A policy or a technical standard? The industry’s Fire Underwriting Survey

To determine required water flow to fight fires on new developments, the 1999 Fire Underwriters Survey is more than just a technical standard, it’s the City of Calgary’s “policy,” the Court of Appeal of Alberta has ruled.

And since Calgary has adopted the private insurance industry document as a policy, it must therefore post the 1999 Fire Underwriting Survey publicly on its website for developers to access.

In Glamorgan Landing Estates GP Inc v Calgary (City), released in May, the City of Calgary argued it did not have to post the 1999 Fire Underwriters Survey on its website because it was a “technical standard,” not a “policy.” The appeal court ruled otherwise.

Based on this decision, a developer, Glamorgan Landing Estates GP Inc., is now open to pursue a legal action that would recover the money it has already spent to build a new water main.

Based on the technical specs contained in the 1999 Fire Underwriters Survey, Calgary required the developer to construct a new water main to improve water flow to the site for firefighting purposes. The new water main was among the city’s conditions for approving Giamorgan’s development permit, a decision upheld by the Subdivision and Appeal Board.

The developer had already started to build the water main. But the Appeal Court said its ruling was not moot. The developer said it may choose to recover its costs based on the court’s decision.

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Alberta’s Municipal Government Act states: “every municipality must compile and keep updated a list of any [development] policies that may be considered in making decisions.” Moreover, “the municipality must publish [its policies] on the municipality’s website.”

That raised the question of whether the 1999 Fire Underwriters Survey is a policy.

“The 1999 Fire Underwriters Survey is a ‘policy’ within the meaning of s. 638.2 of the Municipal Government Act,” the Court of Appeal ruled. “The 1999 Fire Underwriters Survey achieved the status of a city policy through the Design Guidelines and the Internal Guide, adopted by [Calgary’s] director [of] water services.

“Since the policy was not published, the Subdivision and Appeal Board could not consider it to determine the level of water supply ‘necessary to serve’ the development and to impose a condition in the development permit requiring upgrading of the water main….

“[The developer’s] application for a revised development permit, omitting the requirement of the construction of a water main, is granted.”

When approving development projects, the City of Calgary conforms to its Design Guidelines and Internal Guide, the court noted.

The Design Guidelines sets out the “fire flow requirements.” They confirm the developer’s engineer is responsible “to ensure that the fire flow is adequate to service the development.”

The Internal Guide says the “Require Fire Flow (RFF) calculation needs to follow the Water Supply for Public Fire Protection guideline by Fire Underwriters Survey (1999).”

While the city argued the Fire Underwriting Survey was merely a “technical standard,” the court found it was in fact a “policy.”

“[The difference between a technical standard and a policy] is not necessarily a decisive distinction, because the city could have a ‘policy’ that a particular ‘technical standard’ is to be used,” Alberta’s Court of Appeal ruled. “That is exactly what has happened with respect to the Internal Guide’s adoption of the 1999 Fire Underwriters Survey.

“Further, it is not open to the city to avoid [publishing the 1999 Fire Underwriting Survey] by categorizing mandatory requirements as not being ‘policies,’ but merely ‘standards.’”

 

Feature image courtesy of istock.com/Susan Vineyard