BCAB 2007 - Addressing Code deficiencies in a change of occupancy in an existing building

Addressing Code deficiencies in a change of occupancy in an existing building

Project Description

The current project is the permitting and Code review of an unpermitted change of major occupancy in an existing building.  Work is necessary to address Code deficiencies and unsafe conditions associated with the change of use.

The building consists of the original wood frame structure and an addition of concrete and steel.  The Part 3 building is approximately 1083m² in building area and is two storeys in height, unsprinklered.  There is a Group F, Division 3 occupancy (bakery) at the first storey.  At some point in the past – estimated to be after 1996 – the second storey was changed to a Group C (residential) occupancy with the construction of nine dwellings units.  The local authority has no record of having issued a building permit at that time.

Applicable Code requirements (BCBC 2024)

Sentence 1.1.1.1.(1), Division A, Application of this Code

(1) This Code applies to any one or more of the following:

(a) the design and construction of a new building,

(b) the occupancy of any building,

(c) a change in occupancy of any building,

(d) an alteration of any building,

(e) an addition to any building,

(f) the demolition of any building,

(g) the reconstruction of any building that has been damaged by fire, earthquake or other cause,

(h) the correction of an unsafe condition in or about any building,

(i) all parts of any building that are affected by a change in occupancy,

(j) the work necessary to ensure safety in parts of a building

(i) that remain after a demolition,

(ii) that are affected by but that are not directly involved in alterations, or

(iii) that are affected by but not directly involved in additions, . . .

Sentence 1.1.1.2.(1), Division A, Application to Existing Buildings

(1) Where a building is altered, rehabilitated, renovated or repaired, or there is a change in occupancy, the level of life safety and building performance shall not be decreased below a level that already exists. (See Note A-1.1.1.2.(1).)

A-1.1.1.2.(1), Division A, Application to Existing Buildings.

This Code is most often applied to existing or relocated buildings when an owner wishes to rehabilitate a building, change its use, or build an addition, or when an enforcement authority decrees that a building or class of buildings be altered for reasons of public safety.  It is not intended that the British Columbia Building Code be used to enforce the retrospective application of new requirements to existing buildings or existing portions of relocated buildings, unless specifically required by local regulations or bylaws.  For example, although the British Columbia Fire Code could be interpreted to require the installation of fire alarm, standpipe and hose, and automatic sprinkler systems in an existing building for which there were no requirements at the time of construction, it is not intented (sic) that the British Columbia Fire Code be applied in this manner to these buildings unless the authority having jurisdiction has determined that there is an inherent threat to occupant safety and has issued an order to eliminate the unsafe condition, or where substantial changes or additions are being made to an existing building or the occupancy has been changed. (See also Note A-1.1.1.1.(1) of Division A of the British Columbia Fire Code.)

Relocated buildings that have been in use in another location for a number of years can be considered as existing buildings, in part, and the same analytical process can be applied as for existing buildings. It should be noted, however, that a change in occupancy may affect some requirements (e.g. loads and fire separations) and relocation to an area with different wind, snow or earthquake loads will require the application of current code requirements.  Depending on the construction of the building and the changes in load, structural modifications may be required.  Similarly, parts of a relocated or existing building that are reconstructed, such as foundations and basements, or parts being modified are required to be built to current codes.

Whatever the reason, Code application to existing or relocated buildings requires careful consideration of the level of safety needed for that building.  This consideration involves an analytical process similar to that required to assess alternative design proposals for new construction.  See Clause 1.2.1.1.(1)(b) for information on achieving compliance with the Code using alternative solutions.

In developing Code requirements for new buildings, consideration has been given to the cost they impose on a design in relation to the perceived benefits in terms of safety.  The former is definable; the latter difficult to establish on a quantitative basis.  In applying the Code requirements to an existing building, the benefits derived are the same as in new buildings.  On the other hand, the increased cost of implementing in an existing building a design solution that would normally be intended for a new building may be prohibitive.

The successful application of Code requirements to existing construction becomes a matter of balancing the cost of implementing a requirement with the relative importance of that requirement to the overall Code objectives.  The degree to which any particular requirement can be relaxed without affecting the intended level of safety of the Code requires considerable judgment on the part of both the designer and the authority having jurisdiction.

Further information on the application of Code requirements to existing or relocated buildings can be found in the following publications:

• “User's Guide – NBC 1995 Fire Protection, Occupant Safety and Accessibility (Part 3)”
• “Guidelines for Application of Part 3 of the National Building Code of Canada to Existing Buildings”
• Commentary entitled “Application of NBC Part 4 of Division B for the Structural Evaluation and Upgrading of Existing Buildings ” of the “Structural Commentaries (User's Guide – NBC 2020: Part 4 of Division B)”
• “User's Guide – NBC 1995, Application of Part 9 to Existing Buildings”
• CBD 230, “Applying building codes to existing buildings”

These publications can be accessed through the NRC Publications Archive at https://nrc-publications.canada.ca.

Decision being appealed (Local Authority’s position)

Sentence 1.1.1.2.(1), Division A, does not apply to the change of occupancy to add residential dwelling units at the second storey because the alterations were undertaken without a building permit and do not fully meet the requirements in force at the time of construction and there are evident problems and a lack of attention to basic life safety.  The Code requires compliance with the acceptable solutions in Division B of the BCBC 2024.

Appellant's position

The Building Code does not define the word existing and, while it is easier to assess existing conditions with the ability to review the provisions in the Building Code under which they were constructed, there are countless buildings that were constructed or renovated before building codes existed or before the local municipality existed or otherwise outside the municipal process.

The subject building does not fully meet the requirements in force at the time of construction and there are evident problems related to basic life safety.  However, there is no intent that existing buildings cannot be improved to the point that they can be safely used or that the Building Code does not consider them existing.

In new construction, the level of performance is established by the objective and functional statements attributed to the acceptable solutions.  In existing buildings, the level of performance is established in Sentence 1.1.1.2.(1) and specifically requires that the alterations do not reduce the existing level of performance.  Assessment may determine an existing condition to be reasonable without needing to meet the level of performance for new construction.

The proposal is to treat the building as existing and, using the method outlined in the User’s Guide, to address fire protection and occupant safety deficiencies.

Appeal Board Final Decision #2007

The Board varies the decision of the local authority.

It is the determination of the Board that relevant acceptable solutions in the Code apply to the project and set the level of performance required to achieve the Code’s objectives.

The building is an existing building.  Article 1.1.1.2., Division A, applies to the project, together with the guidance provided in Note A-1.1.1.2.(1), Division A.

Reason for Final Decision

When the alteration of the building and the change of occupancy occurred (i.e., in 1996 or later), the relevant provisions of the then-current code regulated the work and set the required level of performance.  Also at that time, the building was existing so an existing buildings Article¹ applied and an Appendix Note² provided guidance.  If the local authority had been involved, there might have been a discussion about “the degree to which any particular requirement [could] be relaxed without affecting the intended level of safety”³.

For the current project, the relevant acceptable solutions of the BCBC 2024 regulate the work and set the level of performance required to achieve the Code’s objectives.  The building is existing so Article 1.1.1.2., Division A, applies.  The local authority is involved, so there can be a discussion about “the degree to which any particular requirement can be relaxed without affecting the intended level of safety” ³.

The Board notes that, for an existing building that is being altered or undergoes a change of occupancy, the relevant acceptable solutions regulate the work and establish the level of performance required to achieve the Code’s objectives.  That required level of performance is the same as for new construction.  At the same time, the Code recognizes that, in existing buildings, a measured degree of judgement may be applied by the designer and the local authority.  Where appropriate, some latitude may be exercised, and particular requirements may be relaxed without affecting the intended level of building performance and safety.

The Appendix Note, and the documents referenced in the Note, offer useful guidance on applying the Code to a change of occupancy in an existing building, including the process that can be followed and the expected outcomes.  For example, case studies A and D, from “User's Guide – NBC 1995, Application of Part 9 to Existing Buildings” [pages 2-1 and 2-3] discuss using the building code “as a guide in meeting its prime objectives of providing for a safe and healthy environment for building occupants when it is not practical to follow its literal application”, even though the guide addresses Part 9 buildings (rather than the subject Part 3 building).

Alternative solutions may be proposed and accepted where appropriate.

Separate analysis is needed to confirm that no aspect of the work will inadvertently decrease the level of life safety or building performance because “the level of life safety and building performance shall not be decreased below a level that already exists”⁴.  Any such reduction must be avoided.

Don Pedde
Chair, Building Code Appeal Board 

Dated:  September 17, 2026