BCAB #1837

December 31, 2019

Re: Determining Limiting Distance

Project Description

The project is a proposed, combustible mixed-use building to be constructed under Part 3 of the British Columbia Building Code.

Along a southerly property line of the land for the proposed building, there is a restrictive covenant on title that requires a line setback of 1525 mm (5 feet) from the property line for its entire length. The covenant primarily restricts the construction or placement of a building/structure or the accumulation of materials which could be a fire hazard within the identified covenant area.

Directly on the other side of the property line is an existing (2005) mixed-use 4-storey building of combustible construction with unprotected openings located at property line.

Applicable Code Requirements

Definition of limiting distance in Sentence 1.4.1.2.(1) of Division A and excerpt from Note A-3.2.3. of Division B of the British Columbia Building Code 2018.

Limiting distance means the distance from an exposing building face to a property line, the centre line of a street, lane or public thoroughfare, or to an imaginary line between 2 buildings or fire compartments on the same property, measured at right angles to the exposing building face.

A-3.2.3.   Fire Protection Related to Limiting Distance versus Separation Between Buildings.   …The authority having jurisdiction may also address limiting distances through legal agreements with the parties involved that stipulate that the limiting distance be measured to a line that is not the property line. Such agreements would normally be registered with the titles of both properties.

Decision being Appealed (Local Authority’s Position)

The local authority has determined that limiting distance shall be measured to the line established by the restrictive covenant and not the property line. The local authority believes that the covenant was placed on the property so that the existing adjacent building could be constructed of combustible construction and have unprotected openings directly at the subject common property line. This would require limiting distance be measured to the same covenant line, and applicable for buildings on both sides of the property line.

Appellant's Position

The appellant contends that as the restrictive covenant is not enforceable as a new line for limiting distance, and that the limiting distance for the subject project building should be measured to the property line. The adjacent existing building should be considered to be existing non-conforming with the spatial separation requirements of the BC Building Code.

Appeal Board Decision #1837

It is the determination of the Board that limiting distance for the subject project building and the adjacent building shall be measured to the property line, unless a legal agreement is specifically established otherwise by the parties involved that would result in compliance with the BC Building Code.

Reason for Decision

• The wording of the restrictive covenant does not explicitly relate to establishing a new datum for the purpose of measuring limiting distance.
• There was no evidence provided to the Board that the intent of the restrictive covenant was to establish a datum other than the property line to which limiting distance would be measured.

Restrictive Covenant References

1. Use Restrictions
   1. For a distance of 91 feet perpendicular from the property line fronting Second Street, the Granter covenants and agrees with the Grantee that excepting the emergency generator no building or structure will be constructed, installed, placed or erected on the Covenant Area and no mobile home or unit or modular home or structured will be located on the Covenant Area and that the Covenant Area shall not be used for the storage of vehicles and shall be maintained as a buffer between the Dominant Tenement and the Servient Tenement free of any trees, fuel or other vegetation or substances which may constitute a fire hazard.
   2. Further Assurances – The parties hereto shall execute and do all further deeds, acts, things and assurances that may be reasonably required to carry out the intent of this Agreement.

Lyle Kuhnert

Chair, Building Code Appeal Board