Rhonda Schmidt and Nancy Trider

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Mining Act.

File No. CA 003-15
Tuesday, the 18th day of July, 2017.

A. Halpenny
Deputy Mining and Lands Commissioner

L. Kamerman
Mining and Lands Commissioner

J. O’Kane
Deputy Mining and Lands Commissioner

The Conservation Authorities Act

In the matter of

An appeal to the Minister of Natural Resources and Forestry under subsection 28(15) of the Conservation Authorities Act against the refusal to grant permission for development through allowing a recently constructed above ground swimming pool to remain in the flood plain, being Application REG3-2014, City of Belleville, Province of Ontario;

And in the matter of

Ontario Regulation 319/09. Quinte Conservation Authority: Regulation of Development, Interference with Wetlands and Alteration to Shorelines and Watercourses.

Between:

Rhonda Schmidt and Nancy Trider
Appellants

and

Quinte Conservation
Respondent

Order

Wheareas this appeal to the Minister of Natural Resources and Forestry was received by the Mining and Lands Commissioner (“the tribunal”) on the 7th day of April, 2015, having been assigned to the tribunal by virtue of Ontario Regulation 571/00;

And whereas a hearing was held in this matter on the 23rd day of July, 2015, in the courtroom of this tribunal, in the City of Toronto, Province of Ontario;

And whereas the hearing panel, as originally constituted, was subsequently unable to provide a Decision in this matter;

And whereas with the consent of both parties, the panel was reconstituted to make a Decision based on the record;

  1. It is ordered that this appeal be and is hereby dismissed.

  2. It is ordered that no costs shall be payable by either party to this appeal.

Reasons for this Order are attached.

Dated this 18th day of July, 2017

A. Halpenny
Deputy Mining and Lands Commissioner

L. Kamerman
Mining and Lands Commissioner

J. O’Kane
Deputy Mining and Lands Commissioner

File No. CA 003-15
Tuesday, the 18th day of July, 2017.

A. Halpenny
Deputy Mining and Lands Commissioner

L. Kamerman
Mining and Lands Commissioner

J. O’Kane
Deputy Mining and Lands Commissioner

The Conservation Authorities Act

In the matter of

An appeal to the Minister of Natural Resources and Forestry under subsection 28(15) of the Conservation Authorities Act against the refusal to grant permission for development through allowing a recently constructed above ground swimming pool to remain in the flood plain, being Application REG3-2014, City of Belleville, Province of Ontario;

And in the matter of

Ontario Regulation 319/09. Quinte Conservation Authority: Regulation of Development, Interference with Wetlands and Alteration to Shorelines and Watercourses.

Between:

Rhonda Schmidt and Nancy Trider
Appellants

and

Quinte Conservation
Respondent

Reasons

Appearances

Ms. Rhonda Schmidt Appellant (self-represented)

Ms. Nancy Trider Appellant (self-represented)

Mr. Paul McCoy Planning and Regulations Manager, Quinte Conservation

Mr. Bryon Keene Water Resources Manager, Quinte Conservation

Background

  1. This is an appeal from the decision of the Quinte Conservation Authority Hearing Board (QCBH 01/15) which supported the Quinte Conservation Authority [Authority] staff recommendation to deny a permit application. The application sought permission to retroactively approve an above ground swimming pool that the appellants constructed on their land located at 133 Carleton Cove within the flood plain of the Moira River north of Belleville. The pool was constructed in 2013.

  2. The appeal to the Minister of Natural Resources and Forestry was made pursuant to ss. 28(15) of the Conservation Authorities Act (Act). The Mining and Lands Commissioner and Deputy Commissioners (the “Commissioner”, the “Deputy Commissioners”, and the “tribunal”) are appointed under ss. 6(1) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M.31 (MNR Act). By regulation made pursuant to ss. 6(6)(b), the Minister has assigned to the Mining and Lands Commissioner her powers and duties in relation to appeals from decisions of conservation authorities (see O. Reg. 571/00, Assignment of Powers and Duties of Minister, s. 1). The Commissioner hears those matters and renders final decisions, subject to appeal or judicial review under sections 134 and 135 of the Mining Act, R.S.O. 1990, c. M.14, as amended. As set out in ss. 6(7) of the MNR Act, Part VI of the Mining Act applies to these proceedings with necessary modifications. Subsection 28(15) of the Act states:

    1. A person who has been refused permission or who objects to conditions imposed on a permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Minister who may

      1. refuse the appeal; or
      2. grant the permission, with or without conditions.
  3. In this proceeding a one-person tribunal was established and was comprised of Deputy Mining and Lands Commissioner H. Dianne Sutter. The hearing was held in the Commissioner’s courtroom in Toronto on July 23, 2015. Subsequent to the hearing, due to infirmity, the Deputy Commissioner was unable to render her decision. With the consent of both parties, a new tribunal was struck comprised of Commissioner Linda Kamerman and two Deputy Mining and Lands Commissioners; Andrew Halpenny and John O’Kane. The appellants made a condition of their agreement the requirement that the new panel take a view of the property in question pursuant to ss. 119(1) of the Mining Act, which Deputy Commissioner Sutter had also done. The tribunal renders this decision by reference only to the record and their view without further hearings or submissions.

  4. The nature of the appeal is a de novo hearing wherein the appellants have a completely new hearing without reference to the decision of the Authority. This provides the appellants with an opportunity to be heard as though no decision on their matter had ever been made. As a result, the appellants must present all evidence necessary to persuade the tribunal on a balance of probabilities that, in this case, permission should be given to retain their pool. A balance of probabilities is the civil standard for the burden of proof that must be met by the appellants in contrast to the criminal standard which is beyond a reasonable doubt. It is important to note that the conduct of the parties in the past is not relevant. Further, these are technically-oriented hearings and the nature of sufficient and relevant evidence must meet the legal tests for the tribunal to grant the requested permission.

  5. For the reasons that follow, the appellants have failed to provide sufficient relevant evidence for this tribunal to grant the permission requested.

    The law and policies

  6. Pursuant to s. 28 of the Act, conservation authorities may make regulations that prohibit, regulate or require the permission of the authority for any development. Permission may be given where in the authority’s opinion the development will not affect, amongst other things, the control of flooding, erosion or the conservation of land (ss. (1)(c)).

  7. Development includes the construction of buildings and structures of any kind. Sub-section 28(25) of the Act states in part:

    “development” means, footnote 1 [1]

    1. the construction, reconstruction, erection or placing of a building or structure of any kind,
    2. any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, ...
    3. site grading, or
    4. the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere;
  8. Ontario Regulation 319/09 is the relevant regulation made pursuant to s. 28 of the Act and is entitled Quinte Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses [O. Reg. 319/09]. Development is prohibited in river or stream valleys (ss. 2(1)(b)). However, s. 3 permits development where, in the Authority’s opinion, that development will not affect flood control, erosion or the conservation of land. Therefore, development may occur in the regulated areas, but permission must be granted.

  9. The tribunal now sits in the stead of the Authority and has the power to refuse to permit the pool, or to permit it with or without conditions (Act s. 28(15)). In coming to a decision, the tribunal may consider relevant provincial policy statements. Policies, however, are not law. As such, they may be followed when it is reasonable to do so, but they do not have the binding effect of laws and regulations. They must not be followed where under all the circumstances it is not reasonable to apply them. Policies assist governments and agencies in providing consistent governance but must be used wisely. In the decision below, the Quinte Board relied upon “Quinte Conservation’s Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses Policies and Procedures Manual, July 2005 (as amended May 29, 2008)” [Policies and Procedures Manual].

  10. The Policies and Procedures Manual states in part, “Section 5.0 Restricted Development in Regulated Areas. In general, Quinte Conservation will not grant approval where, …(3) Approval of the application would have the likely effect of increasing flood damage or erosion for the subject property or other properties…” In relation to new development, the manual goes on to state, “Section 6.2 …the following provisions shall apply to all new development: (2) New development will not be permitted in flood plain areas as defined by the Authority…”.

  11. In the case of the section 5.0 prohibition, the Authority must establish in its evidence that the specific development in this case will likely have the “effect of increasing flood damage or erosion” as specified. However, section 6.2 provides a blanket prohibition by stating that no new development will ever be permitted in the flood plain areas. This latter policy may not be reasonable to apply since, as policy, it cannot take precedence over law. As noted above, the regulation states that where the Authority is of the opinion that development will not have a deleterious effect, it may permit the development. The appellants are then in a position to provide the tribunal with relevant evidence that shows their plan avoids any such deleterious effect (Gilmor et al. v. Nottawasaga Valley and The Township of Amaranth, 2017 ONCA 414 (CanLII) at paras. 56, 58 [Gilmor]). The backbone of that evidence must comprise technical hydrologic data, engineering and such other necessary evidence to engage s. 3 of the regulations.

    The evidence

    Evidence of the Appellant 

  12. As mentioned, the evidence required to support an application for development in a floodplain is necessarily technical in nature. Based upon the transcripts, the appellants’ oral evidence was principally a narrative account describing in detail the history of the case from their first encounter with the conservation authorities when the latter looked into a complaint of in-filling on their lot. They were the only witnesses for their case at the oral hearing before the tribunal. 

  13. The property is located on a spit of land which juts out into the Moira River, forming the whole of a curve in a meander. It is shown on a Flood Risk Map – MR2-11, Schedule 2, by Kilborn Limited, Registered Professional Engineer, for Environment Canada Inland Waters Directorate and Ministry of Natural Resources, dated May, 1983 (Ex. 2, Tab 10).

  14. A smaller, more detailed map forming part of Ex. 3, Hearing Submissions of the Appellants, pages unnumbered, shows spot elevations which provide considerable useful information to the tribunal. It is also found at Ex. 2, tab 11 of the Respondent’s submissions.

  15. The entrance to the property is from a trailer park to the south. On the property, there is a house and barn on higher land shown in the range of 101.5 to 102 metres in elevation and averaging 101.7 metres. The land drops off immediately north of the barn. The swimming pool is located adjacent to the barn but on this lower land. Spot elevations for the area surrounding the pool range from 100.9 to 101 metres. The remainder of the land to the north and east is at the elevation of the pool or lower. 

  16. Based upon the documentary evidence and transcript, 65 cubic metres of fill had been brought in to the property to level the ground underneath and around the pool which became an issue. This amount of fill was offset by a proposed, balanced cut and fill which was to have been 126 metres, but was scaled back by the Authority to the necessary 65 cubic metres. Otherwise, the slopes of the cut would have been too steep and unstable.

  17. Several sheds were removed from the property which the appellants submitted should offset the installation of the pool. There was no oral evidence as to their location, however several outbuildings which no longer exist are shown on the map with the spot elevations. They are depicted on the higher ground within the same elevations as the house and barn. The data on these sheds presented in the documentary evidence was not in readily usable formats but nonetheless, is set out. One shed was 8 × 10′ for a volume of 1975 gallons; another at 8 × 15′ for a volume of 3712 gallons. In their written submissions, the appellants suggested that the removal of those sheds should be considered as compensation for the installation of the pool.

  18. If the sheds were indeed located at the same elevation as the house and barn, their removal, as pre-existing, essentially grandfathered structures, might have been considered by this tribunal had the pool been placed on the same elevation. In doing so, portions of the Quinte Policies and Procedures Manual, section 5.0, which speaks to “increasing flood damage or erosion” might have applied.

  19. Prior to such consideration, however, considerable additional information would be required from the appellants in relation to the swimming pool itself which was not provided. For example, would the pool be empty or full during the winter and the more hazardous spring run-off which is the time of the greatest flooding? Even if filled, hydrological evidence would be required regarding flood proofing measures for the pool itself. The information should include the pool’s specifications, the relevant water velocities and resultant hydrostatic pressures under which the sides of the pool could buckle and cause the entire pool to become dislodged. This data would assist the tribunal in understanding the potential contributing factors to downstream debris and their impact, particularly around bridges, as well as to other property. 

  20. The appellants have also suggested that the location of the barn acts as a breakwater, in the direct line of flow, when the river overtops the banks, such that the pool is in a protected location. Expert evidence from a qualified hydrologist would be required to substantiate this claim. The dynamics of moving water are complex and it is not for the layperson to speculate as to what purpose existing structures could serve.

  21. The appellants provided evidence that they removed a great deal of garbage from the property. The waybills and transcripts show that this was not typical household garbage. The three invoices, from April 17, June 4 and June 12, 2012, respectively, were for net 780 kg, net 220 kg, and net 560 kg, respectively. Apparently, this site was once used as a dump. The items carted away were heavy household waste such as old sinks and the like. A horse trough still remains partially buried on the property. This evidence, too, was provided with the intention that it be considered in relation to compensation for the installation of the pool. However, it cannot be considered as equivalent to soil removal for purposes of cut and fill without convincing technical evidence. There has been no case law decided by the tribunal on the issue of whether this type of waste could or would be considered as the equivalent of removal of fill. Assuming that the appellants could persuade the tribunal that it should consider this waste as the equivalent of cut material, there is no evidence as to the location or elevation(s) from which it was removed which is essential. Finally, the tribunal would require evidence as to a proposed conversion, methodology and figure, to convert kilograms to cubic feet.

  22. The appellants provided three policy documents in this hearing that were not before the Quinte Hearing Board. They are the policies of other conservation authorities relating to development in flood zones. The appellants did not avail themselves of the opportunity to provide this evidence or to make submissions in relation to them for the record from which this decision is being rendered. Nevertheless, as filed in evidence, the following brief review of these policies follows.

  23. Subsection 5.6(1) of the Otonabee Watershed Planning & Regulation Policy Manual, May 17, 2012 provides prerequisites to the placement of pools: namely that excavated fill be removed from the flood hazard zone; that flood proofing to requisite standards be undertaken; and that no feasible alternative locations exist for the pool. However, this policy applies only to in-ground swimming pools. It does not apply to above ground pools.

  24. The Ganaraska Policies for the Implementation of O. Reg. 169/04, January 2014, allow for pools. However, they do not specify whether they apply to above ground or in-ground pools. Specific conditions must be satisfied: namely that no site exists outside the flood plain for the pool and the proposed development is of an acceptable risk; a new flood hazard is not created; the new pool is protected from flood hazards; the development will not interfere with emergency access or routine maintenance; potential for erosion is addressed; and natural ecological features are addressed.

  25. The Crowe Valley Conservation Authority stated in an email to the appellants’ former counsel, dated March 10, 2015, that in-ground pools are permitted in a flood plain if there is no alternative site available. Fill that is excavated must be removed from the site. The grade of the land must be maintained so as to not change the storage capacity. All power supplies for the pumps, etc. must be at the regulation flood elevation plus 0.3 of a metre. Above ground pools are permitted in a flood plain if there is no feasible alternative. However, this is permitted only in locations that are not subject to flooding. The site must be free of electrical service units and panels. Access must be safe for pedestrian movement. Property damage and pollution must be minimized during a flood. The grade of the land must not be changed so as to adversely affect flood storage capacity.

    Evidence of the Respondent

  26. The Authority provided two staff members as witnesses; Mr. Paul McCoy and Mr. Bryon Keene. Mr. Paul McCoy is the planning and regulations manager. His duties include his appointment as a provincial offences officer under the Act. Prosecutions occur under the Provincial Offences Act. Mr. Bryon Keene is a civil engineer with a specialization in water resources and environmental engineering. At the time of the hearing, he was the Authority’s water resources manager. He was qualified as an expert witness.

  27. In his testimony, Mr. McCoy described his 15 years with the Authority and how the application and enforcement processes work. In particular, he described “development” as “...the construction, or erection of any structure. It includes site grading, filling, excavating” and “would include a swimming pool.” He suggested to the appellants that it may be in their interest to hire an engineer to verify that the Authority maps, which are quite old, were still accurate in relation to the ground elevations. A new survey might be able to justify the pool at some location on the property. 

  28. Mr. Keene testified regarding his attempts, at the request of Mr. McCoy, to find an engineering solution to the flood control problems involved with the appellants’ pool. To compensate for the in-fill, a “cut and fill” was posited by him as a potential solution. A cut and fill would entail cutting and removing an equivalent amount of fill from another part of the property to compensate for the in-fill. By doing this, the loss in water storage during flooding as a result of the in-fill would be compensated for by the cut. Although this would address part of the problem on the land, Mr. Keene found no solution for the pool itself since it is in the 1:100 year flood zone as indicated on the maps. He explained that in such a flood zone, there is a one percent chance that the appellants’ property will be flooded in any given year to a “certain depth” that the province has decided is too great for safety. Even at that, flood levels could be greater.

  29. Mr. Keene indicated that the purpose of the flood standards is to minimize the risks and costs to society; to both government and private persons. Practically, this is done by reference to the maps footnote 2 [2] and then to restricting development within its prescribed areas. Several photos of recent flooding of the appellants’ property clearly show that the land had significant inundations of water that surround the pool and appear to rise almost to its highest edge, although these were taken during less severe 1:20 or 1:25 year flood events. The regulatory event for this area is the 1:100 year storm.

  30. Mr. Keene then testified about the fact that the Moira River is a meander. Meanders tend to migrate down river. Further, the river current tends to wear the shoreline significantly with two outcomes. The land within the meander can have a new channel pushed through it and thereby separate a part of the land from the remainder. The other outcome is that the shoreline is subject to an elevated erosion process. He stated that the appellants’ property is within the meander and that water, debris and ice can impinge on the land causing further damage and erosion. He demonstrated the effects by referring to the various photographs of the property found in exhibit #2.

  31. Mr. Keene further explained some hydrographic maps in the area of the property (Ex. 2). He explained that the maps showed a HEC-2 footnote 3 [3] analysis of the Moira River. The analysis demonstrates a relatively low velocity flow for the 100 year flood event with an established height of water of 102.4 metres, and a rate of flow of 365 cubic metres every second. That velocity is below what is referred to as a “critical flow” or what Mr. Keene described as “extraordinary”. Nonetheless, the water is moving and not stagnant, even though there isn’t a steep gradient between cross-sections. 

  32. Following an explanation of floodways, which includes the property, he stated that development is prohibited in them “... because there is no way to accommodate for the potential damage and flood risk.”

    Findings

  33. The tribunal finds as fact that the 1:100 year flood event would raise the Moira River to a height of 102.4 metres with a flow rate of 365 cubic metres per second in the vicinity of the property. The appellants’ engineering report confirmed that no place on their property was above the 1:100 year flood event. 

  34. The pool itself is at approximately 101 metres, and therefore would be inundated to a height of about 1.4 metres. The pool is a development that may be permitted if it is flood-proofed, but the appellants provided no evidence of how they might do it and further, the Authority does not know of any means to do that. 

  35. Finally, the tribunal finds that in its opinion, the pool affects the control of flooding in the area of the property. The volume of the pool was estimated by the appellants to be 20 cubic metres. However, the tribunal has estimated it to be almost 69 cubic metres based upon its dimensions of 27 feet across by 4′3″ in height. This would create 69 cubic metres of flood storage that is removed from the flood plain with no plan of compensation. 

  36. Stated another way, an existing building which might have flooding come to within one inch of its entry way could potentially see the flood waters cross its threshold as a result of storage capacity. This type of impact needs to be modelled by a hydrologist to understand its true potential effect. In addition to the loss of flood storage from the pool itself, should proposed flood proofing measures include the creation of a berm of earth around the pool, the volume of this additional earth would also have to be calculated and modelled to understand the impact on flooding in the area. 

    Analysis

  37. Section 28 of the Act provides in part that authorities may make regulations to prohibit, regulate, or permit development in areas where, in their opinion, development will not affect flood control (ss. 28(1)(c)). Such regulations are subject to the Minister’s approval (ss. 28(1), (5)), and subject to other regulations (ss. 28(6)). O. Reg. 319/09 is the Authority’s regulation and is entitled Quinte Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses. In it, the Authority restricts development in river and stream valleys, amongst other places, as depicted in official maps (s. 2). Importantly, s. 3 of the regulation provides that the Authority may grant permission in those areas where “(1) ... in its opinion, the control of flooding ... will not be affected by the development.” The flood event standard to be used to determine the maximum susceptibility to the flooding of lands is the 100 Year Flood Event Standard as described in Schedule 1 (s. 11). The evidence establishes that standard as an elevation of 102.4 metres in the area of the appellants’ property where the pool is located.

  38. Reference is made in the documentary evidence of the Authority (Ex. #4) to the Policies and Procedures Manual. As previously noted, that manual is not law and although adjudicative tribunals should use them in a reasonable manner to ensure fairness and consistency in applying the law, the Manual is not used in this decision as there is insufficient evidence to consider anything beyond that which is provided for in O. Reg. 319/09. The regulation provides sufficient guidance on the facts of this case without the need to seek more direction or instances in which detailed scenarios must be weighed and considered from the Manual. This is not to say that the Manual itself has been scrutinized one way or another by the tribunal. If or when it is, the test in Segal v. Ontario Health Insurance Plan would be brought to bear to the analysis. That test footnote 4 [4] was articulated by the court as follows:

    Consider the policy and determine whether generally it will be adopted or rejected by the tribunal.

    1. If adopted, it need not be reconsidered, unless a party pleads exceptional circumstances.
    2. If rejected, the tribunal will give reasons.
    3. If adopted, consider whether it is reasonable to apply the policy in the circumstances.
  39. The recent Court of Appeal’s decision in Gilmor affirmed this tribunal’s interpretation of ss. 2 and 3 or O. Reg. 319/09. footnote 5 [5] There is a general prohibition to development in floodways under s. 2. However, this tribunal may use its discretionary power to permit an appellant’s development under s. 3. But the appellant carries the evidentiary burden. If persuasive evidence is presented, the tribunal may form the opinion that the control of flooding will not be affected by the development, and provide the permission to develop.

  40. In this case, the Authority brought sufficient evidence that the pool indeed does affect flooding as amply demonstrated in the photographs and testimony. The water clearly rises to such a level that even in non-1:100 Year Flood Events, the pool creates an obstacle to the water flow and is subject to damage or destruction by detritus in that flow such as branches, uprooted trees, ice, etc. The Authority, through its expert witness, concluded that it is not possible to flood-proof the pool. That is, there is no engineering solution of which they are aware to protect the pool and ensure that the flood is controlled.

  41. The fact that the Authority cannot arrive at a reasonable solution to flood-proof the pool does not, however, end the inquiry. It is open to the appellants to bring evidence of a solution. This would normally require detailed hydrologic and other engineering evidence and proposals. If the proposal and evidence are persuasive on a balance of probabilities, the tribunal could then arrive at an opinion that flood control would not be affected by the development. It is important to emphasize that the evidence needed in these applications is necessarily technical in nature, and the decisions made by the tribunal are based primarily on them. 

  42. In this case, the appellants brought no such evidence. They presented no plan of mitigation for their pool to demonstrate how it would not interfere with flood control on the Moira River. On the other hand, the respondent brought sufficient evidence for this tribunal to conclude on a balance of probabilities that its opinion was valid and that the presence of the pool has a negative effect on the control of flooding.

  43. The tribunal takes this opportunity to make further comments regarding the evidence presented by the parties in this particular case. It is important that the parties plan the type and purpose of their evidence. The appellants testified, cross-examined and made submissions principally about how they were treated by the Authority over the previous year, what happened at the Quinte Board Hearing, and how they felt that they were being treated differently than their neighbours. The record shows that they were informed that this tribunal’s hearing was de novo, that is: a fresh start at a completely new hearing. It was irrelevant for our purposes as to what may have happened with the Authority’s officers and at the Quinte Conservation Executive Committee hearing. By focusing on this type of evidence, the appellants missed their opportunity to provide the tribunal with the type and quality of evidence that would be essential to make a decision that might be in their favour. Unlike most appeals, the appellants could have presented completely new arguments and evidence from that which they used at the earlier hearing. They needed to present persuasive evidence that the pool would not affect the control of flooding in the area of their property. They did not. They missed the opportunity to use this de novo hearing to their full advantage. 

  44. The Respondent’s evidence, although sufficient, lacked focus. They happened to present sufficient evidence, but they missed opportunities to present more compelling evidence, and they presented some evidence for no apparent reason.

  45. The Respondent could have presented evidence relating to the effects of the flood flow on the pool itself. For example, there was no evidence detailing the pool’s size, volume, anchoring, ability to withstand flow pressures, the effect of it being filled or empty during a flood, etc. Such evidence might be crucial should an appellant bring evidence to show they have a plan to address flood control.

  46. The Respondent brought evidence about the river being a meander, and explained what that was. But it was not clear how that was supposed to advance their case. Although it could be an important factor in deciding whether to permit development, it would need technical information demonstrating the probability and effect of, for example, the land being cut off. The evidence was given simply as general information. Consequently, it did not complement their case, and was not considered in this decision.

  47. These observations of the tribunal are given understanding that neither party was represented by legal counsel. There are many reasons to either retain or to decline to retain legal counsel. The tribunal will always hear parties whether or not they are represented. It is important to note, however, that the tribunal cannot provide any extraordinary assistance to a party where they are unrepresented. The tribunal will assist them to the degree that they can present their case, but it is their case to make. The tribunal cannot gather evidence on behalf of any party, and cannot draw conclusions about evidence that is before it but for which no submissions are made. Such was the case in relation to the evidence of the meander, and similarly the appellants’ evidence relating to the garbage that they hauled away from the land.

    Conclusions

  48. As noted, the tribunal may refuse the permit, or grant the requested permission with or without conditions (Act ss. 28(15)). The tribunal has determined on the evidence that there is no basis to allow the appeal to grant the permit for the development in the form of an above ground pool, since it negatively affects the control of flooding. The appeal is therefore dismissed.

  49. The tribunal further finds that no costs shall be payable by either party to this appeal.