The Mining and Lands Commissioner
Le Commissaire aux mines et aux terres
File No. CA 005-00
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Lorne F. G. Carter
Deputy Mining and Lands Commissioner
Wednesday, the 31st day of January, 2001.
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 the placement of fill for grading on Part of Lot 34, Concession 2, in the Township of Rideau, in the Regional Municipality of Ottawa-Carleton, municipally known as 7357 Rideau Valley Drive, Kars, Ontario.
Rideau Valley Conservation Authority
Whereas an appeal to the Minister of Natural Resources was received by this tribunal on the 23rd day of June, 2000, having been assigned to the Mining and Lands Commissioner (the "tribunal") by virtue of Ontario Regulation 571/00;
And whereas a hearing was held in this matter on Friday, the 3rd day of November, 2000, in the New Brunswick Room, at the Westin Hotel, 11 Colonel By Drive, in the City of Ottawa, in the Province of Ontario;
Upon hearing from the parties, the witnesses and reading the documentation filed;
- This tribunal orders that the appeal by Mr. Wayne Robbins from a refusal of the Rideau Valley Conservation Authority to grant permission for the placement of fill, for grading purposes on Part Lot 43, Concession 2, in the Township of Rideau, in the Regional Municipality of Ottawa-Carleton, municipally known as 7357 Rideau Valley Drive, Kars, Ontario, be and is hereby dismissed.
- This tribunal further orders that no costs shall be payable by either party to this appeal.
Dated this 31st day of January, 2001
original signed by
H. Dianne Sutter
Deputy Mining and Lands Commissioner
original signed by
Lorne F. G. Carter
Deputy Mining and Lands Commissioner
File No. CA 005-00
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Lorne F. G. Carter
Deputy Mining and Lands Commissioner
Wednesday, the 31st day of January, 2001.
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 the placement of fill for grading on Part of Lot 34, Concession 2, in the Township of Rideau, in the Regional Municipality of Ottawa-Carleton, municipally known as 7357 Rideau Valley Drive, Kars, Ontario.
Rideau Valley Conservation Authority
This matter was heard on Friday, November 3rd, 2000, in the New Brunswick Room, of the Westin Hotel, at 11 Colonel By Drive, in the City of Ottawa, Province of Ontario.
Mrs. Raye Robbins: Agent for the Appellant, Mr. Wayne Robbins
Mr. Helmut Brodmann: Counsel for the Respondent, the Rideau Valley Conservation Authority
This appeal was heard pursuant to subsection 28(15) of the Conservation Authorities Act against a refusal by the Rideau Valley Conservation Authority to grant permission for the development of property through the placing of fill on the property. Under subsection 28(15) of the Act a person who has been refused permission may, within 30 days of receiving the written reasons required under subsection 28(14), appeal to the Minister of Natural Resources. The Mining and Lands Commissioner and/or the Deputy Commissioners have been assigned the authoritative powers and duties to hear the appeal by virtue of subsections 6 (1) clause 6 (6)(b) of the Ministry of Natural Resources Act (R.S.O. 1990, c.M.31) and Ontario Regulation 571/00. It is also noted that the regulations had actually changed from O. Reg. 795/90 to O. Reg. 571/00 on October 20th, 2000. The context of the regulation was unchanged, the earlier appeal provision was found in subsection 28(5) and now appears in subsection 28(15) of the Act. Further it was noted that the tribunal visited the site of the property on November 2nd, 2000 accompanied by the appellant, Mr. Wayne Robbins.
The property is situated at 7357 Rideau Valley Drive South, Part of Lot 34, Concession 2, in the Township of Rideau, Regional Municipality of Ottawa-Carleton, Kars, Ontario. It was purchased by Mr. Wayne Robbins in 1987 and is located on the western bank of the Rideau River which flows to the northeast.
The flood lines for the property, adopted by the Rideau Valley Conservation Authority (R.V.C.A.) in 1990 through Ontario Regulation 166/90, are inscribed on a map entitled Rideau Valley Conservation Authority Floodline Mapping of the Rideau Valley [Ex.8]. The solid line depicts the 100 year storm event and the broken line identifies the fill line. The Conservation Authority applies the two zone approach for this stretch of the river. Generally, both lines are substantially back from the river's edge, positioning the Robbins property, as well as, neighbouring properties below the flood line and the fill line and fully within the flood plain of the Rideau River.
The property has been the subject of five applications to the R.V.C.A. dating back to 1981. In 1981 the current building structure was approved and built complete with a floodproofing grade apron surrounding the structure. The current application was the culmination of an application process started in September 1999 (denied), and by revised submission to the R.V.C.A. in November 1999 (denied), and heard by the Executive Committee of the R.V.C.A. in May 2000. The application was refused by the Executive Committee and the following reasons were provided to the applicant by letter dated, May 31, 2000 [Ex. 1, C]:
- The entire property has been identified as being within the 1:100 year flood plain of the Rideau River;
- Placing of approximately 325 cubic metres of fill for the purpose of raising an existing residential lot is considered a significant amount of fill and the requirement for a balanced cut and fill cannot be waived;
- The applicant has not established that the placement of the proposed fill on the septic bed is in conformity of the Ontario Building Code;
- There is no evidence of Parks Canada approval for the placement of fill on Federal Crown Land;
- Entirely flooded in March 1976 and partially flooded in April 1993;
- Granting of permission will be inconsistent with the approved Development Policies adopted by the Conservation Authority & Provincial Policy, 1996;
- The granting of permission will have precedential implications.
Mr. Robbins appealed the decision to the Minister of Natural Resources under subsection 28(15) of the Act on October 20th, 2000.
Subsection 28(15) of the Conservation Authorities Act, R.S.O., 1990, Chapter C.27, states;
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,
- refuse the permission;
- grant the permission, with or without conditions.
An appeal to the Minister under the above noted subsection 28(15) of the Conservation Authorities Act from a refusal to grant permission allows the tribunal, which has been assigned the powers of the Minister, to determine whether the appeal should be dismissed or whether permission should be granted. The wording of the subsection does not require the Minister to review the decision of a Conservation Authority. Therefore the hearing is considered to be a new hearing or de novo.
- Will the application for development, through the purposed placement of fill in the flood plain, alleviate flooding and erosion or affect the control of flooding and the potential for pollution?
- Will an approval for the placement of fill create a precedent within the decision making authority of the Rideau Valley Conservation Authority and throughout the rest of the Province with regard to allowing further fill placement in a flood plain?
The appellant, Mr. Wayne Robbins, appeared giving evidence on his own behalf. Mr. Steven Simmering, a Consulting Engineer (Simmering & Associates Ltd.) also appeared on behalf of the appellant.
Appearing on behalf of the respondent (Rideau Valley Conservation Authority) were Ms. Shelley Macpherson, Regulations Planner (R.V.C.A.), Mr. Bruce Reid, Professional Engineer and Management Coordinator of Water Resources (R.V.C.A.) and Mr. Clare Sanderson, Realty Manager at Parks Canada, responsible for Crown Lands in the Rideau Canal catchment area.
Helmut Brodmann, counsel for the R.V.C.A., provided the setting for the appeal and introduced certain exhibits for the tribunal's reference. He entered into evidence:
- the site location map (Kemptville 31G/4, Edition 7, published in 1982, taken from aerial photographs in 1979, Surveys and Mapping Branch, Department of Energy, Mining and Resources Canada) [Ex.7];
- a photomap of the Rideau Valley Conservation Authority Floodline Mapping of the Rideau River (Smith Falls to Kars) - Schedule No.6, produced by Kenting Earth Sciences Ltd. for the National Capital Commission from 1971 Air Photos, signed by James F. MacLaren Limited - Environmental Consultants [Ex.8].
The Robbins site was clearly outlined on the maps, indicating its location fully within the flood plain of the Rideau River. He pointed out further that the flood line elevation levels at 87.60 metres above sea level were references from a 100 year storm event and the Conservation Authority's regulation, O. Reg. 166/90, was based on these flood line elevations.
Shelley Macpherson, Regulations Planner for the Conservation Authority, was requested to provide the background for the fill placement application. She indicated that she has worked for the Conservation Authority for ten years and was familiar with the Robbins file. She noted that this application was filed as number RV6 -10/99. She made reference to the RVCA submission filed in advance of the hearing, and the documents contained therein [Ex. 1].
Ms. Macpherson stated that the Robbins' application was for the placement of approximately 325 cubic metres of fill on an existing residential property for the purpose of raising the grade. The R.V.C.A. had considered the following items within the application process:
- the regulatory flood level of 87.6 metres geodetic,
- the significant amount of fill proposed with no cut and fill process possible,
- the implications for loss flood plain storage capacity,
- the implications of precedence,
- the proposed fill to be placed over the existing septic system,
- the proposed fill to be placed on an area described as "filled lands" on Crown land (approximately 20 feet by 118 feet),
- the Development Policy of the R.V.C.A., under O. Reg. 166/90, subsection 2.0 (ii) & (viii).
Ms. Macpherson stated that staff recommended the refusal of the Robbins application, based on the reasons set out in their report to the Authority, dated May 11th, 2000 [Ex. 1, B]. The application as submitted did not indicate the quantity of fill requested, nor did it provide a plan showing existing and proposed grades. The estimate of the proposed fill was calculated by the staff based on the information provided by the applicant. This information included the lot size (110 ft. x 118 ft.), minus the house area multiplied by the depth of two feet of fill. The resulting calculation was 510 cubic metres (25,960 cubic feet) of fill. Through follow up correspondence with the applicant, the staff were able to establish the actual needs to be 325 cubic metres (18,000 cubic feet) of fill.
At the Executive Committee hearing on September 911, 1999, attended by Mr. Robbins and his landscaping contractor, Mr. Mulrooney, the Authority reviewed the document entitled "Policies Regarding Development Including The Construction of Buildings and Structures, Placement of Fill and Alterations to Waterways, under Section 28 of the Conservation Authorities Act of Ontario". [Ex.1, F]
By way of clarification, Ms. Macpherson pointed out that a "small quantity of fill" could be for gardening or top soil to fill minor lawn ruts. Referring to an air photo reproduction [Ex. 1, B], Ms. Macpherson pointed out that the flood lines portrayed a 1 in 25 year storm event. A photo reproduction, dated April 1993 [Ex. 1 , B], taken by Ms. Macpherson, showed the degree of flooding on the Robbins property in that year. The April 1993 photo showed the property fully flooded, except for the house and the protective apron surrounding it. Ms. Macpherson explained that the 1993 photo was taken at random to record flooding along the Rideau River. The flooding, at the time, extended to the back boundary of the property adjacent to Regional Highway 13, but did not flood the roadway.
The Conservation Authority maintained that this application, if approved for fill placement, could result in other applications for similar approvals which would have an overall significant effect on the watershed and its storage capacity.
Ms. Macpherson, reviewing concerns regarding the twenty year old septic system, stated that sufficient information was not available to assess the resulting affects on the septic system if the fill was allowed. Current Ontario Building Code standards call for no greater than 3 feet or 0.9 metres of overburden being placed on a septic system of the type found on the Robbins property. There was no information regarding the current depth of cover or the status of the tile bed.
Referring to the air photo map [Ex. 1, B], Ms. Macpherson pointed out that the Robbins lot has a frontage on the Rideau River of 118 feet. At the shoreline, an area approximately 8 feet by 118 feet by 20 feet along the river was filled lands, which in fact, are Crown Lands under Parks Canada jurisdiction. It is a mystery when these lands were filled. To the Conservation Authority's knowledge, no permission to place fill had been issued by Parks Canada. The tribunal was advised that the Conservation Authority has no direct jurisdiction over Crown Lands, filled or otherwise.
On May 16th, after the subject submission was denied, Ms. Macpherson visited the Robbins home to discuss the refusal. She stated that she had pointed out to Mr. Robbins that the Conservation Authority had no objection to the placing of fill to correct ruts in the lawn, but the policies allowed no exceptions for the placing of fill as proposed over all of the property. A proposed boat slip diagram was provided to her by Mr. Robbins in an effort to satisfy cut and fill regulations. She advised Mr. Robbins that it looked like the boat slip would be too close to the septic system bed and regulations required a minimum setback of 15 metres (50 feet) from the water's edge to a tile bed. In addition, the cut and fill regulation was not applicable to the boat slip proposal.
For clarification, Ms. Macpherson stated that the information requested of the appellant and their agent prior to the Executive Committee hearing was required to complete the submissions for that hearing. It included the septic system issue which the Conservation Authority could rule on as it relates to water resource management and the potential for pollution.
Mrs. Raye Robbins, agent for the appellant, introduced a two page document, subtitled "Points for Discussion" [Ex.9] and the document is paraphrased below:
- The home was purchased by the Robbins approximately 13 years ago. It is a permanent residence and fronts on the Rideau River.
- The original application in 1999 to the Rideau Valley Conservation Authority was to improve the shoreline by removing an existing log retaining wall, and to install riprap along the extent of the shoreline, place two gabion baskets on the shore and to place fill on the property in order to make the grade more comparable with the surrounding properties. It was expected this would reduce the risk of flood damage to the house, property and storage sheds. The R.V.C.A. gave approval to remove the existing log retaining wall, install riprap along the shoreline and place two gabion baskets, but denied the permit to fill.
- The property is lower in grade than the adjacent property immediately to the north. It is apparent that, in the past, fill was added to that property. To the south there is an abandoned property that has not been used by anyone in years. The proposed fill was intended to redress the imbalance in the grade in relation to other neighbouring property, and reduce some of the flooding.
- The application that was originally submitted did not specifically indicate the quantity of fill requested but proposed raising the grade by up to two feet. As a result the R.V.C.A. estimated that approximately 510 cubic metres of fill would be required and that this amount was considered a significant amount of fill and the requirement of a balanced cut and fill could not be waived.
- The R.V.C.A. indicated that allowing the placement of fill would create a precedent and was inconsistent with policies to not allow the placement of fill in the flood plains.
- In a facsimile from Shelley Macpherson, dated September 7, 1999, to Pat Mulrooney, the landscaping contractor, it was stated that this application required:
- a geodetic survey,
- a profile showing the existing and proposed grades,
- The facsimile closed with the comment by its author, S. Macpherson, that the committee may not entertain frivolous applications. Based on this facsimile the appellant found it was necessary to hire a lawyer and a consulting engineer, to review the situation.
- Upon his review, Mr. Simmering, a Consulting Engineer hired by the Robbins, calculated the actual amount of fill required to raise the grade in a tapered manner up to 2 feet, to be 325 cubic metres by volume. This, by the appellant's estimation, was not a significant quantity of fill. Mr. Simmering's recommendation reduced the amount estimated earlier by the R.V.C.A. by 36%. It was the appellant's understanding that the R.V.C.A. agreed that this amount of fill would have no significant affect on the upstream water levels, local stream flow velocity, the control of flooding, pollution nor the conservation of lands. However the application was still denied.
- The Authority also expressed concern about the potential for pollution regarding the proposed fill placement on top of an existing septic tile bed. Mrs. Robbins introduced a letter, dated October 31st, 2000 [Ex. 10], from a Mr. J. Devereaux, who is licensed by the Ministry of the Environment to inspect and install septic systems. This letter also included certain diagrams and cross-sections of the Robbins tile field [Ex. 11] which indicated that the system is in good working order and appears to have been installed according to Ontario Building Code standards. Mr. Devereaux estimated the depth of the existing tile bed to be 23 to 24 inches (0.6 metres).
- It was the appellant's view that the policies regarding a placement of fill permit only relates to significant quantities of fill and does not apply to applications involving small quantities of fill where there is an insignificant affect on the control of flooding, pollution or the conservation of land. As such, the policies were not intended to apply to what is proposed. This application was for a limited area of land in a relatively isolated area. No incremental balanced cut and fill procedure would reasonably apply.
- Mrs. Robbins stated that the fill placement was not merely for cosmetic reasons but was expected to:
- reduce the imbalance created by past filling on the property to the north,
- have no noticeable impact on the abandoned property to the south (which is roughly the same grade),
- reduce flood damage to the home, property and the storage sheds,
- 4provide better and improved safety to the residents,
- facilitate the planting of shoreline vegetation, shrubs and trees.
- Mrs. Robbins concluded that the appellant also understands that the RVCA considers the filled lands to be an issue. She noted further that it was understood, according to the Parks Canada letter [Ex. 12], that if the filled land was privately owned, a permit would not be required from them for fill placement. In solving this issue, the appellant had contacted Parks Canada requesting to purchase this land and the confirmation/clarification letter [Ex.12] was received.
Mr. Steven Simmering, a Consulting Engineer (in direct examination by Mrs. Robbins), was recognized as having been retained by the appellant as an expert witness in water resources management and the Rideau River area in particular. He prepared a geodetic survey examining the effect of placing fill on the property. In so doing, he established the general location of the sewage system and the septic bed. He also reviewed the flood plain policies of the R.V.C.A. Referring to Mr. Devereaux's letter and the cross-section drawing of the septic system [Ex. 10 & 11], Mr. Simmering stressed their relevance and emphasized that the author believed the elevations to be accurate. He explained that the Ontario Building Code requires the overburden of a tile bed to be a minimum of 1 foot and a maximum of 2 feet. Mr. Devereaux's letter states that there will be 23 to 24 inches of overburden on the tile bed after the tapered placement of fill. This, he determined, was acceptable under the code requirements. The geodetic survey [Ex. 2, 1 & 2] of fill estimates and placement shows approximately two feet of fill over the tile bed which agrees with Mr. Devereaux's figures.
Mr. Simmering pointed out that regulations are in place to protect lands and that he was sensitive to the Conservation Authority's need to minimize fill to be consistent with the Authority's policies. However, the elevations of lands to the north, downstream of the Robbins' property, show a considerable difference in height. The greater height could be a barrier to reasonable flood water run-off during the high water season. He stated that the fill proposed and outlined in the design maps is not likely to cause any barrier to run-off and would be expected to drain well. According to the Conservation Authority's own calculation, the levels of fill are consistent with a one in three year (1:3) event and would add the seasonal protection needed for such flooding. There are no statistics that clearly indicate the effect that the placing of this amount of fill would have on the downstream of the Rideau River in subsequent flooding events. Such a determination could be made only after an in-depth hydraulic analysis of the area. Mr. Simmering gave his opinion that the volume of fill (325 cubic metres) is an insignificant quantity, given that no future development is planned for the property and recommended the distribution as outlined/described in the grading and cross-section maps [Ex. 2, 1& 2].
Mr. Simmering, in cross-examination by Mr. Brodmann, stated that he was not aware of any hydraulic analysis that was done concerning the application. He added that the property to the north of the Robbins location was approximately one metre higher and the small amount of fill placement proposed will provide some protection from a one in three (1:3) year storm event. The elevation is determined at 86.6 metres and a 1:100 year storm event flood line is one metre above that. In that regard, the placement of fill will provide only an extra buffer of protection from flooding.
Mr. Simmering stated that the affect of placing fill by fifty property owners could be significant. The Authority's policies call for using reasonable discretion in reaching decisions regarding small fill placements. In Mr. Simmering's view precedence was pivotal in the Conservation Authority's refusal and the question still remained as to what is an allowable amount of fill.
Mr Simmering further stated that he was not aware of other requests for the placement of fill being granted in the area. However, by his observations, the placement of fill on the adjacent property to the north could not have been long ago and based on the vegetation, it could have been within the last 10 to 20 years. Referring to the Old Cottage photo [Ex. 1, B], he pointed out that the property to the north appeared to be higher in elevation in 1981. The annual flooding on the Robbins property, makes the situation there unsafe as a result of being lower in elevation.
Mr. Simmering stated that the fill, along with the placement of the gabion baskets at the water's edge, will provide a buffer of material to assist in protection during seasonal flooding. If erosion occurs, then this fill buffer will give better protection for the house. The placement of fill, as proposed, will protect against normal river flows only and some seasonal flooding. There is better protection with gabion baskets on the shoreline as they will hold the fill against erosion.
Referring to Mr. Devereaux's letter [Ex. 10], Mr. Simmering stated that he had no physical evidence to confirm the claims in the letter. In his opinion, Mr. Devereaux, as an expert in the field, established the numbers based on his knowledge and the position of the outlet pipe. His calculations indicate that it was a 0.5 % grade. The measurements provided would be from the crushed stone at the bottom of the trench to the top as seen on Exhibit 11. Mr. Simmering stated that the best way to measure the depth of the tile bed would be to dig a hole. He concluded that it would be a fair and reasonable request to include, for any approval, a condition that before work was done that the septic system be measured to confirm its location.
Mr. Wayne Robbins, in cross-examination by Mr. Brodmann, stated that it was their intentions to place fill to protect the property from annual flooding wash outs at the back of the existing shoreline wall and debris from other property owners. He stated that it would meet a 1 in 3 year storm event. Mr. Robbins referred to the April 1993 photo [Ex. 1] as being indicative of the flooding experienced. He stated that there is flooding annually, placing the property (house, sheds, docks and the dry-docked boat) at risk of damage. Mr. Robbins concluded that they experienced flooding every year, but a major storm like Hurricane Hazel happened a long time ago and it is unlikely that it would happen again. The intention is to place fill as indicated on the maps and drawings, providing a degree of protection for the property in a 1 in 3 year storm event.
Mr. Clare Sanderson, in direct examination by Mr. Brodmann, was introduced as the Realty Manager at Parks Canada responsible for Crown Lands in the Rideau Canal catchment area. According to Mr. Sanderson, the Rideau River bed is deemed to be Federal Crown Land. He confirmed that a portion of the property noted in the appeal comes under the control of Parks Canada. The placement of fill on Crown Lands adjacent to the private property owned by Mr. Robbins does not effectively transfer ownership of those Crown Lands to him, rather it is still considered to be the bed of the river, with ownership remaining under the Crown. In effect the fill placement would be on the bed of the river, owned by the Crown. He noted that some infilling had taken place in 1987, but that was not unusual for the area. Mr. Sanderson stated that fill cannot be placed without a permit or outright ownership of the lands. Parks Canada is going through a process to sell the lands to Mr. W. Robbins as he requested. Although the purchase request is recent, it is likely that it will be approved. The review process takes about three to four weeks.
In response to the tribunal's query, Mr. Sanderson stated that the Authority's regulations do not take precedence over Parks Canada, but would not be disregarded.
Ms. Macpherson, in cross-examination by Mrs. Robbins, responded to questions dealing with the facsimile message [Ex. 1], pointing out that she had dealt with the landscaper, Mr. Mulrooney, acting as the Robbins' agent and a letter had been directed to him with the material requirements for the application. The facsimile mentioned was only for follow-up information.
Ms. Macpherson stated that the 1981 application for a permit to renovate and place fill was awarded, based on providing safe access to the property and the floodproofing around the reconstructed house. Both were allowable under the guidelines at that time. Ms. Macpherson noted that flooding causes concern for the risk of pollution from a septic system that is not properly constructed. The R.V.C.A. has entertained and approved permits in the area for the construction and reconstruction of septic systems that meet O.B.C. standards.
She pointed out that it was the cumulative impact that was at issue in this application. Whether it is ten, fifteen or two hundred and fifty applications for fill placement, the precise cumulative effect is not known. However, more applications to place fill would have a significant affect on the river system.
Mr. Bruce Reid, in direct examination by Mr. Brodmann, was introduced as a Professional Engineer and the Management Coordinator of Water Resources with the Rideau Valley Conservation Authority. He outlined how the Authority viewed the application in question. He stated that there is no actual specific figure for what is called insignificant fill levels. The Conservation Authority looks at the volume of fill placement and the purpose of the fill on the lands. No reasonable request is refused. In addition, with regard to a septic system, it must meet Ontario Building Code standards. The placement of fill causes a loss of flood plain storage capacity and requires pollution control measures. To put this in perspective, a 500 cubic metre fill placement over 100 hectares of agricultural property is less significant than 500 cubic metres of fill placed on a 1 or 2 acre lot. The decision of the Executive Committee was based on the merits of fill placement. The application did not show any specific purpose for the placement and therefore, little merit could be applied. In addition, the water storage capacity would be affected in an adverse way by any fill placement.
Mr. Reid concluded that the flood plain management here and elsewhere along the river is the issue. The study of hydrology reveals that there is the potential for higher flood levels and water forces (increased velocity) downstream as a result of higher filled land levels upstream. Studies in hydrology on the Mississippi River show that conditions are worsened downstream because of dikes, berms and the like being constructed upstream. The concern here is the cumulative effects of fill placement on the water storage capacity and hence possible increased flood levels leading to flood damage and risk to the public.
Mrs. R. Robbins, in her argument for the appellant indicated that the appellant had found the application process with the R.V.C.A. confusing. As a result, they had sought the costly assistance of both a lawyer and a consulting engineer in order to prepare the case.
It had been understood from the Conservation Authority staffs itemized list of concerns and their directions to the Robbins' agent, that the application for fill placement was reasonable and only further technical information was required to complete the application. Therefore, it was disturbing for them when the application was finally refused on the basis of precedence.
The appellant made every effort to prevent the application from being considered "frivolous". Their purpose was to preserve the integrity of their land. Providing for protection against the annual or 1 in 3 year flood conditions was worth the cost and effort on their part. Attempts were made to resolve all application issues by initiating:
- the assistance of a consulting engineer;
- the preparation of a proper landscape plan;
- a septic system inspection; and
- correspondence with Parks Canada concerning their intentions to purchase the filled lands.
It was the appellant's position that the situation was unique. There was no negative impact since the amount of fill was small. As well, there was the added benefit of reducing possible flood damage to the house and property. The appellant understands that the goals and objectives of the R.V.C.A. for flood plain management include:
- minimizing property damages and social disruption attributed to flooding;
- encouraging a coordinated approach to the use of the land as it relates to water management.
The appellant felt that both issues had been addressed in their submission.
In closing, Mrs. Robbins stated that the appellant was concerned that the Authority, in considering the application to be inconsistent with the approved development policies, did so without carefully considering the specifics of this unique application.
Mr. H. Brodmann, in his final statement for the respondent, submitted that the process of a hearing and the information required to present an application can seem cumbersome.
Applications to the Rideau Valley Conservation Authority are each dealt with on a case by case basis for the consideration of the Executive Committee. The merits of the matters before the tribunal are based on the discretionary powers of the Conservation Authority, that is afforded to all applications under Ontario Regulation 166/90 [Ex. 1] Subsections 3. & 4. state:
- Subject to section 4, no person shall,
- place or dump fill or permit fill to be placed or dumped in the areas described in Schedules whether such fill is already located in or upon such area, or brought to or on such area from some other place or places.
- Subject to the Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of the land.
Clearly, these are the sections in question. The regulations under O. Reg. 166/90 and the Ontario Provincial Policy Statement are both applicable here. In the May 31st, 2000 refusal letter [Ex. 1] to Mr. Wayne Robbins, the Conservation Authority stated:
In making decisions on such matters, the Executive Committee weighs the impact that the granting of permission will have on the Authority's flood plain management program in the Rideau Valley watershed area, bearing in mind the objectives of the program, are:
- To prevent the loss of life;
- To minimize property damages and social disruption attributable to flooding;
- To encourage a coordinated approach to the use of land as it relates to water management;
In addition, the Authority has policies regarding the placement of fill within Ontario Regulation 166/90 under Section 2, as follows:
- Policies Regarding the Placing of fill
- The placing of significant quantities of fill (see policy viii, below) will be permitted only if flood plain storage volume is conserved by means of an incrementally balanced cut and fill procedure and if the purposed placing of fill will have no detrimental effects on upstream water levels or local streamflow velocities. Hydraulic analysis may be required, at the discretion of the Authority, to demonstrate that the latter condition has been met.
- The Authority may waive any of the above requirements for applications involving small quantities of fill (for landscaping purposes, etc.) And for which, in the opinion of the Authority, there will clearly be no detrimental effects on the control of flooding, pollution or the conservation of land
The Conservation Authority does not intend to prevent the continued use of lands, nor to prevent reconstruction. The 1981 application permit allowed for reconstruction with flood proofing as part of that construction. The Conservation Authority looks at the net benefit of fill placement on lands. On more than one occasion, Mr. or Mrs. Robbins stated that precedence was the only issue for declining this application. It should be understood that multiple fill placements create a cumulative impact which would create a loss of flood plain storage capacity and affect the water levels during flooding. No reasonable submission or evidence has been made to support this application to place fill, other than to prevent the annual clean-up of debris.
Mr. Brodmann submitted that the Conservation Authority also voiced concern for the potential pollution from the septic system. The septic system fill issue has insufficient supporting evidence. The system's accurate parameters are not known today and require further study to confirm definite measurements.
There is considerable pressure for development in the Rideau River Valley and it is difficult for the Conservation Authority to permit it in one instance and not in another.
On the matter of filled lands and Parks Canada, Mr. Brodmann submitted that it was not an issue in this appeal.
Mr Brodmann submitted that the appeal be dismissed.
R. Robbins declined to make further submissions.
Several comments were made by the appellants indicating a concern about fairness in proceedings before the Conservation Authority and this tribunal. In the tribunal's view, the request for fairness surrounded the appellant's admitted lack of expertise in hearing matters. The respondent's counsel provided an apology for the legal aspects of the procedures and encapsulated the issue of procedures as the current practice, which will have to suffice until another method can be found to replace it.
There is a range of preparedness and expertise which tribunal members experience in hearing situations. Added to this is a variance in styles of presentation by lawyers and technical professionals different from that of private citizens. Depending on the opposing styles, the hearing can be seamless or alternatively fraught with interruptions, confusion and objections. While the adjudicators can playa role in controlling the process, the tribunal must remain neutral and not show partiality. The adjudicator's role is to listen to the submissions, extract the facts from the evidence and apply the statutes and regulations to those facts.
It is the observation of this tribunal that the various parties worked well in overcoming style differences. The tribunal is always concerned with the fairness in procedure and keeping the presenters to the relevant facts of the case. It is with this fairness to all that the tribunal members pause the proceedings to query for clarifications or to give direction to either party. Both parties to the hearing are congratulated for their efforts and the respect shown the adjudicative system.
Issue 1. Will the application for development, through the proposed placement of fill in the flood plain, alleviate flooding and erosion or affect the control of flooding and the potential for pollution?
The tribunal accepts that the grade elevation for this grading/fill placement application will be 86.60 metres and will be compared to the regulatory storm elevation of 87.60 metres. This identifies the property as being fully within the flood plain and one full metre (3.38 feet) below the regulatory elevation level.
In arriving at a decision, the tribunal has had regard for the Conservation Authorities Act. Within subsection 28(25) there are certain definitions relevant to this appeal:
In this section,
- the construction, reconstruction, erection or placing of a building or structure of any kind,
- site grading,
"hazardous land" means land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion...;
"pollution" means any deleterious physical substance or other contaminant that has the potential to be generated by development in an area to which a regulation made under clause 28. (1)(c) applies;
The tribunal has reviewed the application and the evidence with respect to these definitions.
1. Development on hazardous lands
The evidence indicates that there is no dispute by either party that the Robbins property and the proposed development is totally located in the flood plain of the Rideau River. The tribunal has accepted the property grade and regulatory storm elevation, which indicates the property is one metre below the regulatory storm levels. As a result, it is obvious that the property can be described as hazardous land that will continue to experience some degree of flooding, probably on an annual basis. In addition, the property will be subject to the effects of a major flood event which could jeopardize safe access to the residence and cause damage to the property. The tribunal expresses concern for these possibilities and the potential danger to human life.
The tribunal finds that the Robbins application for the placement of fill (site grading) is clearly within the definition of development as found in the Act. The tribunal believes that the existing development (1981) would not have been approved if today's regulations and policies of the Authority and the Province had been in effect when the land was developed. Past history aside, the issues of the application have to be dealt with through the regulations and policies of today. The tribunal is concerned that the placing of further fill on the land will lead only to more issues arising in the future for the watershed while providing minor improvement or protection for the Robbins family. Regardless, the flooding will continue to intrude on the property and debris will continue to accumulate in the spring.
The tribunal understands that each time new fill is placed in the flood plain of a river, there is a subsequent effect on the flood levels of that river. The result is less storage capacity for flood waters. In the Robbins case, adding fill to the flood plain could cause further intrusion of flood water onto adjacent lands, which to date have experienced similarly expected flood levels. The tribunal takes the approach that no development should be allowed to negatively effect a neighbouring property. This also applies even though the up stream property has not been used for many years. As a result, the tribunal believes that cumulative effect, regardless of the small amount, will be created if this application was permitted to proceed. This would add to the long term impact on the Rideau River valley water system.
The tribunal further finds that the Provincial Policy Statement (1997) is relevant to the issues in the Robbins application. Several statements within the Preamble to the Policy outline the reasoning behind the adoption of the Policy:
It provides policy direction on matters of provincial interest related to land use planning and development. The policies focus on the key provincial interests related to land use planning.
Equally, the Province has an interest in protecting the long term health and safety of the population, and the financial and economic well-being of the Province and municipalities.
The Principles from within the Policy provide further relevant statements:
Ontario's long term economic prosperity, environmental health and social well being depend on:
- 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.
The tribunal has already expressed concern for public safety as related to the Robbins application and the Principles echo that concern by directing development away from areas where there is a risk of danger to the public and property damage through flooding. The Robbins property has been identified as being a hazardous development, facing safety and damage issues, which could create cost for the public purse.
The tribunal found further relevance in the Policies section of the Statement:
- 1.1.1 Subject to the provisions of policy 1.1.2, cost-effective development patterns will be promoted. Accordingly:
- development and land use patterns which may cause environmental or public health and safety concerns will be avoided.
The tribunal agrees that this statement furthers the intent of the Policy's principles in that development is to be prohibited in a flood plain. It follows that such development causes increased risk to public health and safety as well as increasing the potential for property damage from flooding.
The tribunal finds added support for no development within a flood plain, such as the Rideau River Valley and for applications like the Robbins, under subsequent sections of the Policies. These sections state:
- 3.1.1 Development will generally be directed to areas outside of
- hazardous lands adjacent to river and stream systems which are impacted by flooding and/or erosion hazards.
- 3.1.2 Development and site alterations will not be permitted within:
- a floodway.
As a result of the review of the Provincial Policy Statement, the tribunal finds the application for the placement of fill on the Robbins property to be an intrusion on the flood plain of the Rideau River. This creates the potential for increased damage to property/development in the valley and for increased concern for public safety. This intrusion could lead to other intrusions in the area and possibly render their current floodproofing measures ineffectual. The impact of the intrusion does not solely affect the applicant's residence and land, but could include countless others. Over time, this fill build up could cause a major cumulative effect on the flood plain.
With regard to the potential for pollution, there was considerable evidence presented by both parties surrounding the condition of the septic system located on the property. The appellant argued that a fill placement of up to 0.9 metres on top of the existing tile bed would not affect its workings and provided information from a certified septic system installer relating to the status of the system. On the other hand, the R.V.C.A. held that the Ontario Building Code regulations allow for only a 0.9 metre covering and the current status of the system had not yet been established by accurate measuring.
The appellant questioned the authority of the R.V.C.A. to concern themselves with Building Code standards regarding septic systems. The tribunal accepts their authority on issues dealing with water resource management in those areas having the obvious potential for pollution and notes the Ontario Building Code 1997 where it states:
Part 8 - Section 8. 7 Leaching Beds
- 7.1.2 General Requirements
- A leaching bed shall not be located:
- in or on an area that is subject to flooding that may be expected to cause damage to the leaching bed or impair the operation of a leaching bed,
- A leaching bed shall not be located:
The Conservation Authorities Act is clear on the matter of potential pollution and the need to prevent it. Given the unsubstantiated opinion expressed in the installer's letter, the tribunal does not take comfort in the appellant's argument for its acceptance. Further study and measurement with regard to the septic system issue would be required if any further application was submitted. The tribunal takes the position that the issue as presented is incomplete.
In any case, the septic system issue is subject to approvals by another jurisdiction. However, the tribunal does accept that the issue is within the jurisdiction of the R.V.C.A. to question development with regard to the potential for pollutants in its role as manager of the water resources for the Rideau Valley.
The tribunal agrees that insufficient evidence was provided to indicate what effects further fill would have on the septic system and its continuing successful operation. Accordingly and without more evidence, the tribunal finds that further filling of the property could lead to the potential for pollution, as defined in the Conservation Authorities Act.
Finally, the tribunal, in reaching its findings, found the Flood Plain Planning - Policy Statement (August 1988) and the Implementation Guidelines (October 1988) to be useful tools in defining standards for public health and safety. The Policy and Guidelines served as a basis for the development of O. Reg. 166/90 and in context, the tribunal found that they do not differ greatly from the current Provincial Policy Statement. The Guidelines offer technical information on the implications of flooding on the inhabitants of a development, which upon comparison, are relevant to this location.
The appellant was reasonably convinced that the flood lines for the 100 year storm event were not likely to be reached or repeated in the near future. Therefore he did not view the regulations stemming from the flood line elevations as being current or realistic. However, it was pointed out that the flood lines are based on data collected by experts in the field and Conservation Authorities live with the expectation that the flood levels could be reached at any given time.
The Guidelines point out that in stagnant waters, a depth in excess of 1 metre is sufficient to float or drown a young child, and in moving water depths above 1.4 metres are sufficient to float or drown a teenager or adult. Upon comparison to the Robbins property the flood line elevations from the house to the highway do not appear to exceed the minimum standards of peril for a child. However the higher water levels over the balance of the property would pose a substantial risk to life.
The Guidelines further establish standards for vehicular traffic. A typical automobile would be halted by flood depths above 0.3 to 0.5 metres, but large emergency vehicles can operate in water depths not greater than of 0.9 to 1.2 metres. This in comparison indicates that vehicular traffic on the property, to the top edge of the driveway, would be halted and access to the rear of the house could be achieved only by larger emergency vehicles.
The tribunal took note of the Rideau River - Long Reach Flood Damage Reduction Study prepared by A. J. Robinson and Associates, Consulting Engineers (April 1993) [Ex. 3, D]. Within this report, the area flood line levels for the regulatory storm event are actually higher at 87.8 metres. These figures indicate flood water elevations, over the Robbins property, from 0.77 metres (1.9 feet) to 1.2 metres (2.96 feet) and 0.53 metres ( 1.3 feet) of flooding over the highway. These levels place the movement of people, vehicles and emergency vehicles at considerable risk on the driveway and place the house floor at only 0.01 metres (0.24 feet) above flood levels.
Both current flood line levels and those within the Robinson Report, indicate varying degrees of exposure to peril. The tribunal finds that although public safety and health issues do not exist under annual flooding circumstances, they certainly would exist at the regional storm level when the surrounding lands would be flooded.
In summary, the Robbins application seeks to place fill on the property for the purpose of alleviating flooding and erosion. Even though evidence points to some relief during the annual flooding events, the tribunal finds that this would not provide relief during a regulatory storm event and in fact, the placement of fill could increase the effects of a flooding and possibly cause erosion in the area. The tribunal further finds that the proposal could have an effect on the control of flooding and lead to a potential pollution problem associated with the septic system. The tribunal has expressed that the concern must be for damage to property and the danger to public health and safety that would occur during a regulatory storm event. The tribunal finds that it is the impact of the cumulative effect which is at issue in this appeal.
Issue 2. Will an approval for the placement of fill create a precedent within the decision making powers of the Rideau Valley Conservation Authority and throughout the rest of the Province with regard to allowing further fill placement in a flood plain?
The setting of precedence within Conservation Authority appeals is intertwined with the impact of "cumulative effect". The impact of the cumulative effect of an encroachment or development within a flood plain of a watershed is a principle which the Office of the Mining and Lands Commissioner has long considered important in reaching decisions in Conservation Authority appeals. The water storage capacity principles dictate the flood line elevations from a regional storm event.
The tribunal is of the view that whenever development (placing of fill) occurs in any flood plain area, the capacity for water storage decreases. This in turn creates the potential for an increase in the various flood levels that Conservation Authorities deal with upon reviewing development projects. There is the risk of cumulative effect if many applications were to be approved by the Authorities for any watershed area.
The tribunal is concerned with precedent setting. It is important that a regulatory body such as the Rideau Valley Conservation Authority, reaches a decision based on the merits of each case. It is equally important that the body review and keep previous decisions in perspective with regard to consistency in applying the regulations. It is known that applicants review past decisions and use those decisions in ways that could help further their applications. Therefore, former decisions that are determined to be consistent with water management philosophy and regulations, can place the Conservation Authorities in a position where further approvals, in effect, will follow or cause "precedence". Conversely, the Conservation Authorities providing an approval based on no reasonable merits, would also create a "precedence" decision, inconsistent with its philosophies and regulations. These factors are part of the review process and need to be considered in the "merits of the application".
The tribunal believes that the Conservation Authorities Act, the Provincial Policy Statement (1997) and the ensuing adopted regulations, O. Reg. 166/90, offers sufficient direction and protection to this resource management body (R.V.C.A.) in dealing with applications for fill. The tribunal finds that approval of this application for fill placement could create a precedent that would be inconsistent with established regulations and could have a negative effect on the Authority and their ability to manage the water resources effectively in the future.
The tribunal accepts the testimony of Mr. Sanderson of Parks Canada and deems the infilling on Crown Lands to not be an issue in this appeal.
Based on the evidence and the reasons outlined in these Findings, the tribunal finds that adequate justification for the further filling of the Rideau River Valley flood plain has not been provided. This appeal is not unique. The tribunal finds that the potential for a negative effect on the watershed, resulting from a cumulative impact, to be of great importance. In view of this, the tribunal orders that this appeal be dismissed.
The tribunal further finds that no costs shall be payable by either of the party to this matter.