various storeys of a building, but which excludes certain areas such as exits and the spaces set aside for vertical service shafts. In the present dispute, however, by proposing to exclude the stairs but as well the unfinished basement, the Applicant is seeking relief from more than that set out in the definition of floor area. At issue therefore is whether, in the calculation of the area of a live/work unit, the stairs and unfinished basement can be excluded. If not, the issue to be addressed then is whether the Applicant is proposing adequate compensating measures to achieve sufficiency of compliance with Article 1.1.3.2., in particular, the maximum area limitation set out for live/work units.

  1. Provision of the Building Code

Article 1.1.3.2. Defined Terms

Live/work unit means a dwelling unit that contains a subsidiary business and personal services occupancy or a subsidiary low hazard industrial occupancy, has an area of not more than 150 m2, and is used and operated by one or more persons of a single household.

Floor area means the space on any storey of a building between the exterior walls and required firewalls including the space occupied by interior walls and partitions, but not including exits, vertical service spaces, and their enclosing assemblies.

  1. Applicant's Position

The Applicant acknowledged that a literal interpretation of the Code definition of a live/work unit restricts the maximum area to 150 m2. He argued, however, that this size limit is arbitrary and originated from the former City of Toronto's policy on live/work units, which was intended for single-storey units in loft-style warehouse conversion projects. The subject proposal, he submitted, were not similar to loft spaces at all. Instead, they are very much like standard, three storey residential townhouse condominiums, which require stairs and normally have basements, some of which include parking. He argued that it was problematic to adapt the current OBC live/work area standards to the proposed uses, including the present one, that are evolving in the market.

The Applicant indicated that when the basement and stairs, which he described as unusable space, are excluded then the total area that can be devoted to live/work purposes is approximately 147 m2. On this basis, he asserted that the subject units meet the intent of the OBC's definition of live/work in the context of a multi-storey building. He also argued that the additional floor area of each unit will not reduce the performance level of the building.

In terms of compensateing measures to provide sufficiency of compliance if the interpretive arguments are not accepted, the Applicant argued that the proposed one hour fire-separation separating the work and residential areas provides a certain degree of compartmentation that would contain any fire that originated in the work area. Such separations are not required for live/work units under the Code, he noted.

In summation, the Agent argued that the subject proposal was safe and, in his opinion, met the spirit of the definition of live/work units.

  1. Respondent's Position

The Respondent submitted that the definition of live/work unit in the Building Code limits such uses to a maximum area of 150 m2. He indicated that his calculations of the total area of the unit is 187 m2. As such, he argued that the proposed live/work units exceed the allowable limit by 37 m2.

The Respondent rejected the arguments posed by the Applicant regarding the exclusion of certain areas from the total area calculation. He noted that the definition of live/work unit did not explicitly state that such unusable areas should be excluded.

Lastly, the Respondent indicated that the subject units can still get built, but that they must not be sold as live/work units. Instead, they must be sold as residential townhouse units or as mixed residential and commercial developments not containing live/work uses. He indicated that the proposal has not been clear as to how the subject units would actually be used, and as a result, how they will get built.

  1. Commission Ruling:

It is the decision of the Building Code Commission that the proposed live/work units with areas greater than 150 m2 (including the basement but not including the stairs and garage) do not comply with the requirements of live/work units provided by Article 1.1.3.2. of the Ontario Building Code.

On the issue of sufficiency of compliance, it is the decision of the Building Code Commission that the proposed one hour fire separation separating the work area from the remainder of the live/work units does not provide sufficiency of compliance with the maximum area requirements contained in Article 1.1.3.2. of the Ontario Building Code.

  1. Reasons:

It is view of the Building Code Commission that the definition of area as it applies to live/work dwellings provided by the Housing Development and Buildings Branch is appropriate. It states that "'area' is intended to count all spaces on any storey of a building between exterior walls and firewalls including the space occupied by interior walls and partitions, where activities related to residential, business and personal service or low hazard industrial occupancies may occur", and in our opinion this includes the basement as well.

The proposed one hour separation of the work area, as a compensating measure to achieve sufficiency of compliance, does not provide adequate fire containment to the point where that space may subtracted from the overall area of live/work.

Dated at Toronto, this 9th day, in the month of December, in the year 1999, for application number 1999-77.

Mr. Kenneth Peaker

Mr. John Guthrie

Mr. Fred Barkhouse