BCAB #1857

April 1, 2021

Re: Applicable edition of BC Building Code

Project description

The project is a 12-storey high building with 2 storeys below grade.

As a result of local government planning and zoning, the subject property was proposed to be downzoned to permit a maximum building height of six storeys. This was endorsed by a resolution of local government council on November 7, 2018. Pursuant to the Local Government Act, a building permit contrary to a proposed zoning change cannot be withheld if application for the building permit occurs within 7 days after the date of the resolution.

A building permit was applied for the construction for the building’s foundation on November 14, 2018. It was practice at this time that the local government would accept a separate building permit for the foundation in advance of the main building permit. Discussions occurred between the applicant and the local authority, including resubmission (2019) until issuance of the foundation building permit on March 17, 2020. A building permit was applied for, for the above-grade superstructure of the building, on April 17, 2020. As of February 2021, the commencement of excavation is very limited.

Applicable Code requirements

The effective date of the adopting order for the 2018 BC Building Code (BCBC) was December 10, 2018.

 Application of B.C. Reg. 264/2012

3 (1) In this section, “building permit” means a building permit issued

(a) by a “local authority” as defined in the Building Act, or

(b) under the University Endowment Land Act.

(2) B.C. Reg. 264/2012, the British Columbia Building Code Regulation, applies only to the construction or alteration of a building as follows

 (a) if a building permit is required,

(i) the building permit is applied for before the effective date of this order, and

(ii) the building permit applied for is issued and work commences and continues to completion without interruption, other than work stoppages considered reasonable in the building industry, or

(b) if no building permit is required, the construction or alteration of the building has substantially started as of the effective date of this order and work continues to   completion without interruption, other than work stoppages considered reasonable in the building industry.

(3) All work referred to in subsections 2(a) and (b) must be carried out in conformity with B.C. Reg. 264/2012.

Decision being appealed (local authority’s position)

The local authority has determined that the permission for the application of the 2012 BCBC is limited only to the scope of the foundation permit that was applied for prior to December 10, 2018. Other permits applied for (the buildings superstructure) after December 10, 2018 would need to comply with the BCBC 2018, even if they are the same building project that the foundation permit was issued for.

Appellant's position

The appellant maintains that the BCBC 2012 should apply to subsequent permits applied for after December 10, 2018 for the same building project of which the foundation permit was applied for prior to December 10, 2018 and issued on March 17, 2020.

Primarily due to higher lateral forces in seismic/structural design in the 2018 BCBC, the foundation for which the permit was issued, would need to be re-designed to accommodate a superstructure designed to the BCBC 2018.

Appeal Board decision #1857

It is the determination of the Board that the BCBC 2012 is applicable to the foundation permit issued, and subsequent permits for the subject building until its completion/occupancy that were applied for after December 10, 2018.

Reason for decision

The Board considers the foundation permit issued for the subject building to be a component/subset of the building permit for the project.

The Board considers the delay in the construction of the foundation to be “considered reasonable in the building industry,” due to the uncertainty of the permit conditions for the building’s superstructure.

The Board’s decision is limited to the content and application of the Ministerial Order No. BA2018-1, and other matters such as local government bylaws are outside of the Board’s scope and mandate.

Lyle Kuhnert

Chair, Building Code Appeal Board