This past June, the provincial government enacted the Building Act General Regulation, B.C. Reg. 131/2016 (the “Building Act Regulation”), providing some clarity with respect to two important elements of the new Building Act, S.B.C. 2015, c.2 (the “Building Act”).
One of the elements addressed by the Building Act Regulation is the definition of “unrestricted matters” for purposes of section 5 of the Building Act. This definition is of critical importance to local governments, because under the new legislative scheme, the presumption is that local governments have no authority to regulate building standards where they are the subject of the BC Building Code, or any other provincial enactment.
Section 5 of the Building Act provides that where a “local building requirement” relates to a matter dealt with under provincial regulations, it is of “no effect”. Note that there is no need for an actual conflict between the local and provincial regulation. It is enough that the local requirement “relates to” a matter regulated by the province.
An exception to section 5 of the Building Act exists for matters prescribed by regulation as being “unrestricted matters”. Where a matter is unrestricted, local governments are permitted to enact local building requirements in their bylaws. The list of unrestricted matters is worth examining in full:
Unrestricted matters
2. The following matters are prescribed for the purposes of section 5 (4) of the Act:(a) parking stalls for persons with disabilities;
(b) the following matters as they relate to the design of access routes for fire department vehicles:
(i) the width of an access route;
(ii) the centreline radius of an access route;
(iii) the overhead clearance of an access route;
(iv) the change of the gradient of an access route;
(v) the loads that an access route is designed to bear and the material with which an access route is surfaced;
(vi) the length above which a dead-end portion of an access route requires turnaround facilities;(c) in the case of a building in a development permit area designated under section 488(1)(b) of the Local Government Act, the following matters as they relate to wildfire hazard:
(i) form;
(ii) exterior design;
(iii) finish;(d) in the case of a building in a development permit area designated under section 488(1)(d), (e), (f) or (g) of the Local Government Act, the following matters as they relate to the character of the development:
(i) form;
(ii) exterior design;
(iii) finish;(e) in the case of a building in a development permit area designated under section 488(1)(h), (i) or (j) of the Local Government Act, the following matters as they relate to energy or water conservation or the reduction of greenhouse gas emissions:
(i) form;
(ii) exterior design;
(iii) any matter as it relates to machinery, equipment and systems external to the building;(f) any matter as it relates to a district energy system;
(g) any matter as it relates to limiting the transmission into a building of sound that originates outside the building;
(h) radio repeater systems for emergency communications.
From the local government perspective, it is comforting to see that development permit powers in relation to certain buildings have been preserved. The power to impose building requirements in some situations, such as where development is proposed within a wildfire interface area, is critical to safeguarding both persons and property. Notably absent from the list of unrestricted matters is fire sprinklers. Numerous local governments around the province still have sprinkler requirements in their building bylaws, and once the “grace period” under the Building Act expires (December 15, 2017), those provisions will be of no effect.
It isn’t yet clear whether a provision of a bylaw rendered of no effect by section 5 of the Building Act will have any impact on the remainder of the bylaw in which it is included. One would hope that a court, faced with a challenge, would exercise its discretion to sever the offending provision and leave the remainder of the bylaw intact. However, such a result is by no means guaranteed, and it would be advisable for local governments to amend their building bylaws to remove any sprinkler requirements (along with any other invalid requirements) before the grace period expires, thereby avoiding the issue altogether.
Beyond the element of unrestricted matters, the Building Act Regulation also deals with cost recovery under the Building Act. The Building Act contemplates exceptions from provincial building regulations being granted from time to time, in relation to a specific local jurisdiction, or even a specific development. However, the Building Act also makes clear that the processing of any request for an exception will not be on the provincial government’s dime. Those seeking an exception will have to pay the provincial government’s costs, and the Building Act Regulation sets out a scale of costs for various government officials.
The bottom line is that the new Building Act Regulation shows just how narrow the field of acceptable local building requirements will be, once section 5 of the Building Act comes into force, and it gives some idea of what it may cost local governments to venture beyond them.
