Definitions

Authority Having Jurisdiction: A body having jurisdiction in certain matters of a public nature; a body having power under a statute to pass regulations to direct, specify, and govern elements or activities of construction projects such as safety, health, or standards of manufacture or installation; a government body responsible for the enforcement of any part of the building code, or the official or agency designated by that body to exercise such function (as per the National Building Code 2015).

Building Code: A regulation which describes minimum requirements for public health, safety and welfare for the design and construction of buildings.

Constructor: A person who contracts with an owner or the owner’s authorized agent to undertake a project; includes an owner who contracts with more than one person for the work on a project, or undertakes the work on a project or any part thereof (as per the National Building Code 2015).

Permit: A document issued by an authority having jurisdiction allowing work or an activity which is specified.

Stop Work Order: An order to a constructor by an authority having jurisdiction ordering the work to be stopped.

Introduction

The architect’s duty to the public is implemented, in part, by interpreting and complying with building regulations. Every project undertaken by an architect is subject to a maze of statutes, codes, standards and by-laws. It is not uncommon for a project to be regulated by several levels of government (municipal, provincial and/or federal) as well as by First Nations, regional or metropolitan governments.

The numerous government requirements will vary from project to project. A few examples are the regulations governing:

• hospitals, theatres, nursing homes, hotels, and office and industrial buildings;
• toxic and hazardous materials;
• air, noise and water pollution;
• fire, construction safety and public health;
• seismic performance;
• accessibility for persons with disabilities;
• energy performance and sustainability measures. 

See the checklists at the end of this chapter for more examples.

The architect must have a general understanding of the complete regulatory environment, even though some regulations may not directly affect architectural services or the design process. For example, although construction safety regulations apply strictly to the contractor and to the operation of the construction project, and as such are the responsibility of the contractor, the architect must be aware of these regulations and the accompanying responsibility.

Certain environmental assessment requirements may demand soil or archaeological studies, which could have an impact on the project funding, schedule and costs. The architect should be familiar with any such regulations, indeed all regulations, pertaining to the project. In addition, the architect should know which authorities having jurisdiction are responsible for the administration of the regulations.

This chapter explains the role of building regulations and their administration by authorities having jurisdiction, and suggests how the architect can work effectively with them.

The Role of Authorities

Building Codes and Regulations

Construction of sound, safe buildings and structures is fundamental. Building codes and regulations provide these minimum safety standards.

Most codes and regulations were established to protect the public, that is, to prevent and mitigate such hazards as structural collapse, fire, accidents and disease.

Some regulations ensure safe buildings by requiring an adequate supply of potable drinking water, sanitary conveniences, minimum spatial dimensions, and illumination levels, and other features which affect the building’s design.

However, not all regulations govern building safety. A municipal zoning bylaw or land-use regulation, for example, regulates land use and density as well as the massing, height and location of buildings. Such a regulation, which is intended to govern the planned and orderly development of the municipality, can markedly affect the architectural design of a building.

Building codes often adopt standards set by public and private organizations. Refer to Chapter 2.5 – Standards Organizations, Certification and Testing Agencies, and Trade Associations for more information on standards.

Enabling Legislation

Adopting and enforcing codes and statutes requires federal or provincial legislation. Under the British North America Act, and its successor, the Constitution Act, responsibility for building regulation rests with the provinces (except for buildings on federal land). Enabling provincial legislation authorizes municipal councils (and others) to appoint staff and assign duties and responsibilities to administer regulations.

Sometimes codes are provincially enacted; sometimes they are municipal bylaws. The local municipal building official usually administers the building code by means of the building permit and building inspection processes.

Building officials are empowered to determine that the erection and maintenance of buildings comply with these regulations.

National Building Codes

The National Building Code (NBC) of Canada is a model code. The NBC is a code of regulations for public health, fire safety, and structural sufficiency with respect to buildings. It establishes a minimum standard of safety and accessibility for the construction of buildings (including extensions and alterations), the evaluation of buildings involving a change of occupancy, and the upgrade of buildings to remove an unacceptable hazard. Serving as a basis for other building codes, the NBC is modified to reflect regional requirements or procedures and then adopted as a provincial or municipal building code.

The National Fire Code is also a model code of minimum requirements to ensure an acceptable standard of fire prevention, firefighting provisions, and life safety in existing buildings and within the community at large. Although life safety is the primary objective of the National Fire Code, it also includes measures of property protection to the extent that it makes a direct contribution to life safety and aims to control conflagrations or large loss fires.

The National Plumbing Code (Part 7 of the NBC) covers the design and installation of plumbing systems in buildings.

The National Farm Building Code deals with the particular requirements for farm buildings of low human habitation.

The Illustrated User’s Guide – NBC 2015: Part 9 of Division B, Housing and Small Buildings is a compendium of requirements in the National Building Code which apply to detached, semi-detached and row houses.

The National Energy Code of Canada for Buildings provides standards for the construction of energy-efficient buildings.

These codes are model documents only and must be adopted provincially in order to come into effect.

The Canadian Commission on Buildings and Fire Codes (CCBFC) issues the National Building Code (NBC), written by various technical committees and published by the National Research Council of Canada. The NBC has introduced objective-based requirements to eventually replace the “prescriptive” requirements found in the National Building Code.

The Building Permit and Inspection Process

The client or their agent (sometimes the architect) must submit an “application to build” to local building officials, and usually must verify the correctness of the application by a statutory declaration. The application is accompanied by a stipulated number of sets of architectural, structural, mechanical, and electrical documents for the proposed building. Officials review the application for compliance with municipal bylaws, regulations, and the building code. Other municipal bodies — such as fire, planning, health, forestry and public works departments — may also review the application. When the documents are approved, a building permit is issued. The applicant is advised of any non-complying items.

During construction, municipal building officials review the work for general compliance with the approved documents and building codes.

In the case of deviations, revised plans must be submitted to and approved by the building department. Each province has its own system to ensure compliance. For example, Ontario has created a Qualification and Registration Tracking System (QuARTS) that requires those who are not architects or engineers to register for a Building Code Identification Number (BCIN) in order to become eligible to apply for a building permit. Another example is the province of Alberta, which engages private sector building inspectors.

Building officials are authorized to:

• issue compliance orders;
• stop work until corrections have been made;
• lay charges in the case of serious infractions.

Building officials deal primarily with contractors; however, they are also often in contact with project architects, who must review and confirm that the work generally conforms to the documents forming the basis of a building permit.

Other levels of government may also require the submission of construction documents. These authorities having jurisdiction could include:

• the regional, provincial or federal department of labour;
• public health departments;
• roads, transportation, and communications authorities;
• the office of the fire marshal.

Building Officials

Building officials:

• require and receive applications to erect, enlarge, alter, demolish or move buildings;
• review plans, specifications and reports to determine that the proposed work meets all applicable regulations;
• issue a permit to commence construction, when the application is complete and complies with all applicable regulations;
• inspect construction in progress for compliance with the approved documents and applicable regulations;
• report contraventions to the appropriate persons;
• issue orders to correct outstanding contraventions prior to use or occupancy, or sooner where circumstances dictate;
• initiate action according to policy when orders are not carried out within the stipulated time;
• issue a certificate of compliance or a similar document when regulations have been met;
• assess unsafe and inadequately maintained conditions within buildings and order corrective action;
• exercise judgement in the application of regulations;
• keep records as required;
• report regularly to managers and municipal councils;
• review proposals for equivalencies to code requirements.

Building officials must be well-versed in the regulations and their application, and must understand their importance to public safety. Building officials must:

• know the current legislation;
• be aware of changing building technology and its effects;
• have an understanding of what best serves the public interest.

Building officials must also interpret the meaning of the regulations, their current relevancy, and the need for change. To do so, the officials must communicate effectively with:

• the public, to help the public understand regulations and procedures;
• municipal councils;
• design professionals;
• the construction industry;
• associations concerned with public safety in buildings and structures;
• committees and persons who prepare regulations;
• other building officials.

Relationships with Authorities

The client, the architect, consultants, and the contractor may all have to deal with various authorities having jurisdiction.

The Authority and the Client

The client may become directly involved with an authority during the pre-design stages. Experienced clients may also make initial inquiries to the authorities prior to the appointment of an architect, or in conjunction with the architect. The client may apply directly for the building permit.

If a permit is denied, even when all documentation for compliance with zoning bylaws and the building codes is provided, the client should consult the architect. If necessary, legal counsel can be sought.

The following are possible legal procedures affecting the construction of buildings:

• an injunction;
• a mandamus.

An injunction is sought when a public body applies to the court for an order restraining a private individual or other body from violating an applicable law. In the construction industry, it is often applied to stop an individual or company from constructing a building contrary to regulations, codes or bylaws. A typical example is a stop work order.

A mandamus is an order directing a public body to exercise a public duty, such as the issuance of a building permit. If a municipality refuses to issue a building permit and forces the client to apply to the court for a mandamus, the architect must be sure that all building plans and specifications comply fully with municipal bylaws and building codes.

The Authority and the Architect

For the architect, the most important authorities having jurisdiction are those which administer the zoning and development bylaws and the applicable building code.

Analysis of zoning and code requirements commences early in the design of a project, and the architect begins the process of communication with the various authorities having jurisdiction. Together with the subconsultants, the architect will usually be the prime contact with authorities during the design and contract document stages. See also Chapter 6.2 – Schematic Design.

The architect must be thoroughly familiar with the building code. It contains many requirements, in addition to structural ones, which affect the design of the building, such as:

• window openings;
• means of egress;
• design of stairways and their enclosures;
• openings between floors;
• compartmentalization for fire safety;
• accessibility for persons with disabilities;
• travel distance to exits.

Most officials encourage early consultation with architects to clarify zoning bylaws and building code requirements before the construction documents are advanced. In some instances, the local authority requires payment of the permit fee before providing consultation. For major projects, it is advisable to hold a series of meetings with the authority having jurisdiction as the design progresses. Minutes of these meetings should be prepared and distributed. Such consultations will help to encourage co-operation, improve communications, and resolve differences of interpretation with respect to the zoning bylaw or building code. This in turn will help avoid the costly delays that result from revisions to construction documents.

Early consultation with building officials also enables the architect to determine which approvals from other government bodies will be needed to obtain the building permit. As well, the authority becomes familiar with the pending application and should be able to process it more efficiently.

It is good practice for the architect to include a detailed schedule or building code analysis as part of an application for a building permit. This analysis may be part of the construction documents. An example of such a document is the mandatory building code matrix Ontario architects must append to every building permit document package when applying for a building permit.

Architects are also advised to submit the building permit application, completed and signed by the client, before or during the call for bids, together with the permit fee. This allows the building department to review the plans and prepare the building permit for the successful bidder before the construction contract award. Such a procedure avoids potential delays and allows time to make changes to the plans before the contract is signed. Some owners require the successful contractor to obtain and pay for the building permit, which may result in delays.

The architect should develop professional relationships with building officials and deal with any conflicts in code interpretation tactfully.

See also Chapter 6.6 – Contract Administration – Office and Field Functions for Letters of Assurance in British Columbia. These documents, required at the building permit and occupancy permit stages, indicate the code-related and other responsibilities of the owners, architects, and engineers.

The Authority and the Contractor

Contact between the authority having jurisdiction and the contractor or construction manager normally occurs after the building permit is issued. Without the building permit, the contractor cannot legally begin construction. Permit delays can be extremely costly, as workers and equipment stand idle and contractual obligations are unfulfilled.

In many cases, the contractor is responsible for:

• obtaining a permit from the municipality to occupy public property for the construction of a hoarding or covered way for public protection;
• designing the shoring for excavation or other temporary structures such as scaffolding or guards;
• obtaining separate approvals from the building departments, such as a demolition permit or a sewer connection permit.

During construction, the contractor must keep the approved building permit documents on the job site so that the building official can consult them and be satisfied that construction is in general compliance with the approved documents. The contractor must not deviate from these documents without consent of the authority and the architect, and the architect must notify the authorities of any changes. To avoid problems, the architect should review any significant changes with the authorities having jurisdiction prior to preparing instructions or change orders for the contractor.

The contractor or construction manager has a responsibility as “constructor” to strictly adhere to the applicable construction safety act and regulations. Provincial legislation governs who is responsible for construction safety. In some instances, and in certain jurisdictions, the owner may be the “constructor” and is therefore responsible for construction safety. The situation usually occurs when the owner is performing some of the work directly or has hired more than one contractor. Safety officials inspect construction operations frequently and have the authority to issue compliance or stop work orders in the event of infringements. See also Chapter 1.2.1 – The Construction Industry.

The architect should be aware that the architect and all employees of the architect are also subject to the construction safety act and regulations.

Approvals

The following authorities are listed in the approximate chronological order in which they may be contacted by the architect.

Planning:

• planning department – for architectural and site control, consultation, and zoning bylaw interpretation;
• committee of adjustment, or planning board, or committee of variance – for minor variances;
• planning board or committee or advisory planning commission – for initial approvals;
• municipal council – for approvals such as the development permit, re-zoning and special agreements;
• provincial municipal board – for contentious council decisions;
• design panel, control architect.

Canada Mortgage and Housing Corporation (CMHC): CMHC should be consulted early in the process for multiple-unit residential projects involving CMHC financing.

Roads and Highways:

• provincial highways authority – consult early in the design stage for approval required for projects abutting major highways outside metropolitan areas;
• provincial, county, metropolitan or regional planning and traffic authorities, and roads departments – consult early in the design stage for approval of entrances, exits, grades.

Environment, Conservation Authorities and Water Resources:

• consult regarding approval if land abuts or includes flood plains, water courses, streams, and low-lying areas or ravines;
• consult regarding approval for both land use and sewage systems for projects which have no municipal sewage available to property, for example, cottages or resort hotels;
• consult regarding environmental impact of previous or proposed use of a site;
• consult if the site has contaminated soils.

Regional Planning:

These bodies, responsible for setting official plans for larger areas, often include a group of smaller municipalities. Although local municipalities may administer site-plan approval, regional planning authority approval may also be required. To minimize confusion, the architect should determine jurisdictional responsibilities at the outset of a project.

Institutional and Other Regulating Bodies:

• hospital commissions and boards;
• housing for special needs and users;
• public health departments;
• provincial education authority;
• other authorities, for specific building types or conditions.

Deed Restrictions and Architectural Approval:

• building limitations placed by the vendor as conditions of sale;
• restrictive covenants registered on title;
• building plan approvals are sometimes instituted by industrial and residential land developers as a further means of controlling the design of buildings. Because negotiations can be very complex, the client should check “agreements to purchase” for any such restrictions, and consult the architect or the vendor;
• certain jurisdictions (such as the National Capital Commission in Ottawa) must approve architectural design.

Construction:

• building department – for all building permits;
• provincial authority for occupational health and safety – for commercial and industrial buildings;
• provincial fire marshal – usually for institutions receiving provincial funding and for assembly occupancies;
• municipal fire authority – usually for projects other than single-family housing.

Engineering:

• engineering departments – consult for approval of site services. Design approval may be complicated by the division of certain responsibilities to other levels of government. For example, regions may have control over the design of water services and sanitary sewers, while municipalities control storm water discharge and collection;
• municipal plumbing departments – consult for special approvals, for example, industrial waste disposal, restaurant and food preparation wastes, water and service connections, and design of special septic systems;
• works departments – for items affecting streets, easements, electrical and data services or other public property.

E-permitting

The submission, review, and approval of permit applications is increasingly being done using electronic platforms. E-permitting is growing in popularity in municipalities across Canada. Driving forces in the implementation of e-permitting include:

• reduced approval times;
• greater consistency in approval decision-making.
• alignment of AEC technology innovations, including BIM, with approval processes;
• reduced construction costs through shortened schedules.

From the 2017 study prepared by Ryerson University’s Centre for Urban Research and Land Development and the Residential Construction Council of Ontario:

“Ontario municipalities have fallen behind many jurisdictions that have implemented comprehensive Building Information Modelling (BIM) based e-permitting systems. Ontario is missing a common platform for interoperability among agencies which would allow files to be easily transferred between municipal and provincial agencies and processed.

“According to the report “Shaping the Future of Construction” by the World Economic Forum, BIM is the most likely and impactful new technology to affect the construction sector. BIM can create a digital representation of a project which covers building design, procurement, and construction management. Some Ontario building designers who use BIM currently need to print their plans on paper so that they can be reviewed by municipal building officials.”
– Duong and Amborski, p. 4

Comparative studies of traditional permitting systems and e-permitting have concluded that both approval and construction costs are reduced, and overall approval/construction schedule are shortened significantly. In their studies, Shahi et al. and Duong and Amborski discuss the increased costs in Canada’s most expensive housing markets, with a focus on the Greater Toronto Area (GTA), due to the lengthy time required to obtain permit approvals. The challenges facing municipalities in approving housing projects is placed in sharp relief when the rate of new housing construction is compared to the demand resulting from urban population increase. As well, they discuss the comparative efficiencies that e-permitting has brought to other jurisdictions leading the way such as Singapore and Finland.

Shahi et al. describe the scope of e-permitting implementation in a matrix that illustrates four levels of e-permitting across four lifecycle phases of design, review, construction, and operation. (See Figure 1 below.)

FIGURE 1 Framework for different levels of e-permitting. Reprinted with permission from ASCE.

Level 0: Traditional permitting process based on paper documentation, manual review of 2D documents,  no automation of submissions, review or tracking of submissions through the permitting process.

Level 1: Application and submission of 2D drawings and tracking process through a customer portal. Submissions are electronically distributed to the various approval departments and electronically filed in shared system archives.

Level 2: Review for code and regulatory requirements of 3D, 4D or 5D models using automated algorithms.

Level 3: Models integrated into an urban-scale GIS supporting analysis of not only a building project but also its context.

Many municipalities in Canada either have or are implementing Level 1 e-permitting and employ customer portals for submission and tracking of 2D PDF files. Projects approved for e-permitting may be limited in scope. The practical implementation of a Level 1 e-permitting system requires developing common standards (open source) for an e-permitting system that would have functionality including:

• Online permit application and payment;
• Electronic provision of comments to applicants;
• Online tracking of application status by applicants.

At a basic level, in addition to these functions, a Level 2 system would require:

• Online submission of building models and/or drawings linked to BIM models or CAD drawings;
• Automated code compliance review.

The message for architects is that as more municipalities adopt e-permitting it becomes strategic to identify design processes that may result in misalignments between design deliverables and municipal submission and approval requirements.

References

American Institute of Architects. An Architect’s Guide to Building Codes & Standards. Fourth Edition. Washington, D.C.: AIA Press, 1997.

“Codes-Guides online library”, National Research Council of Canada, 2019, https://nrc.canada.ca/en/certifications-evaluations-standards/codes-canada/codes-guides-online-library, accessed April 21, 2020.

Duong, Lynn, and David Amborski. Modernizing Building Approvals in Ontario: Catching Up with Advanced Jurisdictions, July 5, 2017, https://www.ryerson.ca/content/dam/cur/pdfs/RESCON/CUR_RESCON_Modernizing%20Building%20Approvals%20in%20Ontario%20Report_2017.07.05.pdf, accessed May 25, 2020.

National Research Council of Canada. National Building Code of Canada. Ottawa, ON: National Research Council of Canada, 2015.

Shahi, Kamellia, Brenda Y. McCabe, and Arash Shahi. “Framework for Automated Model-Based e-Permitting Systems for Municipal Jurisdictions”, Journal of Management in Engineering, 2019, 35(6), pp. 1-9, accessed September 15, 2020 from https://ascelibrary.org/doi/10.1061/%28ASCE%29ME.1943-5479.0000712. This material may be downloaded for personal use only. Any other use requires prior permission of the American Society of Civil Engineers.

Yatt, Barry D. Cracking the Codes: An Architect’s Guide to Building Regulations. Toronto, Ont.: John Wiley & Sons, 1999.

Appendix

• Appendix A – List: Federal Authorities Having Jurisdiction
• Appendix B – List: Provincial and Territorial Authorities Having Jurisdiction
• Appendix C – List: Regional and Municipal Authorities Having Jurisdiction