ADMINISTRATIVE REPORT

Date: January 19, 1999

Author/Local:Tom Timm

RTS No.461

CC File No. 2501

TO:	Standing Committee on Planning and Environment
FROM:	City Building Inspector
SUBJECT:	Building Board of Appeal By-Law Amendment

RECOMMENDATION

A. THAT Council approve changes to the Building Board of Appeal By-Law, as described in this report, in order to clarify the scope of jurisdiction of the Building Board of Appeal.

B. THAT Council instruct the Director of Legal Services to prepare the necessary By-law amendment.

GENERAL MANAGER'S COMMENTS

The General Manager of Community Services RECOMMENDS approval of A and B.

COUNCIL POLICY

The Vancouver Building By-Law establishes minimum standards for safety in the construction of buildings.

The Building Board of Appeal By-law establishes the Building Board of Appeal and defines the jurisdiction of the Board.

PURPOSE

By-Law # 6135, known as the Building Board of Appeal By-Law, establishes a Board which has authority to rule on applicants' appeals of certain decisions of the City Building Inspector with regard to the Vancouver Building By-Law. As a result of a recent appeal, questions have arisen as to the scope of the jurisdiction of the Board. The purpose of this report is to recommend a minor amendment to the Building Board of Appeal By-Law in order to clarify the scope of the Board's authority.

BACKGROUND

The relevant section of the Building Board of Appeal By-Law reads as follows:

"4.1 The Board is empowered to consider an appeal made from any decision of the City Building Inspector pursuant to:

(a) the Building By-law and in respect of:

(i) the City Building Inspector's interpretation of the By-law,
(ii) the use of new methods or materials,
(iii) the City Building Inspector's determination of extent of upgrading existing buildings or permitting alternative proposals as outlined in Article 1.5.2.1.,
(iv) the City Building Inspector's determination of an unsafe condition as outlined in Clauses 1.10.2.1.(1)(f) and (g) or Subsections 1.10.15. And 16.,
(v) the City Building Inspector's determination of an unsafe condition as outlined in Article 1.5.2.6., or
(vi) the City Building Inspector's reasons for revoking a permit;

...". (emphasis added)

The difference in interpretation of this section arises out of the word "and" - shown in italics in the quotation above - in the first line of clause (a). The Board believes that this is intended to mean that its jurisdiction extends to appeals on anything to do with the Building By-Law and, in addition, to the list of specific items in (i) through(vi). Staff interpretation of the by-law, both from the City Building Inspector and from Legal Services, is that the Board's jurisdiction is limited to appeals of the City Building Inspector's decisions only in respect of the list of specific items in (i) through (iv).

This report recommends an amendment to the by-law to remove the word "and" and substitute therefor the word "only" in order to remove this perceived ambiguity.

DISCUSSION

The issue in this report is whether the jurisdiction of the Board ought to encompass relaxations from the requirements of the Building By-Law in addition to decisions regarding interpretations and evaluations of equivalencies.

The specific case that brought the issue of the Board's jurisdiction to light is relatively minor. However, it has broader implications. The issue arose on an appeal regarding the height of a doorway which formed part of a required means of egress. The by-law requires a minimum 6'8" high clear opening and the applicant was requesting approval of 6'2" doors. Staff took the position that 6' 2" is not equivalent to 6' 8" and approval of this variation would constitute a relaxation, not an equivalency. Staff did not approve the relaxation because the by-law only allows for minor variations from its explicit provisions if, "in the opinion of the authority having jurisdiction, (the City Building Inspector), such variation will not substantially lessen the objectives thereof." It was the City Building Inspector's opinion that a 6" reduction in the height of a doorway is a substantial reduction from the minimum requirement of the by-law. This decision was appealed to the Board.

It is not open to staff to refuse an applicant the right to appeal to the Board. However, the applicant and the Board were informed that the City Building Inspector did not believe that the Board had jurisdiction to allow the appeal. Although it did not allow the appeal, the Board disagreed with this position on their jurisdiction. As stated above, the members feel that the by-law allows them full scope to overrule any decision of the City Building Inspector.

Staff members believe that it was not the intent of the by-law to allow the Board full jurisdiction to grant Code relaxations. The opening sentence of Section 4.1 states that "The Board is empowered to consider an appeal from any decision of the City Building Inspector pursuant to ..."(emphasis added). Based on this language it seems clear that the Board should only be considering appeals where the City Building Inspector has authority to make a decision and the applicant disagrees with that decision. The City Building Inspector is only empowered to grant minor relaxations as described above, or to determine that some alternate proposal provides an equivalent level of safety to the code requirements. The By-Law does not allow him to grant significant relaxations. Therefore there is no decision of the City Building Inspector to appeal if the applicant is seeking a significant relaxation of the By-Law requirements. Staff members believe that the Board does not have the jurisdiction to allow such an appeal.

The recommended amendment will further clarify the provisions of this section.

The Vancouver Building Board of Appeal is modelled on the Provincial Building Appeal Board, which serves a similar function with regard to the British Columbia Building Code in other jurisdictions in the Province. That body has a more limited scope than the Vancouver Board has under items (i) to (vi) listed in Clause 4.1. Item (ii) of the clause allows the Building Board of Appeal to rule on the use of new methods or materials. This has been interpreted to include methods of achieving the intent of the By-law through alternate or equivalent measures, (i.e. equivalencies). This is a very broad scope which includes such things as additional sprinkler protection in lieu of fire separations. The Provincial Appeal Board can only deal with matters of interpretation of the Building Code. They do not deal with appeals relating to equivalencies.

Whether or not the current by-law was intended to give full authority for relaxations to the Board, I believe that the more limited authority, as clarified by the proposed by-law amendment, is the appropriate role for the Board. As stated, the Board's authority is greater than that of the Provincial Appeal Board in that it includes the evaluation of appeals on equivalency submissions, but it should not include complete authority to grant relaxations of the Building By-Law.

* * * * *

(c) 1998 City of Vancouver