Valley Homes Limited v. Rideau Valley Conservation Authority

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Valley Homes Limited.

The mining and lands commissioner in the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to permit the placing of fill and residential structures on Lot 12 on the east side of McBean Street, lots 11 and 12 on the west side of Murray Street, lots 11 and 12 on the east side of Murray Street and lots 11 and 12 on the west side of Cockburn Street in the former Village of Richmond in the County of Carleton, now in the Township of Gou1bourn in the Regional Municipality of Ottawa-Carleton.

Between:

Valley Homes Limited
Appellant

and

The Rideau Valley Conservation Authority
Respondent

K. Radnoff for the appellant.
P. A. Webber for the respondent.

The appellant applied to the respondent for permission under clauses a and b of section 3 of Ontario Regulation 875/76 to construct residential buildings and to place fill on land in the Township of Goulbourn. Upon refusal of permission the appellant appealed to the Minister of Natural Resources under subsection 2c of section 27 of The Conservation Authorities Act, as amended by The Conservation Authorities Amendment Act, 1973, and by Ontario Regulation 442/77 the power and duty of hearing and determining the appeal was assigned to the Mining and Lands Commissioner.

The subject lands are situate in one of the older communities of Ontario known as the Village of Richmond. The Jock River, a tributary of the Rideau River, flows in an easterly direction through this community. The subject lands are composed of two vacant parcels of land. The southerly boundary of the southerly parcel is one of the major streets of the village, McBean Street, and is approximately 200 feet in length. The parcel is bounded on the east by York Street and has a frontage of approximately 415 feet. On the north the parcel is bounded by the unopened portion of Murray Street and has a frontage of approximately 400 feet on this unopened portion. The parcel is bounded on the west by the Jock River.

The second parcel of land lies on the northerly side of the unopened portion of Murray Street having approximately 430 feet of frontage thereon. There is approximately 420 feet of frontage on York Street. The north boundary of this parcel abuts Cockburn Street and measures approximately 350 feet. The west limit of this parcel is the Jock River.

Generally speaking the proposal of the appellant was to lay out a subdivision of nine building lots on what might be described as the easterly half of the parcels and convey the westerly half to the local municipality. The appellant being aware of the regulation of the respondent engaged the consulting engineering company of Oliver, Mangione, McCalla and Associates Limited to develop and prepare plans of a subdivision that would warrant the granting of permission under the regulation.

Following the gathering of data, in 1972 the regional storm elevation was determined by J. L. Richards and Associates Limited at an elevation of 309.5 feet. There was no objection taken to this elevation. This contour line includes the greater part of the community. On the westerly side of the river the 309.5 contour is approximately one half a mile from the river encompassing as many as five built up streets. On the easterly side of the river in the vicinity of the subject lands the contour is approximately 1,000 feet from the river. In addition to the subject lands there is a complete block of houses and part of a second block of houses included in the floodplain.

Graham Bird, a graduate of Queen's University in science and engineering and a member of the appellant's consulting engineers, gave evidence and pointed out that the greater part of the community was situate within the regional flood lines. He indicated that at the outset of the review of the proposal he consulted H. Q. Golder & Associates Ltd. who are experts in geotechnology with a view toward determining whether there are any soil problems regarding the proposal. This investigation revealed that although there is a certain amount of silt below fill that has been placed on the subject lands this silt could be removed and replaced with granular fill before the foundations and the slab floor of the proposed houses are poured.

Turning to the question of flooding this witness acknowledged that there was flooding during the spring. He prepared a plan showing the proposed location of lot lines and houses. On this plan he inserted the existing elevations which included fill that had been placed prior to the making of the regulation but following the establishment of the regional floodline. The existing elevations on the subject lands vary from 296 feet at the intersection of McBean Street and the Jock River to 305 feet at York Street. The corner of the property at the intersection of McBean Street and the river is somewhat lower than the remainder of the property which has an elevation varying from approximately 300 feet at the river to 305 feet at York Street. The witness acknowledged that there was normal spring flooding to the elevation of 304 or 305 feet for a period of two or three days a year and that the entire lands including York Street were flooded in the usual spring floods. To meet the problem resulting from the annual spring flooding and the risk of flooding from a regional storm the consultants proposed to regrade the subject lands and remove soil from the westerly part along the river and place it on the easterly part of the subject lands so that there would be a general elevation of 307 feet in the area on which the houses would be located. It was proposed that the houses would be constructed with the first floor having an elevation of 312 feet and with fill being graded around the foundations to an elevation of 310 feet. Their calculations showed that there was an adequate amount of fill on the subject lands to permit such filling without importation of fill.

The elevation of York Street is approximately 305 feet. It rises slightly to McBean Street where the elevation is 307.9 feet. The approach with respect to the regional flood waters was that the waters could pass between the houses at the 307 foot elevation and that to permit the flood waters to reach into the storage areas to the east of York Street, York Street should be reconstructed by the municipality with adequate culverts to permit the flood waters to flow to the lands to the east.

With reference to the usual spring floods the witness suggested that a clay lens be placed around the basements of the homes to prevent flooding coupled with a sumppump system that would drain into the septic tank system and a water proofing as contrasted with a damp proofing system be used on the foundation. The latter involved an asphalt cement application to the outer edges of the foundation rather than the usual type of construction.

It was this witness's conclusion that these proposals would create houses the living portions of which would be above the regional flood elevation and which would remain reasonably dry in the event of such a flood. In his opinion they were creating a far better home than existed in the balance of the community but he did admit that until such time as York Street is rebuilt by the municipality there was a typical flood condition of one half foot on York Street in most springs. It was his view that the occupants of the houses could remain therein during regional storms.

The witness was also of the opinion that his proposal did not create any risks to flooding, conservation of land or pollution. He felt that bank erosion could be prevented by the sodding of gentle slopes which will result from the regrading and in the event there are steeper slopes these can be protected with riprap. He feels that there was no problem respecting pollution and that apart from the short periods of time in which the area is flooded the septic tanks would operate.

Counsel for the appellant inquired whether there would be any precedential implications of granting approval in this case. It was the witness's opinion that this site was the only area remaining in the village that could be developed. He pointed out that the Ministry of the Environment has fixed the maximum residential population of 3,500 with reference to the existing sewage and septic systems. He indicated that the present population is in the vicinity of 3,200 to 3,400 and that with the additional homes the limit would be approached and any further development curtailed. The witness expressed the view that the action they were taking was in the nature of an infilling and that there would not be any further development.

Counsel for the appellant asked this witness to comment on each of the reasons given by the respondent in refusing the permission. These reasons were contained in a letter dated December 21, 1976 from the Chairman of the respondent to Mr. Allan Gale and read as follows:

  1. Your proposed development is located within the flood plain of the Jock River in an area where the river velocities are the highest and water levels are the deepest during flood conditions.
  2. The houses built on the filled land would not be accessible during times of flood. The only access, via York Street, is six feet below the regional flood line and is known to be inundated on a regular basis. Each building lot would become an island with no access.
  3. Even though the houses are placed on fill above the regional flood level, it is expected that they would have severe basement water problems each spring.
  4. The plans provided showing cut and fill quantities do not take into account the fact that a large portion of the area has already been filled. The proposal would therefore, not have any major effect in maintaining the natural storage capacity of the river cross-section.
  5. The proposed construction would aggravate flooding by removing storage as well as reducing the river cross-section thereby adversely affecting the existing development along the river.
  6. The establishment of these structures may force the Township of Goulbourn to raise the level of York Street by six to eight feet to provide access. This eventuality would effectively create a berm taking an even larger area of the Jock River Flood Plain out of storage

With reference to the first reason the witness indicated that he could not understand how his proposal would effect the river during flood conditions and he could see no relevance in the reason. With reference to the second reason the witness indicated that the reason was inaccurate as York Street would only be four feet below the regional floodline but that the reason was true but was also applicable to most of the community. With reference to the third reason the witness felt that the precautions mentioned above would prevent annual basement water problems. With reference to the fourth reason the witness indicated that he had made his proposal on the basis of the status of the property in October 1976, the date on which the regulation first came into effect and the fact that the fill had been placed prior to that date should not be relevant in considering the matter. With reference to the fifth reason which raises in effect the stage storage doctrine the witness indicated that he felt his proposal made no difference and that his proposal would not effect storage capacity. With reference to the sixth reason the witness indicated that in his opinion the rebuilding of York Street was not only desirable but necessary and the present elevations of York Street are a mistake. In his opinion York Street could be reconstructed with culverts that would prevent the new street from obstructing the use of part of the existing storage capacity.

In cross-examination of the witness it appeared that his opinion was that the sole problem of building in areas that are subject to a one hundred year storm is the lack of precautions that were made in the construction of the residences and that further building should be permitted with precautions. With reference to his evidence respecting the subject lands being the last land within the floodplain that are capable of being developed, counsel for the respondent referred to a subdivision that was being prepared by his firm in the outer regions of the floodplain.

When cross-examined on the stage storage doctrine the witness indicated that he did not follow this principle in preparing his proposal as he disagrees with the principle. In his opinion it is immaterial whether the replaced storage is created at the same elevation as that at which the storage is removed, or in other words, the elevation at which fill is placed. He did admit, however, that with his proposal there would be considerable depths of water at various places. He admitted that the houses would be completely surrounded with water, that there would be eight feet of water on parts of Murray Street, that the vehicular access would be cut off and that ambulance, doctors, fire and police services would not be available. He had not estimated the cost of rebuilding York Street but assumed that it would be a matter that would be borne primarily by the province and the municipality. It was also pointed out to the witness that not only York Street would have to be reconstructed but that if York Street were raised the intersections with McBean Street on the south and Cockburn Street on the north would have to be rebuilt. Further he did admit that when one examines the cross-section of the river the proposed changes would effect the flow of the river.

The appellant also called William H. Kerr, a graduate engineer with the Oliver company who had done some work while employed by J. L. Richards & Associates Limited in establishing the floodplain mapping for the area. He agreed with the conclusions reached by Bird and felt that from his experience the application of the stage storage doctrine was not universal and that there would be no problem with the proposal recommended by his associates.

John Harrison who has lived on the opposite side of the river for a period of twenty years was called as a witness on behalf of the respondent. He had kept records of spring flooding based on a two by four post erected on his property which was somewhat downstream from the subject lands. A graph of his records, as confirmed subsequently by survey evidence, shows that since 1971 the spring flooding of the witness's property had varied between elevations 302.75 and 306.3 feet. The latter figure appeared to have been reached when ice jammed at a weir in 1977 but there were elevations of 306 feet in 1976 and 305.7 feet in 1973. The witness Bird had previously admitted flooding to elevations of 304 or 305 feet in spring flooding and considering both witnesses it can only be concluded that there has been substantial flooding of the subject property in most springs.

The respondent also called Thomas Kent, the Resources Development Co-ordinator of the respondent, who gave evidence to illustrate a similar degree of flooding in the spring.

The appellant also called S. Van Ingen Schenau, a consulting engineer with J. L. Richards & Associates Limited who has had over twenty years of experience in connection with water treatment, pollution control, storm and drainage management and floodplain mapping. The witness explained the method of determining the regional storm for the area. The elevation of the regional floodline was calculated at 309.5 feet.

This witness gave his estimate on the effect of the fill that had been placed on the subject lands between 1971 and October, 1976. He concluded that 10,000 cubic yards of fill had been placed on the land and gave the opinion that such an amount of fill reduces the storage capacity and creates an obstruction to the flow of the river. The witness estimated the loss of storage for a 1,000 foot length of this river at three per cent of the available storage at an elevation of 302 feet and close to four per cent at an elevation of 306 feet.

Disregarding the prior filling the witness was of the conclusion that the proposal of the respondent did not conform with the stage storage doctrine and that the effect of the proposal was to cause a reduced storage capacity above elevation 306. The witness indicated that the preferred principle is that the replacement storage should be at the same elevation as the storage that is removed from the floodplain. The witness explained the reason for this position by saying that when the peak of a flood arises there is less volume available to accommodate the peak flows of the flood. The storage that would normally be available to pass the peak of the flood is not available. With reference to the raising of York Street the witness pointed out that at least 8,000 cubic yards of imported fill would be necessary to raise the street to 309.5 feet. This in itself constituted a loss of storage capacity. In addition this witness confirmed the transposition of the elevations taken by the witness Harrison and pointed out that the flooding of the year 1976 which was shown to produce an elevation of 306 feet was much less severe than a regional storm.

On cross-examination the witness admitted that in a regional storm a significant portion of the community would be covered with two or three feet of water and that if specially designed the proposed houses could be safer than the existing houses. He was asked if he took any issue with the engineering report that was filed by the engineer for the appellant and indicated that he did not. He refused to comment on the safety aspect of the construction. The witness stated that he respected the judgment of the witness Kerr with whom he had been associated for some years and thereupon the evidence went as follows:

Mr. Radnoff : If he says in his opinion he has reviewed the proposal and it is reasonably safe and it is a proper proposal, you do not really take issue with it, do you.

A.  I think one has to define what you understand as proper. I think the proposal as submitted is - in my opinion does not contain any contradictions or faulty statements or anything like that.

Q.  It's accurate? What is in the proposal is accurate?

A.  Yes.

Q.  All right sir, with that admission I have no further questions.

Counsel for the appellant argued that under the regulation the respondent had a discretion to issue permission where it was established that the control of flooding or pollution or conservation of land was not affected and that he had brought two competent engineering witnesses to establish that the proposal of the appellant had no effect on such control. He submitted that the past filling was not relevant. He relied heavily on the evidence of the witness Schenau which was quoted above and read the conclusion of the report

Based on the above observations, the input from our Geotechnical Consultants, the superimposition of the flood plain mapping and the technical data presented with respect to the preservation of the Jock River reservoir, we conclude that the advancement of nine additional housing units in the Village of Richmond will in no way impede the function of the Jock River to drain its tributary area. Secondly, we conclude that the units can be constructed to provide a safe environment for the inhabitants now and in the future. Furthermore, the addition of nine more units to York Street should aid and abet the cause of funding for the providion (sic) of York Street's reconstruction to a more suitable elevation than the existing 305. As such, we fully recommend that the nine units be permitted to advance.

 

Counsel suggested that this case was unlike other appeals that had been dismissed by this tribunal where there had been ten feet of potential flooding and where the first floor of the buildings would be under water. He pointed out that here the buildings would be engineered to withstand the ravages of the flood and that the main floor would be above the regional flood level. Further the proposed houses would be safer and dryer than the existing homes in the community of Richmond. He submitted that the evidence showed that there would be no problem with spring flooding and that at most there would be six inches or a foot of water on York Street which street the residents would have to use for access to and from the houses. He pointed out that many areas are shut off for two or three days during winter storms and that floods should not be treated in any other manner. He submitted that the standards should be one of reasonableness and not a requirement of absolute safety. He suggested that children should be subject to parental control and that every parent takes the risk of children drowning if they provide homes for them in the vicinity of rivers. He admitted it was not a perfect situation but the proposal would keep the occupants "high and dry" during regional storms.

With reference to the elevation of York Street and the fact that it is too low to provide an adequate access, counsel for the appellant suggested that this may have been "a proper concern of the respondent and that the municipality over many years may have been lax in its duty in providing a proper access for the then existing residents who had homes on the street. He pointed out that the municipality was levying local improvement rates on his client in respect of a storm sewer and that there is a certain amount of unfairness in having to pay local improvement rates when one cannot utilize the service.

Counsel admitted that there was a flooding problem every spring and did not disagree significantly with the evidence of the witness Harrison whose evidence indicated that spring levels range between 304 to 306 feet. He admitted that this is the basic problem of the whole village and that all of the roads in the village are covered with water in the spring. He pointed out that his client's proposal would at least provide residences where the owners could have the advantage of a home that had been engineered with a view toward preventing the effects of a regional flood.

Counsel for the respondent argued that the three subjects set out in section 4, namely the control of flooding, pollution and conservation of land, are not exhaustive of the subjects that may be considered by the Minister on an appeal or by any body to which the duties of holding the appeal are assigned or delegated. He argued that safety was a matter of public interest and was equally within the proper considerations by any appellate tribunal.

In his submissions the construction of the major part of the village in the floodplain in the past may now appear to be and probably was a mistake but such mistake is not a grounds for perpetuating the error. He pointed out that there is no public need of a further subdivision in this location and no real justification for permitting development in a floodplain. He pointed out that there were no grounds to distinguish between spring floods and regional floods in that every spring flood is the potential beginning of a regional storm or a regional flood. He also suggested that a spring flood in this area which completely floods the whole area could be categorized as a regional flood if a test of one in one year or one in five years or one in twenty-five years were applied to establish a regional storm. As I understand this point counsel said that as a result of existing flooding people are now trapped without emergency access and this situation should not be accentuated.

Counsel for the respondent emphasized the evidence of the witness Van Ingen Schenau who pointed out that the proposed site was in the heart of the floodway in the event of a regional storm and has the consequences of such a location. With reference to storage counsel argued two points. Firstly, he suggested that the 10,000 cubic yards that had been placed before the making of the regulation while not illegal was significant in that it removed part of the existing storage and had the effect of creating a higher floodline. It case doubt on the validity of the elevation of 309.5 feet that has been accepted as a safety factor.

With reference to the application of the cut and fill principle counsel pointed out the distinction between the basic principle and the modification known as the stage storage doctrine and referred to the evidence of the witness Van Ingen Schenau in support of the application of the modification.

With reference to the evidence of six inches of water under average spring conditions he suggested that this in itself was not as inconsequential as has been argued by counsel for the applicant and in effect if the elevation was higher, such as one foot or perhaps two feet as suggested by the evidence of the witness Harrison, there would be serious consequences of average spring flooding. He pointed out that it is far more serious in the event of a regional flood.

Counsel also referred to the relative flatness of the area and the fact that any change has a significant effect over a greater area as contrasted with a floodplain that has fairly steep banks. Counsel referred to the evidence of the witness Van Ingen Schenau respecting changes in the flow on the hydraulic characteristics.

In reply counsel for the respondent indicated that the evidence showed that any safety matters were not related to public safety but may have related solely to the individual properties and that steps had been taken to ensure precautions in respect of the individual properties. He also submitted that references to lesser floods than a flood as defined in the regulation are not relevant and with reference to matters of lack of developmental pressure counsel submitted that such considerations were not relevant as they are not one of the considerations contained in the regulation. He concluded by suggesting that the issue was reasonable safety and that his client had gone as far as was reasonably possible to ensure the safety of the occupants of the homes that his client proposed to build.

At the outset one might make some general comments on the arguments. While I have not outlined the details of this point, counsel for the appellant attempted to create the impression that the conduct of the respondent and its officials was arbitrary and the decision was made without consideration of the issue. The only comment I wish to make on the matter is that, having held a number of similar appeals, I note that the reasons given by the respondent in refusing the permission are far more explanatory and exhaustive, although they may not be fully explanatory of the scientific theories behind some of the points made, than many of the reasons given in other cases that have been appealed in the past. With reference to the merits of the argument I consider the point not relevant and appreciate that it is my responsibility to regard the case on the merits or otherwise of the proposal within the perameters of the legislation and regulation.

Secondly, I might comment on the question of whether public safety is a relevant consideration in the assessment of a proposal. It is beyond doubt that the area of jurisdiction is that mentioned by counsel for the appellant namely flooding, pollution, and conservation of land. However, one should not overlook the fact that the complete phrase is "control of flooding, or pollution or the conservation of the land". It is noted in passing that section 4 is somewhat different to the usual regulation of conservation authorities in that the definite article has been inserted in the phrase before the word "land". This raises the interesting legal interpretation which was not argued of whether the addition of the definite article restricts the application of the three principles or only the later of the three principles to some specific land which is the usual intent from the use of the definite article. However, on reading the section as a whole there is no previous reference in this section to the word "land" and the use of the definite article creates some problems of interpretation in determining what land would be the land referred to. It may be that the proper interpretation would be to restrict the application of the limiting factors resulting from the use of the definite article to matters of conservation. It may be noted that the phrase is "control of flooding" and not merely "flooding" so that the area of concern is much broader than the flooding of the subject lands of the application.

Returning to the question of whether public safety is a separate issue that can be considered by an appellate tribunal, the phrase "control of flooding" has come to have the meaning of including at least three general areas. The first consideration is the effect of the proposal in respect of the subject lands themselves. Secondly, consideration is given to whether the proposal will increase flooding either by way of reduction of the storage capacity or by way of the creation of constrictions which will tend to hold back flood waters causing floods to rise above the projected regional floodline. Thirdly and closely associated with the second principle is the cumulative effect of subsequent applications assuming the requested permission were granted. There is nothing in the foregoing specifically relating to safety either public or private. I suppose one might define categories of private and public safety. At the outset it is very difficult to determine whether there is a public safety separate and apart from the cumulation of all private safety. In my view the issue of safety whether it be public or private by way of definition is the whole reason d'etre of the conservation authority program. Flooding per se may or may not be harmful depending on ones geomorphological outlook but the real significant problem and purpose of the conservation authority program is the protection of persons and property. In other words safety whether it be public or private is the significant consideration.

Thirdly, in these matters the evidence of the hydraulical and hydrological experts is most crucial. It is not possible and hence dangerous for a layman, as contrasted with this type of expert, to extrapolate principles or conclusions. The significant reason for this is that the principles involving water have compound formulae and one cannot extrapolate on any straight line basis. The lines are curves and the science has developed to the stage where a computer program has become essential to the establishment of conclusions.

In considering the expertise and experience of the various expert witnesses that were called in this matter it is apparent that the expert witness Van Ingen Schenau had longer and broader experience in the field of hydraulics and hydrology than the witnesses called for the appellant. I have set out in detail the crucial part of the evidence of this witness insofar as it relates to a critisism of the work of the appellant's engineers. It was apparent to this tribunal that while this witness had a greater relevant expertise the witness was not a professional expert witness who undoubtedly would have said something to the effect when asked regarding his opinion of the work of the witness Kerr that his respect was related to his experience and in view of a broader experience by himself he was satisfied that his opinion was the proper one. Counsel for the appellant relied heavily on the evidence which I have quoted above. In my opinion it is clear that the witness Van Ingen Schenau was merely saying that from a technical engineering aspect the report was sound insofar as it went. In context it was clear that the witness was of the opinion that it could not be said to be proper if full consideration of all the relevant issues had been made. Counsel referred to the recommendations and conclusions of the report in his argument. He did not draw them to the attention of the witness in the course of his questioning. Counsel obviously took the calculated risk in determining whether this tribunal would conclude that the witness's opinion related to the technical accuracy of the report per se or the appropriateness of the application of general principles to the problem. In my opinion the witness understood the question solely in respect of the former matter.

Apart from the foregoing it is apparent that the conclusion in the report of the engineers for the appellant was qualified. I have quoted the conclusion above and it is noted that the opening words are "Based on the above observations". The conclusion in itself is limited in that it is based on the application of the basic cut and fill principle and did not include nor would it have included by virtue of the opinions expressed by both members of the company that prepared the report any consideration of the stage storage doctrine. Perhaps if one were to be completely technical one would say that the endorsement by the witness Van Ingen Schenau was an endorsement of the recommendation subject to this qualification.

Accordingly, I can only conclude that the generally accepted stage storage doctrine is applicable and should be applied in this particular case. It was endorsed by the expert witness with a broader expertise. The expert witnesses for the appellant denied the application of the doctrine but yet they failed to produce any basis before me to show that the doctrine was wrong or that it was inapplicable in the particular case.

Turning to the facts of the case it is apparent that the sole issue in this case is the control of flooding. There was no evidence to suggest that the concern was pollution or the conservation of land.

In regard to the first area of consideration, namely the effect of a regional flood on the subject lands as they would be developed by the proposal, counsel for the appellant submitted that the standard was not absolute protection but that the standard was reasonable protection and that the proposal by his client, with the advice of its consulting engineers, involved doing everything that reasonably could be done in the circumstances to make the houses flood resistant in the event of a regional flood. In my opinion the issue is not whether the proposed steps were reasonable but what is the effect of the proposal. In this case the evidence discloses that there would be a number of undesirable levels of flood in close proximity to the proposed houses. Firstly, the elevation of York Street being 305 feet there would be at least four and a half feet of water in front of the houses. Secondly, the elevations between the houses are proposed to rise to 307 feet leaving two and a half feet on either side of a house. On the easterly side of the house there would be flooding from the peripheral grading to the river and across the river. This flooding would range from zero feet at the edge of the peripheral grading to ten feet at the edge of the river and of course would be deeper in the bed of the river itself. Further these houses being situate in the heart of the floodplain in such an event they would be subject to currents flowing downstream at a considerable velocity. There was no evidence of the amount of this velocity but I am satisfied that this would be the effect. The occupants of the houses would be isolated for the duration of the peak of the flood. There was no evidence to indicate that the electrical services would not create problems. The witness Bird indicated that the septic tank systems would cease operating. It was further pointed out that the peak times come frequently during the night when the occupants of the houses could not observe the hazards that had developed. I find it impossible to conclude that such type of hazards were contemplated as being acceptable by the legislation and the regulation.

Turning to the second point, namely the effect of the proposal on flooding and referring specifically to the first aspect, namely loss of storage capacity, it is beyond doubt that on a volume basis an application of the cut and fill principle does not reduce the storage volume. However, this principle as enlarged by the stage storage doctrine which as I have indicated above, I accept as being the preferred engineering principle illustrates that there are additional risks of flooding unless the replacement storage is provided at the same elevation as the reduction of storage occurs. The reason for the revised principle is that the increased storage capacity is utilized in the early stages of a regional storm and that when the regional storm peaks the storage that was originally available is no longer available and accordingly the elevation of the regional storm exceeds the projected elevation. Where the areas are level or practically level the amount of flooding increases. The witness Kerr indicated that in his experience with one or two conservation authorities this principle has not been applied. However, it has been my experience that the principle has received wide adoption throughout the province and in the absence of some evidence to show that the principle is either wrong or not applicable in a particular case I have no alternative but to give effect to the stage storage doctrine.

Secondly, with respect to the matter of flooding there is the aspect of constriction of the floodplain. The evidence in this case was very limited in this regard. The witness Bird acknowledged that the construction of the houses would cause a restriction of the flow of the river during a flood of regional storm dimension. Similarly the witness Van Ingen Schenau very briefly referred to this aspect of the case. As I understand the problem any interferences with the flow hold back the water and cause flooding upstream. In addition the construction of houses or other structures create impediments to the passage of debris which can pile up creating further impediments to the flow and result in flooding above the projected elevation of the regional flood. In this case the houses will for all practical purposes be at the centre of the flow of the regional flood. The floodplain is fairly wide and admittedly the greater breadth of the floodplain is on the opposite side of the river at this particular location. While I had no evidence to assist in determining where the greater flows would occur in a regional flood I appreciate that there is a potential of increased flooding in this aspect of the proposal.

Turning to the third aspect, namely, the precedential aspect or the cumulative effect of other applications that may be made in the future, this principle is derived from the words "control of" in the test. As indicated above this broader wording makes matters of control factors and precedent to be relevant considerations. It was said for the appellant that this proposal was the last potential proposal in the village of Richmond. However, there was an indication that there may have been another subdivision within the floodplain under review. One must not overlook the possibility of redevelopment as contrasted with development particularly where the community is of the vintage that Richmond was evidenced to have. In my opinion the real significance of this aspect of the consideration of a proposal is that although some of the other concerns may appear to be minimal in a given case it is scientifically acknowledged by the relevant experts that there is a cumulative effect of exceptions to the prohibition against building or placing fill in floodplains.

Accordingly, having viewed the proposed application from these three aspects, I cannot conclude that the decision of the respondent was incorrect and while in respect of some aspects it may appear that the significance is minimal, taken as a whole, the proposal cannot be approved.

The witness Bird referred to the concept of infilling. This doctrine is applied by some conservation authorities but its application is limited by two principles and usually is conditioned by the requirement of stringent precautions. The first principle is that the doctrine is applicable in the area between the regional floodline and what is referred to as the "maximum observed line" and is, as the name suggests, a line to which actual floods have been known to reach in the past. In this case the subject lands are clearly below such a line and not above it as the principle requires. The second principle is that it is applied to small pockets of land or individual lots that have been or have become vacant and does not apply to entire subdivisions.

It is ordered that the appeal in this matter be and is hereby dismissed.

It is further ordered that no costs shall be payable by either of the parties to this matter.

Dated this 28th day of November, 1977.

Original signed by G.H. Ferguson
Mining and lands commissioner.