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 Article of Regulation 403, as amended by O. Reg. 22/98, 102/98, 122/98, 152/99, 278/99, 593/99, 597/99, 205/00, 283/01 and 220/02 (the Ontario Building Code ). AND IN THE MATTER OF an application by Roy Fletcher, Fletcher Associates Consulting Engineers & Planners, for the resolution of a dispute with Doug Kopp, Chief Building Official, Township of Southgate, to determine whether the proposed replacement of a Class 4 sewage system that is located on a lot or parcel of land that is serviced by additional Class 4 systems complies with the definition of sewage system in Article of the Ontario Building Code, when considering that the lot is located adjacent to two lots that are all under the same ownership at Homestead Resort/Golf Course, RR 4, Wilder Lake Road, Durham, Ontario. APPLICANT RESPONDENT PANEL PLACE Roy Fletcher Fletcher Associates Consulting Engineers & Planners Toronto, Ontario Doug Kopp Chief Building Official Township of Southgate Bryan Whitehead Toronto, Ontario DATE OF HEARING December 4, 2003 and February 10, 2004 DATE OF RULING March 1, 2004 APPEARANCES Roy Fletcher Fletcher Associates Consulting Engineers & Planners Toronto, Ontario The Applicant Doug Kopp Chief Building Official Township of Southgate The Respondent

2 -2- RULING 1. The Applicant Roy Fletcher, Fletcher Associates Consulting Engineers & Planners, has applied for a building permit under the Building Code Act, S.O. 1992, c. 23, as amended, and is proposing to replace an existing Class 4 sewage system at Homestead Resort/Golf Course, RR 4, Wilder Lake Road, Durham, Ontario. 2. Description of Construction The Applicant is proposing to replace an existing Class 4 septic system comprised of a septic tank and leaching bed serving a Recreation Hall on a site referred to as the Homestead Resort/Golf Course. At present, there are two Class 4 systems servicing an area of land the Agent refers to as the Part Lot upon which the Recreation Hall is situated. The Applicant s proposal is to replace one of the two systems and has calculated the new combined total daily design flow rate at 8,050 L/d. The site referred to as Homestead Resort/Golf Course is located on a 123-acre holding of land consisting of Part Lots 2, 3, and 4, Concession 21., Egremont (R.P. 16R6386 Parts 1, 2, and 3). Part Lot 2 has a farm house, Part Lot 3 has the Recreation Hall plus an office/pro shop, and Part Lot 4 has several cottages. All three Part Lots are held by the same owner. Each of the three Part Lots is serviced by separate Class 4 sewage systems. The issue at dispute pertains to the whether the three contiguous Part Lots are considered to be one or three separate and delineated lots or parcels of land. The Respondent party has denied the Applicant a building permit, as he is of the view that the site in question consists of one lot and, as such, the total design capacity of all septic systems on the lot exceeds 10,000 L/d. This is an issue because one of the defining criteria of a sewage system, as per Article of the Ontario Building Code, is that the system have a design capacity of 10,000 L/d or less. 3. Dispute The issue at dispute between the Applicant and Respondent is whether the proposed replacement of a Class 4 sewage system that is located on a lot or parcel of land that is serviced by additional Class 4 systems complies with the definition of sewage system in Article of the Ontario Building Code, when considering that the lot is located adjacent to two lots that are all under the same ownership at Homestead Resort, RR 4, Wilder Lake Road, Durham, Ontario. Article of the OBC provides the definition of certain terms with respect to how they are used and/or applied in the context of the Code. As per the OBC, the term sewage system refers to a chemical toilet, an incinerating toilet, a recirculating toilet, a self-contained portable toilet and all forms of privy; a greywater system; a cesspool; a leaching bed system; or a system which requires or uses a holding tank. Also included in this definition are three conditions, to which a sewage system, in order to be defined as such, must comply. These are: i) a design capacity of 10,000 L/d or less; ii) a total design capacity of 10,000 L/d or less where more than one of these are located on a lot or parcel of land; and iii) located wholly within the boundaries of the lot or parcel of land on which is located the building or buildings that they serve. If a septic system, or series of septic systems, yield a design capacity that is greater than 10,000 L/d then it is not considered a sewage system as defined in the OBC, but rather a sewage works as defined in the Ontario Water Resources Act. The regulation of sewage works is the responsibility of the Ministry of Environment.

3 -3- Central to this dispute, therefore, is whether the property known as Homestead Resort/Golf Course consists of one lot or three separate lots. The interpretation of lot is critical, because if it is found that the property is one lot then the sewage flows emanating from the proposed replacement of the Class 4 septic system on Part Lot 3 must be included in the total design capacity for all septic systems located on the lot. If, however, the Building Code Commission (BCC) finds that the property consists of three separate lots, then each lot can have a total design capacity of up to, but not more than, 10,000 L/d as per the definition of sewage system outlined in the OBC. 4. Provisions of the Ontario Building Code Defined Terms (1) The words and terms in italics in this Code have the following meaning for the purposes of this Code, and where indicated, the following meaning for the purposes of the Act as well. Sewage system means (a) (b) (c) (d) (e) a chemical toilet, an incinerating toilet, a recirculating toilet, a self-contained portable toilet and all forms of privy including a portable privy, an earth pit privy, a pail privy, a privy vault and a composting toilet system, a greywater system, a cesspool, a leaching bed system, or a system which requires or uses a holding tank for the retention of hauled sewage at the site where it is produced prior to its collection by a hauled sewage system, where these (f) (g) (h) have a design capacity of 10,000 litres per day or less, have, in total, a design capacity of 10,000 litres per day or less where more than one of these are located on a lot or parcel of land, and are located wholly within the boundaries of the lot or parcel of land on which is located the building or buildings they serve. 5. Applicant s Position The Applicant began by submitting that the issue at dispute stems from a proposal to replace an existing Class 4 septic system located at a site referred to as Homestead Resort/Golf Course. He then advised that he wished to clarify the matter germane to this dispute, which is determining whether the property in question is one lot or three separate lots. He stated that he was not prepared at this point to speak to issue of total design capacities, and stated that he wished to limit the scope of this particular hearing to whether the property in question consists of one or three lots. The Applicant continued by advising that the difficulty in determining the number lots results from the fact that although the term lot is used throughout the Code, there is no definition provided in Section of the OBC. This has resulted in the parties having conflicting views on what a lot is and the number of lots that constitute the property in question. The Applicant indicated that the nub of this dispute rests on the interpretation of the term lot. He advised that since the term lot is not defined in the Code, he turned to the Concise Oxford Dictionary

4 -4- for its meaning. According to the Concise Oxford Dictionary, the term lot means a plot or allotment of land. Furthermore, he advised the word lot is clearly defined in Part I of the Land Titles Act, R.S.O. 1990, Chapter L.5 as including a block, reserve and any other delineation of land on a plan. The Agent then drew the Commission s attention to Registered Plan 16R6386, which, he advised, shows the property as consisting of three separate Part Lots. The Applicant then went on to provide some detail on the property and proposal at dispute. As outlined by the Applicant, Homestead Resort/Golf Course consists of, in his view, three adjacent lots which are all under the same ownership. He submitted that the proposed Class 4 sewage system replacement is located Part Lot 3, which is currently serviced by two Class 4 sewage systems. As per the Applicant s proposal, these systems are intended to service the Recreation Hall, the office/pro shop, one bedroom, and one toilet. The Applicant advised that, upon the proposed replacement, the sewage load for Part Lot 3 would be 8,050 L/d, with System 1 having a design flow of 550 L/d and System 2 having a design flow of 7,500 L/d. In summary, the Applicant advised that he wished to limit the scope of this particular BCC hearing to the determination of whether the property in question consists of one or three lots. He reiterated that although the term lot is not defined in the Code, the term, as defined in the Land Titles Act, supports his contention that there are three parcels of land held by Homestead Resort/Golf Course. In this regard, the Agent concluded by stating that the property in question consists of three separate lots, since Registered Plan 16R6386 shows three Part Lots. 6. Respondent s Position The Respondent submitted that his position on the matter is straightforward. He advised that the property referred to as Homestead Resort/Golf Course is made up of Part Lots 2, 3, & 4, Concession 21 (Egremont) and is an amalgamated (emphasis added) parcel of land owned by Ontario Limited (Homestead Resort/Golf Course). In this regard, the Respondent advised that the entire 123-acre holding of land in question is a single lot that would require consent to sever from a Land Division Committee if any part(s) were to be sold in the future. The Respondent continued by advising that since the property in question is one, amalgamated lot, the total design capacity for all septic systems on the property must not exceed 10,000 L/d in order to comply with the definition of sewage system outlined in the OBC. He submitted that the 10,000 L/d limit is exceeded when considering the total design capacity for all septic systems located on the lot and, as such, advised that the application to replace the existing Class 4 system should be made to the Ministry of the Environment (MOE), who deal with the regulation of sewage works. Despite having raised the issue of total design capacity, the Respondent, when questioned, did agree to limit the scope of this particular BCC hearing to the number of lots that constitute the property in question. In summary, the Respondent argued that the property known as Homestead Resort/Golf Course is an amalgamated parcel of land that would require consent to sever if a part were to be sold in the future. Although not germane to this BCC hearing, the Respondent did advise that he believes the application to replace the existing Class 4 sewage system should be made to the MOE, since, in his interpretation, the total design capacity for all septic systems on the property likely exceeds 10,000 L/d. 7. Commission Ruling It is the decision of the Building Code Commission that, when considering Article (definition

5 -5- of lot or parcel of land as it pertains to a sewage system) in relationship to the lands owned by Ontario Ltd (Homestead Resort/Golf Course), the entire 123 acre-holding identified as Part Lots 2, 3 and 4 RP 16R6386 are considered to be one lot. 8. Reasons The regulation of on-site sewage system construction in Ontario is divided between the Ontario Building Code (OBC) for projects with a total daily design sanitary sewage flow of 10,000 litres per day or less and the Ontario Water Resources Act (OWRA) for flows over 10,000 litres per day. Review and enforcement of proposals under the OBC is done through local municipalities, health units, and conservation authorities. In the case of the OWRA, review and enforcement is done through the Ministry of Environment (MOE). For all sewage applications, the assessment of the total daily design sanitary sewage flow is made in accordance with Article of the OBC, which requires consideration of Tables A and B, or the highest metered flow of three similar establishments. Although the design, construction and operation of an on-site sewage system should be carried out with due consideration to the local environment (particularly the groundwater), the purpose of the division in responsibilities for approval is to afford the MOE an opportunity to scrutinize proposed larger (over 10,000 litres per day) sewage works relative to the local environmental conditions and potential impacts of effluent disposal. In particular, the proponent of the larger sewage works must consider the impact of dissolved nitrogen species on the local groundwater and down gradient uses of the water (Reasonable Use Policy). In the case at hand, the Applicant has applied under the OBC to his local municipality with a proposal to replace the tanks and leaching bed serving the bank barn Recreation Hall, which was renovated to include bar and dining facilities. The recreation centre is located on a 123-acre holding of land under single ownership along with additional uses including eight cottages, one occupied house, one unoccupied house and several other buildings without sanitary facilities. The sanitary facility that is the subject of this dispute is one of several sewage systems on the 123-acre holding. On this matter, the Commission agrees with the Respondent that the subject 123-acre holding of land is one lot. The reason for this is that the Applicant would require consent from a Land Division Committee in order to sever the property into individual parcels. This would also be a necessary step prior to the step prior to the selling and/or transferring of this property. Accordingly, it is the decision of the Commission that the 123-acre property known as Homestead Resort is a single lot or parcel, when referencing Article of the OBC.

6 -6- Dated at Toronto this 4th day in the month of December in the year 2003 for application number Bryan Whitehead