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BCC Ruling No. 94-27-405

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

AND IN THE MATTER OF Articles & of the Revised Regulation of Ontario 1990, Regulation 61, as amended by O.Regs. 400/91, 158/93 and 160/93 (the "Building Code").

AND IN THE MATTER OF an application by Ms. Rosa Degasperis for the resolution of a dispute with Mr. John Wright, Chief Building Official, Town of Markham.


Ms. Rosa Degasperis


Mr. John Wright
Chief Building Official
Town of Markham


Sarah Maman, Chair
Demir Delen
Remus Tsang


Toronto, Ontario


November 10, 1994


Mr. Tom McRae
Shibley Righton
Barristers & Solicitors
For the applicant


  1. The Applicant

Ms. Rosa Degasperis is the holder of a permit under the Building Code Act, 1992 to construct a single family dwelling (i.e. house) at 11 Mulberry Mews, Thornhill, Ontario.

  1. Description of Constrution

The applicant constructed a detached single family dwelling (i.e. house) on property adjoining an Ontario Hydro Easement. The limiting distance between the north exposing building face of the dwelling and the adjacent property line is 0.33 m.

The building was not constructed in accordance with the building permit drawings. The limiting distance between the building and the boundary separating the subject property and the Hydro Easement does not permit the existing glazed openings.

There are no buildings or structures currently erected on the Hydro Easement.

  1. Dispute

The dispute between the Applicant and Respondent concerns sufficiency of compliance with Article & of the Building Code. At issue is the need to provide the required spatial separation between the subject building and any building that may in future be erected on the Hydro Easement.

  1. Provision of the Building Code

Article & Construction of Exposing Building Face.

Except as permitted in Articles to, each exposing building face and any exterior wall located above an exposing building face that encloses an attic or roof space shall be constructed in conformance with Table 9.10.14.B. and Subsection 9.10.8. Exposing Building Face of Houses

  1. For the purposes of application of this Article

  1. the exposing building face may be divided into any number of portions and the fire-resistance rating, type of cladding and glazed area limitations may be determined individually for each portion based on the limiting distance for each portion so divided,
  2. 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 is between the vertical place and the line to which the limiting distance is established in Clause (a), and
  3. for the purpose of determining the actual percentage of glazed areas permitted in an exterior wall, the glazed area shall be projected onto the vertical plane established in Clause (b).

  1. Except as required in Article, in building containing only dwelling units in which there is no dwelling unit above another dwelling unit, the requirements of Article do not apply provided that the exposing building face has a fire-resistance rating of not less than 45 min where the limiting distance is less than 1.2 m (3 ft 11 in), and when the limiting distance is less than 0.6 m (23? in), the exposing building face is clad with noncombustible material.

  1. Glazed areas in the exposing building face referred to in Sentence (1) shall not be permitted if the limiting distance is less than 1.2 m (3 ft 11 in) and shall be limited in conformance with the requirements for glazed areas in Table 9.10.14.A. where the limiting distance is 1.2 m (3 ft 11 in) or greater.

  1. Where the spatial separation between dwelling units on adjoining properties is registered on the titles of both properties, the spatial separation may be calculated as if the dwelling units were constructed on the same property.

  1. Applicant's Position

The applicant stated that the detached dwelling was not constructed in accordance with building permit drawings in that there is insufficient limiting distance between the exposing building face of the north exterior wall and the north boundary of the lot.

Pursuant to Section of the Building Code, the Applicant proposed to remedy the deficiency by entering into an agreement with the adjoining land owner which will be registered on title to the Applicant's property, and the adjoining lands to the north, that will ensure the required spatial separation.

  1. Chief Building Officials Position

The respondent stated that although Sentence of the Building Code is not entirely applicable to the situation at hand, it does provide the basis for achieving sufficiency of compliance.

The respondent agreed with the proposal provided the adjacent land owner allowed a restrictive covenant to be imposed on his property that "guarantees the minimum spatial separation required by the Building Code".

  1. Commission Ruling:

In favour of the Applicant. It is the decision of the Building Code Commission that entering into a restrictive covenant agreement registered on title for both properties as per the November 3, 1994 survey conducted by Helmut Piller, Ontario Land Surveyor (reference # 94-20-4886-01) shows sufficiency of compliance with the Building Code.

  1. Reasons:

The property overlooks a main hydro corridor on provincially owned land and the likelihood of any future construction on this land is remote.

Dated at Toronto, this 10th day, in the month of November, in the year 1994, for application number 1994-46.

Sarah Maman

Demir Delen

Remus Tsang