Ann McGahey v. Rideau Valley Conservation Authority

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

The Mining and Lands Commissioner

Notice of decision

pursuant to a hearing under subsection 28(5) of the Conservation Authorities Act, R.S.O. 1980, Chapter 85.

W. Dennis Tieman
Mining and Lands Commissioner

February 26, 1991
Toronto, Ontario

In the matter of the Conservation Authorities Act

And in the matter of

An appeal under Section 28(5) of the Conservation Authorities Act against the refusal to grant permission to renovate a building on Part 2, Plan 15R.6293 being part of, lots 38 and 39, in Concession II (Broken Front), in the Township of South Gower in the United Counties of Leeds and Grenville.

Between:

Ann Mcgahey
Appellant

and

Rideau Valley Conservation Authority
Respondent

R.G. Shaw, Esq., Counsel for the Appellant.
H. Brodmann, Counsel for the Respondent.

The appellant appealed to the Minister of Natural Resources from a decision taken by the Executive Committee of the Rideau Valley Conservation Authority pursuant to a hearing on June 8, 1989.

By Ontario Regulation 364/82 the power and duty to hear and decide such appeals to the Minister of Natural Resources were assigned to the Mining and Lands Commissioner.

The appeal was heard in Ottawa on November 6, 1990.

On February 26, 1988 the appellant filed with the respondent an application to undertake construction on the said property which is immediately adjacent to the Rideau River. The respondent submitted evidence and filed exhibits including maps and elevations to show that the entire property and much of the adjacent access road would be inundated in a regional storm. There being no arguments or evidence submitted to the contrary, this Tribunal accepts as fact that the said property is located in an area "susceptible to flooding during a regional storm" as defined under Ontario Regulation 175.

The application for permission to undertake construction on the said property included plans to replace a vacant single storey structure with a new building of approximately the same ground dimensions on a building site immediately adjacent to the original building which was to be removed from the property.

The appellant argued that these building plans were renovations and therefore could not be considered or defined as "construction" under the Conservation Authorities Act or Ontario Regulation 175.

The Conservation Authorities Act states: under subsection 28(1)

28.–(1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,

. . . . . . . . . . . . . . . . . . . . . . .

(e) prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of such regulations;

Ontario Regulation 175 which was authorized by the Lieutenant Governor pursuant to the Conservation Authorities Act states:

3. Subject to section 4, 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;

The first case cited was Stacey v. the Rideau Valley Conservation Authority and the Corporation of the Township of Oxford. In that case which was heard in 1989 in the District Court of Ontario at Brockville, Judge Cosgrove allowed an appeal under the Conservation Authorities Act and granted approval for the reconstruction of a single family residence destroyed by fire. The appellants in this case were only permitted to rebuild the home in which they had lived prior to the fire.

The facts of that case can be clearly distinguished from the case at hand and in the opinion of this Tribunal, do not provide a useful precedent.

The second court case cited by counsel for both parties was the Upper Thames River Conservation Authority v. the City of London. This case also involved an interpretation and application of the word "construction" under the Conservation Authorities Act.

In his written decision on February 20, 1989 District Court Judge Killeen found that internal reconstruction or renovation did not in that case fall within the definition of construction under the Conservation Authorities Act and was therefor outside the regulatory powers of the Conservation Authority. In his decision, Judge Killeen states that

I find nothing in s.28 of the Conservation Authorities Act -- or for that matter anywhere else in the Act -- to indicate that the legislative intended the Authority to exercise powers over renovations within an existing building on the floodplain.

Again, the facts of that case can be clearly distinguished from the case at hand and they do not provide a precedent which can be directly applied by this Tribunal.

The term "construction" as used in the Conservation Authorities Act and Regulation 175 must be interpreted within the context and purpose of that Act rather than by reference to precedents which are not precisely similar in fact or circumstance.

One of the primary purposes and objectives of the Conservation Authorities Act is to provide for the regulation of land use so as to prevent flooding and to reduce the risk of human exposure to flooding, particularly in a regional storm. The respondent Conservation Authority has in this case and in others applied the principle of "intensification of (land) use" as a basis for interpreting the word "construction" in Regulation 175. Regardless of how it may be described or categorized, any construction which provides for an intensification of the use of a proposed building and/or property and consequently increases human exposure and risk from flooding is subject to that Regulation. And in the opinion of this Tribunal, the principle of "intensification of use" provides a fair and sound basis for the interpretation and application of the word "construction".

The use of the property and the original building is therefore an important matter to be considered by this Tribunal.

From the appellant's own evidence, the property and the original building was used infrequently and seldom if ever for an overnight stay. And there was no power or running water in the building. Some other evidence was provided to show that a trapper may have used the original building in previous years.

Having reviewed the evidence and submissions of counsel, this Tribunal is satisfied that the planned construction will result in an intensification of the use of the property and is therefore subject to the regulation by the respondent whose decision in this matter can not be reversed.

  1. This tribunal orders that the appeal is dismissed.
  2. This tribunal orders that no costs should be payable by either party to the matter.

Signed this 26th day of February, 1991.

Original signed by

W. Dennis Tieman
Mining and Lands Commissioner.