Skip to content
You are here > Home > Your Ministry > Ontario Building Code > Appeals & Approvals > Building Code Commission > Rulings of the Building Code Commission > 1996 > BCC Ruling No. 96-41-524

Follow us

BCC Ruling No. 96-41-524

Email this page

BUILDING CODE COMMISSION DECISION ON B.C.C. #96-41-524

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

AND IN THE MATTER OF Subsection 3.2.3., in particular Articles 3.2.3.1., 3.2.3.5., 3.2.3.6., 3.2.3.7., and 3.2.3.8. of the Revised Regulation of Ontario 1990, Regulation 61, as amended by O.Regs. 400/91, 158/93, 160/93, 383/94 and 20/95 (the "Building Code").

AND IN THE MATTER OF an application by Mr. Harvey Forde, President, Wesley-Robins Retirement Village Inc., Welland, Ontario, for the resolution of a dispute with Mr. Mike Mantesso, Chief Building Official, City of Welland, concerning whether the spatial separation and the percentage of window openings in the west face of Block A at Wesley-Robins Retirement Village provides sufficiency of compliance with Articles 3.2.3.1., 3.2.3.5., 3.2.3.6., 3.2.3.7., and 3.2.3.8. of the Ontario Building Code at 242 First Avenue North, Welland, Ontario.

APPLICANT

Mr. Harvey Forde, President
Wesley-Robins Retirement Village Inc.
Welland, Ontario

RESPONDENT

Mr. Mike Mantesso
Chief Building Official
City of Welland

PANEL

Mr. Roy Philippe, Chair
Mr. Michael Lio
Mr. Michael Steele

PLACE

Toronto, Ontario

DATE OF RULING

September 26th, 1996

APPEARANCES

Mr. Kenneth J. Issac, Architect
Victor J. Heinrichs
Mr. Robert H. Reilly, Solicitor
For the Applicant

Mr. Mike Mantesso
Chief Building Official
City of Welland
The Respondent

RULING

  1. The Applicant

Mr. Harvey Forde, Wesley-Robins Retirement Village Inc. is an Applicant for a permit under the Building Code Act, 1992 to construct a three storey building (i.e. Block A) that forms part of a retirement village at 242 First Avenue North, Welland, Ontario.

  1. Description of Constrution

The Applicant is proposing to construct a three storey residential building that forms part of a retirement village adjacent to an existing Church. A severance is proposed that will create a new property line between the Church and the residential building. As a result of the proximity of the new property line the windows on the west wall of the new residence are restricted to the amounts permitted in Table 3.2.3.A. of the Building Code.

The Church does not have any unprotected openings in its adjacent wall and the proposed residential building is to be sprinklered.

  1. Dispute

The dispute between the Applicant and Respondent concerns sufficiency of compliance with Articles 3.2.3.1., 3.2.3.5., 3.2.3.6., 3.2.3.7., and 3.2.3.8. of the Building Code. At issue is the spatial separation and percentage of window openings in the west Exposing Building Face of Block A at the Wesley-Robins Retirement Village.

  1. Provision of the 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. The area of the unprotected openings in an exposing building face shall be the aggregate area of unprotected openings expressed as a percentage of the area of the exposing building face in Tables 3.2.3.A. and 3.2.3.B. (See Sentence 3.2.3.2.(1).)

  1. For the purposes of determining the type of construction and cladding and the fire-resistance rating of an exterior wall, the exposing building face shall be taken as the projection of the exterior wall onto a vertical plane located so that no portion of the exterior wall of the building or of a fire compartment, if the fire compartment complies with the requirements of Sentence 3.2.3.2.(1), is between the vertical plane and the line to which the limiting distance is measured and, for these purposes, the area of unprotected openings shall be determined from Table 3.2.3.A. or Table 3.2.3.B.

  1. For the purposes of determining the actual percentage of unprotected openings permitted in an exterior wall, the location of the exposing building face is permitted to be taken at a vertical plane located so that there are no unprotected openings between the vertical plane and the line to which the limiting distance is measured. (See Appendix A.)

  1. Where fire fighting facilities cannot reach the building within 10 min of the alarm being received, the limiting distance shall be doubled.

Article 3.2.3.5. Wall with Limiting Distance Less Than 1.2 m

Openings in every wall that has a limiting distance of less than 1.2 m (3 ft 11 in) shall be protected by closures, of other than wired glass or glass block, whose fire-protection rating is in accordance with Table 3.1.8.A. for the fire-resistance rating required for the wall.

Article 3.2.3.6. Combustible Projection Restrictions

Except for buildings containing 1 or 2 dwelling units only, combustible projections on the exterior of a wall that are more than 1 m (3 ft 3 in) above ground level, such as balconies, platforms, canopies, eave projections and stairs, and that could expose an adjacent building to fire spread, shall not be permitted within 1.2 m (3 ft 11 in) of a property line or the centre line of a public way, or within 2.4. m (7 ft 10 in) of a combustible projection on another building on the same property.

Article 3.2.3.7. Construction of Exposing Building Face

  1. Except as permitted in Articles 3.2.3.9. and 3.2.3.10., where a limiting distance shown in Table 3.2.3.A. for a Group A, B, C, D or Group F, Division 3 occupancy classification is such as to permit an exposing building face to have unprotected openings of
    1. not more than 10 percent of the exposing building face, the exposing building face shall be of noncombustible construction having a fire-resistance rating of not less than 1 h and be clad with noncombustible cladding,
    2. more than 10 percent but not more than 25 percent of the exposing building face, the exposing building face shall have a fire-resistance rating of not less than 1 h and be clad with noncombustible cladding, and
    3. more than 25 percent but less than 100 percent of the exposing building face, the exposing building face shall have a fire-resistance rating of not less than 45 min.

  1. Except as permitted in Article 3.2.3.9., where a limiting distance shown in Table 3.2.3.B. for a Group E, or Group F, Division 1 or 2 occupancy classification is such as to permit an exposing building face to have unprotected openings of

  1. not more than 10 percent of the exposing building face, the exposing building face shall be of noncombustible construction having a fire-resistance rating of not less than 2 h and be clad with noncombustible cladding,
  2. more than 10 percent but not more than 25 percent of the exposing building face, the exposing building face shall have a fire-resistance rating of not less than 2 h, and be clad with noncombustible cladding, and
  3. more than 25 percent but less than 100 percent of the exposing building face, the exposing building face shall have a fire-resistance rating of not less than 1 h.

  1. In addition to the requirements of Sentences (1) and (2), where foamed plastic insulation is used in an exterior wall of a building more than 3 storeys in building height

  1. the insulation shall be protected on the exterior surface by

i. concrete or masonry not less than 25 mm (1 in) thick, or

ii. noncombustible material that will remain in place for not less than 15 min when tested in conformance with CAN4-S101-M, "Standard Methods of Fire Endurance Tests of Building Construction and Materials", or

iii. the wall assembly shall conform to Article 3.1.5.5. where the protection in Clause (a) is not provided. (See Appendix A.)

Article 3.2.3.8. Protection of Structural Members

1. Structural members, such as beams, columns and arches placed wholly or partly outside an exterior face of a building and 3 m (9 ft 10 in) or more from the property line or centre line of a public thoroughfare need not be protected from exterior fires.

2. Structural members in Sentence (1) that are less than 3 m (9 ft 10 in) from the property line or centre line of a public thoroughfare shall be protected from exterior fire by fire protection having a fire-resistance rating not less than that required for their protection from inside fires in conformance with Articles 3.2.2.16. to 3.2.2.62., or by fire protection having a fire-resistance rating of not less than 1 h, whichever is the greater.

3. Structural members of heavy timber construction such as beams, columns and arches placed wholly or partly outside an exterior face of a building and 3 m (9 ft 10 in) or more from the property line or centre line of a public thoroughfare need not be covered with noncombustible cladding.

5. Applicant's Position

The Applicant submitted the following information and rationale concerning the acceptance of the spatial separation and percentage of window openings in the west face of Block A:

The Wesley United Church is on a parcel of land that is considerably larger in area than the church requires. Almost all of the land was given to the Church by Clarence and Clarice Robins.

Mr. Robins died some years ago and Mrs. Clarice Robins died in 1992 after making a will leaving the bulk of her substantial estate to the Church on condition that a senior citizen residence be built upon the Church lands.

The Church proceeded to incorporate a non-share capital charitable corporation, (Westley-Robins Retirement Village Inc.) to build and operate the retirement community. The members of the corporation are the members of the Church plus such other persons (such as the executor of Clarice Robins' estate) as are admitted to membership in the corporation.

The Church and the corporation decided to sever the property of the retirement complex from the Church property so that any mortgage financing could be done by the corporation on its own property without involving the Church. The consent to sever has been granted but the deed has not yet been registered.

The registration of the deed will result in a new boundary line being created between the Church property and the retirement complex. It is this new boundary line that creates a problem for the retirement complex in that it greatly restricts the area of unprotected openings (windows) in the west wall of Building A. If the boundary between the two properties did not exist, the limitation on the area of unprotected openings would not apply to those parts of the west wall of Building A which do not directly face the Church building.

Unprotected openings near boundaries are limited presumably because with separate and distinct ownerships on each side of the boundary, neither owner could control the use on the opposite side of the boundary.

In this case, however the members of one body are the members of the other and each draw their officers, directors, elders and trustees from the same pool of members. Also, neither body can dispose of its property without the consent of the United Church of Canada.

The zoning for each property is site-specific and will be the subject of a single site plan agreement covering both properties so that neither the use of the properties not any change in, or addition to any building or additional buildings can be made or erected without an amendment to the site plan agreement and/or zoning by-law which requires the approval of the City of Welland.

The creation of the new boundary will not increase the danger from fire in the future on the south side of the Church since the land there (parts 6, 15 and 4 on Plan 59R9550) are subject to a permanent easement for vehicular and pedestrian traffic and because of this nothing can be built upon it. Each of the property owners also has an easement for parking in areas designated for that on the other's property.

There is little danger of fire crossing from the Church to Building A and vice versa because the Church building will have no unprotected openings in its easternmost wall. Building A is to be sprinklered.

There should be no increase in fire danger in the future for that part of the property north of the church building because as pointed out above, it cannot be built upon without an amendment to the site plan agreement or zoning by-law or both and those amendments would require the approval of the City of Welland. The City would take such things as spatial separation into consideration on deciding whether to grant such approval.

The Chief Building Official expressed some reservations over the City's ability to control future separation problems even though its approval would be required to any site plan or zoning by-law amendment. To solve this the municipality has suggested that the site plan agreement contain the following two paragraphs and our clients are agreeable to their inclusion:

"The owners agree to construct the exterior wall on the west face of Block A in accordance with the spatial separation requirements of the Ontario Building Code or the Ontario Building Code Commission".

"The owners also agree not to construct any future buildings or building additions facing the west face of Block A unless the spatial separation requirements are met for both buildings as if they were constructed on the same property.

The chance of either of the two properties being used for something other than their present and intended uses is so remote as to be virtually non-existent. Even if the corporation ceases to exist, it is written into its Letters Patent of Incorporation as amended that, after payment of debts, all its property and assets are to become vested in the United Church of Canada or a charitable organization for the purpose of operating a seniors residence in Welland.

For these reasons the Applicant respectfully requested that the Commission grant relief from the limitations of Subsection 3.2.3. of the Building Code.

  1. Chief Building Official's Position

The Respondent submitted that the west exposing building face of Block A is approximately 2.5 m or less to a property line (depending on which fire compartment is considered). The west exposing building face contains a significant amount of glazing that is not permitted by the Building Code.

The Respondent stated that he supported the proposal due to the following reasons:

i. The subject building is fully sprinklered.

ii. The east face of the existing Church is constructed of solid masonry.

iii. The chances of another building being constructed on the property is remote.

iv. The applicant has agreed to register the aforementioned clauses on the title of the property.

The Respondent does not have the authority to accept a deviation from the Building Code and the proposal does not fall within the scope of Section 2.7 of the Building Code.

  1. Commission Ruling:

It is the decision of the Building Code Commission that the spatial separation of the residential building provides sufficiency of compliance with Articles 3.2.3.1., 3.2.3.5., 3.2.3.6, 3.2.3.7., and 3.2.3.8. of the Building Code, provided that the control of construction on the adjacent lands and where an exposure hazard exists is through limitations included in the site plan agreement and registered on title of both properties.

  1. Reasons:

    1. The residential building is sprinklered throughout.

    1. Evidence was presented that the exposed building facing of the Church on the adjacent property is constructed as a 2 hour fire wall.

    1. If the two properties were considered as one, and no severance had taken place the exposure hazards would not exist.

    1. It is the opinion of the Building Code Commission that the siting of the building does not present a fire exposure hazard.

Dated at Toronto, this 26th day, in the month of September, in the year 1996, for application number 1996-47.

Mr. Roy Philippe

Michael Lio

Michael Steele