Graham Double v. South Lake Simcoe Conservation Authority

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Graham Double.

The Mining and Lands Commissioner in the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to issue permission to construct an additional room onto the rear of a dwelling situate on Lot 20, Plan 9 for the Town of Aurora.

Between:

Graham Double
Appellant

and

South Lake Simcoe Conservation Authority
Respondent

The appellant, in person.
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 construct an additional room onto the rear of a dwelling situate on Lot 20, Plan 9 for the Town of Aurora. By Ontario Regulation 204/82 the power to hear and determine the appeal was assigned to the Mining and Lands Commissioner. The appeal was heard in Toronto on May 18, 1982.

The subject lands are situate on the west side of Temperance Street and have a frontage of 60 feet and a depth of approximately 142 feet. A branch of the Tannery Creek enters the subject lands at the southeast corner and flows in a northwesterly direction leaving the subject lands at a location on the northerly limit approximately sixty feet westerly of the north-easterly corner. Three buildings are situate on the part of the subject lands lying westerly of the creek. The most easterly building is a one-storey stucco dwelling measuring approximately twenty-five feet in width and length. The north-easterly corner of the steps or entrance on the easterly side of the dwelling is approximately fifteen feet from the existing bed of the creek. At the northwesterly corner of the dwelling a small addition measuring approximately five feet square protrudes in a northerly direction to 4.8 feet from the north limit. A frame shed approximately ten feet square is situate in the northwesterly corner and a stucco garage is situate to the southwest of the dwelling. At the northwesterly corner the garage is 7.4 feet from the lot line and the north-easterly corner is approximately eight or nine feet from the southwesterly corner of the dwelling.

The appellant purchased the subject lands approximately two years ago at a price of $48,000, $36,000 of the purchased price being secured by a first mortgage to a bank. A second mortgage to the parents of a previous owner in the amount of $9,000 was arranged and $3,000 was the contribution of the purchaser. While the building was adequate for the appellant and his wife at the time the subject lands were purchased, a son was born thirteen months ago with a result that there is a need for additional space particularly by way of kitchen and laundry facilities. Accordingly, the appellant proposes to add an addition measuring twelve by eighteen feet to the westerly end of the existing dwelling. The proposal will permit the conversion of the existing living-room at the northeast corner of the existing dwelling to a bedroom, the conversion of an existing bedroom at the southwest corner to an entrance with a laundry room and other services and a new living-room to be built in the addition.

The existing building is constructed on piers with metal cladding surrounding the base in order that there may be some protection for the plumbing. The present method of heating is electric heat and this system would be continued. The dwelling is presently serviced by a septic tank but a town sewer is available and the dwelling will be connected to the town sewer. The existing dwelling has no laundry facilities and laundry is done in a small portable washer kept in the storage building while it is not in use. There is also a possibility that a wood-burning stove would be placed in the extension which would provide a major source of heat throughout the complete building.

The appellant felt that, by the use of his own labour, the extension could be provided at a cost of $2,000 although he had obtained estimates in the vicinity of $10,000 and $13,000 to have the work done by a contractor.

Although the appellant had not so advised the respondent, it appears that the appellant is prepared to remove the frame shed and the small extension on the north side of the existing dwelling.

The subject lands fall within the jurisdiction of the respondent as the entire lands owned by the appellant are within the regional flood plain of, not only, the branch of Tannery Creek that passes through the subject lands but also of another tributary of the creek that joins with the first-mentioned branch approximately 200 feet downstream from the subject lands. The combined channels flow through a culvert in Tyler Street.

The relevant elevations expressed in meters in respect of the subject lands are as follows:

Ground elevation at dwelling: 256
First floor elevation of existing dwelling: 256.6
Temperance Street: 256.4
Tyler Street: 255.7
Five year storm: 256.17
Ten year storm: 256.21
Twenty-five year storm: 256.37
Fifty year storm: 256.42
One hundred year storm: 256.59
Regional storm: 257.2

From the above figures it will be noted that the depth of flooding of a regional flood will be 3.9 feet at ground level at the site of the existing dwelling. This is the difference between 257.2 meters and 256 meters. In addition, at the first-floor level there would be .6 meters of flooding or two feet of flooding. It was alleged by the appellant that the first-floor level is below the elevations of all storms other than the regional storm. According to a HEC-2 computer output filed by the respondent, the depth of flooding during a five year, ten year, twenty-five year, fifty year, one hundred year and regional storm at the ground level, are approximately 6.8 inches, 8.4 inches, 14.8 inches, 16.8 inches, 43.6 inches and 47 inches.

The evidence respecting the policy of the respondent was that it does not permit additional construction in the flood plain in the Town of Aurora. Several applications in the area have been refused. A.A. Timmins, the regulations officer, referred to three applications that had been granted.

Firstly, an application had been granted at the northwest corner of Tyler and Temperance Streets. The actual construction was outside the flood plain.

Secondly, a hotel situate on the west side of Yonge Street and north of Wellington Street received permission which involved a partial construction in the flood plain to the extent of three feet. As a condition of the approval two private homes which were in the regional flood plain were acquired and removed from the flood plain and there was a change in the grading of the lot which would compensate for loss of storage capacity pursuant to the stage-storage principle.

Thirdly, permission had been granted in respect of a car wash on the southwest corner of Yonge Street and Aurora Heights Boulevard. The area is subject to eighteen inches of flooding in a regional storm. However, the nature of the building is such that floods would not affect the building and there was an improvement of the storage capacity of the flood plain and the discharge characteristics by the removal of a home that was subject to two feet of flooding and a garage that was subject to six feet of flooding.

Reference was made to a property on the north side of Tyler Street at which permission was refused for the erection of a private home on a vacant lot which was subject to five feet of flooding, a property on the east side of Temperance Street where an application for a factory or an office was refused and the property of Overhead Door who had been refused permission to erect a one-car garage in an area affected by one foot of flooding.

The major concern of the respondent in respect of the proposal is the interference with the flow of a regional flood and a possibility of debris catching in the new building. There was also concern regarding the safety of the building itself and the occupants thereof.

Lastly, the respondent was concerned with the precedential implications of granting permission to construct new structures in a part of the town that is subject to recurring flooding, particularly, as a substantial portion of the town is in a similar condition.

On cross-examination it was clearly pointed out that the culvert in Tyler Street had not been engineered to pass the flows of a regional flood. In this regard it may be noted that the elevation of Tyler Street is considerably below the elevation of the regional storm and it is difficult to conceive a method of placing a culvert in the street which would pass a flow which would be higher than the street itself.

The submissions by the appellant were that he had attempted to discuss the matter with the respondent and meet their requirements. He was of the opinion that the raising of the addition to the height of eighteen inches would evade the problems of flooding. He emphasized that his application was based on need and that he would be prepared to amend his application in any way that the respondent required. The appellant further submitted that the proposed addition would only be effected by a regional storm and would not be effected by any of the lesser storms.

On behalf of the respondent it was submitted that the application involved the placing of dwelling quarters in a flood plain in a very exposed area. It was emphasized that the application was an extension laterally with all the implications of constriction of the flow of the regional flood. It was submitted that the appellant had not been deprived of any policy of the respondent whereby other landowners had received permission in similar circumstances. It was also emphasized that a large portion of the town is in the flood plain and there are serious precedential implications. It was submitted that the grounds of the respondent in refusing to issue the permission, namely, the potential for damage to property and the risk of loss of life to occupants were established and that in addition to the risk to the property itself there is concern in respect of additional flooding to other properties. In reply, the appellant pointed out that while the applications that had been rejected dealt with new buildings, his application only requested an addition.

At the outset, by way of a general overview of the responsibility of conservation authorities, it may be noted that conservation authorities are given legislative and administrative jurisdiction over matters involving flooding, pollution and conservation of land. While the standard set in the approved regulations of conservation authorities relates to the regional storm the areas of concern in respect of flooding are no less important in respect of lesser storms. There may be properties that are only affected, but are seriously affected, by regional storms but the jurisdiction of conservation authorities is not limited to such cases. In the particular case the subject lands are affected by a wide variety of floods which are within the jurisdiction of the respondent.

Speaking generally, the concerns in respect of flooding are the damage to existing property from floods and the risk of death or serious injury to persons occupying the flood plain during floods. Accordingly, the regulations of conservation authorities prohibit the construction of buildings in flood plains as the buildings and the occupants thereof would be subject to the risks of floods. Not only is there a concern in respect of the subject property but regard must be had to the entire flood plain. The reason for this is that the placing of buildings and other obstructions in flood plains not only affects or creates risks to that building or structure but also has an effect on other buildings in the flood plain and on the flood plain itself. Enlarging upon the latter aspects there are two major influences.

Firstly, the placing of buildings or other structures in the flood plain interferes with the flow of the flood waters through the flood plain. There are three results. Firstly, the obstruction has a damming effect and holds back water temporarily with the result that water above the obstruction rises to a higher level than it otherwise might. Secondly, the obstruction has an affect on the velocities of the flow by reason of the changing of the volumes of water and the pressures created by the increased volumes. Increased velocities may result in greater damage to structures and erosion of the flood plain. Thirdly, with the holding back of the flows the flooding extends to adjacent areas of land that would not have been flooded if the obstruction were not placed in the flood plain.

The second major influence is that additional flooding arises from the utilization of the existing storage capacity and if this capacity is reduced the area that would be flooded is increased by reason of the reduction of the space in which the existing volumes of water may be contained.

In dealing with this second aspect it may be noted that, although it was not disclosed in the application, the appellant is prepared to remove two small buildings. The area of these two buildings is approximately 125 square feet and with a flood of approximately four feet there would be a restoration of 500 cubic feet of storage space. On the other hand the proposal was to raise the addition 1.5 feet above the existing ground level. This would still leave 2.4 feet of the new building subject to flooding in the event of a regional storm. With the area of the addition being 216 square feet there would be a loss of 518 cubic feet of storage capacity in the addition. With the removal of the other two buildings there would be a net loss of storage capacity of eighteen cubic feet. Accordingly this issue is not applicable in this case.

In the opinion of this tribunal the position of the respondent that there is concern in respect of the constrictive aspect of the proposal is justified. In determining the restrictive effect of the proposal, one should draw a line at right angles to the flow of the regional flood. In this regard, it is apparent from the flood mapping (Exhibit 1) that the flow of the regional storm is in a northwesterly direction and having regard to the position of the garage and the dwelling, the extension completely blocks the direct flow in that direction. The submission of the appellant was that the raising of the extension by eighteen inches would obviate any concern. This tribunal has difficulty in accepting this approach.

Firstly, the raising of the extension by eighteen inches still leaves 2.4 feet of the extension below the surface of the regional flow and more than half of the portion of extension that is below the regional flood elevation would act as a barrier to the flow. The respondent properly referred to the matter of debris accumulating upstream of the extension and the other buildings. If one envisages a tree with branches of ten feet in height moving downstream with the regional flood, one can easily conclude that there is a significant risk of the tree being prevented from moving further downstream and the expected result would be that any following debris would pile up against the tree and in effect complete a dam including both the garage and the existing dwelling in the total obstruction that is created. Even without an accumulation of debris there is a reduction of the flows by reason of the obstructions. This tribunal is of the opinion that the concern of the respondent in respect of the potential constriction of the flow of the regional flood is justified and that the consequences of the creation of such a constriction noted above could be expected from the erection of the addition.

Turning to the submissions of the appellant, there were basically two points. The first point, as understood by this tribunal, is that the raising of the addition by eighteen inches would remove the addition from the effect of all floods other than the regional flood. In this regard this position is inconsistent with the evidence and as noted above it is likely that in all storms greater than a fifty year storm the first floor would be subject to flooding as an elevation of 16.8 inches would be reached in the fifty year storm. The evidence indicates that in the one hundred year storm there would be twenty-five inches of flooding of the first floor and this tribunal cannot accept this submission as a ground for allowing the appeal as the evidence is inconsistent with the submission.

The second point of the appellant was based on need. This tribunal is not aware of any principle that exceptions to the regulations of conservation authorities are made on the basis of need. Having regard to the particular case and assuming that the subject lands are adequate as housing for adults the need of the appellant relates to the provision of adequate housing for young children, the child in particular being thirteen months of age. Keeping in mind that the subject lands are subject to 6.8 inches of flooding in a five year flood and that the degree of flooding would be significantly greater in the event a flood of a greater magnitude occurred, this tribunal has considerable difficulty in understanding how the need of the appellant can be appropriately met by the provision of housing for young children in such circumstances. In floods of any of the magnitudes defined there would be a considerable risk that young children could drown. The ability to restrain children from the flooded areas is questionable and while adults might either remain in the building or be able to pass through the flood waters there is a serious risk of drowning for young children in such depths of water. In this regard, it must also be kept in mind that even if the risks associated with the subject lands themselves were discounted or overlooked, the access to the property along Temperance Street is below the level of a regional flood and even if an occupant were to reach the street, the street would be covered with .8 meters or approximately thirty-two inches of flood waters. There would be no access to or ingress from the subject lands in the event of a regional storm and the extension would in no way reduce the existing risks to the occupants of injury or drowning during a regional storm.

With regard to the policy of the respondent there was no evidence before this tribunal that the appellant was denied the benefit of any policy of the respondent. Any exceptions that were mentioned either involved areas where there was significantly less flooding in a regional storm, where private residential buildings were not involved or cases where alternative flood-control steps were taken which would reduce the risk of flooding of both the subject and other property. None of these principles are applicable in the present case and in view of the refusal of the respondent in other cases to grant permission in respect of private residences this tribunal cannot conclude that the appellant has been deprived of any permission which should have been granted to him.

In addition to the failure to establish any policy of the respondent of which the appellant was being denied there was no evidence before this tribunal to establish that the permission sought should be granted on some basis of provincial or other policy and accordingly, the appeal will be dismissed.

  1. It is ordered that the appeal in this matter be and is hereby dismissed.
  2. And it is further ordered that no costs shall be payable by either of the parties hereto.

Dated this 22nd day of June, 1982.

Original signed by G.H. Ferguson, Q.C.
Mining and Lands Commissioner