This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Amadale Company Limited.
The Mining and Lands Commissioner in the matter of the Conservation Authorities Act
An appeal against the refusal to issue permission to place fill and construct a commercial building on Part Lot 83, Plan 246, in the Town of Aurora, in The Regional Municipality of York.
Amadale Company Limited
South Lake Simcoe Conservation Authority
R.I. Kesten, for the appellant.
K.C. Hill, for the respondent.
The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to issue permission to place fill and construct a commercial building on part of Lot 83 according to Plan 246 in the Town of Aurora. By Ontario Regulation 622/81 the power and duty of hearing and determining the appeal were assigned to the Mining and Lands Commissioner. Following a number of adjournments the appeal was heard in Toronto on September 16, 1982.
The subject lands lie on the west side of Yonge Street North. They have a frontage of approximately 350 feet on Yonge Street North and a depth of approximately 330 feet. Tannery Creek flows in a northerly direction in a location approximately, by scale, fifty to one hundred feet westerly and northerly of the west and north boundaries of the subject lands.
The regional flood elevation of the Tannery Creek at this cross-section is 254.3 metres in accordance with a plan of flood elevations prepared by Marshall Macklin Monaghan Limited, Consulting Engineers, Sheet 36 of which was filed as Exhibit 2. A cross-section which passes through the southerly part of the subject lands shows an elevation of 254.4 metres. These elevations convert to approximately 835 feet. The elevation of the southeasterly corner of the subject lands is 837 feet. The creek has an elevation of 820 feet. The subject lands slope toward the creek with elevations on the subject lands of 823.88 feet at the northeast corner, 824.8 feet at the northwest corner and 825.7 feet at the southwest corner. Some fill has been placed on the southeasterly part of the lot by persons whose identity has not been determined.
The proposal of the appellant is to place 4,160 cubic yards of fill primarily at the northeasterly corner of the subject lands and with a small portion at the southerly end. The purpose of the fill is to raise an area for parking, it being the understanding of the architect for the appellant, Christopher Z. Tworkowski, that the policy of the respondent permitted such filling. It was also proposed to construct a 12,000 square foot plaza measuring approximately 65 feet by 185 feet. The east wall of the building would be located approximately seventy-five feet westerly of Yonge Street. The northerly wall of the building would be situate at an average of approximately twenty feet from the north limit of the subject lands. It was proposed to construct the building on concrete piers at twenty foot centres which would raise the building above the regional flood elevation. The architect had not arranged for the preparation of any detailed engineering plans which would show the effect of the flows of a regional flood on the piers.
It was proposed to build a retaining wall to reduce the amount of fill that would be required rather than slope the edges of the fill. It was the opinion of the architect that the placing of this amount of fill would have no serious effect on the water storage capacity of the watershed, although he indicated that he was not able to make a proper calculation of this effect.
In passing it may be noted that a previous architect and other firms on behalf of the appellant had had correspondence with the respondent. Some of this correspondence had not been drawn to the attention of the present architect and he proceeded on the assumption that the placing of the fill and the construction of the building on such piers would be within the policy of the respondent.
Counsel for the appellant questioned his witness with regard to flows through the piers. The witness expressed the view that the flow of water would be primarily in a sideways direction. If a building were not there, he suggested that the flow would be in a diagonal direction but with the placing of the fill along the easterly side of the building, he felt the flow would change to a more northerly direction.
The witness indicated that he was not aware of any other method by which a building could be built in the flood plain and the only way by which the interference with the flow could be reduced would be to reduce the number of piers, which were proposed to be eighteen inches in diameter.
On cross-examination it was brought out that the witness had not, on behalf of the appellant, obtained any hydrological or hydraulic advice in connection with the proposed construction or filling. His information was limited, as noted above, in that he had not been provided with all of the previous correspondence and he frankly admitted that his experience with respect to flooding aspects of the matter was derived from discussions with the enforcement officer of the respondent.
In particular he was not aware of the principles of the cut and fill doctrine.
It was further brought out that the piers would raise the building to an elevation of 836 feet which would require piers of the height of thirteen feet at the part of the building site where the elevation is 823 feet. At the southwest corner the height of the piers would be approximately nine feet but on the average elevation of the ground the piers would have a height of eleven feet and the average elevation under the building is only five feet above the elevation of the creek in normal flows.
While the witness admitted that he was not experienced in flooding matters he felt that the effect of the proposal would have little effect on other properties in the area and that the amount of fill was small. He based his opinion on the total area of the property suggesting that frequently the same amount of fill was placed on a residential site to enable the construction of a house.
He further admitted that he had not been able to establish any precedent in the watershed for the construction of a building of this nature.
The witness again admitted that, as he had for his own counsel, that no studies had been made to establish the effect of the fill and the footings in a regional storm situation and it was submitted that such matters could be considered at a subsequent stage.
The witness was questioned in re-examination by his counsel in respect of his impressions of the flexibility of the policy of the respondent. His answer was that he concluded that the approach of his client should be a "nothing ventured, nothing gained," approach and that the only way of determining whether an application could be granted would be to make the application.
Reference was made to one or two buildings in the flood plain of which the witness was aware. One of these buildings was a hotel but he was not aware of the conditions under which permission had been granted in that regard.
A.A. Timmins, the enforcement officer of the respondent, was called as a witness on behalf of the respondent. This officer is not an expert in hydrology or hydraulics but has had considerable practical experience in such matters.
With reference to the policy of the respondent in permitting the placing of fill in flood plains the witness stated that it was the policy of the respondent to permit parking during daylight hours only in areas where the amount of fill required to bring the elevation up to the regional flood elevation is one or one and one-half feet and that this principle is usually coupled with an application of the incremental balance or cut and fill doctrine.
After pointing out that the major part of the proposal was within the flood plain of the regional storm the witness was asked questions on whether the site was within the flood plain of lesser storms. The evidence was objected to by counsel for the appellant on the grounds that the applicant was not a qualified expert and that his evidence at best would be hearsay evidence. The objection was sustained.
The witness was questioned in respect of the displacement of flood storage. This question was objected to and the objection was disallowed provided the question did not extend into the issue of the effect on flows of the regional storm. The witness pointed out that the loss of storage capacity would be 675,000 gallons based on 4,000 cubic yards and if the actual figure were 4,160 cubic yards the number of gallons would be greater.
The witness outlined the concerns of the authority regarding the proposed placing of fill and erection of the building. These concerns included loss of stage storage capacity, the effect of the fill and the building on stage storage and the stage discharge characteristics of the river, the percentage of the width of the cross-section of the flood plain that would be occupied by the building and the fill and its consequential results on storage and discharge characteristics and the precedential implications of permitting the construction of any building in the flood plain on piers.
Reference was made to four other applicants in the area. Firstly permission was granted to the Hotel Aurora on a conditional basis requiring the removal of two buildings from the flood plain, one of which was very precarious, and the removal of an existing quantity of fill presently placed adjacent to the river. The application for the Aurora Theme Mall was approved because only a portion of the site was within the regional flood plain and an engineering study was produced with respect to the small amount of filling based on the cut and fill principles. It was further pointed out that the area used for a parking area would be covered by one foot of water during a regional storm.
Thirdly, reference was made to a house at the southwest corner of Aurora Heights Boulevard and Yonge Street. The house was subject to one metre of flooding and the garage was subject to two metres of flooding. The property was converted to a self-serve gasoline station and car wash. The application was supported by the opinion of Marshall Macklin Monaghan Limited, a consulting firm, and involved an application of the incremental balance or cut and fill principles. Although new structures were permitted in the flood plain residential structures were removed and the type of buildings permitted were buildings which would not be effected by flooding and could be flood proofed. Consequently, there was an improvement in the stage storage and stage discharge characteristics of the flood plain.
Fourthly, reference was made to a proposed subdivision lying beyond the Aurora Theme Mall. A portion of this subdivision is within the flood plain and where lots extend into the flood plain it was agreed that there would be an application of the incremental balance principles. The witness was not aware of any other applications or permits in the area.
The witness produced a number of photographs showing a considerable amount of flooding in the area during spring runoffs and water lying on the subject lands during such periods.
The witness referred to the Aurora Town Hall which was built over the creek. He pointed out that the construction of this building had commenced prior to the making of the regulation in question. He pointed out that a considerable portion of Aurora is in the flood plain of the Tannery Creek and many smaller creeks flowing into Tannery Creek. There are a number of existing buildings in the flood plain and control is required to prevent increased flooding of the existing buildings in the flood plain.
On cross-examination the witness indicated that he did not discourage the applicant from applying to the authority for a decision. In passing it may be noted that this is not unexpected as the application is somewhat novel and further an enforcement officer should not adopt the function of the conservation authority particularly, in respect of a novel application. The witness indicated that he did discuss the incremental balance principles with the architect for the applicant pointing out that there was no property owned by the applicant in respect of which the compensating storage capacity could be created.
The witness was further examined with respect to an engineering report submitted to the executive committee of the respondent for its hearing but the relevance of this evidence is not particularly significant to this tribunal which must make a decision on the evidence placed before it.
With reference to the issue of precedent, the witness pointed out that this is the first proposal for development on piers and that the authority was concerned that in a watershed some hundred miles in length with a wide variety of flood regimes varying from flood plains approximately 6,000 feet in width to narrow channels with high velocities that the adoption of a policy of permitting the flood plains to be filled with buildings on piers was a matter of concern.
The witness was further asked whether the application was denied by the executive committee because the applicant failed to bring a proper scientific report. The witness replied that the reason for the refusal was the inability of the applicant, under any circumstances, to reduce the loss of stage storage and discharge capabilities inherent in its proposal. The witness pointed out that the major concern with respect of the construction of buildings on piers in the flood plain is the potential for constriction arising from debris and other materials, including buildings, lodging in the piers and creating interferences with the flow of the regional flood. Reference was made to the cumulative effect of fill in flood plains and the witness suggested that the concern was in respect of the precedential implications of such matters.
The witness also referred to concerns in respect of a playground in the vicinity where additional flooding would create greater hazards. The appellant called no reply evidence.
The submissions on behalf of the appellant were that counsel was concerned with the way the applicant was dealt with and suggested that the tribunal should determine whether there was merit in the application sufficient to warrant its approval. It was suggested that the respondent appeared to have a policy not to allow fill within the fill lines and give precedent to the regulation prohibiting such fill. It was suggested that the policy of the respondent was not to permit filling and that such policy was inconsistent with the regulation which authorizes the granting of permission to place fill. It was suggested that the evidence submitted on behalf of the respondent related to concerns rather than real facts and that there was a failure to provide proper reasons. It was also submitted that there was no duty on the appellant to establish his case by experts and unless the respondent is able to establish a good reason for denying the application the decision of the respondent should be overturned.
Counsel for the respondent submitted that the approach of counsel for the appellant was inconsistent with the Act and the regulation. He submitted that the onus under the regulation would lie on the appellant to show that his application would come within the exceptions provided in the regulation and that the evidence of the appellant's own witness showed that there would be an effect on the control of flooding. It was submitted that the evidence brought by the appellant was not expert evidence and was too vague to justify a decision that the project, particularly a project of the size in question, was warranted in the flood plain. It was also pointed out that there was no evidence of the effect of the proposed building and fill on the stage storage or the stage discharge characteristics of the flood plain. It was submitted that the evidence of the witness for the appellant admitted there would be an effect and accordingly, the application would fall outside the exception permitted by the regulation. It was emphasized that the purpose of the Act was to prevent the loss of life and the responsibility of the respondent, and similarly this tribunal, is that where there is a serious lack of evidence it is dangerous to allow an appeal. It was submitted that the reasons of the respondent were consistent with the responsibilities based on the flood plain mapping and the knowledge of the respondent of such matters. It was emphasized that the matter of precedent was significant. It was submitted that the channel was a relatively narrow channel at this location and that there would be a significant reduction of the stage storage capacity of the flood plain. It was pointed out that there was no evidence of velocities or any studies having been done to show how the particular structure would withstand the pressures of a regional flood.
It was further submitted that the evidence showed that the policies of the respondent were consistent with the rejection of the application and that on the admission of the witness for the appellant there is no grounds for application of the incremental balance doctrine.
With reference to the argument that the appellant had been invited to make the application it was pointed out that in the correspondence of the respondent there had been consistent warnings regarding the principles of flood plain management and that the architect who was engaged by the appellant to prepare the plans for the application had not been provided with the correspondence that had been sent to the appellant or its representatives on prior occasions. Counsel concluded that on the evidence it was not established that the proposal would not effect the control of flooding and accordingly the appeal should be dismissed. No reply submissions were made.
With reference to the preliminary submissions of counsel for the appellant, this tribunal does not adopt the position that its responsibility is to issue permission as a punitive matter in respect of alleged or found shortcomings of a conservation authority. Rather this tribunal understands its responsibility, in hearing an appeal de novo, to be to review the evidence before it in the light of principles respecting the control of flooding or of erosion or of conservation of land. In this case there is no argument made in respect of the latter two of these headings and the matter will be regarded solely with regard to the control of flooding.
With reference to the allegation that the onus rests on the respondent to establish that the permission was properly denied, this tribunal dealt with the matter of onus in the case of Rashotte v. Moira River Conservation Authority, where it was said,
"At the outset it may be said with regard to the matter of onus that this tribunal tries not to resolve an issue before it solely on the matter of onus. The carriage of these matters is given to the appellant who is given the right of reply both in respect of evidence and submissions and in most litigious matters the onus normally follows the person that has the carriage of the matter. However, in these cases the tribunal expects the conservation authorities to present their position as was done in this case and the decision of this tribunal is based, it is trusted, on the evidence produced before it. To date it has not been necessary to make a decision on the sole issue of onus and this tribunal is satisfied that the present case is not an appropriate one for that approach to be used."
Having regard to all the evidence produced before this tribunal both by the witness for the appellant and the witness for the respondent, it is apparent to this tribunal that the refusal to grant the permission in this case is consistent with the existing policy of the respondent, whether that policy be regarded as the policy as defined by the conservation authority, which the evidence in this case stated did not exist, or as it is determined from the action taken by the respondent in dealing with other applications. With reference to the situations that were raised, the earliest situation occurred prior to the time that the respondent had jurisdiction. It is apparent that the principle of flood control of the application of the incremental balance doctrine and the reduction of existing impediments which would cause a constriction of the flood plain are not applicable to the subject application. Rather than a reduction of the existing hazards, the proposal of the appellant increases those hazards by placing fill which has the effect of reducing both the stage storage capacity and the stage discharge capacity of the watershed. Similarly the situation involving the gasoline bar had ameliorating considerations. The application in respect of the Mall involved an application of the incremental balance principle and fell within the policy of the respondent respecting the placing of parking lots in the flood plain. In this regard it is apparent that the amount of fill required for the parking lot in the subject case is significantly deeper than the policy adopted by the respondent. Similarly, the application in respect of the residential subdivision was supported by the incremental balance principle.
Having regard to the evidence brought to this tribunal, both by the witness for the appellant and through the opportunity of cross-examining the witness for the respondent, there is nothing in the evidence which establishes any recognized principle of flood control or flood plain management that could be applicable to the subject lands. There is a policy recommended by the province with respect to the construction of buildings in what is known as the flood fringe. However, counsel for the appellant objected to the admission of evidence of the elevation of the hundred year storm and there is no evidence before this tribunal on which it can determine whether such a principle should be either considered, or applied. It is obvious that the construction of the proposed buildings on piers or columns was a novel principle for this respondent and it had no policy of permitting the utilization of flood plains on this basis. This tribunal is not aware and no evidence was produced of any policy of such building being an acceptable method of flood control. The evidence tended against accepting such a concept as Timmins said that there was a risk of additional constriction resulting from the accumulation of debris as a result of the installation of the piers or columns.
Accordingly, this tribunal cannot conclude on all the evidence before it that the proposal of the appellant would not effect the control of flooding and accordingly, the appeal will be dismissed.
Dated this 17th day of November, 1982.
Original signed by G.H. Ferguson, Q.C.
Mining and Lands Commissioner