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Bob Aaron
   Bob Aaron     bob@aaron.ca

December 26, 2009

Amend code to protect innocent neighbours

Last week's column told the story of the illegal chimney on a north Toronto bungalow owned by Ruta Benjamin and her husband.

When the house next door to the Benjamins' was torn down in 2007 and a monster home erected in its place, the couple discovered that their chimney was now lower than the roofline of the new house next door and too close to it.

Suddenly their chimney became illegal.

The column brought some interesting email responses.

Bernadette Celis, communications advisor with the Technical Standards and Safety Authority (TSSA), explained why the Benjamin chimney became illegal: as a result of the construction of the new house, the chimney on their bungalow was in violation of the Natural Gas and Propane Installation Code and Ontario regulation 212/0 – Gaseous Fuels.

The code requires a fuel distributor to report to the TSSA when it finds a contravention or hazard. In this case, since the Benjamin chimney was less than two feet higher than the roof next door and less than 10 feet closer to the new house, it became a code contravention.

The code required the Benjamins to make their chimney comply at their own expense.

Was the city of Toronto wrong in issuing a permit, which resulted in a code violation against the house next door? Ray Hewlett, a retired chief building official, emailed to say that the Ontario Building Code applies to this situation.

He directed my attention to Section 8(2) of the Ontario Building Code Act, which states that if an application is properly submitted, a chief building official shall issue a permit to construct a building unless the proposed building...will contravene this Act, the building code or any other applicable law.

To my dismay, I discovered that the city of Toronto acted according to legal precedent when it issued a permit for the new house. That was the permit that caused the Benjamin chimney to be in breach of the fuel installation code.

Prior to his retirement some years ago, Pille Hansen was the chief building official of the former city of York. He emailed me to say that it was his policy to inspect properties for problems relating to chimney clearance in connection with building permit applications.

He referred me to a court case in 1995 about a property on Snider Ave. owned by Peter Alaimo. As chief building official in the city of York, Hansen had refused Alaimo a building permit due to the proximity of the chimney on an adjacent property.

Alaimo appealed to the Building Code Commission, which ruled that the building code requirement that a new permit cannot create a contravention of the act only applies to a contravention on the site under consideration, and not a property next door.

The city of York appealed the Commission decision to the Ontario Court of Justice, and lost. Justice Dennis Lane ruled that Hansen, as chief building official, could not refuse to issue a permit simply because it would create a hazard or violation with respect to the functioning of the neighbour's chimney.

The judge wrote that the provisions of the Building Code do not regulate adjacent buildings and ordered York to issue Alaimo a building permit.

If Justice Lane's decision is correct in law (and I have my doubts), then there is an urgent need for Queen's Park to amend the Building Code Act to prevent innocent neighbours like the Benjamins from being placed in an unsafe and dangerous condition a result of construction on neighbouring properties.

Bob Aaron is a Toronto real estate lawyer.  He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.  Visit the column archives at http://aaron.ca/columns/toronto-star-index.htm for articles on this and other topics.

Building Code Commission ruling:

http://www.obc.mah.gov.on.ca/Page648.aspx

 

BCC Ruling No. 94-36-414
BUILDING CODE COMMISSION DECISION ON B.C.C. #94-36-414

 

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

AND IN THE MATTER OF Article 9.21.4.4. 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 Mr. Pietro Alaimo for the resolution of a dispute with Mr. P.D. Hansen, Chief Building Official, City of York.

APPLICANT

Mr. Pietro Alaimo, Owner
Toronto, Ontario

RESPONDENT

Mr. P.D. Hansen
Chief Building Official
City of York

PANEL

Sarah Maman, Chair
Demir Delen
Sang Shim

PLACE

Toronto, Ontario

DATE OF RULING

November 22, 1994

APPEARANCES

Mr. Brian Haley
Assistant City Solicitor
City of York
For the Respondent

RULING

 

  1. The Applicant

    Mr. Pietro Alaimo is the holder of a permit under the Building Code Act, 1992 to construct a two storey single family dwelling (i.e. house) at 46 Snider Avenue, City of York, Ontario.

     

  2. Description of Constrution

    The applicant proposed to construct a two storey house within 3 m of a chimney on the adjacent property.

     

  3. Dispute

    The dispute between the Applicant and Respondent concerns the interpretation of the technical requirements of Article 9.21.4.4. of the Building Code. At issue is the determination of whether the building may be constructed within 3m of an existing chimney on the adjacent property.

     

  4. Provision of the Building Code

    Article 9.21.4.4.:   Height of Chimney Flues.

    A chimney flue shall extend not less than 900 mm (2 ft 11 in) above the highest point at which the chimney comes in contact with the roof, and not less than 600 mm (23? in) above the highest roof surface or structure within 3m (9 ft 10 in) of the chimney.

     

  5. Applicant's Position

    The applicant stated that prior to May of 1992, he owned a two storey brick and frame residential dwelling on the subject property.

    On May 4, 1992 he was granted a demolition permit and was assured the corresponding building permit would be issued forthwith. After effecting the demolition of the existing dwelling house, Mr. Alaimo proceeded to construct the footings for the proposed house. He was advised on June 3, 1992, that the building department had taken theposition that two existing chimneys on an adjacent property caused the proposed house to be in contravention of the Building Code.

    The building department then suggested that the problem could be solved if Mr. Alaimo agreed to extend the chimney belonging to the adjacent property owner to a height which would cause it to be at least 3 m away from the roof of the proposed house. Unfortunately, Mr. Alaimo was not able to secure the consent of the neighbour to extend the chimneys.

     

  6. Chief Building Officials Position

    The respondent stated that an application for a building permit was made in May, 1992 for a two storey house. The respondent refused to issue the permit unless the plans were changed to provide adequate clearance to the existing chimney on the neighbouring property. An alternative was to extend the chimneys or convert the existing furnace on the neighbouring house to a high efficiency furnace. However, this would only address one chimney since the other is a fireplace chimney.

    The owner cancelled his application for a permit in April 1993. A new application was made on June 30, 1994 and a permit was issued August 5, 1994. The plans showed that part of the second floor was recessed at two locations to provide the 3 m clearance required by the building department.

    The respondent argued that Article 9.21.4.4. applies not only to the new construction but to the existing two chimneys on an adjacent property. In other words, the applicant's dwelling must be designed to ensure that the proper clearances as per Article 9.21.4.4. between the existing chimneys and the applicant's dwelling are maintained.

    The respondent also felt he had a common Law duty of care which extends to neighbouring properties.

    The respondent said that he considers Common Law to be applicable Law under Subsection 8(2) of the Building Code Act, 1992.

    The respondent stated that the owner was issued a stop work order as he proceeded to construct the second story without the recesses as shown on the permit plans.

     

  7. Commission Ruling:

    In favour of the Applicant. It is the decision of the Building Code Commission that the two storey dwelling under construction at 46 Snider Ave., City of York, complies with Article 9.21.4.4. of the Building Code.

     

  8. Reasons:

     

       

    1. Article 9.21.4.4. applies only to the proposed construction on the applicant's property and is not applicable to existing chimneys on adjacent properties.

       

    2. The Code does not address any adverse effect to adjacent properties in this matter of chimney flues such as the Code does in the matters of surface drainage and groundwater levels.

       

    3. Should there be cause for concern after construction of the new building with regards to life safety and the protection of property of the adjacent buildings, other legislation is available.

Dated at Toronto, this 22nd day, in the month of November, in the year 1994, for application number 1994-48.

 

Sarah Maman

Demir Delen

Sang Shim

 

Ontario Court of Justice (General Division) - Appeal