BUILDING CODE COMMISSION

Transcription

1 Ruling No Application No BUILDING CODE COMMISSION IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended. AND IN THE MATTER OF Parts 2 and 11 of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99, 278/99, 593/99, 597/99, 205/00 and 283/01 (the Ontario Building Code ). AND IN THE MATTER OF an application by Jameel Mohammed, property owner, for the resolution of a dispute with Dan Sayers, Chief Building Official, Township of Dysart et al, to determine whether the proposed renovation and repair of an existing residential structure provide sufficiency of compliance with the relevant provisionsofparts 2 and 11 of the Ontario Building Code at Part Lot 15, Concession 4, Township of Dysart et al, Ontario. APPLICANT RESPONDENT PANEL PLACE Jameel Mohammed Property owner Dan Sayers Chief Building Official Township of Dysart et al Len King, Chair-Designate Robert De Berardis Tony Chow Toronto, Ontario DATE OF HEARING March 21 st, 2002 DATE OF RULING March 21 st, 2002 APPEARANCES Jameel Mohammed Property owner The Applicant Dan Sayers Chief Building Official Township of Dysart et al The Respondent

2 -2- RULING 1. The Applicant JameelMohammed, propertyowner, hasappliedfor a building permit under the Building Code Act, S.O. 1992, c.23, as amended, and is proposing to undertake renovations and repairs to an existing residential building located at Part Lot 15, Concession 4, Township of Dysart et al, Ontario. 2. Description of Construction The Applicant is proposing to carry out renovations and repairs to a small Group C structure. The existing building is described by the Applicant as a single storey, two bedroom cabin having a floor area of approximately 60.4 m 2 (650 ft 2 ). The construction in dispute involves the proposed renovations and repairs to this structure. The anticipated construction includes the addition of a crawl space and ductwork associated with a proposed new heating system. In addition, several repairs to the building are being contemplated. These repairs include the removal and replacement of siding and structural supports, installation of new windows, roofing and improvements to the building insulation. 3. Dispute The issue at dispute between the Applicant and Respondent is whether the proposed renovations and repairs provide sufficiency of compliance with the relevant provisionsofparts 2 and11 of the Ontario Building Code (OBC). Part 2 of the Code outlines the general requirements for construction while Part 11 provides direction with respect to the extension, material alteration or repair of existing structures. The Applicant proposes to renovate and repair the existing building to make the structure more habitable. A determination on whether the proposed work provides sufficiency of compliance with Parts 2 and 11 is being sought in this regard. 4. Provisions of the Ontario Building Code Part 2 General Requirements Please refer to the Ontario Building Code. Part 11 Renovation Please refer to the Ontario Building Code. 5. Applicant s Position The Applicant advised that he purchased the subject property in At that time there were two residential buildings on the property, one of which was subsequently destroyed by fire. He initially applied for and received a building permit to construct a new dwelling to replace the one which was

3 -3- destroyed, however, he was unable to complete construction because of financial difficulties. He is now interested in repairing and upgrading the smaller, 60.4m 2 (650 ft 2 ) dwelling for use as his residence. As such, he applied for a building permit to carry out the necessary construction. The Applicant explained that he had not been issued a building permit for this work by the Respondent. According to the Applicant, the two reasons for this refusal, cited to him by the Respondent, were that the structure did not comply with the zoning by-law and that an incomplete permit application had been filed. The Applicant disputed both of these claims. He advised the Commission of provisions found in the Planning Act with respect to legal nonconforming uses. He argued that, by virtue of its existence, the subject building would fall under that category. The applicant then stated that the BCC should provide a ruling consistent with this argument, i.e., that the by-law does not apply because the building is considered a legal nonconforming use. As further support for his position, the Applicant submitted that Article is relevant to the proposed construction as the building has been in existence for more than five years. Furthermore, Sentence (1) provides that where a building is materially altered or repaired, the performance level shall be at least equal to the performance level of the building prior to any work being undertaken. He argued that, based on these two provisions, the Respondent did not have any discretion to refuse the permit being requested. When questioned about what information had been supplied to the municipality in connection with the recent permit application, the Applicant stated that he did not provide drawings or specifications because this is not a new house. He argued that the Respondent knew the building and should have had access to original construction drawings. He simply wanted to undertake repairs to damaged areas and provide a heating system for the structure. 6. Respondent s Position The Respondent confirmed that a permit for the proposed work has not been issued to the Applicant. He outlined the provision of subsection 8(2) of the Building Code Act, and emphasized that a permit may not be issued where the proposal would contravene other applicable law or where an application is considered to be incomplete. In this instance he explained that it is the position of the municipality that the subject building is in contravention of the municipal zoning by-law and that the application for permit was substantially incomplete. There were no building plans supplied nor was there a detailed description of the work to be undertaken. A permit was, therefore, not issued for the proposed construction. In addition to these concerns, the Respondent advised that there is also a dispute between the parties with respect to the septic system that would be required to serve this dwelling. He noted, however, that this matter was not the subject of the present hearing. In summation, the Respondent emphasized that, in light of the deficiencies with the permit application andthe outstanding issue with respect to zoning conformity, he is not in a positionto issue a permit for the proposed work. 7. Commission Ruling It is the decision of the Building Code Commission that, under 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended, the Building Code Commission (BCC) does not have the jurisdiction to

4 -4- determine this dispute. 8. Reasons i) Subsection 24(1) of the Building Code Act, provides the Building Code Commission with jurisdiction to resolve disputes: - that are between a chief building official or building inspector and an applicant for, or holder of, a permit or a person to whom an order is given; and - that concern the interpretation of, or the sufficiency of compliance with, the technical requirements of the Ontario Building Code. In this case, the Commission acknowledges that there is a dispute between the Chief Official and the Applicant, however, the parameters of that dispute presently fall outside the consideration of the technical requirements of the Ontario Building Code. ii) The primary contention between the parties is with respect to the local zoning by-law and it s applicability to the subject property. Determination of this issue is clearly not within the mandate of the BCC. iii) Despite the Applicant s dissatisfaction with the Respondent s interpretation of Parts 2 and 11 of the Building Code, the Commission found that the permit application submitted to the municipality was incomplete and contained insufficient information to make an informed decision as to whether a technical dispute exists.

5 -5- Dated at Toronto this 21st day in the month of March in the year 2002 for application number Len King, Vice-Chair Robert De Berardis Tony Chow