Mike E. Senyck v. Rideau Valley Conservation Authority

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Mike E. Senyck.

The Mining and Lands Commissioner

In the matter of the Conservation Authorities Act

G.H. Ferguson, Q.C.
Mining and Lands Commissioner

Wednesday, the 27th day of July, 1988.

And in the matter of

An appeal against the refusal to grant permission to place fill and construct a residence on Parts of Lots 31 and 32 in the Broken Front Concession, Parts 7, 8, 9, 10 and 11, Plan 5R-1891, in the Township of Osgoode, in the Regional Municipality of Ottawa-Carleton.

Between:

Mike E. Senyck
Appellant

and

The Rideau Valley Conservation Authority
Respondent

R.C.E. Wilson, Q.C., for the appellant.
H.R. Brodmann, for the respondent.

The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission to place fill and construct a residence on parts of lots 31 and 32 in the Broken Front Concession, in the Township of Osgoode in the Regional Municipality of Ottawa-Carleton, also known as parts 7, 8, 9, 10 and 11 according to Reference Plan 5R-1891. Under Ontario Regulation 364/82 the power and duty of hearing and determining such appeals were assigned to the Mining and Lands Commissioner. The appeal was heard in Ottawa on the 19th day of April, 1988.

By a deed dated March 19, 1974 the appellant, in trust for himself, an uncle, his mother, Mary Picklyk and his father-in-law, Arthur J. Howes, acquired part of lots 31 and 32 in the Broken Front Concession of the Township of Osgoode in the Regional Municipality of Ottawa-Carleton. The parcel consisted of a strip of land along the easterly bank of the Rideau River measuring approximately 850 feet in width along the river and having a depth varying from approximately 92 feet to 130 feet, more or less. The purchase price of the parcel was $20,000 of which $10,000 was paid and $10,000 was secured by a mortgage. Under the mortgage, some $2,500 had been paid in respect of interest.

Following acquisition the appellant caused a reference plan to be prepared and recorded as Reference Plan 5R-1891 on February 13, 1975. The reference plan was composed of eleven parts. Ten of the parts were composed of the land acquired by the appellant. Five of the parts consisted of a seven foot widening for Regional Road No. 19 and parts 2, 4, 6, 8 and 10 comprise a seven foot strip lying immediately to the west of Regional Road 19. Part 1 and the corresponding seven foot strip in Part 2 have a width of approximately forty feet. These two lots were conveyed to Alfred G. Boyd and his wife pursuant to a condition of the sale. The purpose was to provide access to the river in respect of lands lying to the east of the regional road.

Parts 3 and 4 lie immediately to the north of parts 1 and 2 and have a width of approximately 420 feet. Parts 5 and 6 lie to the immediate north and have a width of approximately 150 feet. In like vein, parts 7 and 8 lie to the north of parts 5 and 6 and have a width of approximately 150 feet. Parts 9 and 10 lie to the north of parts 7 and 8 and have a width of approximately eighty-five feet.

Part 11 on the plan lies to the north of parts 9 and 10 and is composed of a fifty-one foot strip of similar depth and represents a parcel acquired by the appellant's father-in-law, Arthur J. Howes.

On March 14, 1975 Part 9 was conveyed to Arthur J. Howes and Part 10 was conveyed to the Regional Municipality of Ottawa-Carleton. The remaining parts numbered 3 to 8 inclusive are still registered in the name of the appellant.

The appellant's evidence was that his mother died in 1987 but that in 1986 she had transferred her interest in the property to him with the result that he has a two-thirds beneficial interest in parts 3, 5 and 7 and his father-in-law, who is the registered owner of parts 9 and 11 has received his interest under the trust. However, the father-in-law is involved in litigation and it may not be possible for the parties to rely on his title in obtaining their objectives for the overall parcel.

At the time of acquisition the lands were zoned for residential use. A number of steps were taken in connection with the property. The appellant is an employee of the Federal Department of Transport and has been employed at Sault Ste. Marie since the acquisition of the land. His evidence is that the steps taken, while not taken in his name, were taken on his behalf.

Reference Plan 5R-1891 shows that the limit between Lot 31 and 32 crosses Part 7 in a diagonal manner but dividing the part into two more or less equal portions. Precise measurements are not shown on the plan.

On October 16, 1974 the appellant applied to the Township of Osgoode for a building permit for a residence. The location shown in the application was Lot 32 in the Broken Front Concession. The application made no reference to the reference plan. The sketch shown on the application for the building permit showed a distance of 497 feet to a southerly boundary which was not identified. It also showed the length of the house at seventy-two feet. Assuming that the distances were measured to the north boundary of Part 1, this would place the proposed building on Part 5 which was totally within Lot 32 according to the reference plan.

There was filed as Exhibits 10 and 10a the building permit and the card issued by the building inspector and said to be the building permit issued as a result of the application. However, it is noted that the building permit issued on October 16, 1975 and expired on October 31, 1975. It is possible that the municipal official wrote the same date on the permit as he used for the expiry of the permit. It would be strange that the permit would issue on the 16th day of October, 1975 authorizing the commencement of construction on the 1st day of April, 1975 and the tribunal is satisfied that the date on the building permit is an error. More particularly of interest is the fact that the building permit, notwithstanding the location shown on the application therefore, issued for Lot 31 in the Broken Front Concession.

According to Exhibit 13 on July 8, 1977 the appellant's mother applied to the Ministry of the Environment in the name of Arthur J. Howes for approval of a sewage system on parts 9, 10 and 11 on Reference Plan 5R-1891. The property was inspected on July 10, 1979 and on July 17, 1979 approval was issued by the Ministry of the Environment. The appellant's evidence was that this action occurred following an indication that his place of employment might change to Ottawa in 1979. He further gave evidence that following this approval, his mother on his behalf took steps to have fill placed on the property.

In February 1980, the area came within the jurisdiction of the respondent and thereafter the appellant has been negotiating with the respondent for a period of some eight years in respect of permission to construct a residence.

The present application was signed on June 13, 1986 and was made in respect of parts 7 to 11. The application contained an offer to transfer some of the land to the respondent but of course, that matter, while it may have been relevant to his negotiations with the respondent is not relevant in respect of this appeal. He also undertook to construct a breakwall which would be eighteen inches above the regional flood elevation of 87.5 metres. Attached to the application was a sketch showing the proposed house as being erected immediately south of the north boundary of Part 7 with the tile bed being situate in Part 9. This sketch reflected a number of elevations that were made pursuant to some of the negotiations between the parties in the early part of the decade. The sketch is imposed on a print by H.A. Kendall Shipman, O.L.S., showing various elevations on, Regional Road No. 19 and on parts 7 and 9.

The tribunal raised with counsel for the applicant the issue of whether the location of the proposed building as shown on the sketch was possible in view of the litigation involving Part 9 and sideline requirements. Counsel indicated that the appellant wished to proceed with the appeal and resolve these matters later if the appeal were successful. The tribunal has not taken this aspect into consideration in making its decision.

The Shipman sketch showed elevations along the Rideau River varying from 85.6 metres at the southerly side of Part 7 to 86.42 metres in the central part of Part 7 and slightly lower elevations toward the north end of Part 9. Spot elevations on parts 7 and 9 vary upwards to 87.11 in the southerly part of Part 9 but the average elevations of the two parts is in the vicinity of 86 metres. Elevations along the edge of Regional Road No. 19 and which are seven feet removed from the easterly boundary of the two parts show elevations of 87.58, 87.72, 87.6, 87.73 and 87.74 metres. An elevation on the road is shown at 87.17 metres. The tribunal raised the question of the extent of the southerly limit of the fill that was placed in 1979 and evidence was produced that indicates that fill was placed southerly of Part 7.

The evidence of the appellant was that expenditures in excess of $36,000 had been made on the property, which amount included no interest on the expenditures. These amounts break down as follows:

Purchase Price $20,000
Interest on Mortgage 2,500
Purchase of Part 11 3,300
Legal Fees 500
Reference Plan 600
Spot Surveys 600
Fill 7,500
Total $35,000

The proposal was to erect a house measuring seventy-six feet by thirty feet. It was proposed to place an additional amount of fill on the building site in order that the basement floor could be located at the elevation of the regional flood of 87.5 metres. It was proposed to place fill approximately forty feet in each direction from the building. The application did not contain an estimate of the quantity of fill required. The appellant was not able to draw to the attention of the tribunal any similar circumstances in which the relief sought by him had been granted by the respondent. He made reference to one property in the vicinity of the line between the north and the south half of Lot 32. He was unable to identify the owner of the building and subsequent evidence failed to show the respondent had authorized the construction of a new building at this location.

The respondent gave the following three reasons for its refusal of the application:

  1. The placing of the proposed fill would result in a net loss of flood plain storage volume which, when cumulative effects are considered, could result in an undesirable modification of the flood routing characteristics of the river and its flood plain.
  2. The Executive Committee was of the view that the public safety implications of the proposal are significant in that, if approved, an additional family would be subjected to the risks associated with the building's being in very close proximity to flood waters of considerable depth on at least three sides; this despite acknowledgement that dry access would be available to the structure from River Road under 1:100 year flood conditions.
  3. The granting of permission would have undesirable precedential implications for the Authority's flood control program, in the sense that the approval of similar applications in the future, following from the present one, would add to the cumulative effects of lost flood plain storage volume on flood plain hydrology and hydraulics, as well as to the risks to public safety outlined above.

To meet these points the appellant called H.S. Belore, a professional engineer who obtained the degree of M.A.Sc. from the University of Waterloo in 1974, who is employed by Cumming-Cockburn & Associates Limited Consulting Engineers in Willowdale, Ontario and who has had a broad experience in watershed studies, storm water management, flood management, environmental matters, hydraulic analyses and ice modelling and analyses and Dr. J.G. Williams, who holds a degree of Doctor of Philosophy from Columbia Pacific University and who has had a broad experience in connection with statistics and related matters. Although the concern expressed by the respondent was the loss of storage capacity, Mr. Belore approached the proposal on the basis that the building site be filled to an elevation of one foot above the regional storm elevation, i.e. 288.2 feet. He made calculations of two additional cross-sections between cross-sections 20 and 21 that were made in the original study of this part of the Rideau River and his conclusions are contained in the first two paragraphs of the second page of his report to the appellant, a copy of which was filed as Exhibit 21. The two paragraphs read as follows:

Initially, the hydraulic model used in deriving the existing floodplain mapping was obtained and reviewed. A typical river cross-section utilized in this model is given as Attachment #1. The site is located on the easterly bank of the Rideau River near James Island. The cross-section confirms the site observations that the portion of the river between the east shore and the island is relatively shallow compared to the westerly channel. This is also supported by existing hydrometric charts of the Rideau River waterway (see Attachment #2). A review of the hydraulic calculations confirms that the majority of flood waters (>80%) would be conveyed in the westerly channel around James Island and would be flowing faster than water in the easterly channel adjacent to the site. (In fact, I estimate that if the whole easterly channel were somehow to be "blocked off" or did not exist, the flood lands in the westerly channel would likely be expected to rise only a slight amount due to the small conveyance in the easterly channel and due to a compensating rise in velocity in the main channel.)

The attached cross-section and plan views also indicate the approximate locations of the proposed site development. The shaded area on Attachment #1 indicates the expected extent of infilling required, amounting to a very small percentage of the channel area available for conveying flows (about 3%). Further hydraulic calculations indicated that this infilling would have negligible effect on expected flood levels at this location and just upstream. (This is due to the ineffective conveyance of the area between the easterly shore and the island as discussed above.) Therefore, the proposed development could be adequately floodproofed and the required development would have negligible effect on adjacent flood levels.

It is noted from the above findings that the proposal involves a three per cent loss of the channel capacity of the river. It may be noted in passing that these comments have reference to the matter of the effect on the flow capacities of the river rather than the actual loss of storage capacity which was the matter raised by the respondent. It may also be observed in passing that while the witness treated a three per cent interference with the channel capacity as being minimal, i.e. "a very small percentage", it does not strike the tribunal that a percentage of three per cent should be treated as minimal. However, it may well be that the geographical configurations of the area would support the position taken by this witness and the tribunal is of the opinion that as these calculations were not made available to the respondent prior to the hearing that the respondent should have some opportunity of verifying the calculations that were made by this witness. It seems unusual to the tribunal that the extensive filling considered by the witness should have such a little effect but it may well be the case by reason of the enlargement of the flood plain by reason of the insertion of James Island in the river.

The witness also made reference to the provincial policy statement of the Province of Ontario issued in 1986 entitled "Policy Statement Flood Plain Planning" and the references to the two-zone concept mentioned therein. On questioning from the bench, the witness referred to some jurisdictions where a two-zone concept is permitted where a one in one hundred year regional storm is the standard. However, it may be noted at this time that the Ontario policy only contemplates the two-zone policy where the Hurricane Hazel or the Timmins flood is accepted as the standard for the regional flood.

Dr. Williams has degrees in mathematics and physics from Carleton University, a post-graduate degree in systems engineering from Columbia Pacific University and a doctorate in systems engineering from Columbia Pacific University. In addition, Dr. Williams has had considerable experience as a systems analyst and in the application of statistics principles to practical situations.

Dr. Williams addressed the safety implications raised in the reasons of the respondent and gave evidence regarding the probability of a child residing in a house erected on the subject lands drowning in a regional storm. The witness approached the subject with the assumption that in a one in one hundred year storm there would be water on three sides of the house and access to the regional road would always be available. It was his submission that the risk of drowning was a product of three matters, namely the time of exposure, the likelihood of a child being in a particular house, which involves a consideration of age factors and thirdly, given the opportunity of drowning, how many children actually do drown. Dr. Williams had no evidence based on the specific class of occurrence and extrapolated from other situations.

The first consideration of the subject by Dr. Williams was the time of exposure. He concluded, assuming that a spring freshet which was a likely occurrence in the area would last no longer than one week and if the regional storm only occurred on one occasion in a one hundred year period the opportunity of drowning would be one in 5,200 weeks in a century.

On the second issue, the witness suggested that the 1986 census showed 2.4 million families situate in Ontario and was unable to provide any basis of comparative statistical analysis of the third issue. He located statistics connected with the use of swimming pools which showed that approximately ten drownings of children occurred in Ontario from 174,000 pools. He concluded that the chances of a child drowning in the given situation are 2.8 in one billion and he suggested that this figure is considerably smaller than the risks of strikes from lightning and dog bites. It was his submission that from a mathematical point of view the risk of death resulting from the construction of a building on the subject lands was an improper conclusion.

It was pointed out to the witness on cross-examination that some of his assumptions did not encompass all of the factors respecting risk to life. It was pointed out that the calculations failed to take into account the risks involved in floods of lesser than one in one hundred year returns. The witness limited his consideration to younger children as assumed that adults would find their way out of the property along the regional road. His analogy to swimming pools was questioned. It was suggested that a more appropriate analogy would be death arising in situations involving residences along a river but no data was available on this subject.

With reference to the evidence of this witness, the tribunal may say that this approach in dealing with the risk to life is novel. The risks to life are not associated solely with any individual property in the event of a regional flood and do not extend solely to the occupants of the subject lands. Public authorities such as firemen have lost their lives in regional floods and the risk in this connection has never been considered in the narrow approach adopted by this witness. A further difficulty with the approach adopted by the witness is that it attempts to place a statistical value on life and, apart from the fact that the statistics were related to the subject property, the concerns of conservation authorities are normally regarded with reference to a broader area of risk, namely, all those persons whose land would be affected by the utilization of the flood plain for the purpose of residential building.

Bruce Allen Reid, a professional engineer who had experience in the private industry prior to being employed by the respondent gave evidence regarding the exposure of the subject lands to flooding in the past. His evidence was that the regional flood elevation was 287.2 feet or 87.5 metres above sea level. The respondent dealt with the application on the basis that there could be access to the regional road in the event of a regional storm through the placing of fill but the concern of the respondent relates to the effects of such placement of fill. In this regard the tribunal has noted above that the elevations that are near the regional storm elevations are situate on the parts to be conveyed to the municipality and that the existing road is some one foot lower than the regional flood. The witness gave evidence regarding the hydraulic and hydrologic effects of the placing of fill in the watershed. With reference to Mr. Belore's calculations, the witness had not had an opportunity of making a comparative analysis. It was his opinion that if the proposal only had a three per cent constriction of the floodway that he would not expect changes at this cross-section or increases upstream of the cross-section. The witness pointed out that the application of the appellant failed to come within the recognized exception of the incremental staged storage doctrine. The policy is not permitting the filling in of flood plains without an application of such doctrine.

The witness also produced evidence of aerial photographs showing that ninety per cent of the property was under water in a 1976 flood which was not of the magnitude of a regional flood. He also produced evidence of flooding that occurred in 1986. He pointed out that the accepted documentation is that the 1976 flood was the equivalent of a one in twenty-five year flood and that the effects of a regional flood would be more significant.

With reference to public safety the witness outlined the concerns of the respondent of the effects of the proposal on the flood plain characteristics and the exposure to public agencies providing relief or other services in the event of a flood. Thirdly, the witness gave evidence of the concern of the respondent related to the precedential implications from the granting of such permission. In so doing reference was made to the cumulative effects doctrine.

With reference to the policy of the respondent the witness stated that the policy of the respondent was to prohibit construction in the flood plain unless there were an application of the incremental staged storage doctrine. Reference was made to one or two situations which might have appeared to have been exceptions but in the witness's opinion fell within the general policy. He also referred to cases where permission in similar circumstances had been refused.

On cross-examination no cases where drawn to the attention of the tribunal in which the respondent had granted permission in similar circumstances since the respondent received jurisdiction in the area.

Mr. Wilson's argument was that in the consideration of the issue under section 4 of Regulation 175, under which the respondent has the discretion to issue permission where the project "does not affect the control of flooding, erosion or the conservation of the land", of whether the project affected the control of flooding, the respondent should have considered the facts evidenced by the evidence of Mr. Belore and with his professional opinion which was not met by the expert evidence of the respondent, but in contrast was agreed with by Mr. Reid in respect of the effects of a three per cent constriction of the flood plain of the regional flood, this tribunal should issue the permission sought. He also argued that the present application was unique in that the fill presently on the property was placed prior to the respondent having jurisdiction and a building permit had been obtained prior to that time and the landowner was at that time in a legal position to proceed with the construction of a residence. It was submitted that these factors created a uniqueness justifying the issue of permission, particularly having regard to the ability of the part of the channel lying westerly of James Island to pass the flows of a regional storm. It was also argued that risk of danger to life was met by the evidence of Dr. Williams and was so remote as to not be worthy of consideration and the effect was no greater than the risks of ordinary life. It was submitted that the owners of valuable property having a value of at least $100,000 were being unjustly deprived of the use of their property and that it was not the intention of the Legislature to create such a deprivation under the Conservation Authorities Act.

Mr. Brodmann on behalf of the respondent submitted in respect of the hardship argument that the timing of the putting into use of lands over the last twenty years was in the hands of the appellant and his delays in proceeding in the seventies did not justify an exception to the laws that came into effect in 1980. He interpreted the phrase "control of flooding" to include the matters of the retention of flood plain storage in the flood plain of the regional flood and that the loss of such storage demonstrates a loss to the "control of flooding" particularly if consideration were given to the cases that would follow if this appeal were allowed.

He submitted that Mr. Belore's evidence should be regarded in the light of its conclusion that the westerly channel would pass the flows and there would be no additional flooding on the site or upstream and the failure to consider the downstream effects. He pointed out that there was no application or possibility of application of the incremental staged storage doctrine. He submitted that there was evidence to support each of the three reasons given. He pointed out that, although the proposed building could be floodproofed at the expense of storage capacity, the building would be surrounded on three sides with floodwaters of several feet which would create a risk not only to the residents of the proposed building but also to public authorities providing medical, fire and other services.

Mr. Brodmann emphasized that the policy of the respondent was uniform in respect of similar situations and no evidence existed of permission being given in similar cases and that there was evidence of the converse, namely the refusal in similar circumstances, i.e. the Reid and Barry cases within one-eighth of a mile of the subject property.

With reference to Dr. William's evidence, it was submitted that the assumptions were subjective. He submitted that risk exists in more than one week out of one hundred years and that there is a risk of personal injury or life in storms of lesser frequency than a regional storm and reference was made to the evidence of the flooding in 1976 as evidence of risk of flooding in cases of less than that frequency. It was also submitted that the restriction to children under 15 was unrealistic as there is a risk of drowning or injury to persons of all ages. It was also submitted that analogies should not be made to swimming pools as the risks are usually more reduced than is possible with natural bodies of water that are in flood.

In reply it was pointed out that in the Reid case the depth of the regional flood was seven feet and that with the existing fill the areas immediately surrounding the proposed building would only be one foot in depth on the north side and only three or four feet on the south side by reason of the previous filling. Counsel also submitted that the river side always provides a deeper area of risk. Counsel also attacked the incremental staged storage doctrine on the ground that its application to this case would result in a ponding of 950 cubic yards which would be a hazard in the event of a regional flood.

With reference to Mr. Wilson's argument related to the words "control of flooding" this incumbent in the case of Van Galder v. The Rideau Valley Conservation Authority said,

Perhaps the best way of illustrating to applicants that the law requires consideration to be given to matters which individually would appear to be insignificant would be to point out the fact that the subject matter of the consideration by the conservation authority in determining whether permission should be granted is the matter of the control of flooding. The standard is not whether the particular application would affect or have a serious effect on flooding. The test is the effect on the control of flooding. Where the hazard, though not in itself significant, is representative of the hazard to other property in the flood plain it is essential in establishing approaches to consider the precedential implications even though there may not be a significant change in the risk by particular proposals. The obligation of the conservation authority is to establish a program to control flooding and the significant consideration is the effect on the control program rather than an attempt to measure the percentage of the storage capacity involved in the particular case. In order that all landowners can be treated equally it is essential in granting exceptions that there be an assessment of the effect on the control program and in such an assessment the issue of precedent becomes vital. Unless it can be shown to this tribunal that a valid exception can be made to the program it is essential that no principle be established that would detract from the overall approach of the program.

This statement was repeated in the decision in the case of Hector Reid and Florence Reid v. The Rideau Valley Conservation Authority and it was added by way of further illustration in that case,

In addition it may be said that the argument of the appellants contains two presumptions. Firstly, if one were to accept the argument it would have to be presumed that the standard of protection provided by the regulation is too high. The evidence indicates that the standard under the regulation is the one in 100 year storm. This standard is the lowest of the three standards adopted in Ontario and keeping in mind that the appellants produced no scientific evidence to establish that the standard was too high, the presumption cannot be made. Secondly, and based on an acceptance of the first presumption, it presumes that the lower standard can be identified, recognized and put into application when its level occurs. Apart from the fact that the first presumption cannot be accepted, this tribunal is not aware of and no evidence was produced by the appellants of the level of the lower standard or methods of its recognition.

Counsel for the appellant argued that the evidence of Mr. Belore stated that there was no serious problem with the application and that Mr. Reid had agreed that with a three per cent restriction of the flood plain, there would be no evident change in elevations. However, it was clear from Mr. Belore's evidence that there is in Ontario no accepted principle of flood plain management of creating a fringe area in the floodway of the one in one hundred year flood and accordingly the remarks in the Reid case are applicable.

With reference to the argument of counsel for the appellant regarding the incremental staged storage doctrine, this argument does not reflect the purpose or the application of the principle. The principle is basically that utilized storage is replaced and in the application it is required that the replaced storage be located at the same elevation as the utilized storage. In the flood situation the overall elevation is not effected and there is no additional ponding in the floodway. The purpose of the principle is to maintain the elevation at the regional level and thereby justify an exception to the prohibition contained in the regulation.

Dealing with the argument of uniqueness of the subject lands by reason of the pre-regulation placing of fill, notwithstanding such placement the lands as filled are, with an insignificant exception, subject to flooding varying upwards to 2 metres on Part 11, 1.41 metres on Part 9 and 1.9 metres on Part 7. This represents flooding of up to six feet in a regional flood on the lowest areas of the parts. While the proposed location of the proposed residence is unclear, it is apparent that considerable fill, the amount of which was not in evidence, would have to be placed to raise the building site above the elevation of the regional flood. The tribunal is not satisfied that such a situation is unique when compared with other sites along the Rideau River in their natural conditions. In addition the issue of a building permit is not assurance that flood risks were identified and considered in the issue of the permit.

The tribunal is not impressed with the approach of Dr. Williams. Assuming his figures and also assuming that a person can move from a place of safety to a place of danger in as short a period as one second, his figures, if one were to divide his risk factor by the number of seconds in a one hundred year period, would result in three deaths in thirty years. The prevention of such deaths is clearly the purpose of the Conservation Authorities Act and the tribunal does not find this evidence to be of assistance.

The tribunal is not unmindful of the expenditure over the years of the appellant and the value of the property if permission were forthcoming. This argument may be very relevant where a zoning change is in issue but the purpose of the Conservation Authorities Act is to regulate lands that have incapacities in respect of use by reason of their location in flood plains rather than a political decision dealing with lands capable of a variety of uses. In this regard it was said in the Reid case,

Counsel for the appellants emphasized the original investment and the continued payment of taxes by the appellants over an eighteen year period. In the opinion of this tribunal there are two principles that illustrate the inappropriateness of making a decision on this approach. Firstly, the control exercised by a conservation authority is not similar to a zoning by-law. It is not a rule that limits the natural or existing intrinsic values or utility of the land in question for a betterment of all of the landowners of the community or area considered collectively. This law represents an inherent weakness, exposure or lack of utility of land in question and is designed to prevent uses of lands for which the land itself is inappropriate. Upon the passing of the regulation the intrinsic worth of the land is not in reality decreased but rather its existing weaknesses which may not be apparent to a purchaser who does not fully investigate the capabilities of the land are made a matter of law.

Secondly, one cannot compare the investments with the implications of a regional flood when it occurs. The losses of property in a regional storm probably offset the investment of the affected areas and it is pointless to increase such investment with an additional input of capital. Also it is impossible to relate the lost investment to the potential loss of life that occurs in regional storms, keeping in mind that such loss may be the loss of the owner or family of the occupant of the subject lands.

The appellant has not established that in the refusal of permission by the respondent he has been deprived of such permission in circumstances in which other applicants have been granted permission. While such in itself might not warrant the issue of permission on the evidence the respondent has applied its policies uniformly and the tribunal is satisfied that there are no grounds on which the decision of the respondent should be reversed.

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

Signed this 27th day of July, 1988.

Original signed by G.H. Ferguson,
Mining and Lands Commissioner.