The Conservation Authorities Act
Le Commissaire aux mines et aux terres
File No. CA 006-05
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Wednesday, the 18th day of January, 2006
In the matter of
An appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the retroactive approval of changes made during construction of an addition on an existing residence located at part of Lot 13, Concession 9 in the former Municipality of South Gower, now in the Township of North Grenville, municipally known as 1299 Hilly Lane.
Rideau Valley Conservation Authority
Whereas this appeal to the Minister of Natural Resources was received by the tribunal on the 12th day of April, 2005, having been assigned to the Mining and Lands Commissioner ("the tribunal") by virtue of Ontario Regulation 795/90;
And whereas a hearing was held in this matter on the 13th day of September, 2005, in the McDonald Room of the Days Inn - Ottawa Airport Hotel, 366 Hunt Club Road, in the City of Ottawa, Province of Ontario;
Upon visiting the site, hearing from the parties and reading the documentation filed and submitted at the hearing as well as receiving some clarification regarding measurements after the hearing;
- It is ordered that the appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the retroactive approval of changes made during construction of an addition on an existing residence located at part of Lot 13, Concession 9 in the former Municipality of South Gower, now in the Township of North Grenville, municipally known as 1299 Hilly Lane be and is hereby dismissed.
- It is further ordered that the appellant be granted approval for an expanded residential structure of 1.335.6 square feet on two floors over a base floor print of 29.5 feet by 32 feet with an open porch 13 feet in length and 29.5 feet in width and that the applicant be granted a period of two years from the date of this order in which to comply.
- It is further ordered that no costs shall be payable by either party to this matter.
Dated this 18th day of January, 2006.
Original signed by H. Dianne Sutter
Deputy Mining and Lands Commissioner
File No. CA 006-05
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Wednesday, 18th day of January, 2006
The Conservation Authorities Act
In the matter of
An appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the retroactive approval of changes made during construction of an addition on an existing residence located at part of Lot 13, Concession 9 in the former Municipality of South Gower, now in the Township of North Grenville, municipally known as 1299 Hilly Lane.
Rideau Valley Conservation Authority
The matter was heard in the McDonald Room of the Days Inn - Ottawa Airport Hotel, 366 Hunt Club Road, in the City of Ottawa, Province of Ontario on the 13th day of September, 2005.
The tribunal undertook a site visit on the afternoon of Monday, the 12th day of September, 2005.
Ms. Kimberley Hope: appeared on her own behalf
Mr. Helmut Brodmann: Counsel for the Respondent
This appeal came before the Mining and Lands Commissioner pursuant to subsection 28 (15) of the Conservation Authorities Act, R.S.O. 1990, as amended, whereby:
A person who has been refused permission or who objects to conditions imposed on permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Minister who may (a) refuse the appeal or (b) grant the permission with or without conditions.
The proper procedure was followed by the appellant with regard to this appeal.
The Mining and Lands Commissioner and/or the Deputy Mining and Lands Commissioners have been assigned the authoritative powers and duties to hear the appeal pursuant to subsection 6 (1) and clause 6 (6) (b) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M. 31, as amended, and Ontario Regulation 571/00. In addition, the principles outlined in the Statutory Powers Procedure Act apply to the hearing.
By virtue of subsection 6 (7) of the Act, the proceedings are governed by Part VI of the Mining Act with necessary modifications. Pursuant to section 113 (a) of the Mining Act, these proceedings are considered to be a hearing de novo. The tribunal stressed this point at the commencement of the hearing and noted that the purpose of the proceedings was to hear all of the evidence in order to make a fair judgment regarding the appeal.
It was noted at the outset of the Hearing that the respondent had received correspondence from the solicitors for the Bank of Nova Scotia, the holder of the mortgage on 1299 Hilly Lane in the name of Ms. Kimberley Hope, which indicated that the mortgage was in default and that the bank, in exercising its rights, had taken possession of the property and was commencing a Power of Sale process. The tribunal, during the visit to the property, noted that the property was not inhabited and that the building exhibited signs indicating that the property was being maintained on behalf of the bank.
It also was noted that the Office of the Mining and Lands Commissioner had not been able to secure an address for Ms. Hope, which did not provide the certain knowledge that the correspondence had been received. Neither the Commissioner's office nor the Conservation Authority had received any response from Ms. Hope to the September correspondence. As a result of this, there was a concern as to whether Ms. Hope would appear at the September 13th Hearing.
Ms. Hope provided a letter to the solicitors for the Bank of Nova Scotia from her solicitors, Laushway Law Office of Prescott, Ontario in which was stated that the possession of the property was illegally done and that possession should be restored to Ms. Hope. This letter was dated August 31, 2005. Ms. Hope stated that her solicitors fully expect the Hilly Lane property to be returned to her shortly.
Based on this possible action and rather than deferring the matter, the tribunal ruled that the Hearing should proceed. Both parties agreed to this ruling.
Kimberley Hope purchased the property at 1299 Hilly Lane in 1998. The house, apparently constructed in 1959, is located along the eastern shore of the Rideau River, north of Kemptville on a private road known as Hilly Lane, which is accessed from County Road 19, also known as River Road. A former seasonal property, Ms. Hope planned to make this the principal residence for her family with the knowledge that the property was totally within the floodplain of the Rideau River.
In 1999, Ms. Hope received approval to construct a new foundation under the existing house. In 2001, Ms. Hope hired a contractor to extend the size of the home and was told that permits had been secured. In early 2002, a Stop Work Order was issued as the municipal and the Rideau Valley Conservation Authority's (hereinafter referred to as RVCA) approval had not been requested or received.
Ms. Hope proceeded to apply for permission to continue with the construction as planned, but her application was refused by the Executive Committee of the RVCA as the construction was in excess of the approved Authority policy for additions. A compromise was approved by the RVCA, which acknowledged the loft space, but reduced the depth of the building by eight (8) feet, resulting in an exposed foundation which could be used only as an open deck or porch
Construction proceeded as per the RVCA's approval, except that the loft space over the exposed foundation was maintained, creating a covered deck/porch. It was at this time that an extra five (5) feet of foundation was discovered. Ms. Hope believed that the municipal building inspector had secured the Authority's approval to allow this loft space to remain since she was issued a temporary occupancy permit. However, the RVCA staff had never been consulted. The approved square footage was exceeded by this construction and again, the construction violated the RVCA's policy for additions.
An appeal was made to the Ontario Court of Justice by the RVCA at which time (September 15, 2003), Ms. Hope was ordered to bring the property into compliance with the RVCA's approval with a completion date of September 2004. Ms. Hope did not meet this deadline and although the RVCA did not force the issue, they did take steps to register the Court's decision on title.
In March of 2005, Ms. Hope again presented her case to the RVCA Executive Committee with regard to a further application requesting a "retroactive" approval of the "as built" structure. This application was denied. (Ex. 1-tab D)
This final application for retroactive approval of the "as built" structure is before the tribunal. In her letter of appeal to the Minister, dated April, 2005, and received by the Administrator on April 12, 2005, Ms. Hope maintains that the RVCA Executive Committee did not look at all the factual information presented to them, in particular, with regard to the size of the original structure. (Ex. 2-tab 1)
- Is the tribunal required to have regard to the provincial policies and through them the policies of the Rideau Valley Conservation Authority?
- Assuming that the tribunal finds that it will adopt the application of the Rideau Valley Conservation Authority's policy with respect to additions, is the size of the structure proposed by Ms. Hope within the allowable parameters of the policy?
Evidence of the appellant
Ms. Hope relied on her written submissions in Exhibit 2 as the evidence she wished to submit to the tribunal. She acknowledged that the property was totally located within the floodplain of the Rideau River and noted that in 2005, she experienced a flood for the first time since acquiring the property. She indicated that she and her family vacated the property before the flooding occurred due to the Flood Warning System operated by the RVCA.
A major portion of the evidence was included in the "Defendant's Brief' submitted to the Ontario Court of Justice, dated September 15, 2003. (Ex. 2-tab 1)
According to the 1998 real estate information at the time of purchase, the structure was listed as a bungalow consisting of an approximate floor area of 827 square feet with five rooms including two bedrooms. No loft space is mentioned in the real estate information. Ms. Hope maintains that the Real Estate agent did not enter the house, so he was not aware of the loft space.
Ms. Hope stated that the home, when purchased, was a seven room, one and a half storey structure consisting of a first floor of 877.2 square feet and a half storey loft of 689..6 square feet with stair access for a total of 1566.50 square feet. She further indicated there was a sketch by Ms. Hope's contractor at the time, Mr. Jason Willard, dated July 27, 1999 but this sketch was not submitted in evidence. This is a substantially larger building than that indicated in the real estate information. (Ex.1-C-Photo #6)
First application: In 1999, Ms. Hope secured the approval of the RVCA for the construction of a new perimeter crawl space foundation under the existing building, in order to flood proof the structure. (Ex. 5) At this time, the application indicated that the foundation would be 30 feet by 30 feet for a total of 900 square feet. The approval indicated that no increase in the living space would be allowed.
During cross examination by Mr. Brodmann, Ms. Hope indicated that Mr. Willard had filled out the application for her and she had signed the document, accepting the information as provided by Mr. Willard.
Second application: In 2001, Ms. Hope hired contractors to build three additions to her original home adding an 8 X 29.5 foot extension on the front of the house, and a 5 X 6 foot and a 6 X 12 foot extension for a first floor area of 1184 square feet (29.6 feet by 40 feet) and increasing the half storey (herein after referred to as loft space) to 882.08 square feet (29.6 feet by 29.8 feet) for a total of 2066.08 square feet.
In late December, 2001, and with the advice of a local carpenter, this work began without any approval permits. A Stop Work Order was issued on January 31, 2002 when Ms. Hope apparently found that no permit applications had been submitted to any approval body. The roof framework was almost complete at this stage. (Ex. 1-C- Photographs 8 and 9)
On February 5th, 2002, Ms. Hope filed a retroactive application with the RVCA, based on the proposed 2,066.08 square foot plan, of which only 1540 square feet was considered gross floor area, due to the slope of the roof trusses. At this time, the contractor indicated that the original building was 874 square feet, a fact accepted by the RVCA. (Ex. 4) This application was denied by the RVCA Executive Committee.
Third application: Supported by the RVCA staff, Ms. Hope subsequently made a further application for a smaller addition consisting of 944 square feet on the first floor (32 feet X 29.5 feet) and 384 square feet (12 feet X 32 feet) allowing for only the head room section in the loft for a total of 1328 square feet. This third application was approved by the RVCA Executive Committee on February 22, 2002 on the basis that a portion of the construction facing the roadway, measuring 8 X 29.5 feet (236 square feet), be removed with a "deck or uncovered veranda or uncovered porch may be utilized over the exposed foundation wall".
Ms. Hope indicated she agreed with this decision, that all necessary documents were filed with the Authority and construction continued. Ms. Hope stated that her carpenter, Mr. Roger Daigle, removed the required area of the main floor back to where the original "green floor" had been located, apparently measuring 29.5 feet X 32 feet but maintaining the loft space at the same as the former first floor with the usable portion being 29.5 X 12 feet. Ms. Hope maintained that the RVCA letter of February 22, 2002 allowed the loft space to be the same as the first floor wherein it stated:
"That amended plans be submitted to the Conservation Office for the file to reflect the full first floor measuring 32 feet X 29.5 feet and the 1/2 storey measuring the same"
Ms. Hope took this to mean that she was allowed to have the 29.5 X 32 foot space ( 29.5 X 12 feet of usable space) in the loft as well, maintaining the loft as it was being constructed over the newly exposed foundation where the 8 X 29.5 foot main floor area had been removed. (This, of course, created a covered porch.) Ms. Hope indicated that she was told by the Town's Building Inspector, Mr. Randy Wilkinson, that the revised structure would be within code and that he would "deal with Shelley Macpherson ", who, the tribunal notes, is the Regulations Officer for the RVCA, with regard to any conformance issue with the RVCA. According to a letter submitted by Mr. Roger Daigle, he was present with Ms. Hope when Mr. Wilkinson made this statement. It was Mr. Wilkinson's advice Ms. Hope accepted since her Occupancy Permit would come from his Department. The covered porch was maintained. A temporary Occupancy Permit was issued by the Town in April, 2002.
According to Ms. Hope, there were some conflicting views regarding the foundation walls and crawl space at this time between the RVCA and the Town staff which delayed the finalization of repairs. The two other issues were the size of living space. Ms. Hope cited the list of conflicting issues (Ex. 2 -Tab 2) in her evidence before the Court and also presented it to the tribunal, using it as an example of how she felt she had difficulty receiving "straight answers" from the RVCA.
Ms Hope stated that she sought legal advice on the issue of who she should listen to regarding the discrepancies in direction, but could secure no definitive advice.
On June 13, 2002, following a visit to the property by Ms. Shelley Macpherson, Ms. Hope indicated that the RVCA's letter of permission was revoked on the basis that both the first floor and the half storey loft exceeded the approved limits. The first floor (after the removal of the 8 X 29.5 foot area creating the porch) now was measured by Ms. Macpherson as 29.5 X 37 feet instead of the approved 29.5 X 32. An extra five feet made its appearance at this time The second floor's size was correct at 12 X 32 feet, but only 23 feet extended over the first floor with the remaining in the porch overhang area. Ms. Hope maintained that the Building Inspector again stated that the Town had no concerns since the construction met the Building Code. She forwarded a letter to the RVCA on June 19, 2002, following the approval revocation, indicating her concern over who she was to listen to. (Ex. 2 - Tab 2)
On December 18, 2002, Ms. Hope was served with a Summons to appear before the Ontario Court of Justice to explain the non-compliance with the RVCA's approval of February, 2002.
A Court Order, dated September 15, 2003, required Ms. Hope to comply with the RVCA's approved construction plan.
Ms. Hope acknowledged that she had not complied with the Court's direction because she continued to not know what she was actually supposed to do, especially since the extra 5 X 29.5 foot space had become an issue. Ms. Hope did acknowledge, in Cross Examination, that she did receive a letter from Ms. Macpherson, dated October 18, 2004, which outlined the status of the application and "suggested" how Ms. Hope could comply. Ms. Hope indicated that she did not view this letter as clear direction from the RVCA since it used words as "suggestion" and "for your consideration only". (Ex. 1 - Tab A)
With regard to the extra five feet, Ms. Hope explained that it was Mr. Wilkinson from the Town and her contractor, Mr. Roger Daigle, who enlarged the foundation to 45 feet in order to allow for a separate electrical room. This was done without consultation with Ms. Hope who continued to use the 29.5 X 32 feet as the size of the first floor. (Ex. 2 Tab 1)
Ms. Hope advanced the position that she had attempted to comply with the approval but had accepted advice from the wrong source and was unaware of the original size expansion of the foundation. She continued to seek the maintenance of the 29.5 X 37 foot floor area and the overhanging space from the loft and appeared again before the Executive Committee on March 3, 2005. This application was denied.
Several emails followed between herself and Ms. Macpherson in May, 2005 attempting to reach a compromise solution by reducing the interior loft space by 8 X 12 feet in the area overlooking the living space of the first floor and to also maintain the overhang space. (Ex. 2 Tab 5) This would be less costly for her than the removal option. However, Ms. Macpherson made it clear that this option would still not comply with the approval by the RVCA since the covered porch remained an issue.
Ms. Hope stated she does not have the financial or emotional means to do anything more with the house. She continued to maintain that the home is now smaller than the original house and therefore should meet the criteria of the RVCA. This is based on her view that the original house had a loft of 689 square feet which she maintains was usable space within the original house.
Over the last four years, Ms. Hope feels that all reasonable attempts to settle the matter and secure straight answers were made but failed. She is looking to the tribunal for a "reasonable response".
Evidence of the respondent
Mr. Brodmann introduced the respondent's evidence as a request by the appellent for a retroactive approval of work carried out on site by Ms. Hope without the approval of the Rideau Valley Conservation Authority Ms. Hope has stated that the process from the 1999 foundation approval by the Authority to this appeal has spanned a period of four years. She believes she listened to the advice of the wrong people and apologized for this to the RVCA, but now believes straight answers are needed from the conservation authority. Mr. Brodmann indicated that evidence will be shown that direction was clearly provided to Ms. Hope, but she appears to have listened to what suited her purposes.
Ms. Shelley Macpherson, who holds a BA in Geography, was sworn and accepted as an expert witness in dealing with applications affected by the RVCA approved Regulations and Policies, including infractions against these Policies and Regulations. She has been the Regulations Planner at the RVCA since 1990.
First Application: Ms. Macpherson referred to Exhibit 5, the documents submitted by Ms. Hope in her application for a new foundation under the original 1299 Hilly Lane, dated July 28, 1999. These documents included copies of the following:
- the original real estate information when Ms. Hope purchased the property,
- a survey sketch of the lot,
- a contour map of the Hilly Lane area,
- a contractor's drawing/description of the proposed foundation, and
- the foundation approval letter, including conditions, from the RVCA, dated August 5, 1999.
The contractor's document indicated that the application sought approval for a new foundation, approximately 900 square foot (30' X 30') in size, with no increase in the living area. The Real Estate Information sheet states that the house was a bungalow of approximately 827 square feet. (Ex. 4 - 837 square feet) No loft space is described, although a window can be seen located above the main floor entrance and at the rear. Exhibit. 6 - Photo "B" shows a rear view of the original house and Ms. Macpherson highlighted the location of a specific tree in the rear yard. Photo "C" portrays the original house on its new foundation. The tree location was again referenced. In both photographs, the tree was seen to be in the same location, with reference to the structure. This application was approved on August 5, 1999 by the staff of the RVCA on the basis that there was to "be no increase in the total living space". (Ex.5)
Exhibit 6 -Photos "D" through "G", all dated January 31, 2002, provide visual evidence of the construction of a new roof, as well as the way in which the new construction was "squaring off' the original home and with a further addition, increasing the living space. The increase in the height of the building (beyond its new height after foundation construction) also was illustrated. Photos "F" and "H" clearly show that the previously referenced tree now is much closer to the structure. It is this structure that was the subject of the January 30, 2002 retroactive application to the RVCA.
In January of 2002, the RVCA became aware of construction at 1299 Hilly Lane for which no application had been made nor approvals given. According to Ms. Macpherson, the work that was underway consisted of an addition to the existing ground floor with a new roof, including roof trusses of a size and height to allow for a second floor. Ms. Hope was issued a Stop Work Order on this project until an application could be reviewed.
Second Application: Ms. Hope submitted an application in February, 2002 for additions to the original structure which was stated by the contractor, to be 874 square feet in size at the time of the application. The additions included:
- a 5 foot by 6 foot addition on the north west corner of the structure (30 sq. ft.);
- a 6 foot by 12 foot addition at the north east comer of the original structure (72 sq. ft.), and
- a further addition of 8 feet by 29.6 feet over a foundation (236 sq. ft)
- a second floor space of 12 feet by 30 feet with side storage space, not forming part of the area calculations for the structure. (360 sq. ft.)
Based on these calculations, the proposal was for a building 29.6 feet by 40 feet for a total ground floor of approximately 1180 square feet and a 360 square foot second floor for a total of 1540 square feet. Ms. Macpherson stated that the Authority accepted the 874 square feet as the base size of the original structure at that time.
Under the RVCA's most recent amendment (February, 2002) of their Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures, placing of Fill and Alterations to Waterways, small additions may be permitted in areas susceptible to flooding as long as:
"the size of the addition does not exceed 20% of the gross floor area of the existing building or 20 square metres (216 square feet) whichever is the lesser;" (Ex. 3-Tab A)
Based on this Policy, the RVCA staff were in a position to approve an addition amounting to 174.8 square feet (20 %) for a total square footage of living space of 1052 square feet, whereas, Ms. Hope was requesting an addition of 666 square feet (approximately 76%). A hearing was held by the Executive Committee of the RVCA in February 2002, at which time, Ms. Hope's application was refused.
The Executive Committee, however, noting that the work was in progress, did indicate to staff that they would accept the following:
- the original footprint of 24.5 feet by 32 feet for a total of 784 square feet plus 90 square feet for the existing side entrance; (874 square feet)
- the squaring of the main floor for a new footprint of 29.5 by 32 feet for a total of 944 square feet;
- an allowance for Ms. Hope's submission that the original structure included a loft, accepting an approximate 12 foot by 31 foot loft space for a further 372 square feet of living space. (total square footage of 1316)
- since the "under construction" footprint was thought to be 29.5/29.6 feet by 40 feet, the rear walls of the structure had to be pulled back by eight feet along the entire width of the structure and the remaining eight feet of foundation could be maintained as an open porch;
- the majority of the roof trusses could be maintained except in the area of the pull back;
Ms. Hope appeared to accept this compromise since she resubmitted the application based on these conditions, which would allow a total living space of 1304 square feet on a base foot print of 29.5 by 32 feet. She received a retroactive approval to continue the construction on February 22, 2002. (Ex. 1- Tab c-10)
However, a subsequent site visit, on or about June, 2002, uncovered the following facts:
- the contractor had pulled back the living space by 8 feet by 29.6 feet But on only the ground floor leaving the second floor overhanging, creating a covered porch situation, while only an open porch had been allowed.
- the foundation was found to be 45 feet in length, not 40 feet as stated on the application. The original foundation from 1999 had been built under the existing structure and was 32 feet in length. The Authority has no idea when the 45 foot foundation was built, nor was Ms. Hope able to shed much light on it other than to say the Building Inspector indicated the need for an extra 5 feet to allow for an above grade electrical room beyond the living space. Certainly no application ever requested a 45 foot foundation. An approval had been given, initially for the 32 feet, not a 40 or 45 foot foundation.
The impact of this was 13 extra feet of foundation of which only eight feet had been pulled back, leaving 5 extra feet within the living space on the ground floor.
These facts left the ground floor at 29.5 X 37 feet for a ground floor living space of 1091.5 square feet and a second floor loft of 12 X 31 feet (372 square feet) for a total living space of 1463.5 square feet or 411.5 feet larger than the original allowed size plus the 20% or 42% and 159.5 square feet (12%) larger than that approved in February, 2002. All of this comprised a 68% increase over the floor space of the original structure (874 square feet)
In each case, Ms Hope continued to exceed the allowable 20%. She was required to comply with the approval granted in February, 2002 allowing for 1304 square feet of living space and an open porch over the extra foundation. The upper floor over the extra foundation had to be removed along with the trusses connected with that construction.
In June, 2002, the RVCA laid charges under the Conservation Authorities Act. R.S.O.,1990 as amended, The following evidence appears in Ex. 3 - Application Summary:
Ms. Hope was found guilty on September 15, 2003. The Conservation Authority asked for an "order" from the Court to bring the premises into compliance with the Conservation Authority's requirements. The Authority did not seek a fine, noting that the work required to bring the structure into compliance would be costly to the property owner. It was required that the work be undertaken by September 15, 2004 at which time the RVCA and Ms. Hope appeared again before Justice of the Peace Stewart. An extension until April 30, 2005 was further ordered.
By letter dated October 18, 2004 and in an effort to finalize the compliance matter, the RVCA suggested that the rear loft area be removed to line up with the ground floor pull back location, eliminating the covered porch. The whole structure would be 29.5 by 37 feet reducing the square footage by 96 square feet, leaving the structure approximately 63 square feet over the approved size. (Ex. 1 -Tab A) This was not acceptable to Ms. Hope who indicated that the 10 ft bathroom room is located in the overhang space and that the cost to remove this space would be prohibitive. Ms. Hope suggested the interior removal of the same amount of space, but wanted to maintain the overhang on the porch.
In the meantime, Ms. Hope submitted another application to the RVCA in January, 2005, requesting a further retroactive approval for what has been constructed including the foot print of 29.5 X 45 feet, a ground floor of 29.5 X 37 feet and the second floor 10 ft overhang which created the covered porch, providing 1463.5 square feet of living space. An Executive Committee hearing on March 3, 2005, denied Ms. Hope's application for the following specific reasons: (Ex. 3- Tab B)
- The entire property and private right of way has been identified as being within the 1:100 year floodplain of the Rideau River and safe access is not available for approximately 1.4.km.
- The application is for an increase in gross floor area of 135 square feet footnote 1  over and above that which has been permitted in the Approval letter of 2002 which was allowing for the squaring off of the existing foot print of the structure and a new roof pitch to allow for the 1/2 second storey which was measured as 12 X 32 square feet;
- The granting of permission would be inconsistent with the approved Development Policies, in particular, the policies respecting additions greater that 20% in areas where safe access is not available;
- The granting of permission would set a precedent;
- The granting of permission may have cumulative impacts respecting the control of flooding, pollution and the conservation of land
Due to the upcoming Court compliance date of April 30, 2005 and because of Ms. Hope's stated financial difficulties, the RVCA decided that its "interest" in Ms. Hope's property could be reserved by registering an Order on Title, an action which would allow Ms. Hope additional time and some flexibility regarding the compliance situation. Ms. Hope was provided with a letter from Bell Baker, LLP, dated April 8, 2005 (Ex. 2- Tab 6) outlining the intention of the RVCA to follow this course of action. Mr. Brodmann wrote the following:
"I have instructions from the Conservation Authority that no further action be taken at this time to enforce the order of Justice of the Peace Stewart issued on September 15th, 2003. As you know, Justice of the Peace Stewart ordered that your premises located at 1299 Hilly Lane, R.R. #1, Kemptville, Ontario be brought into compliance with the requirements of the Conservation Authorities Act and regulations thereunder. This work was to have been completed by September 15, 2004.
While no further action will be taken to enforce the order at this time, you should be aware that we are in the process of registering Justice of the Peace Stewart's order on title to your property. In this way, anyone interested in acquiring your property would be made aware of the order and its contents. "
The letter further stated that the RVCA reserved its right to take action in the future, if it was necessary. Ms. Hope suggested that the RVCA reneged at the hearing before Justice of the Peace Stewart on what she perceived as a statement saying that no further action would be taken. Ms. Macpherson stated that the lawyer's letter did not say this... it said only that court action would not be taken to solve the problem. Compliance with the approval by the Authority always was and will be required.
In April, 2005, Ms. Hope appealed the RVCA's decision to the Minister of Natural Resources, but also renewed her request for an interior reduction in square footage to the RVCA, further requesting specific instructions as to what she had to do to conform. (Ex. 3 - Tab B)
Ms. Macpherson referred to her response to Ms. Hope through a registered letter date of May 6, 2005 in which she stated:
"The 8 X 12 foot removal of gross floor area is only relevant if the scenario of pulling back the ½ storey 2nd floor at the road side is considered."(Ex. 3 - Tab B)
This letter again indicated that a building of 1328 square feet was what had been approved and it was this approval that required compliance. She indicated that what had been built (1463.5) was 135.5 square feet over that approval. The removal of the overhang would reduce this figure by 96 square feet, a compromise that would be acceptable to the RVCA. Ms. Macpherson stated that it was the only scenario that would be accepted and one that still exceeded the approval of 2002.
During Ms. Hope's cross examination of Ms. Macpherson, reference was made to part 3 of the first paragraph in the RVCA's letter of February 22, 2002:
the continuation of the new roof line and truss which will measure 32 feet x 29.5 feet. (The original building was 24.6 feet x 32 feet with a 90 square foot add on some time after.) The roof line and truss installation will permit a legal % storey
Further, Ms. Hope referenced part 1 at the top of the second page.
That amended plans be submitted to our office for the file to reflect the full first floor measuring 32 feet x 29.5 feet and the ½ storey measuring the same. The addition at the rear of the road side of the property measuring 8 feet x 29.5 feet will be removed
Ms. Hope maintained that ambiguity exists in this letter in that Ms. Macpherson implied that
- new roof line and trusses could continue; and
- the second floor would measure the same as the first floor (12 foot width not mentioned);
Ms. Macpherson responded with her belief that all the correspondence was quite clear as to the amount of square footage approved, allowing a second floor living space of 12 feet X 31 feet and outlining which trusses needed to be removed in order to produce the open porch, which had been a condition of approval in 2002.
Ms. Hope further referenced Ex. 6- Photograph F, stating that Ms. Macpherson had never taken any measurements. Ms. Macpherson indicated it was not the responsibility of the RVCA to provide accurate measurements, in any application. That responsibility belonged to the applicant.
Ms. Macpherson also discussed the flooding issue with regard to the Hilly Lane area. The original floodline mapping was done by James F. MacLaren Ltd. in 1976 and updated by the Robinson Consultants Ltd. Study in 2002. These studies form the basis for Ontario Regulation 166/90 Fill Construction and Alteration to Waterways Regulation which govern the activities of the RVCA under the Conservation Authorities Act.
These studies all indicate that the 100 year Regulatory flood level in the Hilly Lane area is 87.72 metres. According to the Robinson Flood Damage Reduction Study (Arcand Drain Sheet 11 April 1993), the Hope property is at an elevation of 86.15 metres. During a 100 year Regulatory Flood, the area would be inundated by 1.57 metres of water.
The entire access road, which is about 1½ kilometers long, is susceptible to these levels during the Regulatory Flood, creating an unsafe access condition to the Hope property. Exhibit 6 provides photographs of recent floods including the April 1993 one in five year flood and the 1998 and 1999 floods, which were less that the one in five year flood. Photographs from the 2005 flood indicate the whole access road was covered with water making it difficult to determine the location of the access road. This flood was less than the one in five years. (Ex. 6)
These facts also contributed to the decision to control the size of any alterations or additions to exisiting dwellings in the area. Ms. Macpherson stated that the Executive Committee, whose mandate is to uphold the objectives of the Floodplain Management Program, weighed the impacts of safe access as part of their decision in the Hope application with regard to increasing the living space within the floodplain. (Ex.3 -Tab B) These objectives include responsibility to:
- prevent the loss of life;
- minimize property damage and social disruption;
- coordinate the land use process as it relates to water management.
Reasons 1, 4 and 5 enunciated in the decision of the RVCA Executive Committee (March 2005) refer to this aspect of the review process.
Mr. Don McIver, was called by Mr. Brodmann as an expert witness for the RVCA, to discuss the Provincial Policy Statement context for the actions and policies of the RVCA. Mr. McIver is a graduate geographer holding a diploma in Public Administration and is Manager of Planning and Regulations for the RVCA (Ex. 3 - Tab C)
Mr. McIver noted that the RVCA is governed by the Conservation Authorities Act and shall have regard to the Provincial Policy Statement issued under Section 3 of the Planning Act on May 22, 1996. According to Mr. McIvor, the Implementation Guidelines which had been part of other Provincial Policies dealing with floodplains and wetlands continue to guide the RVCA and all other authorities in reviewing any projects and applications in wetlands and floodplains.
The Provincial Policy Statement is based on three principles:
- managing change and promoting efficient, cost-effective development and land use patterns which stimulate economic growth and protect the environment and public health;
- protecting resources for their economic use and/or environmental benefits; and
- reducing the potential for public cost or risk to Ontario's residents by directing development away from areas where there is a risk to public health or safety or of property damage .
Within the Provincial Policy Statement, the RVCA must have particular regard to Section 2.3.
Natural Heritage and to Section 3.1. Natural Hazards. This later section is relevant to the Hope property. As stated by Ms Macpherson, the entire property is located within the 1: 100 year flood level, which is the designated flood level for Eastern Ontario. In the case of the RVCA, the entire Rideau valley is in a "One Zone" floodway. This zone does not permit development or site alteration (3.1.2.). The policy is very restrictive, but does allow for some flexibility by each of the Authorities through Section 3.1.3. Under this section, development / site alteration can take place if certain conditions are met: These conditions are as follows:
- the hazards can be safely addressed and the development and site alteration is carried out in accordance with established standards and procedures;
- new hazards are not created and existing hazards are not aggravated;
- vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies; and...
All of these conditions must be met before development / site alteration can occur.
Taking advantage of the "flexibility" section, the RVCA has developed policies which provide some site alteration for residents in the Rideau valley. Their Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures. Placing of Fill and Alterations to Waterways were adopted by the Executive Committee in October, 1993 under Section 28 of the Conservation Authorities Act and the Authority adopted amendments in 1999 and lastly, on February 21, 2002. These policies relate to Ontario Regulation 166 (Ex. 3)
Section 1.1. (c) of the policies states:
New development must not increase the risks to public safety which are expected to be present during the regulatory flood (or more frequent floods); in this regard the availability of access to and egress from the structure and the potential depths of water over access routes will be the primary consideration.
The allowable expansion of a structure is 20%. Mr. McIver indicated that the use of 20% had been somewhat arbitrary. Staffs analysis of the issue, however, verified that a large number of 1 000 square foot residential units existed in the floodplain area with a typical seasonal use. The compromise figure of 20% of the gross floor area or 20 square metres (215 square feet) whichever was the lesser amount was accepted. Flood proofing would be encouraged. Limiting the size of additions and alterations allows the Authority a measure of control over growth in areas where growth would not be allowed under the present day legislation.
Mr. McIvor indicated that the Authority has a responsibility to enforce their Policies in order to provide "fairness" to the community. Wherever and whenever possible, staff and the Executive Committee attempt to reach a resolution of any dispute. It appeared to Mr. McIvor, that in this case, Ms. Hope did not seem to want to follow or could not accept the decision of the RVCA.
Final comments / arguments
The appellant - Ms. Kimberley Hope
Ms. Hope indicated that all she wants is a solution that is reasonable from a financial point of view. She is willing to reduce the floor space in some way but does not accept the pull back of the overhang as it would be extremely disruptive and expensive. She will be unable to afford this even in the long run.
Ms. Hope reiterated that she followed bad advice for which she was sorry. She indicated respect for the RVCA but asked the tribunal to be cognizant of her evidence and her financial position.
The Respondent - The Rideau Valley Conservation Authority
Mr. Brodmann expressed sympathy for Ms. Hope, but stated that she was being disingenuous when she expects the tribunal to accept that everything that has happened was due to the fault of someone else; the contractor, the Building Inspector and even Ms. Macpherson.
In 1999, the application was for a flood proofed basement. At that time, everyone apparently agreed that the structure was approximately 30 feet long, but by 2002, the foundation was 45 feet long and a large addition was evident. No explanation has been provided to the tribunal as to how this happened. The Authority must always assume that the information provided in any application is correct.
Ms. Hope had to know that the Authority had jurisdiction since she had made application for approval during the 1999 foundation process. However, her attitude appears to have been "if they catch me, maybe they will let me keep it." This happened not once, but twice.
After the Stop Work Order and even though the information provided in the application was incorrect, the RVCA reacted quickly to Ms. Hope's situation and came up with a solution that could have worked at the time. Ms. Hope was given specific reasons and conditions throughout this process and approval was granted for a building in excess of the 20% policy in an effort to provide a reasonable solution. However construction continued, resulting in a covered porch and a 45 foot long foundation instead of the 40 feet that had been indicated in the retroactive application.
Ms. Hope was again told to pull back the covered porch area from the 10 ft floor but was able to keep the foundation. Again, however, Ms. Hope indicated she took "bad advice" and nothing was done. It never was Ms. Hope's responsibility. She continued to shift the responsibility elsewhere for everything that had gone wrong.
Efforts were made to settle the dispute but the RVCA was forced to take Court action at which time an Order to Comply was issued. Mr. Brodmann indicated that the Authority had been as helpful as it could be through the whole process even to the point of never collecting any further application fees other than the first one in 2002.
Mr. Brodmann stressed that the flooding situation cannot be ignored as it is a very serious issue. The RVCA has an obligation to enforce its Policies for the betterment of the valley system and the protection of the community as a whole.
The Tribunal must decide on the use of the local policies. He cited the Supreme Court case in Capital Cities Communication Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission) [ 1978] 2 S.C.R. In this case, the late Chief Justice Laskin dealt with the validity of policy versus regulation. Mr. Brodmann referenced the Poor v. Rideau Valley Conservation Authority (tribunal file CA 006-02, July 28, 2003. unreported, p. 27) with regard to this decision. He maintains that the 20% policy was an approved policy adopted under Ontario legislation and the tribunal "shall have regard to" this policy.
Mr. Brodmann also referenced the tribunal's decisions with regard to this issue in the following three decisions:
- Poor v. Rideau Valley Conservation Authority - (tribunal file CA 006-02, July 28, 2003. unreported, p. 31)
- Avery v. Lake Simcoe Conservation Authority - (tribunal file CA 005-96, March 29; 1999, unreported, p. 46)
- Rinaldi v. Lake Simcoe Region Conservation Authority - (tribunal file CA 008-01, February 3, 2003, unreported, p. 27)
Mr. Brodmann continued by referring the tribunal to the reasons given by the Executive Committee for denying the Hope application. These cover more than the 20% issue. Based on the facts presented, Mr. Brodmann requested that the tribunal dismiss the Hope appeal.
In previous decisions, the tribunal has noted the difficulty presented when the appellant is not represented by Counsel, where in all cases, the Conservation Authority has had Counsel. In this case, the appellant has presented a detailed written summary of her position, but Ms. Hope did not call any witnesses to corroborate the statements made and the contractors letters submitted. This, unfortunately, prevents both the respondent and the tribunal from the opportunity to conduct cross-examination or observe the demeanor of the people who made the statements, wrote the letters or gave the advice.
However, the tribunal is fully aware of the need for natural justice for both parties, which is the right to know the issues, to be heard on those issues and to have adequate notice of the proceedings, so that the parties might have the right to prepare. The parties are also entitled to a proceeding which is open to the public, allowing for the decision to be made in an open and transparent fashion. When a party is unrepresented, the tribunal is aware that it must allow as much latitude as possible. In this case, that latitude was extended to the appellant. It is important to note, however, that the burden of proof rests with Ms. Hope and not with the Conservation Authority.
Technical evidence was provided regarding the flood susceptibility of the site, the relevant Policies and their background. Ms. Hope did not question the flood vulnerable issue.
Ms. Hope's evidence centered on the issues of size of the original structure versus the final "as built" structure and that, in her view, the Authority did not listen to all the evidence she submitted. Her appeal letter to the Minister of Natural Resources restated that the RVCA did not look at all of the factual information presented to them regarding the size. The tribunal assumes that she is referring to the letters from the various contractors who bid on her renovation project in 2002. This matter will be dealt with in the discussion of the issues.
As stated, the tribunal believes that the issue of size was the focus of Ms. Hope's evidence. The respondent also spent a great deal of time on this issue. Questions regarding the actual original size of the house are relevant in order to review, in accordance with the RVCA's Policies, what the percentage and the size of any addition to the original house is to which Ms. Hope may be entitled. Further, the tribunal must review what was actually constructed by Ms. Hope. The appellant was able to elaborate, to some extent, on her issues but she did not seek to clarify her submission in relation to some of the contrary evidence submitted by the RVCA. However, the tribunal has assumed that Ms. Hope chiefly disputes the RVCA figure regarding the size of the original house and, therefore, the Policies regarding expansion and additions within the floodplain of the Rideau.
Issue 1 - Is the tribunal required to have regard to the provincial policies and through them the policies of the Rideau Valley Conservation Authority?
The tribunal has dealt with this issue during the process of a number of recent appeal hearings, in particular Poor v. Rideau Valley Conservation Authority - (tribunal file CA 006-02, July 28, 2003. - unreported, p. 31), Avery v. Lake Simcoe Conservation Authority - (tribunal file CA 005-96, March 29, 1999, unreported, p. 46) as well as Rinaldi v. Lake Simcoe Region Conservation Authority - (tribunal file CA 008-01, February 3, 2003, unreported, p. 27). Mr. Brodmann reminded the tribunal of the decisions made in these appeals regarding the tribunal's use of both local and provincial policies.
For the benefit of the parties, the tribunal will again discuss the reasons for those decisions.
Section 3 of the Planning Act stipulates that, in making decisions that affect planning matters, all planning authorities "shall have regard to" policy statements issued under the Planning Act. This statement is repeated in the preamble to the Provincial Policy Statement.
The respondent's witness, Mr. McIver, outlined the relevant sections of the Provincial Policy Statement, which is the document used by the RVCA to develop their local policies. Section 2.3. - Natural Heritage and Section 3.1. - Natural Hazards consolidated the previous provincial policies dealing with floodplains and wetlands. The guidelines attached to these previous policy statements and the RVCA's 1999 Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures, Placing of Fill and Alterations to Waterways. (Ex.3-Tab A) are utilized by the RVCA during the review process of development applications, such as the Hope application.
Section 1.1. (f) of the RVCA's policies acknowledges their responsibility for assisting in the implementation of the Provincial Policy Statement in the local community, an organization considered to be a "planning body":
It is the intent of the Authority that these policies shall be in conformity with and complement the Ontario government's "Provincial Policy Statement" made under the authority of Section 3 of the Planning Act (as approved by the Lieutenant Governor in Council, as well as their attendant implementation Guidelines. (Ex. 3-f: p. I)
The tribunal views this statement as clearly indicating that the RVCA has "had regard to" the Provincial Policy Statement and that they have adopted the Implementation Guidelines as part of their policies.
The remaining part of this discussion is the question asked in Issue 1 concerning the need for the tribunal to also have regard to the Provincial Policy Statement. In the conclusion section of Avery v. Lake Simcoe Conservation Authority - (tribunal file CA 005-96, March 29, 1999, unreported, p. 46) the tribunal stated:
The Provincial Policy Statement on Floodplain Policy provides some insight into what might be expected of the Mining and Lands Commissioner with regard to the hearing of appeals in these matters. While not legally bound by the Provincial Policy Statement".....
"By the same token, the Mining and Lands Commissioner, in hearing appeals and Ontario Municipal Board appeals affecting floodplains, should also "have regard" to the Policy Statement in their deliberations. Obviously, it is anticipated that tribunals such as the Mining and Lands Commissioner, would give major significance to an approved Policy Statement and any deviations would therefore have to be very well substantiated and justified.'
As in previous decisions, the tribunal finds that it must take responsibility to assist in the implementation of the Provincial Policy Statement by having regard to the Province's stated goals, objectives and policies. Since the RVCA has adopted policies in order to uphold the provincial policies, the tribunal further finds that it must adopt the application of or have "regard to" these policies.
Issue 2 - Assuming that the tribunal finds that it will adopt the application of the Rideau Valley Conservation Authority's policy with respect to additions, is the size of the structure proposed by Ms. Hope within the allowable parameters of the policy?
The RVCA Executive Committee provided Ms. Hope with five reasons for refusing her last application of January, 2005.
- 1. The entire property and private right of way has been identified as being within the 1:100 year floodplain of the Rideau River and safe access is not available for approximately 1.4. km.
This first reason dealt with the overriding issue of the flood susceptibility of the Hilly Lane property. Convincing evidence was available to the tribunal to enable it to understand that the property was well within the Regulatory Flood limit of the Rideau Valley. It was also clear that RRO. 1990, Ontario Regulation 166 : Fill Construction and Alteration to Waterways Regulation is a legally adopted document under the Conservation Authorities Act.
This regulation deals with any changes that are proposed within the valley system. Section 3 states that no person shall,
(a)construct any building or structure or permit any building or structure to be constructed in or on a pond or swamp or in any area susceptible to flooding during a regional storm;
This stringent "no construction" policy is modified by Section 4 to allow some construction with the written permission of the Authority if it is found that such construction would not interfere with the control of flooding or pollution or the conservation of land. Section 5 reinforces the need for approval by indicating that people must apply for permission to undertake any changes before any construction takes place and Section 6 outlines the procedures to follow in seeking approval.
The RVCA undertook a number of technical studies to determine the location of the Regulatory Floodline. These included the 1979 James F. MacLaren floodline mapping study. Several Robinson Consultants Ltd. studies have updated this mapping. The 100 year flood or Regulatory Storm level was found to be at 87.72 metres. Hilly Lane, where it fronts on Ms. Hope's property, is at 86.1 metres and slopes towards the river. In 1993, Robinson Consultants also undertook a Flood Damage Reduction Study in which the Arcand Drain area (Hilly Lane) was studied to determine what mitigating measures could be used to improve safe access for the Hilly Lane residents. The Hope property was shown as being susceptible to approximately 1.57 metres of water during the Regulatory Storm. The waters that rise during this period are derived from rainfall and snowmelt or a combination of these occurrences.
The flood level of the magnitude of 1.57 metres (approximately 5 feet) creates the tribunal's concern for safe access to the property during a Regulatory storm. Section 1.2.6 of Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures, placing of Fill and Alterations to Waterways states that:
For vehicular access routes (municipal roadways and private right-of-ways) safe access will be considered to be available if the depth of flooding at regulatory (1: 1 00 year) flood level along the full length of the traveled surface of the access roadway or right-of-way is no greater than 0.3 metres."
"For pedestrian access routes (private laneways, driveways and walkways between residences and vehicular access routes) safe access will be considered to be available if the depth of flooding at regulatory (1:100 year) flood level along the length of the access/egress route is no greater than 0.8 metres." (Ex.-Tab A)
Access to the Hope property from a municipal road covers an approximate distance of 1.5kms. according to evidence from Ms. Macpherson. (Ex. 1 Tab B) The whole access road would be susceptible to this 1.57 metres of flooding during the regulatory storm. Therefore as described in the above noted policy statement, the Hilly Lane access would be 1.27 metres above the safe vehicular access limit of 0.3 metre and 0.77 metres above the safe pedestrian access limit of 0.8 metres, during a regulatory storm.
In addition, the tribunal notes that the private access road to the Hilly Lane properties has been flooded on numerous other occasions. The photographs (Ex. 6) provide visual evidence of the March - April flooding events that occurred in 1993, 1998, 1999 and most recently, in April, 2005. These floods were not of the regulatory level, but, in all cases, the tribunal notes that the access road is covered with water and that the actual location of the road bed is hidden, therefore creating an on going safety concern for the residents. In accepting that her property is susceptible to flooding, Ms. Hope indicated that she utilizes the information provided by the RVCA's Flood Warning system and has vacated the property when alerted to any potential flood occurrence. Despite this acknowledgement, the tribunal continues to be concerned over the safe access issue.
Therefore, with regard to the issue of flooding and safe access, the tribunal finds that it will accept the evidence which establishes a clear basis for concern regarding safe access to the Hope property and finds that safe access through flooded land for the inhabitants of the dwelling is not available.
The second and third RVCA's reasons are particularly relevant to the issue of original and current size. These reasons were:
- The application is for an increase in gross floor area of 135 square feet over and above that which has been permitted in the Approval letter of 2002 which was allowing for the squaring off of the existing foot print of the structure and a new roof pitch to allow for the ½ second storey which was measured as 12 x 32 square feet;
- The granting of permission would be inconsistent with the approved Development Policies, in particular, the policies respecting additions greater that 20% in areas where safe access is not available;" (Ex. 3- Tab B)
The tribunal, having already accepted the RVCA's policies, now refers to the 1999 Policies Regarding Development including the Construction / Reconstruction of Buildings and Structures. Placing of Fill and Alterations to Waterways. (Ex. 3- Tab A) These policies indicate that a 20% increase in living space beyond the original size of a dwelling will be allowed when a property is located in a floodplain. The tribunal views this policy as the flexibility provided to the Rideau Valley residents, allowing them to improve their properties, since the overall mandate of the Provincial Policy Statement is to discourage any new construction beyond what exists.
The policy provides relevant direction to the tribunal through the following statement relating to Section 1.3.3.(1) Type 1 Additions:
Small additions may be permitted in the flood plain if all of the following provisions are met:
- the size of the addition does not exceed 20% of the gross floor area of the existing building or 20 square metres (215 square feet) whichever is the lesser.
- the addition is not more vulnerable to flooding than the existing building. " (Ex. 3- Tab A- p.5)
With regard to flooding, the tribunal finds that the Hope addition is not more vulnerable to flooding than the original building under which an approved flood proofed basement was constructed in 1999. In fact, because of the new foundation, the building is less susceptible to flooding. So the issue must focus on the size of the addition relative to part (a) of the above noted policy.
The tribunal has had a great deal of difficulty with the footage figures that have been submitted as evidence. Many of the documents use different figures, none of which are significantly, different, but do contribute to confusion in understanding the final percentage allowed for additions, where safe access is not available.
For example, with regard to the ground floor footprint, the Authority originally used the figure of 827 square feet for the overall footprint which was included in the Real Estate data sheet, submitted with the foundation application in 1999. (Ex. 5) The February, 2002 retroactive approval stated that "the original building was 24.6 feet X 32 feet with a 90 square foot add on some time after". (Ex. 3 -Tab B) This amounts to an 877.2 square foot ground floor footprint. Eight hundred and seventy four (874) square feet also was used in another 2002 report and the March, 2005 report indicates that the figure for the footprint was 877 square feet.
In order to be clear where the tribunal's thoughts are in this matter, the tribunal will accept the figure of 877 square feet as the base figure for the original foot print of the building. There is no allowance for loft or attic space in this accepted footprint. However, the issue of the attic or the loft space remains. No visual evidence was submitted that indicated a loft space existed or if it did, whether it was livable space.
As noted, the Real Estate data sheet refers to the residence as a bungalow of 827 square feet. The 1999 foundation application was approved based on the documents submitted by Ms. Hope, which included the Real Estate Data Sheet and the Authority accepted these documents with the application as providing correct information. The RVCA's approval stipulated that there was to be no increase in the living space. (Ex 5) Since Ms. Hope did not dispute the conditions of her 1999 approval, the tribunal is of the view that Ms. Hope must have accepted the original size as shown in the Real Estate Data Sheet. It is possible that this issue was not of any importance to Ms. Hope in 1999, but the tribunal is of the opinion that the size of the original structure is the basis of this dispute. It has had an impact on the RVCA's decision and is having an impact on the tribunal's decision. It was at the time of the first retroactive application in 2002 that the Authority acknowledged 877 as the building footprint. Theoretically, Ms. Hope actually gained an extra fifty (50) square feet by this decision since the Authority initially had accepted the Real Estate information of 827 square feet.
Throughout the hearing and during the retroactive submissions to the RVCA, Ms. Hope has maintained that the loft always existed and that it was used as living space, but she did not provide evidence to back up her submission. In fact, in her 2002 submission before the RVCA, Ms. Hope stated that there was 467.2 square feet of loft living space (RVCA Minutes) and in her submission to the Ontario Court of Justice, she used a 689.6 square foot figure for the useable space. (Ex. 2-Tab 1) Ms. Hope's submissions are as inconsistent as are some of the RVCA's. The tribunal could find no evidence to back up Ms. Hope's claim that Ms. Macpherson had accepted the 689.6 square foot loft size. Ms. Hope stated this in Exhibit 2- Tab 1- Item 16.
Ms. Hope has further maintained that the Real Estate agent never entered the house and therefore, was not aware of the existence of loft space. No mention is made of loft space in the Agent's Data Sheet. However, the tribunal cannot accept this as evidence to substantiate her claim. The tribunal further finds it difficult to accept that any Real Estate agent would not look over the inside of a house they are trying to sell.
Ms. Hope did submit letters and plans from three contractors who appeared to be bidding on the new house project, all of whom maintained that the original ground floor was 877 square feet (a figure agreed to by the RVCA) and two of whom described a loft of approximately 467 square feet for an original liveable square footage of 1344 square feet. However, during her submission to the Ontario Court of Justice, Ms. Hope stated the size to be 877.2 for the first floor and 720 square feet for the loft space for a total of 1,597.2 square feet. This figure appears to be based on a submission by another contractor, Roger Daigle, who indicated that this figure for the original house is larger by 30.8 square feet than Ms. Hope's retroactive application for a house with 1566.4 square feet. This last figure is substantially more than the accepted square footage and leads to the problem facing the tribunal of whether the loft existed or was it a storage space or attic.
This appears to be the evidence or "factual information" that Ms. Hope maintained was not taken into account by the RVCA about the original size of the structure. (Ex. 2 - Tab 1) The tribunal is not sure of this fact since Ms. Hope did not comment on these letters and documents, as has been noted, nor did she call any of the contractors to give evidence to the tribunal as to measurements that they had submitted. The submissions themselves do not agree as to what the original building was, except for the ground floor space. Because of this, the tribunal finds it difficult to place much weight on these submissions and considers it "hearsay" evidence, especially since no opportunity was provided for cross examination by either the tribunal or the respondent. This finding does not, however, negate the need to deal with the space allocation.
Both of Ms. Hope's loft space figures (467.2 and 720) are substantial in comparison to the accepted ground floor area, (and like the RVCA,) the tribunal finds it difficult to accept either of them as what actually had existed. The tribunal's site visit, as well as a reference to Photographs A and B (Ex. 6) show a one storey house with a sharp roof peak. A vent and a small window can be seen, close to the peek portion of the roof, on the front and back face of the structure. The tribunal understands that it is common practice to use 5' 11" as the minimum height for living space in a typical cottage style construction. Since no measurements could be taken by the RVCA before construction began because the roof had already been removed before the application was submitted, the tribunal has no choice but to use these photographs as evidence of the possible existence and! or size of a loft space.
In this regard, it is obvious to the tribunal that the amount of width available for living space would have been far less than the twelve (12) feet used as the allowable width in the enlarged dwelling shown in Photograph F. (Ex. 6). In addition, the angle of the roof line does not appear to have changed except that it is higher and wider, allowing for more space in the new loft area. An original useable half storey of 467.2 square feet with 5'11' headroom appears to be highly unlikely, as would anything larger. The tribunal does not accept Ms. Hope's evidence in this regard.
According to Ms. Macpherson's evidence, (p. 9) until the approval of the retroactive application in 2002, the RVCA accepted 877 square feet as the living space for the Hope house. This did not include any loft space. During the first 2002 hearing, the tribunal understands that the RVCA accepted Ms. Hope's submission that some loft space had existed when she purchased the house, but they did not assign a specific figure to the amount of space that would be allowed. They only said that a half storey could be added in the new structure. When the 2002 application was approved, Ms. Hope was granted an allowance of 12 feet by 31 feet (32 feet) or 372 square feet for loft space in the remodeled house. This added space, however, was not used in the calculations for the amount of square footage that would be allowed within the 20% policy. Ms. Macpherson stated that only 174.8 square feet of extra space would be allowed which is 20% of the accepted original floor space of 874 square feet, creating a new space of 1052 square feet. Based on the use of 877 square feet as the accepted base figure, this would be 175.4 square feet for a total of 1052.4 square feet.
However, the tribunal believes that the RVCA should have determined a specific figure for the loft space in making this original calculation, and finds that it must assign a figure in order to evaluate the options.
Reviewing the available evidence in this regard and referencing again the photographs, (Ex. 6) and although the tribunal believes the following figure is generous, the tribunal will accept a maximum of an 8 foot width by a 29.5 foot length as being a fair amount of space to allocate as "loft" space to the original dwelling's square footage calculation. This would amount to 236 square feet of space for a total living space in the original house of 1113 square feet (877 plus 236 square feet). This figure is 231 square feet smaller than the 1344 square feet claimed by Ms. Hope. However, based on this analysis, the tribunal will accept the 1113 square foot calculation as the basis for deciding how much space Ms. Hope should have been allowed to develop.
Twenty percent (20%) of the tribunal's accepted base size would allow additional space of 222.6 square feet, for a total new structure of 1335.6 square feet. This figure is only 7.6 square feet more than the 215 square feet allowed in the 2002 RVCA approval of 1328 square feet and is rather insignificant, but it does put a specific number to the basic loft allowance.
Since the tribunal has established a base figure of 1113 square feet for what might have originally existed on the property at the time Ms. Hope made her purchase, it is now possible for the tribunal to deal with what Ms. Hope is entitled to under the accepted RVCA's policies and compare this to what actually was applied for and what was approved by the RVCA.
The tribunal notes that Ms. Hope's request had been for a retroactive approval of a footprint of 29.5 by 40 feet with a gross floor area of 1534 square feet, which she maintained was smaller than the original space. However, this figure is 421 square feet above the base calculation (1113) or 38 % larger than what would be allowed under the RVCA's policy.
Ms. Hope had tacitly accepted the RVCA's conditions regarding the foundation approval in 1999, which required that no new living space be developed. However, the construction begun in late 2001-early 2002, without RVCA approval, did create new living space. Following the issuance of the Stop Work Order, Ms. Hope submitted the above noted application which eventually resulted in the Authority approval of a floor plate of 29.5 x 32 feet, plus a half storey measuring 12 x 31 feet (really 32 feet) for the total of 1328 square feet. (As noted earlier (p. 24), the tribunal has stated that it will accept the figure of 1335.6 square feet as the allowable new space.) The approval necessitated the removal of "as built" living space, amounting to an area of 8 feet by 29.5 on both the ground floor and the loft area.
Ms. Hope has disputed the directions given to her regarding this approval, using Ms. Macpherson's letter of February 22, 2002 (Ex.3-Tab B) from which she assumed Ms. Macpherson said that the ½ storey could be the same as the main floor in size (See page 2: "and the Y2 storey measuring the same"). However, in reviewing the various pieces of correspondence, the tribunal finds that clear direction has been given to Ms. Hope over the course of this project. The above referenced letter made it very clear that the first floor area was to be 29.5 X 32 feet, the loft would become a "legal ~ storey', an area measuring 8 feet X 29 .5 feet was to be removed, and there was to be no porch overhang (" a deck or uncovered veranda or uncovered porch may be utilized over the exposed foundation wall ") This would automatically require the trusses involved with the area over the porch to be removed.
Ms. Hope has indicated that Mr. Wilkinson told her she should keep the trusses and covered porch despite the approval condition and that he would deal with the RVCA. Ms. Macpherson stated that Mr. Wilkinson never contacted her. The tribunal must point out, that Mr. Wilkinson is responsible to the Township of North Grenville and not to Ms. Hope and Ms. Hope should have pursued the matter and not depended on Mr. Wilkinson.
The tribunal further notes a letter of March 7, 2005 in which Ms. Macpherson comments on the fact the porch overhang continued to exist resulting in the "as built" being 135 square feet larger than originally approved. Then on May 6, 2005, a further letter was forwarded to Ms. Hope which again indicated that the original approval still stood and that the 8 by 12 foot removal of gross floor area only applied if the ½ storey on second floor was also removed. This wording appears very clear to the tribunal.
The tribunal does not accept Ms. Hope's submission that the RVCA did not give her clear direction. Words cited by Ms Hope that were used by Ms. Macpherson in correspondence, such as "suggestion" and "for your consideration only" are a staff person's polite way of responding to an applicant. It is not the staff's place to tell an applicant what to submit in their application but it is their place to suggest ways to approach the issues. It appears to the tribunal that Ms. Hope just did not like these "suggestions", so did not follow up on them. As a result and throughout the whole process, Ms. Hope continued to be in non-compliance with both the RVCA's approval and the order given by the Ontario Court of Justice
In the spring of 2005, the 2002 "as built" was discovered to have an actual foundation length of 45 feet. The main floor living space was supposed to be 32 feet long. Ms. Hope had submitted a retroactive application for a 40 foot foundation which had been built and with the removal of the required 8 feet, the 32 foot approval would have been only partially met since the covered porch still remained. With the realization that a 45 foot foundation actually had been built, the resulting footprint was 29.5 feet by 37 feet. So another application was submitted for retroactive approval.
The March 2005 application again requested the Authority to retroactively approve an "as built" structure with a main floor area of 29.5 X 37 feet or 1091.50 square feet and a loft space of 12 X 32 feet or 372 square feet for a total of 1463.5 square feet. This was 135.5 square feet larger than the increase allowed under the RVCA's approval and 127.9 square feet larger than what the tribunal has indicated it is would approve. This expansion would be approximately 31 % over the base figure accepted by the tribunal as the size ofthe original structure.
For the sake of easier reference, the tribunal has produced the following summary regarding the sizes requested and approved.
Square Footages Accepted by the Tribunal
1. Base area of original structure
|Original Ground Floor||877 square feet||Reference page 22|
|Original Loft Space||236 square feet||Reference page 24|
|Total of Original Structure||1,113 square feet||Reference page 24|
2. Twenty (20) percent RVCA expansion policy
|Rideau Valley CA would approve||215 square feet|
|Tribunal allows||222.6 square feet||Reference page 24|
3. Space requested by applicant - 2005
|Ground Floor 29.5' x 37'||1,091.5 square feet|
|Loft Space 12' x 31'||372 square feet|
|Total of Expanded Structure||1,463.5 square feet||Reference page 26|
4. Percentage increases over original structure
|Accepted base Amount||1,113 square feet|
|Total Requested||1,463.5 square feet|
|Total of Expansion Over base||350 square feet or 31%||Reference page 26|
5. Tribunal approval
|Tribunal will allow||1,335.6 square feet|
|Overage as requested by Applicant||127.9 square feet||Reference page 27|
The tribunal finds that the Hope application does not fall within the parameters of the RVCA policies. Ms. Hope is only entitled to an expanded structure of 20% over the original structure. Since the tribunal has established the base as 1113 square feet, Ms. Hope is allowed an expanded structure amounting to 1,335.6 square feet.
With regard to the issue of the overhang creating the covered porch, the tribunal accepts the policy approved by the RVCA which does not allow this space to exist. The tribunal is concerned that such covered space could easily lead to an enclosure, thus creating extensive new living space. This can happen over night and unfortunately, could exist for a long time before any enforcement officer might become aware of it. This part of the policy allows for a measure of control over expansion in an area where growth is not encouraged or even allowed under present day legislation. As a result, the tribunal finds that the ground floor living space should be approximately 29.5' by 32' in size and the liveable loft space should only exist over this ground floor space. This finding by the tribunal results in the need to uncover the foundation back to the 32 foot length, creating an open deck without any roof trusses of 13 feet in length at the road side of the property. If this area was enclosed in the future, 383.5 square feet of new space would be added, well beyond the 20% policy.
Precedent and cumulative effect
Although the fourth and fifth reasons were not discussed at the hearing by either the appellant or the respondent, the tribunal has reviewed all of the "Reasons" given by the Executive Committee in making its decision. (Reference page 11)
The issue of precedent setting is a common, but important, reason given by Conservation Authorities both in reviewing and deciding an application. The tribunal accepts that a consistent policy is required in making decisions. If this is not done, it becomes extremely difficult to refuse any application, no matter the size or location. The precedent of inconsistency would be set. Local policies would basically become unenforceable. The RVCA's 20% policy goes beyond the Provincial Policy Statement in that, as stated earlier, it provides some flexibility to the owners of property in the Rideau Valley who built their homes before the rules were put in place preventing the building of structures in floodplains. Ms. Hope is being granted her fair share with the 20% but to provide more could create a precedent that others could use to say "she got it, why can't we have it" The situation would be out of control at that point.
The tribunal finds that it must be consistent in this regard. There is no life threatening reason why Ms. Hope should receive more than the 20%. As a result, the tribunal finds that a precedent would be set if the approved policy of the RVCA is not adopted.
Consistency also applies to a decision regarding the issue of cumulative impacts with respect to flood control and pollution as well as the conservation of land. Due to the increasing number of applications for additions to allow for permanent residence status of former summer cottages in the Rideau Valley , this issue must constantly be faced. The RVCA policies provide the tribunal with the flexibility to allow Ms. Hope to improve and expand her house beyond the stringent "no construction" policy referred to earlier. The greater the amount of building allowed, however, the more impact there is on the availability of the existing designated floodplain to absorb flood water without spilling out and creating an expanded floodplain area. Further pollution can occur and the land needed to be conserved for flood water storage is decreased.
Therefore, the cumulative impact of construction must be considered by the tribunal. In order to maintain the goals of the Provincial Policy Statement, the tribunal must understand that any enlargement or impact on increased flooding because of the reduction of the land area allowed for flood control, has an impact on the community as a whole, both from an environmental point of view and from a financial point of view. Public dollars have to be used to repair damage and if the area that can be damaged is enlarged, it follows that the dollar value for repair also will have to be increased.
The tribunal must continue to be consistent, and finds that cumulative impacts do exist with regard to the Hope application. The proposed enlargement is in excess of that allowed under the policy and is approximately 31 % over what has been established as originally on the ground. Cumulative impact occurs with every addition allowed, be it 10, 20 or 30%. In the interests of fairness, the tribunal accepts the policy which allows a compromise but, notes that an impact has occurred.
The tribunal understands that Ms. Hope had every right to appeal the RVCA's decision to the Minister of Natural Resources. She wished to maintain the existing built structure and has indicated that she will have great financial difficulty if she is forced to comply with both the Court's and the RVCA's decision. Ms. Hope has expressed regret and apologized to the RVCA for listening to and taking advice from people who did not have the authority to speak for the RVCA. Mr. Brodmann has described Ms. Hope as disingenuous. She appears, at least to the respondents, to be someone who thinks "if they catch me, maybe they will let me keep it". (p.16)
Whether Ms. Hope acted in the manner described by Mr. Brodmann or not, the history of the application is such that the tribunal easily detected a definite pattern of oversight or even willful blindness and certainly no sense of responsibility towards the decisions being made by others concerning the renovations to her home. The tribunal can understand the need for one retroactive application, but has difficulty with the need for a second, or third. Why did Ms. Hope not concern herself thoroughly with what was going on? Ms. Hope was the applicant who signed all the forms and agreed to the suggestions of the RVCA leading to the decision of the Authority in February, 2002 to approve a structure of 1328 square feet. Ms. Hope agreed, at that time, to comply, but the circumstances surrounding the construction created the size problem. Then when the size of the original building become the basic issue, she no longer agrees with what apparently had been agreed to, in both 1999 and 2002. Being the applicant, Ms. Hope is responsible to the approving body for the actions taken by herself and any of her agents. The tribunal does not accept that a defense of a lack of knowledge or "it was done without my knowledge" is an acceptable defense in any prosecution as well as in this case. In the end, again, the tribunal must find that the responsibility lies with Ms. Hope.
Under the legislative requirements, the tribunal has a responsibility, without any exceptions, to look at the issues and test them against whether the proposed application is within the realm of "control of flooding, erosion, dynamic beach or pollution or the conservation of land". The evidence provided to the tribunal shows the impact of flooding producing a serious safety issue, and the impact of cumulative effect by the constant addition of new structures and renovations within the Rideau Valley . The policies reviewed have been designed to deal with these issues and the tribunal has made its decision based on these policies and the implications they have on the Hope application. The Hope application does not meet either the Provincial Policy Statement or the policies adopted by the Rideau Valley Conservation Authority.
In view of these comments and after completing the review of all the evidence provided, the tribunal finds in favour of the respondent.
The tribunal will order that this appeal be dismissed but that Ms. Hope be granted approval for an expanded residential structure of 1.335.6 square feet on two floors over a base floor print of 29.5 feet by 32 feet with an open porch 13 feet in length and 29.5 feet in width.
The tribunal suggests that the TRCA provide Ms. Hope with a period of two years from the date of this decision to bring the existing structure into compliance with this order.
The tribunal further finds that no costs shall be payable by either party to this matter.