The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to grant permission to place fill and erect structures on a corner lot situate at 149 King Street West in the City of Oshawa in The Regional Municipality of Durham.
Shell Canada Limited
Central Lake Ontario Conservation Authority
G. A. Godwin and L. Brown for the appellant.
J. R. Willms for the respondent.
On October 18, 1977 the respondent refused the application of the appellant for permission under Ontario Regulation 824/73 to place fill and construct a self-serve gas bar on the property municipally known as 149 King Street West in the City of Oshawa. The appellant appealed to the Minister of Natural Resources under section 27(2c) of The Conservation Authorities Act and by Ontario Regulation 900/77 the power and duty of hearing and determining the appeal was assigned to the Mining and Lands Commissioner.
The appeal was heard on February 17, 1978 with Mr. G. A. Godwin appearing for the appellant. The matter was adjourned by this tribunal by reason of the absence of any evidence to deal with the issue of pollution from the escape of gasoline during flooding and methods of floodproofing of installations to prevent or control such escape. The appellant prepared additional evidence on these subjects in the form of a report by J. E. Witherspoon, P.Eng., and the report was submitted to the respondent in mid 1978. A further hearing was held on April 24, 1979 to hear such evidence and any further evidence of the respondent respecting planning changes for the appellant on this part of the hearing. Miss L. Brown appeared for the appellant on this part of the hearing. Mr. J. R. Willms appeared on behalf of the respondent throughout the appeal.
The subject lands are situate at the southeast corner of the intersection of King Street West and Midtown Drive. The parcel measures 100 feet on King Street and 215 feet on Midtown Drive and has an area of 21,500 square feet. It is situate approximately 200 feet westerly of the west bank of Oshawa Creek. The elevations of the site are in the vicinity of 330 feet. The regional storm floodline is 339.8 feet with the result that the subject lands would be covered with approximately ten feet of water in the event of a regional storm. Situate on the land is a concrete block building at least fifty years of age covering approximately 93 feet from east to west and with a similar distance from north to south along the west wall of the building. This distance includes an addition measuring approximately 23 feet by 14 feet with the main part of the building measuring approximately 70 feet from north to south. Approximately one-third of the land is covered by this building. The building has been owned by the appellant and its predecessor, Canadian Oils Limited, for many years and was, until late in 1977, used as a transmission shop. The proposal involves the removal of the concrete block building and the erection of a small kiosk measuring six feet by eighteen feet and the installation of a number of pumps. It is proposed to remove old tanks from the area and replace them with five five-thousand gallon fibreglass tanks which will be installed below ground and to asphalt the area over which vehicular traffic will travel. The southerly third of the property will be landscaped with some of the sand presently on the site being removed and being replaced with top soil and sod.
With reference to the engineering aspect of the proposal, the witness for the appellant, George Aggatt, the staff marketing representative for the central marketing region for the appellant, indicated that he had pointed out to the engineering department of the appellant that the subject lands might be flooded to a depth of two feet and accordingly it was assumed that the proposals not only complied with The Gasoline Handling Act but would also have taken into consideration the possibility of such flooding.
The witness also indicated, although he did not produce any written documentation, that the City of Oshawa had agreed to issue a building permit for the proposal. He also referred to other properties in the immediate area of the floodplain of the Oshawa Creek in which substantial buildings had been permitted. Reference was made to the Dominion Store project which was constructed without permission of the respondent and was only permitted to open after eighteen months of negotiation and contribution toward a study of remedial works for the floodplain. The Family Fair property was mentioned. This was built prior to the present regulation of the respondent at a time when the regulation referred to the high water mark. The owners obtained a mandamus order requiring the city to issue a building permit. The Canadian Tire gas bar which fronts on John Street, the street along the south limit of the block of which the subject lands are part, was constructed prior to the making of the regulation.
The evidence of the respondent at the first part of the hearing indicated that the respondent was concerned with regard to the impact of the proposal on flooding and pollution and matters effecting the environment. Robert Messervey, the Conservation Services Supervisor, gave evidence that it was concerned with increases in flood elevations and loss of storage volumes. It also had concern regarding an effect on the discharge capacity but on questioning from the Bench it. was not apparent that there was any significant downstream effect from the removal of the constriction created by the existing building. He also gave evidence on refusals to grant permission to erect buildings in the immediate area on vacant lots.
The witness also produced an extract from the draft of the official plan of the Regional Municipality of Durham which was then awaiting the approval of the Minister of Housing. It was indicated that the subject lands fall within the area designated as hazard lands by this official plan. The definition of hazard lands was as follows:
1.2.1 c) Hazard Lands refer to lands having physical characteristics such as poor drainage, swamps, organic soils, flood and erosion susceptibility, steep slopes, instability or any other physical condition which could cause property damage, loss of life or damage to the environment if developed upon.
The following provisions of the official plan dealt with the use of hazard lands:
1.2.5 It is the policy of this Plan that Hazard Lands shall be primarily for the preservation and conservation of the natural land and/or the environment, and shall be managed in such a fashion as to complement adjacent land uses and protect such uses from any physical hazards or their effects.
1.2.6 The erection of buildings or the placing or removal of fill of any kind, whether originating on the site or elsewhere, in Hazard Lands or in those areas that would alter a watercourse shall be subject to the regulations of the respective conservation authority. In addition, alterations to watercourses shall be allowed in compliance with the regulations of the respective conservation authority and the provisions of Section 1.3.4.
1.2.7 The respective zoning by-laws shall impose building setbacks from the Hazard Land related to the extent and severity of the existing and potential hazard.
1.2.8 Where Hazard Lands are under private ownership, it shall not be construed that these lands shall be free and open to the general public or that they shall be acquired by the Region, any area municipality or any other public agency.
1.2.9. In considering a plan of subdivision part of which consists of Hazard Lands, then such Hazard Lands at the discretion of the Council of the respective area municipality may not form part of the dedication for park purposes.
1.2.10 Regional Council shall co-operate with other levels of government to reduce air, water and noise pollution to a level consistent with the best practical technology.
Reference was also made to p.6 of the draft plan of guidelines for acquisition and development of lands in the valley of Oshawa Creek which had been reviewed by the council of the City of Oshawa.
The following paragraphs were referred to:
Wherever possible the Conservation Authority policies of no fill, no new construction, and no expansion of existing buildings, should be implemented. To this end the entire flood plain should be gradually designated and zoned for open space uses. Where necessary, affected properties have to be acquired. Residential and commercial development and/or redevelopment and uses auxilliary to them shall not be permitted to encroach on the flood plain. Those portions of properties which are in the flood plain shall not be included in calculations for building densities.
Exceptions to this policy may be required in the King and Bond Street area where the economic value and functional utility of existing development warrants it. Such exceptions should, however, only be granted if the safety of no other section of the flood plain is put in jeopardy and if the property concerned is safeguarded by all necessary measures as may be required by the Conservation Authority. Each such case should be evaluated individually by the City and the Conservation Authority.
The feasibility of acquiring such sites should be studied when changes to existing uses or structures are proposed.
The official plan of the Oshawa Planning Area which had been approved by the city council and the Minister of Housing, contained in the part entitled "2.6 Conservation Lands" policies in respect of lands that are, generally speaking, under the jurisdiction of the respondent and paragraph 2.6.2 stated that such lands are "intended primarily for the preservation and conservation of the natural land and/or environment" and indicated uses such as agriculture, outdoor recreation, nursery gardening, forestry, the conservation of soil or wildlife, public and private parks or outdoor recreation functions such as golf courses. Paragraph 2.6.5 outlined the policies to be followed in making amendments to the official plan in respect of lands designated as Conservation Lands and required four considerations which are the same as the clauses hereafter set out in paragraph 2.6.6 which dealt with four specific areas and read,
2.6.6 In each of the areas indicated on Schedule A and listed below, subject to the physical constraints of conservation land, enlargement or extension of the existing use will be given due consideration by the municipality and by the Central Lake Ontario Conservation Authority after taking into account:
- the existing environmental and/or physical hazards;
- the potential impact, of these hazards on existing and proposed development;
- proposed methods by which these impacts may be overcome in a manner consistent with accepted engineering techniques and resource management practices; and,
- the costs and benefits of any engineering works and/or resource management practices needed to overcome these impacts.
This policy applies to the following areas only:
Area I - The establishment planned Commercial Centre and Arterial Commercial designation along the western floodplain of the Oshawa Creek generally between Bond and John Streets.
Area 2 - The area between Highway No. 401 and the C.N.R. tracks, east of Farewell Street.
Area 3 - The established Commercial use south of Bloor Street between the C.P.R. tracks and Highway No. 401.
Area 4 - The area around the Oshawa Harbour, south of Harbour Road.
The subject lands fell within Area 1.
On the adjourned hearing, J. W. Bate, the Planner for the City of Oshawa updated the evidence.
Firstly, he pointed out that the official plan for the region was approved by the Minister of Housing subsequent to the earlier part of the hearing on March 17, 1978. Some parts of the plan have been referred for further study but the parts of the plan affecting the subject lands are accepted by the Minister. There was some modification of paragraph 1.2.6 but the amendment appears to be little more than clarification of language. It may be noted in passing that the provision is little more than a recognition of the jurisdiction of a conservation authority. Although no reference was made by the witness it is noted that paragraphs 1.2.7, 1.2.8 and 1.2.10 are the same but there was a change in paragraph 1.2.9. respecting lands to be dedicated for park purposes in connection with subdivisions, which is not the situation in this case.
The witness referred to paragraph 1.3.4., particularly clauses c and d, which reads as follows,
1.3.4 In considering an application for the erection of buildings or the placing or removal of fill of any kind on Hazard Lands or an application for the alteration of a watercourse, the respective conservation authority in consultation with the Council of the respective area municipality is encouraged to consider the following:
- The existing environmental and/or physical hazards;
- The potential impacts of these hazards;
- The potential impact of any proposed development on the Hazard Lands; and
- The proposed methods by which these impacts may be overcome in a manner consistent with accepted engineering techniques and resource management practices.
While the foregoing provisions refer to "Hazard Lands" the witness pointed out that such lands fall within the goal of the Major Open Space System dealt with in section 12 of the official plan. Paragraph 12.1.1 outlines one of the goals of this system as follows:
12.1.1 To preserve and protect the unique attributes of the Region's landscape including the Oak Ridges Moraine, the waterfronts, conservation areas, valleylands, marshes and other natural environments and recreational resources.
The policy respecting land use in the designated areas is contained in paragraph 12.2.2 which reads,
12.2.2 The predominant use of lands designated as Major Open Space System shall be for agriculture and farm-related uses in accordance with Section 11.2.3, conservation and other uses such as reforestation, cemeteries, allotment gardens, nursery gardening, golf courses, campgrounds, riding and boarding stables, dog kennels, mink farms and fairgrounds. In addition, recreational uses may be allowed in the zoning by-laws of the respective area municipality provided that such recreational uses are compatible with their surroundings and are in conformity with the intent of this Plan.
Reference was also made to the policies contained in paragraphs 12.2.4 and 12.2.5 which read,
12.2.4 Only buildings and structures incidental to the permitted uses as defined in this Plan shall be allowed in Major Open Space System.
12.2.5 Regional Council, in co-operation with the respective area municipalities, shall endeavour to integrate the Major Open Space System with local, district and community public parks, and wherever possible to provide a continuous and linked trails system for use by pedestrians and cyclists.
With reference to the latter paragraph, the subject lands fall within the area of the Oshawa Creek Plan. The witness indicated that the City has expended $100,000 annually on acquisition and development for the last five years. Reference was made to new provisions of the official plan requiring in accordance with section 59 (4) of The Regional Municipality of Durham Act, 1973 that zoning by-laws shall be amended forthwith to conform therewith.
The witness also produced a copy of Amendment 11 of the official plan of the Oshawa Planning Area which amendment has been approved by the city council but has not been submitted to the Ontario Municipal Board. In his opinion the purpose of the amendment was to replace the provisions of the plan respecting conservation lands and open space and recreational lands with more sensitive and detailed mapping and policies. Included in the amendment as Schedule "A" is a map illustrating the land use designations and replacing the map creating the designations in the existing official plan. The witness stated that the subject lands are dealt with under the special provisions of paragraph 2.6.6 which paragraph will be removed by the amendment with the result that the subject lands will be dealt with by the provisions respecting conservation lands which will be set out in the revised part numbered 2.6. The witness indicated that with the removal of the special policies from the plan, the subject lands will be designated as open space land with the relevant policies in respect of the subject lands being the goals for open space lands and the land use control provisions.
With reference to the goals, the witness referred to the fourth goal which reads,
(IV) prevent the encroachment of development on lands having inherent environmentally sensitive characteristics or hazards for development.
With reference to land use control the witness referred to paragraph 18.104.22.168 which reads,
22.214.171.124 Council shall adopt appropriate zoning categories for Open Space lands in the City and where necessary shall rezone lands to an appropriate Open space use zoning category. Uses permitted within areas designated Major Open Space in this Plan shall be consistent with the relevant provisions of the Durham Regional Official Plan.
The witness pointed out that through the provisions of the regional official plan the lands are subject to the Hazard Lands designation and Major Open Space designation policies of that plan. The lands are also identified as conservation lands and on Schedule "A" the floodplain boundaries are shown. Under this identification the uses are dealt with by paragraph 2.6.3 which reads,
2.6.3 Conservation Lands within the Open Space designation on Schedule "A" and subject to the aforesaid regulations made by the Central Lake Ontario Conservation Authority are intended primarily for the preservation and conservation of the natural land and/or environment. Such uses as outdoor recreation, forestry, the conservation of soil or wildlife, public and private parks or outdoor recreation functions such as golf courses shall be permitted.
On cross-examination the witness indicated that the by-laws to implement the regional and city official plans are still in the process of preparation.
In passing it may be noted that is proposed to drop the paragraph dealing with the policy to be followed in amending the use that may be made of lands that are designated as Conservation Lands, i.e. paragraph 2.6.5, and that paragraph 2.6.6, with the exception of the clauses, is amended to read,
2.6.4 On Conservation Lands designated for uses other than Open Space on Schedule "A" and subject to the aforesaid regulations made by the Central Lake Ontario Conservation Authority, subject to the physical constraints of conservation land, the enlargement or extension of the existing use will be given due consideration by the municipality and by the Central Lake Ontario Conservation Authority after taking into account:
While the witness was not asked to comment on this paragraph it is noted that on the map referred to as Schedule "A" in the amendment an area in the proximity of the subject lands and the commercial development to the south of the subject lands is indicated as "planned commercial centres" and would appear to be governed by the policy of paragraph 2.6.4.
In the light of this paragraph it is difficult to understand the assertion that the amendment will remove the "special provisions" of the existing plan as similar provisions are continued for the commercial area to the south of, if not including, the subject lands. The scale of Schedule "A" is small and the intent, if such existed, to exclude the subject lands from the treatment under paragraph 2.6.6 of the existing plan may not have been apparent to those responsible for adopting the amendment or the landowners affected by the change.
No evidence was produced on either occasion of the zoning by-laws but the uncontested evidence of the witnesses for the appellant on the first part of the hearing was that a building permit would be issued and it can only be concluded that the exceptions contained in the existing official plan with reference to the part of the floodplain lying between Bond Street and John Street have been given effect in the zoning by-laws in effect at that time and that there has been no change in the zoning by-laws since that time.
The witness, Messervey, indicated that an area of concern arises in connection with the possibility of pollution resulting from the escape of gasoline in the amount of 25,000 gallons from the underground storage tanks. His evidence was to the effect that he had discussed the possibility of escape with two owners of service stations who had indicated to him that storage tanks had sustained structural damage during flood conditions, particularly a service station that was in the Humber River watershed during Hurricane Hazel. He assumed that there could be an engineering solution to this type of hazard.
At the continuance of the hearing, counsel for the appellant called three witnesses in respect of floodproofing of the installations, particularly with reference to the prevention of pollution and one witness in respect of the experience of the appellant in areas that have been subject to flooding. A. I. MacIver of the Fuel Safety Branch of the Ministry of Consumer and Commercial Relations outlined the legislative control over the installation and operation of self-serve gasoline bars. The witness's evidence related to The Gasoline Handling Act, R.S.O. 1970, c.189 under which Regulation 380 of Revised Regulations of Ontario, 1970, known as the Gasoline Handling Code, has been made. It was pointed out that under this Act a service station cannot be operated without a licence under the Act (section 6) and that a self-serve bar cannot be constructed without the prior approval of the Director of the drawings of the proposed facility (Section 10 (6) of the Code). Attention was drawn to the provision of section 7 (37) (g) of the Code establishing standards for underground tanks where high water is anticipated.
With reference to self-serve bars the practice of the Ministry is to assess applications for approval against Branch standards which presently are being formalized as part of the regulation and if an application does not conform with the standards it would be rejected and the proposed operator would have to submit a further application. The Act also requires that any new industrial facility must be inspected prior to licensing.
The witness stated that the Ministry has been approving fibreglass reinforced plastic underground tanks for a period of three years. The regulation requires steel piping but fibreglass reinforced plastic pipe may be installed on the basis of a deviation under section 10(2) of the Code which will permit alternative material if it is" established that the alternative is as good as and better than the prescribed material. To determine this quality, the Ministry has regard to manufacturer's technical data or may require testing procedures to establish that the material meets the required quality.
The witness also gave evidence that the Ministry was aware of operations that were flooded and considered that their controls provided for a stable installation in flood conditions. On crossexamination the witness agreed that there would be a number of untoward effects if an underground installation was not adequately installed and a flood occurred. Tanks may float i.e. rise through the ground as a result of the displacement theory, if they are not adequately anchored. Damage to the tanks may result in a loss of product. Similar losses may occur upon damage to the venting and pumping systems. However, the witness was not aware of any such damage resulting from flooding at any location.
R. P. Willis, the staff marketing representative, real estate and development for the southwest region of the appellant, who is stationed at London and who has had thirty-two years of experience of related work in that area gave evidence that he had experienced a number of floods at Thamesville, Chatham, London and the junction of Lake Huron and the St. Clair River and that no problems had occurred during any of these floods. No pollution had been caused as a result of these floods. However, on cross-examination it appeared that the floods under consideration may not have been in excess of one or two feet with the exception of the Chatham flood during which the witness had seen buildings smashing against bridges.
Counsel for the appellant also called A. F. Brodie, P.Eng., M.B.A. who graduated in Honour Science from the University of Aberdeen in 1957. He has had considerable experience in water management matters including shore protection, erosion, channelization, flood mapping and flood proofing.As a consulting engineer with James F. MacLaren Ltd. he had been consulted by the appellant to design a flood proofing system for the proposal of the appellant. He prepared conditions for flood proofing of the proposal, which conditions were incorporated into a report prepared by J. E. Witherspoon a copy which was filed as Exhibit 12. The key issues considered were the prevention of electrical shorts by the provision of automatic disconnecting switches, prevention of floating or uplift of the tanks, and the risk of escape of the contents of the tanks by shearing of pumps, valves and vents by floating material. The witness prepared design criteria for floodproofing, which in his opinion were conservative, particularly in connection with damage to the vents which he recommended be protected with shields which would resist the impact of a green hardwood log approximately thirty feet in length with a diameter of two feet travelling at a velocity of five feet per second. The witness indicated that, although he could not recall the velocity of a regional flood in this part of the floodplain, the velocity at the main channel of the river is usually higher than at a point mid-way to the edge of the floodplain.
Brodie reviewed Witherspoon's report prior to its submission and attached his opinion that the report provided adequate floodproofing for the gas bar in the event of a regional storm.
During cross-examination counsel for the respondent inquired as to the effect on the calculations made by the witness if the velocity of the theoretical log were increased from five feet per second to seven feet per second. The witness replied that such an increase in velocity would double the energy of the log.
Brodie reviewed Witherspoon's report and gave his opinion that the proposed report was adequate floodproofing for the gas bar in the event of a regional storm. He noted that the removal of the existing building would improve the stage-discharge and stage-storage relationships of Oshawa Creek and endorsed the proposals of Carruthers and Wallace.
J. E. Witherspoon, P.Eng., the regional engineer for the central marketing region of the appellant, gave evidence in respect of the preparation of Exhibit 12 outlining considerations in respect of several aspects of the floodproofing devices. Shell does not engage employees in the construction of its outlets but uses general contractors who are provided with a design and site supervision. In preparing the report for the subject lands, Shell went to Brodie and obtained design criteria for the site. Brodie's criteria are outlined in the report. After obtaining this criteria, attention was given to the matter of the structural capabilities of the proposed tanks, the possibility of water entering the tanks and the design of the structure or canopy to prevent damage. He and one of Shell's engineers prepared the ground work for the report and in accordance with the practice of the company consulted with the firm of C. D. Carruthers and Wallace.
Attached to the report are specifications for installation of fibreglass tanks. It is proposed to have the Ministry of Consumer and Commercial Relations approve the proposals for anchoring of such tanks. With reference to the structural strengths of the proposed tanks, standards from the Underwriters Laboratories of Canada, which in the opinion of the witness were designed for resistance to greater stress than might be encountered, were obtained and are incorporated as Exhibit "C" to the report and opinions were obtained from the manufacturer as to whether its tanks would meet the standards. This was answered in the affirmative with a qualification respecting the backfilling of the excavation. (Exhibits "A" and "B"). The qualification is dealt with in the proposed specifications including reference to type of backfill and systems to prevent native soil from intermixing with the backfill.
C. D. Carruthers and Wallace were consulted with regard to methods of making the vents secure during a regional flood. This consultant's report is Exhibit "E" to the report and suggests a concrete pier on the upstream side of the vent pipe designed to meet the impact of the theoretical log adopted by Brodie as the maximum impact that could be expected. In addition this consultant redesigned the canopy in order that it might withstand such an impact and recommended changes as noted in Exhibit "E".
With reference to electrical disconnect switches, a letter from Okins, Leipciger, Cuplinskas, Kaminker and Associates (Exhibit "G") sets out a method of preventing electrical short circuiting during flooding.
It was brought out in cross-examination that some of the items contained dual proposals. Witherspoon indicated that the determining factor in such cases would be the cost of the alternatives and the cost of the alternatives have not yet been developed.
The original submission of the appellant was that its proposal enhanced the constriction in respect of flood control and that if there is a problem in connection with pollution, the appellant is prepared to meet the standards assuming that the standards adopted by its engineers in preparing the plans are not adequate. Reliance was made on the exception to the official plan and other documents for the area in which the subject lands are situate. It was also submitted that there would be an aesthetic improvement of the area.
On the continued hearing Miss Brown submitted that the new evidence established that the appellant has designed a system of floodproofing that, as far as the expertise of experienced consultants in the field has been developed, reasonably meets the concerns in respect of pollution. It was also submitted that the evidence was consistent with a finding that there is no serious pollution hazard from gasoline installations in flooding conditions and there are no reoccuring problems of such a nature. In passing it may be noted that it is not considered essential to this case to make such a finding and this tribunal is not prepared to accept a submission that there is no risk of pollution from such installations that are installed without some regard to floodproofing.
The original submissions for the respondent were that it could not be agreed that the proposal was an aesthetic improvement but that there were really two serious issues. It was conceded that the issue of the control of flooding was not involved and that the two prime issues are the lack of control of pollution and the philosophy of management of floodplains.
On the continued hearing both counsel made submissions respecting the legal effect that is to be given to the official plans. Counsel for the respondent indicated that he had only two areas of concern in connection with the evidence of the expert witnesses. Firstly, he questioned the adequacy of the criteria prepared by Brodie on the grounds that he had not been able to establish the velocity of a regional flood in his evidence but had admitted that an increase of two miles per hour would double the energy of the theoretical log. His second point was and this was admitted by the witness that one cannot completely guard against the actions of an employee who might not replace a cap on the fill pipe or may not follow the proper procedures in respect of the operation of the equipment with reference to the issue of pollution it is apparent that there was no established expertise at the time this matter came on for hearing as to methods of floodproofing gasoline installations that are situate in regional storm floodplains. The appellant has incurred a substantial expense in developing such expertise in respect of the subject lands. The respondent has had over nine months to review the work of the appellant and produced no scientific or professional evidence to contradict the adequacy of the proposal.
Two matters were raised in the submissions in respect of the proposals. Firstly it was submitted that the proposals were weak by reason of the assumption of a velocity of five feet per second. The only evidence that indicated that the velocity of a regional flood would be greater than five feet per second was a submission made to the witness Aggatt by counsel for the , respondent that the velocity was eight feet per second. This witness obviously had no knowledge of such matters and even if he had not disagreed with the submission to him such would not constitute evidence of the velocity. Assuming that there is some evidence, although it was not presented to me, that there would be a velocity of eight feet per second during a regional flood, the fact that the witness Brodie was a member of the firm that did the flood mapping for the respondent and his evidence that there is usually a lower velocity as one proceeds to the edge of the floodplain, I can only conclude that there is no serious objection to the criteria that the witness established. With reference to the second point I know of no scientific system whether it be engineering, judicial, mechanical or otherwise that can guarantee that nothing can go wrong. All that usually is done is to establish a system or a procedure that, according to existing knowledge, can best deal with the situation and take the risks of human failure.
In this regard counsel in his closing remarks suggested that the proposal was a development or intrusion into the floodplain of a dangerous and polluting substance. The evidence indicates clearly that the existing plant contain gasoline tanks without any protective devices and it is difficult to understand why the replacement of these tanks with modern tanks and venting and pumping systems designed with relevant engineering expertise should not be an improvement on the existing situation which the respondent appears to wish to be continued.
With reference to the issue of pollution I am satisfied that the appellant has done all that can reasonably be expected of an appellant to do in the circumstances and provided the floodproofing and other precautions developed by the engineer and consultants of the appellant are complied with, I am of the opinion that there no longer is a reason for objecting to the application on the basis of the control of pollution.
The second issue was that there has developed through the legislative base of The Planning Act and The Conservation Authorities Act and the planning documents, regulations and by-laws made under the authority of these acts a philosophy in respect of the use of floodplains. More particularly with respect to conservation authorities it was pointed out that the objects of a conservation authority, which are found in section 19 of The Conservation Authorities Act include programs for the conservation, restoration, development and management of natural resources which has through other provisions of the statute been broadened to include the prevention of risks of flooding and pollution. With reference to the subject application it was submitted that there was a dual thrust including the prevention of damage resulting from development in the floodplain and secondly the interference with the long-term project of returning valley lands to public use. With reference to the latter point it was submitted that the existing development in valley lands should be treated as analogous with a legal non-conforming use in planning matters and that the existing structures should be used in their present condition until such time as the existing use is no longer economic and at that time the non-conforming use should be terminated and the public authorities should acquire the land for the purposes of the management of valley lands. It was submitted that the position of the respondent was not a sterilization of an existing use and that the existing building could be rented and used until such time as the local authorities have the funds to acquire the property.
With reference to the second issue the argument of the appellant, in reply, was that the building had ceased to be an economic proposition and that it is not the policy of the appellant to be a landlord for buildings other than gasoline dispensers. It was pointed out that taxes on the subject lands are $6,000 annually. The building is antiquated and does not provide a base for an economic return of investment.
In the opinion of this tribunal the argument respecting the philosophy of the use of floodplains fails to take into account the distinction between administrative jurisdiction and legislative jurisdiction of conservation authorities. Section 19 of The Conservation Authorities Act sets out the objects of a conservation authority in the following words:
- The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals. R.S.O. 1970, c.78, s.19.
In order to accomplish its objects section 20 sets out a number of powers of conservation authorities including such matters as the making of studies, the undertaking of projects, the acquiring of property interests, the entry into a wide variety of agreements, the erection of works, the alteration of watercourses, the planting of trees and causing research to be done. Sections 21 to 26 of the Act further enlarge upon the administrative powers of conservation authorities. Sections 27, 28 and 29 deal with the legislative authority or power of a conservation authority and provide a power to make laws in the various areas set out in these sections. The legislative power contained in sections 28 and 29 deal primarily with the exercise of the administrative powers including the control of lands acquired by conservation authorities. In contrast section 27 creates a legislative jurisdiction in respect of the lands of private landowners or landowners other than the conservation authority. As amended in 1971 and 1973 the section reads:
–(1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,
- restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, swamps, and natural or artificially constructed depressions in rivers or streams;
- prohibiting or regulating or requiring - the permission of the authority for the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse;
- regulating the location of ponds used as - a source of water for irrigation;
- providing for the appointment of officers to enforce any regulation made under this section or section 28;
- prohibiting or regulating or requiring - the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of such regulations;
- prohibiting or regulating or requiring the permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill. R.S.O. 1970, c.78, s.27(1); 1971, c.64, s.5(1); 1973, c. 98, s.8(1-3).
(2) No regulation made under this section,
- shall limit the use of water for - domestic or live stock purposes;
- shall interfere with any rights or - powers conferred upon a municipality in respect of the use of water for municipal purposes;
- shall interfere with any rights or - powers of The Hydro-Electric Power Commission of Ontario or of any board or commission that is performing its functions for or on behalf of the Government of Ontario; or
- shall interfere with any rights or -- powers under The Public Utilities Act. R.S.O. 1970, c. 78, s.27(2); 1971, c.64, s.5(2).
(2a) Before refusing permission required under a regulation made under clause b, e or f of subsection 1, the authority, or where the power to issue permission has been delegated to its executive committee, the executive committee shall hold a hearing to which the applicant shall be a party.
(2b) After holding a hearing under subsection 2a, the authority or committee, as the case may be, shall give written reasons for its refusal to the applicant.
(2c) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission. 1973, c.98, s.8(4) .
(3) Every person who contravenes any regulation made under this section is guilty of an offence and on summary conviction is liable to a fine of not more than $1,000 or to a term of imprisonment of not more than three months.
(4) In addition to any other remedy or penalty provided by law, the provincial judge, upon making a conviction under subsection 3 for constructing a building or structure or placing or dumping fill in contravention of any regulation made under this section, may order the person convicted to remove any such building, structure or fill within such time as the provincial judge orders, and, if such person fails to comply with such order, the authority having jurisdiction in the area in which such building, structure or fill is situated may cause the building, structure or fill to be removed, and the cost thereof shall be borne and paid by the person convicted and is recoverable by the authority by action in a court of competent jurisdiction. R.S.O. 1970, c.78, s.27(3,4).
It may be noted at the outset that the legislative jurisdiction is not absolute as the power to make regulations can only be exercised "subject to the approval of the Lieutenant Governor in Council". It may be further noted that subsection 2 provides a number of restrictions on the application of regulations made under the section and thirdly, the subject matters of the legislative jurisdiction do not encompass all of the matters that fall within the objectives or the administrative powers of a conservation authority under sections 19 and 20 of the Act.
More particularly the legislative jurisdiction in respect of the particular case is that jurisdiction contained in clause e and to a limited extent of the placing of new top soil on part of the subject lands, clause f. The final words of clause f restrict the legislative jurisdiction under that clause to areas in which "in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected" This concept has been written into the regulation made by the respondent in respect of regulations made under the head of legislative jurisdiction contained in clauses e and f. Section 4 of O.Reg. 824/73 reads as follows:
- Subject to The Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution ~r the conservation of land. O.Reg. 824/73, s.4.
This tribunal can only conclude that while conservation authorities have been given a broad administrative jurisdiction of the nature referred to by counsel for the respondent, the legislative jurisdiction of a conservation authority is not co-extensive with its administrative powers and are considerably narrower than the administrative powers. There is no reason to believe that a conservation authority in exercising its administrative powers should not be concerned with official plans and zoning by-laws but the legislative controls in respect of such matters are not vested in a conservation authority but in the municipality. 'Accordingly where the issues relate to land use as contrasted with the control of flooding or pollution or conservation of land such issues should not be adopted by a conservation authority as a reason for refusing to issue permission under its regulation. The municipality has the legislative power to enact the land use controls and to enforce the laws that it makes and while it may seem incongruous to issue permission under a regulation made by a conservation authority in respect of a project that is contrary to zoning by-laws, it should be remembered that zoning by-laws are subject to principles of non-conforming use and minor variances. For such reasons a permission by a conservation authority cannot be construed as binding upon the municipality when it exercises its jurisdiction and conversely the position of the municipality should not be considered unless it falls within the three subject matters referred to in section 4 of the regulation.
Turning to merits of the application the proposal of the appellants was admitted not to involve issues of flooding or precisely the control of flooding. While it may appear to be unnecessary to comment on this aspect of the case, the proposal removes from the floodplain of the Oshawa Creek a building that interfers substantially with both the storage capacity of the floodplain and the discharge capacity of the floodplain. The building contains 6,832 square feet which in a regional storm of a depth of ten feet would create a loss of storage capacity of approximately 70,000 cubic feet. Further the building blocks 93 percent of the flow that would pass over the subject lands. Both of these concerns in respect of a regional flood, while not fully removed, are significantly reduced by the proposed new structures. In addition the greater part of the subject lands will be covered with asphalt or sodded with the result that the proposal contains erosion preventative modifications.
In these two aspects the proposal is a very significant enhancement of the control of flooding or of erosion which is one of the recognized aspects of the conservation of land. There was some argument and evidence in respect of the return of the subject lands to a state of nature or to a less commercial use. This tribunal has indicated on a previous occasion that it does not consider that the phrase "conservation of land" means retention of land in a state of nature. If such is the case it cannot include a meaning of returning land to a state of nature and in the opinion of this tribunal such an objective in refusing to issue permission is outside the proper considerations of a conservation authority.
The matter of control of pollution has been hereinbefore dealt with and accordingly the appeal will be allowed. "It is usual where permission to erect structures in a floodplain is granted to require the appellant to enter into an indemnification agreement in respect of the project. Counsel for the parties discussed the possibility of the appellant filing a deposit with the respondent to ensure the completion of the project in accordance with the amended plans and specifications. Upon receipt of evidence that the appellant has filed with the respondent such a deposit in the amount of $25,000 and entered into an agreement with the respondent that,
- the appellant will indemnify and save harmless the respondent, the City of Oshawa and the Crown from any claim or cause of action arising by reason of or resulting from the issue of permission;
- no claim will be made against the respondent, the City of Oshawa, the Crown or any body administering flood relief in respect of any damage to the subject lands or any building or chattel or structure thereon caused by or resulting from flooding or arising by reason of or resulting from the issue of permission;
- any agreement of sale of the subject lands shall require the purchaser to enter into a similar agreement with the respondent, including a covenant to obtain a similar covenant in any agreement of sale the purchaser may make; and
- the agreement may be registered in the land registry office and will be deemed to run with the land,
an order will issue granting the permission sought subject to the amendments thereof and the floodproofing requirements set out in the report of J. Witherspoon, P.Eng., filed as Exhibit "12". The order will provide that no costs shall be payable by either of the parties.
Dated this 25th day of June, 1979.
Original signed by G.H. Ferguson
Mining and Lands Commissioner