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BCC Ruling No. 98-04-609

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BUILDING CODE COMMISSION DECISION ON B.C.C. #98-04-609

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

AND IN THE MATTER OF Article 3.2.3.1. of Regulation 61, as amended by O. Reg. 400/91, 158/93, 160/93, 383/94, 20/95 and 395/96 (the "Ontario Building Code").

AND IN THE MATTER OF an application by Mr. Chris Bretton, President, Bretton Imported Cars, 1201 Fairview Street, Burlington, Ontario vs. Mr. Dan Mousseau, Chief Building Official, City of Burlington, to determine whether the three oversized, overhead door openings proposed for rear of the building, considering the subject limiting distance, are required to be installed with 1.5 hour fire rated doors at Bretton Imported Cars, 1239 Plains Road East, Burlington, Ontario.

APPLICANT

Mr. Chris Bretton, President
Bretton Imported Cars
Burlington, Ontario

RESPONDENT

Mr. Dan Mousseau
Chief Building Official
City of Burlington

PANEL

Mr. Roy Philippe (Chair)
Mr. Michael Steele
Mr. Ross Thomson

PLACE

Toronto, Ontario

DATE OF HEARING

February 12, 1998

DATE OF RULING

February 12, 1998

APPEARANCES

Mr. Larry Hall
Beatty-Hall Construction Ltd.
Hamilton, Ontario
Agent for the Applicant

Mr. Dan Mousseau
Chief Building Official
City of Burlington, Ontario
The Respondent

RULING

  1. The Applicant

Mr. Chris Bretton, President, Bretton Imported Cars has applied for a building permit under the Building Code Act, 1992 to construct a one storey addition to an existing building which is currently used as an automobile showroom at 1239 Plains Road East, Burlington, Ontario.

  1. Description of Construction

The Applicant proposes to renovate an existing 300.8 m2, one storey building by adding a 221.6 m2 one storey addition. The total building area of the completed structure will be 522.4 m2. The proposed addition will be constructed of combustible construction and will be open internally to the existing building. The building is not equipped with a sprinkler or standpipe system. The structure is currently being used as an automobile showroom and repair garage and this occupancy is intended to be expanded after the renovation. The building is classified as having an F - 2 (medium hazard industrial) major occupancy.

The Applicant intends to install three large (3.05 m by 3.05 m) overhead door openings on the rear wall of the new addition for service bays. (The dimensions of the rear wall are 13.72 m in length and 4.85 m in height.) This wall, however, is located approximately 7.6 m from the rear property line. Abutting the subject property to the rear are the Canadian National Railway lands. The Applicant is proposing that since the property to the rear is a railway, the limiting distance can be calculated differently, meaning that the three proposed overhead doors need not be 1.5 h rated as would be required if 7.6 m was used in the limiting distance calculation.

  1. Dispute

The issue at dispute between the Applicant and Respondent is whether the limiting distance between the subject addition and the abutting property is 7.6 m, as measured to the property line. Or, assuming the railway property will never be built upon, can the limiting distance be calculated using the centre of railroad property, which would be 21.32 metres. (It is 13.72 m from the rear property line of the Applicant's property to the centre line of the railway lands.) The difference between these two types of calculations has a direct impact on the amount of unprotected openings the Applicant is allowed and what level of fire resistance ratings the closures in the openings must meet. Article 3.2.3.1. and Table 3.2.3. set out the relationship between exposing building faces, limiting distances and amount of unprotected openings.

  1. Provisions of the Ontario Building Code

Article 3.2.3.1. Limited Distance and Area of Unprotected Openings

(1) Except as provided in Articles 3.2.3.9. to 3.2.3.11, the area of unprotected openings shall not be more than that set forth in Tables 3.2.3.A. or 3.2.3.B. for the limiting distance applicable to the exposing building face under consideration. (See A-3, Fire Fighting Assumptions in Appendix A.)

  1. Applicant's Position

The Applicant submitted that because of the railway property to the rear of their proposed addition, the limiting distances should be calculated on the centre line of the railway property.

They make this argument on the basis that the railway property will, in all probability, never have a building constructed on it. They argue that this would permit the installation of standard insulated doors rather than 1.5 h fire-rated doors. The Applicant notes that they are willing to put on the title of their property a clause requiring compliance with the OBC with respect to the spatial separation should the use of the adjoining property change from being a railway.

  1. Chief Building Official's Position

The Respondent submitted that the rear property line should be used as the reference point for the limiting distance calculations for the subject building and a centre point of the abutting CN Rail property. In their view, railway lines are to be treated not as roads, but as regular properties. The reasons for this approach are that rail cars cannot be moved easily and they may contain combustible or hazardous materials. As a result, the common property line between any property and a rail line property should be taken as the reference point.

The Respondents further add that the 1997 edition of the OBC allows parties to vary from the prescribed limiting distance standards with a registration of a limiting distance agreement on tile of both properties. In the case at hand, however, they note that CN Rail has not offered to place such a restriction on their property. The Respondent believes such registration is not appropriate for railway lines.

Finally, they note that the building permit was issued on the understanding that the 1.5 hour fire-rated doors would be installed prior to occupancy and that the application to the BCC was made only after the issuance of the building permit.

  1. Commission Ruling

It is the decision of the Building Code Commission that the protection of openings in the exterior rear wall facing the property line provides sufficiency of compliance with Section 3.2.3. of the Building Code provided that -

Sentence 3.2.3.1.(8) The required limiting distance for an exposing building face is permitted to be measured to a point beyond the property line that is not the centre line of a street, lane or public thoroughfare if

(a) the owners of the properties on which the limiting distance is measured and the municipality enter into an agreement in which such owners agree that

(i) each owner covenants that, for the benefit of land owned by the other covenants, the owner will not construct a building on his or her property unless the limiting distance for exposing building faces in respect of the proposed construction is measured in accordance with the agreement.

(ii) the covenants contained in the agreement are intended to run with the lands, and the agreement shall be binding on the parties and their respective heirs, executors, administrators, successors and assigns.

(iii) the agreement shall not be amended or deleted from title without the consent of the municipality, and

(iv) they will comply with such other conditions as the municipality considers necessary, including indemnification of the municipality by the other parties, and

(b) the agreement referred to in Clause (a) is registered against the title of the properties to which it applies.

(9) Where an agreement referred to in Sentence (8) is registered against the title of a property, the limiting distance for exposing building faces shall be measured to the point referred to in the agreement.

OR

B) The building is sprinklered throughout.

  1. Reasons

i) The proposed amendments permit extending limiting distance measurements to adjacent property with the consent of both parties registered on title, while respecting the rights of the parties.

ii) Sprinkler protection would provide additional protection and increase the permitted openings.

Dated at Toronto this 12th day in the month of February in the year 1998 for application number 1997-79.

Mr. Roy Philippe, Chair

Mr. Michael Steele

Mr. Ross Thomson

(b) the agreement referred in Clause (a) is registered against the title of the properties to which it applies.