File No. CA 002-11

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Tuesday, the 2nd day of December, 2014.

THE CONSERVATION AUTHORITIES ACT

IN THE MATTER OF
An appeal to the Minister of Natural Resources under subsection 28(15) of the Conservation Authorities Act against the refusal to grant development within a Regulated Area of the Humber River watershed to facilitate construction of a deck on the valley wall at the property municipally known as 100 Old Mill Road, City of Toronto (Etobicoke York Community Council Area), Province of Ontario;

AND IN THE MATTER OF
Ontario Regulation 166/06.

B E T W E E N:

LOUIS LOURO AND MARIA LOURO
Appellants

- and -

TORONTO AND REGION CONSERVATION AUTHORITY
Respondent

O R D E R

WHEREAS this appeal to the Minister of Natural Resources was received by the tribunal on the 26th day of April, 2011, having been assigned to the Mining and Lands Commissioner (“the tribunal”) by virtue of Ontario Regulation 795/90;

AND WHEREAS a hearing was held in this matter on the 6th and 7th days of May, 2013, in the courtroom of the tribunal in the City of Toronto, Province of Ontario.

UPON visiting the site, hearing from the parties and reading the documentation filed and submitted at the hearing:

1.      IT IS ORDERED that this appeal be and is hereby dismissed.

2.      IT IS FURTHER ORDERED that no costs shall be payable by either party to this appeal.

DATED this 2nd day of December, 2014.

Original signed by H.D. Sutter

H. Dianne Sutter
DEPUTY MINING AND LANDS COMMISSIONER

 

 

File No. CA 002-11

H. Dianne Sutter
Deputy Mining and Lands Commissioner

Tuesday, the 2nd day of December, 2014.

THE CONSERVATION AUTHORITIES ACT

IN THE MATTER OF
An appeal to the Minister of Natural Resources under subsection 28(15) of the Conservation Authorities Act against the refusal to grant development within a Regulated Area of the Humber River watershed to facilitate construction of a deck on the valley wall at the property municipally known as 100 Old Mill Road, City of Toronto (Etobicoke York Community Council Area), Province of Ontario;

AND IN THE MATTER OF
Ontario Regulation 166/06.

B E T W E E N:

LOUIS LOURO AND MARIA LOURO
Appellants

- and -

TORONTO AND REGION CONSERVATION AUTHORITY
Respondent

REASONS

Appearances:

Mr. Al Burton   –   Counsel, on behalf of the Appellants
Mr. Jonathan Wigley  –  Counsel, on behalf of the Respondent

Witnesses for the Appellants

Joao Brito  –  Landscaper and owner of Patro Gardening
Carlos Teixeira – Accountant
Louis Louro  – Appellant

Witnesses for the Respondent

Dena Lewis   –   Manager, Planning Ecology, TRCA
Steven Heuchert   –   Senior Manager, Planning and Regulation, TRCA

The matter was heard in the courtroom of the Mining and Lands Commissioner, 700 Bay Street, 24th Floor, in the City of Toronto, in the Province of Ontario on May 6 and 7, 2013.

Deputy Commissioner H. Dianne Sutter noted that she had visited the site on Saturday, March 23, 2013 and encountered none of the residents.

INTRODUCTION

This appeal came before the Mining and Lands Commissioner pursuant to subsection 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended, against the refusal by the Toronto and Region Conservation Authority (TRCA) to grant permission for development within a regulated area of the Humber River watershed to facilitate construction of a deck on the valley wall. The appeal also deals with Ontario Regulation 166/06.

Subsection 28(15) of the Conservation Authorities Act states that:

“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 (a) refuse the appeal or (b) grant the permission with or without conditions.”

It appears that the proper procedure was followed by Mr. and Mrs. Luoro with regard to filing this appeal.

The Mining and Lands Commissioner and the Deputy Mining and Lands Commissioners have been assigned the authoritative powers and duties to hear this appeal pursuant to subsection 6(1) and clause 6(6)(b) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M. 31, as amended, and Ontario Regulation 571/00.  In addition, the principles outlined in the Statutory Powers Procedure Act apply to the hearing.

By virtue of subsection 6(7) of the Ministry of Natural Resources Act, these proceedings are governed by Part VI of the Mining Act with necessary modifications.  Pursuant to subsection 113(a) of the Mining Act, these proceedings are considered to be a hearing de novo. The tribunal stressed this point at the commencement of the hearing and noted that the purpose of the proceedings was to hear all of the evidence in order to make a fair and independent judgment regarding the appeal.

BACKGROUND

Mr. Wigley provided a brief summary of the actions that led to this appeal.  In 2009, it came to the attention of the TRCA that a deck was being constructed at the rear of 100 Old Mill Road in the City of Toronto.  As a result of the issuance of a Violation Notice, dated October 7, 2009, by the TRCA, Mr. Louro submitted an application for a permit to allow that deck to remain. The reason for the violation notice had been that the deck was constructed “on and over the top bank in that location”. (Transcript  #1 – p. 10)

The application was refused by the Authority on the basis that:

  1. It affects the conservation of land because it is in the valley; and
  2. It affects the control of erosion – the deck being constructed entirely within an area designated as being beyond the erosion hazard limit.

As a result of this refusal, the Appellants subsequently appealed the decision through the Minister of Natural Resources to the Mining and Lands Commissioner.

Mr. Burton, on behalf of the Appellants, stated that the matter is a “factual dispute between the parties and it’s a very critical fact that drives the policy analysis, and that fact is whether or not there was a deck previously existing at 100 Old Mill Road”. (Trans #1 - p. 12) Reference will concentrate on Policy 4.2.2.2. D) of the TRCA’s Valley and Stream Corridor Management Program.

Mr. Burton further stated the Appellant’s view that this is not a “pristine valley” corridor and that the question that the tribunal needs to answer is “whether or not the replacement of an existing deck structure has any impact whatsoever on the whole system.” (Trans.#1 – p.17)

EVIDENCE OF THE APPELLANTS

Mr. Joao Brito was sworn as the first witness for the Appellant. He indicated that his occupation was that of a landscaper. He had been employed by Mr. Louro to remove an old and rotten, mostly untreated wooden deck structure in 2007-2008. He indicated that it was rectangular in shape with about three or four 6 x 6 pins on the slope as support. The structure was broken and rotten near the trees. He was not able to determine the previous size of this old structure as some of the wood had slid down the valley slope.

During cross-examination, Mr. Brito described the condition of the deck as:

Mr. Carlos Teixeira testified as Mr. Louro’s accountant. He was aware of the purchase of the property in 2007 and also became aware of the situation at the rear of the property after the purchase by Mr. Louro.  Mr. Teixeira’s recollection of the old deck was lacking in detail, recalling some steps, a big tree, a gate, a view of the neighbours “cantilevered deck”, some beams. His description of the size of the old deck relative to the new deck also lacked detail, indicating only that the deck appeared to go “back on his property” (meaning the tableland) more than the original deck.

Mr. Teixeira agreed with Mr. Wigley that it was “nice to be able to get out into the valley”. (Trans. #1 – p.32)

Mr. Louis Louro, the final witness for the Appellants, stated that he purchased the property in November of 2007.  His description of the rear portion of the property elicited the following comments:

Mr. Louro also outlined the actions taken when the property was acquired:

Mr. Louro continued with a description of the plans/actions taken with regard to the development of the new deck:

Mr. Louro indicated he contacted the City of Toronto Building Department regarding the deck and determined that a permit was not needed as the intent was to basically build a new deck of approximately the same size (approximately 100-160 square feet). As a result of that conversation, Mr. Louro understood that he did not need a permit from the City and was not aware that he required a permit from the TRCA due to the location of the deck.

It was the late summer of 2009, when the TRCA staff person visited the site and indicated that he probably needed a permit from the Authority. Mr. Louro indicated that by this time, “a good deal of the deck was already built”. (p. 51)  Subsequently, in the fall of 2009, a Notice of Violation was issued by the TRCA. Contact was made with a Ms. Moxley at the offices of the TRCA to determine what would be required to accompany a permit application. He was also told that an application to the City of Toronto Building Department would also be required. (p. 53)

Due to the time of year, the geotechnical firm hired to prepare the required report could not do the field work until late in the spring of 2010 - “the earliest possible time”: (p. 54) - so that the application to the TRCA was not submitted until that work was done and the report completed. The actual application is dated September 10, 2010. The submission included the following reports:

  1. Arborist Report – Steven Myall & Associates Inc., Aurora, Ontario  
    (Ex. 2a - tab 5)
  2. Slope Stability Assessment – Pazin Geotechnical Services Ltd; Toronto,
    Ontario  (Ex. 2a - tab 6)

Mr. Louro stated that he was never asked for any further reports between the submission date and the holding of the hearing by the Executive Board on February 4, 2011.

In response to a question regarding a possible decision requiring the removal of the deck, Mr. Louro restated that the removal would be very difficult and impossible if the patterned concrete work at the front of the house was to be maintained. He stated that “the structures are huge, they have a lot of weight”. (Trans. #1 – p. 65)

Mr. Louro discussed Exhibit 2 - tab 9 which presented five photographs of various decks overlooking the Humber Valley in the general neighbourhood of the Louro property. The purpose of the submission was to highlight examples of existing decks that protrude over the edge of the slope. Number 37 The Kingsway was cited as protruding into the valley a greater distance than the appellant’s deck.

Mr. Louro indicated that the City of Toronto Forestry Department visited his property just prior to his first contact with the Enforcement Officer for the TRCA. The contact was as a result of a neighbour’s complaint about supposed dumping of soil into the ravine. This ‘dumping’ was as a result of the removal of the old deck and included soil and wood pieces. In addition fertilizer soil had been placed on the slope by the tree in order to stimulate growth.

The initial visit did not include any discussion of the deck construction. Supplies were on site but construction had not started. A planting plan for the slope and the oak tree protection were discussed, but a Notice of Infraction was issued by the City of Toronto, dated September 19, 2008. (Ex. 5). Mr. Louro undertook to fulfill the requirements with regard to plantings and tree maintenance on the valley slope. The site was visited by the City Arborist and Urban Forestry Planner on an annual basis for three years with the City signing off in 2012. (Exhibit 4 – tab 1 - Appendix)  The TRCA acknowledged this activity and its conclusion in its initial brief. (Ex. 3a)

The tribunal notes that the City of Toronto’s Notice of Infraction indicated to Mr. and Mrs. Louro that the property was also subject to Ontario Regulation 166/06 – Development, Interference with Wetlands and Alterations to Shorelines and Watercourses and any alterations should be discussed with the Conservation Authority. The Notice had been copied to the TRCA.

Cross Examination by J. Wigley for the TRCA

Mr. Wigley took Mr. Louro through the history of the deck project beginning in September, 2008.

       “One of our staff inspected the property and confirmed that six large concrete footings were installed within the minimum tree protection distance of a large,         (approximately 60 cm. dbh) oak tree located at the top of bank, at the rear of the subject property.” (Ex. 5)
        Mr. Louro acknowledged that the deck was under construction as of this date.

       “During our conversation of September 30, 2009, the Authority’s jurisdiction and concerns were identified and discussed. The purpose of this letter is to        remind you of the Regulation and the role of the Authority. In that role, the Authority has issued a Violation Notice and requests that the recently        constructed structure and placed fill be removed and the area restored to the satisfaction of this agency.
       (Ex. 7)

       In addition, this letter also stated:

       “we request that no activity be undertaken in the regulated area now or in the future without the prior approval of the Authority.” (Ex. 7 - p. 2)

Mr. Wigley submitted, as Exhibit 8, a group of photographs of the deck, all dated September 30, 2009 and taken by Mr. Nowak during the September 30th visit to the site. The deck was under construction at the time. Shortly thereafter, on October 7, 2009, the Violation Notice and the letter were sent by courier to the Louro home.  

Mr. Louro acknowledged that he finished the work on the deck, despite the contents of the letters and the Order. Mr. Louro also stated that he had accepted a City Building Inspector’s advice to continue building the deck and that a permit was needed since the deck was bigger than that allowed in the City By-Law. Mr. Louro acknowledged that he did not show this Inspector, a Mr. Fusco, the TRCA’s letter or Violation Notice. However, on October 7, 2009, the City of Toronto issued an order to comply, under the signature of Mr. J. Fusco. (Ex. 9)  Mr. Louro was advised the following;

“You are advised to cease work on the construction of the deck until a permit authorizing construction has been issued. Failure to obtain a permit shall require removal of the unauthorized construction.”

To clarify certain time lines, Mr. Wigley submitted a survey plan, prepared by Escala Designsinc and dated November 2007,  entered as Exhibit 10 - Sunroom.  The plan is described as a ‘Plot Plan’ of a “Proposed One Storey Frame Rear Addition at 100 Old Mill Road, City of Toronto”. This copy is stamped as “Received October 17, 2008, Planning & Development T.R.C.A”. This plan had no reference to the deck, even though the deck was actually under construction at the time the Sunroom application was submitted and marked “received” by the TRCA.  Mr. Louro explained that there was a time lapse between when the Plot Plan was prepared and its actual submission for approval. In addition, the architect for the Sunroom was not the person/s who ended up working on the deck, the latter not being architects.

The issue of the runoff from the deck was discussed.  The base is concrete “patio” blocks (2’ x 2’) on top of gravel. The slabs have approximately a quarter of an inch between them. However, the deck boards are on top of these blocks or slabs. Mr. Louro stated that the deck was built to minimize drainage. However, the level of expertise in the design was questioned and it was noted that the Pazin Geotechnical Services report is dated September 2, 2010, indicating that their expertise came into the issue well after the deck was designed and construction begun.

The photographs presented in Exhibit 8 outline the construction phases of the deck. Picture 5 shows the completed deck floor with the tight space between the deck boards as well as the black fertilizer on the slope under the deck. Mr. Wigley suggested that runoff will drip through the gaps and over the ends of those gaps onto the slope below which would lead to erosion. In addition, the overhang of the deck will make plant growth difficult on the slope.

It is also noted that there was very limited open space around both the oak and the mulberry trees. This action, especially relating to the oak tree, resulted in a City of Toronto Urban Forestry Notice of Infraction, dated November 30, 2009. (Ex. 11)  As the encroachment into the minimum protection zone is considered a tree injury, which must be approved with a permit. The notice outlined a manner in which the infraction could be dealt with by allowing compensation in the form of plantings on the valley slope.

The Pazin Geotechnical Services Ltd. report (Ex. 2a - tab 6) was secured to support the application to the TRCA for a permit - to retain the deck. It provided a “stability assessment of an existing slope located at the rear of the above noted site, and of the footings that support a wooden deck which was constructed recently at the edge of the top of bank.” (p. 1)  The report indicated that there were no inspection reports or photographs available for this review, so the information was ‘second hand’.

The slope is described in two parts:

  1. The top portion (deck location) is inclined on an angle of 50 degrees or more;
  2. The remainder is inclined approximately 35 degrees to the horizontal in a fairly uniform manner.

In addition, there were no signs of recent erosion, “the top soil layer was fairly shallow and was underlain by grey, highly weathered shale.” (Ex. 2a – tab 6 – p. 2) The report states that the slope “in its present state” is stable.  Guidelines for safe gradients were followed in order to conclude “that the Long-term Slope Crest Line is located approximately 6 metres behind the existing top of bank”. (Ex. 2a – tab 6 - p. 3) The deck footings were constructed in the area between the Long-term Crest Line and the top of the existing bank and purportedly placed on the bedrock. A review of the deck Drawings suggested to the Consultants that the footings were designed to accept a load bearing pressure of a deck of this size.

Mr. Wigley, however, outlined the situation as follows:

“And your deck projects out over the slope, right? We know that….And the area between the safe gradient and the other dotted line ….looks like a big bulge in the slope, there, right? ……That is the area that over time is expected to erode, degrade, to the point where it comes back to the safe gradient line…In other words, your deck is built right in the middle and over the unstable, erodible part of the slope, isn’t it?”(Transcript #1 – p 138)

This area is also known as the “erosion hazard zone”. (p. 140)?

The consultants state that they were “informed” that the deck footings were established on bedrock and based on this, they have suggested that such deck footings would be safe. They were not present when the footings were installed and indicated some concern about the footings on the south side of the deck having been constructed in the area designated as “below the safe gradient”. (p.3)  But stated that if built on bedrock, they would be safe.

Mr. Wigley called attention to the point made by Pazin Geotechnical Services Ltd; at the end of the report (Ex. 2a - tab 6 - p. 3):

“However, it should be noted that we did not inspect the footing works. Therefore, confirmation of the founding depth as noted above is necessary to conclude that the footings were constructed in a safe manner.”

Mr. Wigley dealt with some of the side issues connected with the Appeal.

  1. As a point of information, the matter of a Provincial Court Order to remove the deck, as a result of a charge made by the TRCA was recorded.   
  2. Mr. Louro termed the action of installing a cable around the two trunks of the oak tree to keep them from falling over as “disciplinary maintenance” (Transcript #1 - p. 146) he indicated that an arborist had suggested this to help control against disease.
  3. The question was asked why Mr. Louro had not built the deck between the swimming pool and the edge of the existing deck. Mr. Louro responded that the drawings were incorrect giving a false impression of how much land was actually available. However, Mr. Wigley suggested that an option had existed to stay away from the edge of the slope, the Regulation Line and even the Erosion Hazard line. (Trans. #1 – p.  150)
  4. There was some mix up with the plantings required by the City Forestry Dept. Mr. Louro indicated that some of the plants secured and planted on the slope were not the correct ones as per the list he had been given.  These were taken out and the correct ones planted.

Redirect by Mr. Burton:

  1. A City of Toronto Building Permit for the deck is being held until the decision re this hearing is finalized.
  2. Raspberry bushes and one other plant were planted under the deck as indigenous to the area. These plants have spread significantly in that area….as Mr. Louro said they “exploded”. (Transcript #1 - p. 163)
  3. It was acknowledged that the Pazin consultants were not present when Armando DeSousa installed the deck footings. The affidavit sworn by Mr. DeSousa and dated September 14, 2010, was referenced as to what he actually installed. (Exhibit 2a - tab 10) This document forms part of the Record of Proceedings before the TRCA for a deck permit and submitted to the tribunal by the TRCA.

EVIDENCE OF THE RESPONDENT

Dena Lewis, Manager - Planning Ecology was sworn as an expert witness in ecological planning. Ms. Lewis has been employed with the TRCA since October, 1990, in the field of ecological planning. Ms. Lewis’ opinion with regard to the deck construction follows:

“It is my opinion that the construction of a deck over the top of bank of this well-defined valley, and forested valley slopes will have a negative impact on the conservation of land within an area that is under the Authority’s jurisdiction and regulatory authority.”     (Exhibit 3a - p.2 – 8)

Ms. Lewis stated that her view of ‘conservation of land’ means the land base and the natural heritage system that it supports, including the valleys, the valley forests, the floodplains and natural areas associated with those areas. Flora, fauna and other ecosystem services associated with the natural heritage system also are included. Ms. Lewis enunciated the benefits to society involved in the conservation of land. (Trans. #1 – p. 170-172) and the reasons that the TRCA undertakes programs to manage the natural resources (not oil and gas) within the Toronto and Region watersheds to maintain their function and to manage their integrity.

Exhibit 3c entitled “Terrestrial Natural Heritage System Strategy” provides the summary report regarding the strategies to be undertaken by the Authority in an attempt to maintain and manage the natural heritage and biodiversity. The document is a response to the years of collecting data and developing watershed plans that basically showed “that we were experiencing, not unexpectedly, a dramatic decline in the health and biodiversity of our natural systems”. (Trans. #1 – p. 173)

The map of the Existing System within the watersheds (Map #1 - p. 54) starkly outlines what is left of the forest cover within the Authority’s area of jurisdiction, especially within the City of Toronto boundaries. Map 3 provides an evaluation of the Existing System and suggests that as one moves into the urban area, the habitat value drops and scores poor or very poor. (Trans. #1 – p. 180)

From an intensive study or analysis of the existing system, a target natural heritage system was developed. Numerically, the target objective represents a minimum 30% potential cover. It was noted that the opportunities for increasing the natural cover within the existing urban areas are limited.

With regard to the Louro property, it is located in the “lower Humber sub-watershed” which exhibits a typical seven (7) percent forest cover. Expansion of this system in this area is extremely limited. The first goal would be to not lose what exists and the second goal would be “to try and improve the quality wherever we can through restoration”. (p. 185)

Exhibit 8 - #9 shows the Lower Humber Sub-Watershed. South of the Louro property or Bloor Street there are a number of designations of note, including Provincially Significant Wetlands (PSW), Environmentally Significant Areas (ESA) and Areas of Natural Scientific Interest (ANSI). Forest and marshes prevail and some flora and fauna that are disappearing from urban areas. North of the property is the Lambton golf course and forest area, which have been designated as ANSI as well an ESA designation.

Although the Louro property lies within a forest confined to the valley wall, it still lies on a “continuum of habitats” and acts as a connector. Losing this connector has a negative impact on the health of the system. More species of plants and animals will disappear as the habitat is fragmented and the biodiversity declines.

The deck is an example of the negative impact and intrusion of urbanization on the natural heritage system. It is a narrow forest band in this area, both on the valley slopes and on the floodplain area.  In addition, the cantilevered deck will have an impact on the vegetation both immediately under the deck and on the rest of the valley slope. Natural rainfall is impeded which will affect vegetation and eventually influence slope stability.

With regard to the oak tree, the tree will have a very large root system both into the slope system and the tableland. This can be determined from the drip line of the tree. The tree needs to receive nutrients from the moisture it receives, as well as soil on the root zones. It appears that the tree may be holding the slope in place, so if it dies, the slope will undoubtedly be affected.

It appears that the concrete or cement blocks placed under the deck would be covering the root system and thus impeding the moisture required. Cement will generate run off and possible “concentrated flows” which can lead to erosion around the root system at the top of the bank. Maintenance of the deck will also require intrusion into the valley and forest system.

Ms. Lewis provided the opinion that if the oak tree falls, it will start the erosion process of this steep valley wall and damage to the vegetation on the slope.

With regard to the issue of the small size of this deck in comparison to the overall valley, it really does not matter. She stated:

“The reality is that decisions made one small site at a time for many, many years have been part of the reason that we have lost so much natural cover, because every site is looked at in isolation.,, out of context with the system and the natural heritage system that it’s associated with. These natural heritage systems are incredibly vulnerable to cumulative impacts.” (Trans. #1 – p. 193)

Ms. Lewis believes the other decks that exist in this neighbourhood, are causing damage and contributing to the cumulative damage of the natural heritage system. Ms. Lewis believes that all such development should be moved onto “the table lands away from the top of bank and the valley restored and buffered”. (p. 194)

During cross-examination by Mr. Burton, Ms. Lewis acknowledged a number of points:

  1. she had seen the property only from the valley below. (November 2012);
  2. opportunities to improve habitat are important;
  3. she has no information as to the state of the plantings on the slope but questions the long term success of the plantings beneath the deck due to the lack of light and perhaps water;
  4. getting permission to do inventory work in this particular section of the valley is difficult due to the fragmented ownerships;
  5. the valley below the deck has not been identified as an ESA, nor an ANSI and it is not immediately adjacent to such designated areas. However, the need to “protect systems” has become the focus today.

“The Humber River is a significant valley land, though, and this is an important connecting link between identified RSA’s, ANSI’s and wetlands.”  (p. 16)

The property may not be actually attached to the river’s edge but it is “part of that valley system and that riverine system” (P.17)

Mr. Burton led Ms. Lewis through a “hypothetical” process that would have the tribunal acknowledging as fact that there had been an existing deck overhanging the valley on the subject property. If that was the case, section 4.2.2. D) – Replacement Structures of the Valley and Stream Corridor Management Program, dated October 1994, would appear to be the appropriate policy. (Ex. #3b - p. 40) The preamble reads as follows:

“Replacement Structures are structures that replace or reconstruct existing buildings or structures, including buildings and structures designated as architecturally or historically important and that have recently been demolished or destroyed but does not include reconstruction on remnant foundations.”

Much of this section deals with flood proofing and safe access/egress in the floodplain portions of the valley but, Ms. Lewis did note that the issues of storm water management, slope stability and soil conditions are referenced, all of which have an impact on the valley slopes. Geotechnical studies are required to address these issues.

Mr. Burton further referenced section 12 of 4.2.2. - D and noted that if a structure was replaced or added onto, the Minor Additions policies and criteria were to apply. The description of “Minor Additions” indicates that these are additions that, among other points, do not “exceed a 50% increase in the total area of the existing building or structure based on existing conditions as of January 1, 1987”. (Policy - p. 40 - C - 12)  Ms. Lewis acknowledged that testimony had been given “that the deck had been expanded by perhaps about 20% from its previous condition”. (Trans. #2 - p. 19-23)

Ms. Lewis expressed her opinion that decks or any other structures:

       “that intrude into the natural heritage system are harmful and not conducive to the long term functioning of that system.”

       In addition,

       “from a science or an ecological perspective, avoidance of intrusions into natural heritage systems should be….intrusions should be avoided and particularly when        the systems are already weakened or less than optimal.”

Her policy would be to work, with anyone who has an overhanging deck and would like to replace it or to move it back.

Mr. Wigley made reference to the issue of ‘active erosion zone’ (section 4.2.2. D) – part 8 – i - fourth bullet) this section reads as follows (and was not referenced by Mr. Burton):

“does not increase the risk associated with the previous/existing structure or development that:

In reference to the Appellant’s Geotechnical report (Pazin), Ms. Lewis stated that she understood that this report states that the deck “is in the active erosion zone at the top of the valley slope and the long-term stable slope line is six metres inland from the existing crest of  slope.” (Trans. #2 – p. 25)

Under Minor Additions in the Policy document, Ms. Lewis also acknowledged that section 8. i) third bullet, references that “the addition is not …. within the active erosion zone adjacent to top of valley slope or toe of valley slope.” (p. 39)

Under Replacement Structures (Section 4.2.2. D) – part 9, the Policy states that the Geotechnical report needs to “demonstrate that the replacement structure:

“Minimize any impacts on the vegetation communities or functions of a Significant Area or do not result in the loss of its significant features”.

Ms. Lewis stated that this structure has a potential for the loss of significant features. The land base is difficult to replicate, if it is at all possible.  It represents an incremental loss to the overall system and “a detrimental effect generally on the conservation of land”. (Ex. 3a – Lewis p. 6)

Steven Heuchert, Senior Manager - Planning and Regulation was affirmed as an expert witness in ecological planning. Mr. Heuchert has been employed with the TRCA since July 2003.  Mr. Heuchert’s responsibilities include the overall management of development planning and regulation services for the City of Toronto and Durham Region within the mandated area for the TRCA.

Mr. Heuchert’s Witness Statement (Ex. 3-a) summarized his opinion with regard to the Louro matter:

Exhibit 8 – p. 8 and Exhibit 14 provide the location of the Louro lands with regard to the Humber River valley section. Most of the backyard and all of the valley slope are located within the Regulated area of the watershed.

Mr. Heuchert indicated that the TRCA staff are guided by the Provincial Policy Statement (PPS). Of importance is the fact that the Policy requires municipalities and other agencies, such as conservation authorities (and the MLC as well), to make their decisions consistent with the guidelines of the PPS.

Two sections are particularly relevant to conservation authorities. Section 2.1: Natural Heritage: outlines the importance of examining the natural heritage system on a holistic basis, generally directing development away from the natural heritage systems.

Parts of Section 2.1.4 are particularly relevant to the Louro project.

“Development and site alterations shall not be permitted in:
(b) significant woodlands south and east of the Canadian Shield;
(c) significant valley lands south and east of the Canadian Shield;
unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.”

Ms. Lewis had expressed her opinion that this was a ‘significant valleyland’ because of its connectivity function within this stretch of the Humber Valley. Mr. Heuchert agreed with this opinion and also noted that the City of Toronto Official Plan has identified the entire natural heritage system as being significant because there are so few areas left within the City of Toronto natural heritage system. (Trans #2 – p. 39)

Mr. Heuchert indicated that in his opinion, there would be negative impacts on the natural heritage system due to this deck. He pointed out a number of issues which corroborate this opinion:

This is especially relevant in that alternative locations exist for the development of a deck that would either minimize or completely eliminate the impacts on the valley slope.

Section 3.1. of the Provincial Policy Statement deals with Natural Hazards. Mr. Heuchert stated that this section is “the core mandate of the Conservation Authority”. (p. 43) Through the Memorandum of Understanding with the Province of Ontario, conservation authorities have been delegated the implementation of this section. The section relevant to the Louro application is found in 3.1.1. :

“Development shall generally be directed to areas outside of:
(b) hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards”;

A definition of “erosion hazard” is included in the PPS:

“means the loss of land, due to human or natural processes, that poses a threat to life and property. The erosion hazard limit is determined using considerations that include the 100 year erosion rate (the average annual rate of recession extended over an one hundred year time span), an allowance for slope stability, and an erosion/erosion access allowance.” (p.30)

The TRCA requires a geotechnical report to determine the slope angle and soil type of the site in order to identify any erosion hazard. The Pazin Report did that for the Louro site and did determine that it is an unstable slope and the long-term recession rate would result in erosion over the hundred year period within the six metre set back from the top of bank. (p. 45) Mr. Heuchert clearly stated his opinion that the Louro application does not meet the test of the Provincial Policy Statement.

Mr. Heuchert provided the tribunal with an example of what can happen when a valley system is degraded. A tributary of the Humber, the Black Creek, has seen extensive intrusive encroachments onto the top of bank and valley slopes with decks and retaining walls. Ultimately, the foundations of houses were threatened.  The Authority and the City of Toronto had to actually purchase lands along the rear yards of one street in order to rebuild the slope at a cost of almost two million dollars. The Authority now takes a holistic approach in its policy documents in order to prevent development from encroaching on erosion hazard areas and encourages protection and enhancement of the Natural Heritage system.

The guiding document at this time is the Valley and Stream Corridor Management Program, the same document referenced by Ms. Lewis.  The TRCA is working on a new policy document, entitled Living City, but it had not been adopted as of the date of the hearing.

Figure 6 in the Management Program (p. 15) illustrates a cross section of the valley system with Unstable Slopes showing features such as the watercourse, the Regulatory floodplain, the top of stable valley bank and the long term stable slope. The valley corridor is then determined by a distance of ten metres back from the furthest feature.

In the Louro case, the Pazin report established that the long term stable slope was six (6) metres from the existing top of bank. As a result of this determination, the width of the valley corridor on the Louro property, at the top, would be 16 metres from the top of the existing bank, extending into the back yard table land. (Ex. 2a – tab 6 - plate 3) The entire deck is actually located in the Erosion Hazard area.

The broad vision of the Management program is to retain “valley and stream corridors as open natural landforms so that the features and functions of those valley and stream corridor systems can be preserved and enhanced” and “to prevent, eliminate or minimize the threat to life and property caused by erosion and slope stability.” (Trans. #2 - p. 57)

Mr. Heuchert’s opinion was that the Louro proposal does not minimize impacts in that it results in development (deck) directly within the natural hazard itself. As a result, the proposal “does not even meet the broad vision of the Valley and Stream Corridor Management Program”.

There also are a number of principles outlined in section 2.1. which provide the basis for the program:

       “Principle 3 – The conservation of valley and stream corridor systems requires the protection of the corridor landforms and watercourses.” 

Mr. Heuchert believes that the deck develops the landform, rather than protect it.

       “Principle 6 also applies in that it states that “proposals affecting valley and stream corridors must contribute to the protection and rehabilitation of ecological health        and prevention or reduction in risk from flooding, erosion and slope instability.”

The Louro proposal does not do this but contributes to an impact both on a singular and on a cumulative perspective.

Mr. Heuchert indicated that the Policy document has attempted to provide some flexibility when dealing with “Property Improvements and Ancillary Structures” (p. 43) such as the deck in the Louro situation, but the policy itself clearly dictates that a new deck in this location would not be permitted. Section 4.2.2. E)-2 references improvements:

       “if located on or adjacent to a valley wall”
       “i) will not be permitted within the erosion impact zone (either adjacent to or on the valley wall itself), if the valley wall is unstable;
       ii) will not result in unacceptable impacts to slope stability and river erosion;”

Mr. Wigley again referred to the section concerning Replacement Structures and the issue of whether there had been a usable deck in place when the Louro’s bought the property. Mr. Herchert discussed this issue very clearly on pages 62 and 63 of Transcript #2.

       “In my view, the deck that was potentially there before had been gone for many years. It had obviously deteriorated over many years and there were simply some        remnant foundations that were in that location when the homeowner purchased the property.

       There’s no direct proof, in my view, that the deck existed in this size that’s being proposed or in the location that was being proposed, but if such a deck did exist        there are policies that apply to its replacement”.

Section D essentially states that “Replacement Structures are structures that replace or reconstruct existing buildings or structures …. but do not include reconstruction on remnant foundations.”  Mr. Herchert has the opinion that what was left of the old deck would be/is a remnant and as a result, the Replacement Structures policies do not apply. (p. 63)

However, if the tribunal accepts that the new deck is a Replacement Structure, Mr. Herchert noted that Section 4.2.2.- D) – 7 and 8 would be applicable. Section 7 outlines the studies that would be required, while Section 8 speaks to erosion and stability of the slope.

“The risk associated with erosion and slope stability must be addressed through geotechnical investigation and/or study having regard to erosion processes, long- term slope stability and short-term slope stability, and demonstrate the replacement structure:

i) does not increase the risk associated with the previous/existing structure or development such that:

As a result of this review, it is also apparent that there is sufficient area in the rear yard where a deck could be constructed without infringing on the active erosion area at the top of the slope. Mr. Heuchert stated that the proposal does not meet the majority of the Valley and Stream Corridor Management Program criteria and certainly, the impact has not been minimized. (Herchert – p. 69 and 73) In addition, the Pazin Geotechnical Report is inconclusive as to whether the deck was constructed to be safe for the assumed life of 100 years.

It was noted that ‘Replacement Structures’ - Section 4.2.2. – D) – 12, directs an applicant to the policies and criteria for Minor Additions, if the structure is being replaced and added to. It was also noted that the criteria for approval is very similar to that for Replacement Structures.

Mr. Wigley called attention to Section 3.2.1. C) (p. 19):

       “Alterations of valley corridors through such activities as filling or enclosure shall not be permitted to create addition useable area and/or to accommodate        development.”

It was Mr. Herchert’s opinion that this essentially says that a person cannot fill in the valley because more backyard space is wanted. The cantilevered deck does create additional usable space and negatively impacts the significant valley corridor and can lead to potential erosion problems.

The issues of precedent and cumulative impact were introduced with Mr. Herchert recalling argument made to the tribunal in the Russell v. TRCA  (unreported) (tribunal file CA 006-05) May 29, 2009, on the question of the size of the actual application relative to the impact.  The point relates to “just a small impact could be multiplied many times over and therefore result in a cumulative impact”. (p.78)  This is one of the major principles (#4) in the Valley and Stream Corridor Management Program:

       “Valley and stream corridors are vulnerable to the incremental and cumulative effects of land uses and land use change.” (p. 9)

Cumulative effect is defined in the Glossary of the report at page 69 as “the combined effects of all activities in an area over time and the incremental effects associated with individual projects in an area over time”. This definition reiterates the ‘systems-based approach’ followed by the TRCA and the need to deal with the impact of the great number of structures built without permits, both in the past and in the present, as well as the many applications that come to the TRCA primarily from within the City of Toronto boundaries. Such structures do have an impact and “do not represent an appropriate way to develop within a valley”. (p.80)

Mr. Herchert provided a lengthy summary of his opinion (pages 82-84) some of which is provided in this summary of evidence:

       “In my opinion, the loss of the valley due to the development of the deck is permanent. The potential for slope erosion is high given the location of the development        on an unstable slope and it does not meet the clear objectives of the Valley and Stream Corridor Management Program, which says that there should be no new        development within an erosion hazard and that new development should be set back from the top of bank and away from the erosion hazard.”

       “The policies are a holistic approach to preserving those valleys and protecting the public interest.”

       “….the proposal does negatively impact the conservation of land and it does not meet the test of no negative impacts on the control of erosion and therefore, it        should be denied.”

Cross Examination:

Mr. Burton raised a number of issues with Mr. Herchert during cross- examination.

1.   Provincial Policy Statement:

2.   The Valley and Stream Corridor Management Program

3.   Visits to the Site

Reliance on Evidence

Negotiations re moving the deck

Mr. Burton recalled Mr. Louro to testify as to whether the TRCA staff had made suggestions about relocating the deck. Mr. Louro implied that the Enforcement Staff had said it had to be removed, while Ms. Moxley (staff) indicated that it was not a decision she could make and that an application was required. Mr. Wigley, in re-cross, elicited a response that basically concluded with Mr. Louro stating that he was not prepared to move the deck. “Well, if you mean remove it completely, no.” (Transcript #2-p. 145)

ARGUMENT BY THE APPELLANT

Mr. Burton reiterated that the issue is clearly a factual dispute as to whether the deck existed and the proper policy analysis that follows. Three witnesses say it did exist. The Respondent did not agree.

The evidence has been clear that the new deck, which Mr. Louro stated was approximately 20% larger than the former deck, does not extend into the valley further than the previous deck and the extension led back into the rear yard. 

Mr. Burton submitted that the geotechnical report states very clearly that the slope is stable and only needs confirmation of the depth at which the footings were constructed. Mr. DeSousa’s affidavit tells the tribunal about this depth and the manner in which the deck was constructed.

Two witnesses, who have no interest in the matter, saw the deck in its state of disrepair and have testified to its existence. There is no survey, but the deck did exist. Both Ms. Lewis and Mr. Heuchert admitted that they had not actually been on the site but had viewed the slope from the valley below. Mr. Louro does not believe alternative solutions were discussed with staff of the Authority.

Mr. Burton believes that the Authority’s case is based on providing ‘selective evidence”. The tribunal must go beyond this to view ‘the totality of the evidence’.

The fact that the TRCA staff appears to not have reviewed the clearance of the rehabilitation plantings by the Toronto Forestry Department on the slope under the deck, undermines the Authority’s argument that there has been a loss of opportunity. They should have looked at the facts as they exist. There is no natural heritage inventory in this stretch of valley and to argue that “the replacement of an existing deck is somehow critical to the overall health of the natural heritage system is frankly astonishing”. (p. 151)

With regard to Mr. Heuchert’s testimony, Mr. Burton commented on his “stubborn refusal” to admit basic facts:  that the deck existed (p. 153), despite the testimony of the two independent witnesses. Mr. Herchert questioned the Appellant’s interpretation of the Pazin report that the slope was stable despite this being “a very clear statement.” Mr. Burton noted that neither Ms. Lewis nor Mr. Herchert, are geotechnical engineers. The only reports required from Mr. Louro were the Geotechnical report and the arborist’s report. These were provided to the TRCA. There was no request for an overall study of the health of the natural heritage system in order to determine opportunities for gain.

Mr. Burton again submitted that Mr. Heuchert’s policy analysis was driven by his “stubborn refusal” to admit that the deck had existed. He did not look at all the evidence and basic facts, continuing to be selective of the information referenced. As a result, he “miss applies” the policies.

Mr. Burton indicated that the tribunal must review the interaction between section 4.2.2. D) and E) – D) being “Replacement Structures” and E) being “New Development”. Mr. Burton submitted that the proper definition of the Louro deck is a replacement structure D) along with the criteria for “Minor Additions” C).  He also submitted that Mr. Heuchert’s policy analysis is flawed as he had been applying the new development policy to the application and not considering the replacement policies. It was only at the hearing that Policy 4.2.2. D) was identified by Mr. Heuchert as the possible applicable policy IF the deck was considered to exist. Mr. Burton contends that the policy is being read in a selective manner, when it should be read fairly.

Mr. Burton referenced the issue of precedent, suggesting that if the Louro application was not approved, it would result in illegal building and some risk taking. It also may result in a loss of opportunity for rehabilitation; the first issue being contrary to TRCA policy while the second is a goal sought by the Authority.

The valley has many overhanging deck structures. The Louro deck is an ‘after the fact’ application and Mr. Louro is prepared to seek any required permits.  The fact that other decks have not been reviewed or approved by the TRCA “should not be a deterrent to this tribunal to authorize the replacement of an existing structure”. (p. 160) The Louro’s have attempted to work with the TRCA and “it is submitted that sufficient evidence has been submitted” that all technical concerns have been met and there is “a lack of any real competing technical evidence”. (p. 161)

In conclusion, Mr. Burton requested that the appeal be allowed and that the tribunal order that the deck be allowed to remain as built, in order to avoid further disturbance to the valley corridor.

ARGUMENT BY THE RESPONDENT

Mr. Wigley first commented on the inability of the respondent to cross examine any of the persons whose evidence was submitted only in written form being:

The Appellant should have called these persons to support or not support their reports, but for whatever reason, they were not called. As a result, the tribunal could surmise a “negative  inference”. (p. 164)

With regard to Pazin Report, (Ex. 2 - tab 6) the tribunal should note the actual words:

       “Inspection of the slope indicated the slope is, except at the top, inclined at a fairly uniform angle of approximately 35 degrees to the horizontal. At the top the        slope is inclined at much steeper angles, 50 degrees and more.”

The report continues with the words “There were no signs of recent soil erosion such as furrowing or gullying”.  Mr. Wigley finds this to mean “at the time this report was being done”.  Any past evidence of erosion due to a ‘falling-down deck’ could not be determined.

The discussion in the Pazin report regarding the slope and its stability is quite clear and needs to be accepted – there are two parts of the slope being discussed: the lower section at 35 degree slope versus the upper slope at 50 degrees to horizontal. Mr. Burton’s statement that the slope is stable is not correct. The report continued on page 3 to discuss safe gradients and can make sense only if this refers to the upper portion of the slope.

The deck is completely located in an erosion hazard area and does affect the conservation of land.  The Commissioner must decide if this deck does affect the conservation of land and/or the control of erosion. If either is negatively affected, the appeal should not be granted.

Mr. Wigley referenced the TRCA Case Book and Section 20 of the Conservation Authorities Act which sets out the objects of an Authority, which he summarized as follows:

       “So we’re talking about a couple of things. Conservation {of land} is one, restoration is another and management of natural resources. We’re not talking about        losing natural resources, destroying natural resources. We’re talking about conserving or restoring.”
       (p. 169)

The Act further allows an Authority to make Regulations which permit the prohibition of development, as defined by the Act, “if in the opinion of the Authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development”. (p. 169) The Louro’s deck is a “structure” as per the definition of development. (subsection 28 (25))

‘Hazardous land’ is also defined in the Act as “land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock”.  The Pazin report states that the upper slope is at a 50 degree angle, which is considered “beyond the safe angle”. (p. 170)  The Appellant’s own report recognizes that there is a potential for property damage as well as loss of life, the later under an extreme situation. Conservation Authorities exist to make sure that “people don’t do things which no one can predict the end result of”. (Trans. #2 – p. 170)

This again, is an “after the fact” application. It is necessary for the tribunal to look at the application, however, as if it was not there. The effect on conservation of land, as well as the control of erosion are the important questions, not the question of whether to allow the deck to remain, because it is already there.

Deputy Commissioner Orr dealt with the ‘after the fact’ issue in a similar application. In Doulaverakis v. TRCA, (unreported) (tribunal file CA 003-10), June 21, 2012, she stated:

       “The tribunal agrees with TRCA witness Mr. Heuchert that the fact that the deck has already been built should not be a determining factor. However, in some way,        its existence actually helps bolster the Authority’s case in that it represents what could happen were the phrase “conservation of land” ignored or treated casually.        The deck structure sits on the valley wall and its presence is in stark contrast to the natural qualities of the valley wall itself. It takes up space (approximately 500        square feet); it cuts out light underneath it; it facilitates easier access by people on to the valley wall and it allows them to spend time there. Much was made of the        fact that the public already has access to the valley floor (dirt and paved pathways) and this structure is no different. However, the simple truth is that the structure        represents more than just another means of access; it is a large structure that invites people (in various size groupings) to sit (figuratively and literally) on the valley        wall. They are not being invited to pass down the wall by way of a pathway (which under the policies is a passive use), they are being invited to stay on the wall        and perhaps have a drink, or eat, or listen to music, or have a party. These are all hypotheticals; however, the appeal of the structure as a place to stay and        socialize cannot be ignored.”

This application has many similarities to the Louro application and the tribunal must judge the application on the basis of the TRCA’s tests as if the deck did not exist.  The question of the conservation of land (cl. 28 (1)(f)) has been upheld as involving all aspects of the physical environment (terrestrial, aquatic, biological, botanic or air) and their interactive relationship. Today, this environment is described as the “ecosystem”. (c.f. 611428 Ontario Limited v. MTRCA, (unreported) (tribunal file CA 007-92), February 11, 1994.

In addition, there was no evidence of any need for the deck, other than it was nice to be out among the trees. There is enough space on the property for a deck, if Mr. Louro actually needed one, away from the valley edge and slope. If a cantilevered deck over an unstable slope is allowed to be built, then the issue of precedent is strengthened. The next fellow can say “Why can’t I do the same?” The only difference would be that Mr. Louro had “an old, rotten, falling down, disused, abandoned deck”. (Trans. Day 2- p. 176) Mr. Wigley noted that a precedent would be set and would have an impact upon, not just this property and valley, but the other valley systems under their jurisdiction as well as any valley system within the province of Ontario.

The other question deals with the control of erosion, which is defined by the words themselves.  Mr. Wigley noted that little evidence was submitted by the appellant with regard to this matter.  The Pazin report could not be questioned as the writer, Mr. Mohan, was not called to discuss it. In one sense, it cannot be considered reliable evidence since it could not be questioned. However, Mr. Wigley pointed out that the report actually says that the upper slope is in the erosion hazard area, which is an area of slope instability. (Plate 3- Pazin report) The report states “Plotting the safe gradients on the cross-section indicated that the long-term slope crest line is located at approximately six metres behind the existing top of bank”. It becomes obvious that the deck is on the unstable erodible part of this slope.

In addition, Mr. Wigley contends that drip lines will occur between the boards, but the major part of the runoff will fall directly onto the slope without the aid of any drainage piping. As a result there is no control over erosion. There is also “a real question” as to the success of vegetation growing under the deck in the long term since it will be light and moisture deprived.

Maintenance of the deck in the future could also lead to disruption of the slope with questionable results. He cannot agree with Mr. Burton’s assertion that the technical requirements have been met since it is shown by the Pazin report that the deck is in the erosion hazard zone or area.

The red oak has required wires to keep it stable. There was no evidence in photographic form of the “successful” plantings under the deck nor was the arborist called as a witness. It is all heresay evidence.

With regard to the Natural Heritage, this area is part of significant woodland and valleyland and under the Provincial Policy Statement, development is generally directed away from hazardous lands. It is this point where most appellant’s would begin their argument on the basis that development is not prohibited. However, further reference leads to the specific “exception” in the PPS referring to ‘special policy areas’. Mr. Wigley argued that if that exception was removed, then the policy would direct development away from the natural heritage area, which is basically prohibiting development.

It was noted that Mr. Wigley reminded the tribunal of the necessity for the tribunal to remember that it is standing in for the Minister of Natural Resources who is a Cabinet Minister and the PPS is a Cabinet approved document which requires those who represent a Cabinet Minister to develop their decisions in a manner consistent with the document.

Ms. Lewis indicated that the Louro lands are a “very small, finite linkage” (p. 183) within the Humber Valley. The size, the shape and the matrix influence are not great, but the TRCA policy document aims at not degrading it more than it is now. The development pressure in this valley and other valleys is constant as can be seen by several previous MLC decisions such as the Doulaverakis case and the Russell case in the Don Valley.  The Provincial Policy Statement backs this argument.

In this case, a negative impact is present and is defined under the PPS as follows:

       “in regard to other natural heritage features and areas, degradation that threatens the health and integrity of the natural features or ecological functions for which an        area is identified due to single, multiple or successive development or site alteration activities.”

The location of this deck down and beyond the top of bank does not ‘protect’ the natural heritage area, “nor does it maintain or enhance it, in any way”. (Point 17 – Respondent’s Argument)

Mr. Wigley referenced the Terrestrial Natural Heritage Study with regard to the concept of maintaining a minimum amount of natural coverage. Thirty percent is the goal for forest cover in healthy watersheds and 10% should be wetlands within the Great Lakes area, whereas the Humber Valley has maybe 9%. So the goal is to not lose anymore.

The Valley and Stream Corridor Management Program outlines seven principles that form the basis of the policy. The Program objectives are outlined in section 2.2.2.:

       “Environmental Protection and Prevention of New Hazards
       The Authority’s objectives for valley and stream corridors with respect to environmental protection and prevention of new hazards are:
       (B) To prevent development that negatively impacts on the natural landform, functions and features and/or affects the control of flooding, pollution or conservation        of land within valley and stream corridors.”

In addition, Section 3.2.1. (C) is relevant to the Louro application:

       “Alterations of valley corridors through such activities as filling or enclosure shall not be permitted to create additional useable area and/or to accommodate        development”.

Mr. Wigley pointed out that the New Development section of the policy (4.1.) refers to new development in undeveloped valleys. However, the reality is that this area is a developed valley, so it is important to reference 4.1.1. A) which states:

       “New urban development shall not be permitted within valley and stream corridors, except in areas of existing development as set out in Section 4.2. Urban        development includes buildings, structures and associated private servicing such as parking and septic systems”

The next reference must be Section 4.2.2. D) Replacement Structures and E) Property Improvements and Ancillary Structures. Both these sections say to stay out of erosion hazard areas. Section 4.2.2. D) indicates that this category does not allow for replacement on remnant foundations. Mr. Wigley maintains that what had remained was unusable and falling down the slope. Replacement could occur only if it met the conditions listed (1 to 9) one of which was any increase in public safety (bullet 2) and another was that the use not be intensified. (bullet 3) According to the Appellant, the deck was approximately 20% larger than the former deck, thus increasing the intensity of use.

The most important point, however, relates to section 8(i) on page 42 of the Policy which deals with erosion and slope instability. It is important to note the fourth bullet point that states that structure must not increase the risk by construction within the erosion zone:

       “the location of the replacement structure is not within the active erosion zone adjacent to the top of valley slope…if alternative options exist”.

Mr. Wigley stated that it was obvious that alternative options exist and listed them as follows:

Section 4.2.2. - E) indicates that replacement structures should not be “located on or adjacent to a valley wall”.    In this case, the deck projects over the edge of the valley wall, locating it at least adjacent to the valley wall. Section E -2) i) states that a structure:

       “will not be permitted within the erosion impact zone (either adjacent to or on the valley wall itself), if the valley wall is unstable;”

The Pazin report has stated that the upper portion of the slope is well within the erosion impact zone adjacent to the top of this valley slope.

Both sections D and E of 4.2.2. (pages 40-43) say that construction should not take place in the active erosion zone. Mr. Wigley submitted that even referencing the Minor Addition section of the policy – 4.2.2. C), that policy states that any addition should not be placed in an active erosion zone at the top of the valley slope. (p. 39 Policy) Mr. Wigley contends that all these policies say no to construction within an erosion zone, without even having to decide whether the deck existed or not.

However, with regard to the issue of the existence of a deck at this location, the evidence is certainly not clear. The deck supposedly existed when Mr.Louro purchased the property. It is not known whether it went over the top of bank, or whether erosion has taken place to make it appear that way. We do know it was old and falling down. Mr. Wigley suggested that a useable deck did not exist.

The size of the remnant structure is not known. The evidence of Messrs. Brito and Teixeira was not provided before the hearing in a witness statement, so the only real evidence as to the existence or the state of the existence of a deck comes from Mr. Louro. Even Mr. Burton referred to it as a “remnant deck”. There are no photographs or surveys of this previous deck. All that exists is a few photographs of some wood on the side and at the bottom of the slope and a possible remnant foundation – replacement of which is not allowed under the Policy in 4.2.2. D) for Replacement Structures. What was left was a pile of wood and an admission that it was not safe and not used as a deck. In effect, the issue really is dealing with a new structure, not a replacement, but as noted above, in either case, building within the erosion zone is not allowed under the Authority’s policies.

Mr. Wigley mentioned another concern with regard to the new deck. It is made of steel beams and concrete which adds a great deal of weight to the top of the slope, within an erosion hazard zone. There was no engineering report regarding this issue and no witness to provide any comments or opinions nor photographs to show those foundations.

Mr. Wigley also addressed the ‘size of the impact’ issue. The loss of a small part of the forest and its impact on the “balance of the ecosystem” (Trans. 2 – p. 193) continues to constitute a negative effect on the conservation of land, regardless of size and “Therefore the test under section 3 of the Regulation is not met”.  (Memorandum of Argument – p. 15) Mr. Wigley referred to the MLC decision with regard to this issue, Blake v. Grand River Conservation Authority, (unreported) (tribunal file 2221DO), March 20, 1992, in which Deputy Commissioner Yurkow decided:

       “The Authority concedes that the effect of Blake's proposal is minute and may not be measurable. It argues that many such encroachments would increase        downstream peak flows. Blake concedes that his proposal would limit flood storage capacity, albeit, insignificantly. If the argument of insignificant affect were        allowed, there would be no limit to the number of small incursions into a flood plain area: none on its own harmful but, in total, potentially devastating. It is accepted        that some incursions are socially desirable and outweigh the harmful effects. The Authority argues, and I accept the argument, that each incursions decreases the        tolerable loss of storage capacity.”

This decision also outlines the Louro situation. It may be small in size, but each occurrence “nibbles away at the side slopes and creates all these problems for maintenance in the future and loss of natural heritage”. (p. 195) This highlights the issue of cumulative effect and raises the issue of precedent.  Mr. Wigley stated that “this application, if approved, will constitute a major impact on the conservation of land by reason of its precedential value.” (Argument p. 16)… “There is nothing unique or socially redeeming about the deck that would distinguish it from any one of hundreds of other such applications that could and likely will be made up and down this and other river valleys”.

Several previous decisions were referenced with regard to the Precedent Issue. Commissioner Ferguson in Nagy v. MTRCA, (unreported) (tribunal file 1502DO), March 19, 1979, stated:

       “In addition serious emphasis was placed on the precedential effect of granting permission. The final words in section 4 of the regulation illustrate that in the granting        of permission under section 4 the significant consideration is not the prevention of flooding but the broader concept of an interference with the control of flooding. It        is in this broader concept that issues of precedent become significant. While the individual case may not cause significant flooding the consideration of the        application must relate to the broader concept of control of flooding and whether the granting of permission would create a precedent that could not be        distinguished on its merits in subsequent applications. It is proper for a conservation authority to consider the doctrine of precedent because of its relation to the        "control of the prevention" of flooding as contrasted with mere prevention of flooding.”

Although discussing the issue of flooding, Mr. Wigley pointed out the importance of the possible loss of conservation of land instead of the prevention of flooding as issues “that could not be distinguished on its merits in subsequent applications.” (Trans. #2 – p. 196)

This matter of precedent was referenced in many other decisions made by the Mining and  Lands Commissioner,  including Hope v Rideau Valley Conservation Authority,(unreported) (tribunal file CA 006-05), January 18, 2006 and Robbins v. Rideau Valley Conservation Authority, (unreported) (tribunal file CA 005-00), January 31, 2001.  Russell v. TRCA, (unreported) (tribunal file CA 003-05), May 27, 2009, quoted the Nagy decision, and in addition, stated:

       “There is no question in the tribunal’s mind that an approval of the Russell application would create a negative precedent for the TRCA and the other provincial        Conservation Authorities. It does not matter that the property is very small. It does matter that another piece of the natural heritage would be lost and in this case,        one that is below the top of bank.”

In a similar manner, in Gies v. Grand River Conservation Authority, (unreported) (tribunal file CA 003-99), dated July 14, 2000, the Deputy-Commissioner stated that:

       “if this application was to be approved, the tribunal accepts that the GRCA would have difficulty in reviewing subsequent applications which might either intrude        into a Provincially Significant Wetland or not have safe access, due to the potential for flooding. Such a decision certainly would be used by other applicants in        attempting to demonstrate precedent.”

REPLY ARGUMENT BY APPELLANT

Mr. Burton raised several points in reply:

ISSUES

  1. Does the tribunal accept and adopt the policies of the TRCA as providing guidance in this matter?
  2. Does the tribunal accept that a deck had existed on the Louro property at and over the top of the valley slope?
  3. Does the proposal to develop a deck structure on the valley wall have an impact on the control of erosion and the conservation of land?
  4. How does the tribunal’s accepted definition of new development relate to the definition outlined in the Valley and Stream Corridor Management Program?
  5. Does the matter of precedent have an impact upon the decision?

REASONS

ISSUE 1:        Does the tribunal accept and adopt the policies of the TRCA as providing guidance in this matter?

This issue has been discussed in previous tribunal decisions and relates to the underlying authority or jurisdiction for Conservation Authorities in the Conservation Authorities Act. c.f. subsection 20(1):      

       “The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration,        development and management of natural resources other than gas, oil, coal and minerals. R.S.O. 1990, c. C.27, s. 20.”

The Humber River watershed, in which the Louro property is located, forms part of the jurisdiction of the Toronto and Region Conservation Authority.  In order to accomplish the objects of an authority, subsection 21(1) provides the authority with the power

       “(a) to study and investigate the watershed and to determine a program whereby the natural resources of the watershed may be conserved, restored, developed        and managed;”

The TRCA has determined a ‘program’, first in the form of a Regulation and then in the form of various Policy documents to provide the Authority staff with consistent tools in order to form the basis upon which to evaluate applications and make decisions and recommendations. The Policy is not law, but the TRCA and the tribunal have the discretion as to whether they will apply the Policy in the circumstances of each case that comes before them.

Regulations:  

Subsection 28 (1) of the Conservation Authorities Act, allows an Authority to make regulations:

       “(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic        beaches or pollution or the conservation of land may be affected by the development;”

The Province of Ontario approved Regulation 97/04, which outlined the framework for the making of regulations by all conservation authorities in the Province. Regulation 166/06 is the relevant regulation for the TRCA, and came into effect on May 4, 2006.

Subsection 2(1) of Regulation 166/06 deals with areas where development is prohibited. Clause (b) deals with river and stream valleys, describing the valley as being from “the stable top of bank, plus 15 metres, to a similar point on the opposite side”.  The jurisdiction of the TRCA over the area where Mr. Louro constructed his deck is found in this clause. It prohibits such construction.

However, moving to subsection 3(1), there is some flexibility for the Authority to grant permission for development “if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.” The words “in its opinion” are particularly relevant. The applicant must be able to convince the staff and subsequently, the Authority itself, that the development does not have an impact on the issues of primary concern to the Conservation Authority.

If denied by staff, all applicants have the right to a hearing before the Authority itself or their Executive Committee. If again denied, the applicants have the right to appeal to the Minister of Natural Resources, whose powers and duties to hear these appeals have been assigned to the Mining and Lands Commissioner, under Ontario Regulation 571/00.  At this point, Part VI of the Mining Act provides guidance regarding the administrative and procedural issues related to the appeal.

Policy Guideline:

As noted above, subsection 21(1) of the Conservation Authorities Act directs an authority to determine a program in order to carry out its objectives. This is done in the form of the development and approval of Policy documents, which provide a consistent approach to its decision-making and implementation process within Ontario Regulation 166/06. Provincially approved policy documents often form the basic tenets of the individual Authority policies.

In the case of the Louro appeal, the most significant TRCA policy document is the Valley and Stream Corridor Management Program, adopted in October 1994. (Exhibit 3b)   
This document seeks:

“to study and investigate the watershed and to determine a program whereby the natural resources of the watershed may be conserved, restored, developed and managed;” (Ex. 3b- Part 1.2. (a) – p. 6)

Section 1.3. sets out the VISION for the document. Briefly, it alludes to continuous green space corridors which serve as regional linkages to local Greenspace and provides “refuge for vegetation, wildlife and humans”. These are just some of the nine ‘Visions’ outlined in the Policy.

The Policy continues through Section 2.0 – PROGRAM FRAMEWORK and outlines seven Principles that provide the basis for the valley and stream corridor protection and rehabilitation. Three of the Principles were noted as important to the Louro decision:

       Principle 3   –   The conservation of valley and stream corridor systems requires the protection of the corridor landforms and watercourses;
       Principle 4   –   Valley and Stream corridors are vulnerable to the incremental and cumulative effects of land uses and land use change.
       Principle 6   –   Proposals affecting valley and stream corridors must contribute to the protection and rehabilitation of ecological health, prevention or reduction in        risk from flooding, erosion and slope instability, and should include opportunities for public use and enjoyment. (Ex.3b – p.9)

Certainly, the Policy looks to environmental protection and prevention of new hazards. Section 2.2.2. B) elaborates:

       “To prevent development that negatively impacts on the natural landform, functions and features and/or affects the control of flooding, pollution or conservation of        land within valley and stream corridors.”

It is apparent from the evidence of both parties, that one of the major issues to be resolved in this Appeal concerns this document.

Mr. Burton submitted that, both the tableland, the valley slope and the valley itself should be accepted as ‘Existing Development’ within the TRCA’s Policy document since it is highly urbanized. The neighboring developed residential lots are attached to the Humber Valley land mass and have an impact on the living environment.

Ms. Lewis’ provided the TRCA’s alternative view that these existing urbanized areas have a negative impact on the valley landforms. Human accessibility has created noise and pollution, the intrusion of ‘development’ into the valley itself consisting of deck structures and access stairways to the valley floor, as well as the impact of the dumping of yard waste and the direct drainage of water from downspouts and swimming pools. There have been development incursions into the valley in the past, both before and since the Conservation Authority came into existence, most of those coming after, due to growth and most of which were carried out without seeking or receiving approval for the intrusion. Both Ms. Lewis and Mr. Herchert spoke of the need for the Conservation Authority to try to prevent or at least mitigate the impact of these intrusions.

The question remains as to which category applies to the Louro appeal - existing development or new development.

The tribunal understands that these valley corridors, regardless of size, provide breathing space for the developed area. The needs and uses of the corridors are different from the ‘developed’ part of the area and the impacts from the existing development areas must be dealt with. The Management Program describes the corridors as often being easily distinguished as a landform. The Valley and Stream Corridor Management Program provides a discussion and virtually, a definition of a valley corridor. In that document, the boundary of a valley corridor, whether it is considered a stable slope or not, is defined as an area 10 metres beyond the top of the valley bank or the predicted long term stable slope. (Section 3 – Policy) The Humber Valley, at the rear of the Louro tableland, is a well-defined valley. It can easily be identified from its surrounding landscape as a ’distinct landform’ and it has been established that the existing Louro deck is within the area defined as the valley corridor and is on and overhangs the valley wall. (The state of this slope in the long term will be discussed later.) But does this mean that the valley should be interpreted as part of the ‘Existing Development’ area or as ‘New Development’ as outlined in the Policy document?

The tribunal notes that the unwritten belief that if a state of development existed in the past but the structure was destroyed or virtually destroyed by whatever means, then it automatically should be approved and be allowed to be replaced, has an effect on this decision. Such approval would be valid when it relates to a house, deck or shed that under the past and present laws or policies was legally built and in the proper location.  However, the question asked is whether approval should be given if the development or redevelopment was proposed in an area where it would not be allowed today. Such action perpetuates development, which was inappropriate in the first place and perhaps occurred under less informed circumstances. This represents the view that since ‘an old deck existed, so I should be able to replace it when it falls apart’ attitude, which basically is the argument being put forward by the Appellant.

The Valley and Stream Corridor Management Program “emphasizes the need to protect and rehabilitate valley and stream corridor landforms,…. while being sensitive to the development characteristics and needs of Metropolitan Toronto as a whole.” (p.25 - Policy) The Program policy further states:

       “The main thrust of the Authority’s policies and procedures for undeveloped valley and stream corridors is to prevent new development that would introduce risk        to life and property associated with flooding, erosion and slope stability and/or is not compatible with the protection and rehabilitation of these natural resources in        their natural state” (Policy Section 4.1.)

This section is referring to New Development and Section 4.1.1. A) states that:

       “New urban development shall not be permitted within valley and stream corridors, except in areas of existing development as set out in Section 4.2. “

However, it should be noted that the Valley Corridor is given a specific description or definition, in the policy document (Figures 5 and 6) which involves a 10 metre set back from the top edge of the valley slope. It is not described as including the table land beyond it. As a result, the tribunal can interpret this to mean that there should be no incursion into the valley corridor at all and any incursion that might take place or be renewed should be considered New Development. It is not the valley that is or will be developed, but the table land beyond it. In this context, the Existing Development category would basically be limited to dealing with older developments that historically occurred within the corridors and which were allowed or just built on the valley floor in the floodplain or on the slope. The many major flooding events attest to the fallacy of this development having occurred in the past. Of the decks that exist and overhang the valley slopes today, most would not have had a permit from a Building Department or the TRCA or MTRCA or the original Humber Valley Conservation Authority. They were just built, as were tree houses, without reference to any public body or without any long term stability or safety issues being considered.

As a result of this review of definitions, the tribunal will consider “New Development” to encompass new construction, or proposed renewal/rebuilding of existing construction, either of which involves incursion into the valley corridors.  This is contrasted with “Existing Development” which has historically occurred and essentially is grandfathered, giving it rights to which it would not be eligible today; it is found to exist at this time. However, it is noted that the fact that a deck may have existed on the property in the past and some signs of that might have remained, should not give an applicant the right to build or rebuild a structure which should not have been there in the first place.

A further comment must be made with regard to the Provincial Policy Statement. The tribunal is aware that this is a Cabinet approved Policy and that the various Provincial Ministries that are referenced are required to take it into consideration. In addition, this tribunal has spoken about the relevance of this document for the tribunal and recently has so stated, in Gilmor v. Nottawasauga Valley Conservation Authority (unreported) (tribunal file CA 006-11), July 31, 2014:

       “With regard to the PPS, the tribunal accepts, again, the responsibility imposed by the Province of Ontario that directs a Commissioner, such as the Mining and        Lands Commissioner, as well as the Ontario Municipal Board, Municipal Councils and Conservation Authorities, to have regard for the PPS. The tribunal has        accepted this responsibility in so far as it provides the decision maker with a level of consistency within the framework of the provincial jurisdiction. The public has        a right to expect such consistency.”

In summary, the tribunal acknowledges, however, that the decision finally must be made within the Conservation Authorities Act and the Regulations.  The relevant policies of the TRCA itself, may be found to be relevant to the decision in whole or in part.

Within this context, the details of the application will be discussed, but with regard to answering the question posed by Issue 1, the tribunal, having reviewed the relevant sections of the Policy document, finds that it will accept the policy guidelines for development with the exception of the actual definitions of New and Existing Development. In the latter case, the tribunal will adopt the descriptions described earlier in this decision, as follows:

ISSUE 2:        Does the tribunal accept that a deck had existed on the Louro property at and over the top of the valley slope.

The Appellant submitted that the evidence of the contractors, some neighbors and Mr. Louro, himself, provides sufficient evidence of the former existence of a deck on the site. The tribunal notes that there was no evidence submitted of a deck actually having existed. The evidence provided is actually ‘after the fact’, in as much as there is no pictorial evidence of a structure or its remains ‘in situ’. Photographs of the site were attached to the Pazin Geotechnical  report (Exhibit 2a - Tab 6).  Photograph 2, which provides a view of the valley side slope below the existing deck structure, shows pieces of wood that resemble a skid and probably were part of the old deck floor, but do not form part of any structure anymore.

Tab 7 provides further photographic evidence. These photos were submitted by the Respondent as part of the Record of Proceedings before the Conservation Authority when Mr. Louro sought approval to retain the existing deck structure. Picture 1 shows the “remains of treated and non-treated 6 x 6 and other woods which were part of the old deck”. Pictures 2 and 3 (Tab 7) show “some of the old rotten deck material removed from the rear property around the oak tree and the ravine, before being discarded.”

Pictures 4 and 5 show the site and some construction work for the new, existing deck. Since the tribunal must deal with this appeal as if the new construction does not exist, these last photographs are not particularly relevant. However, what they do show that is relevant, reinforces the impression, gained by the tribunal during a site visit, that the back yard space from the edge of the pool to the oak tree was of sufficient width to allow for a deck or an enlarged patio to be installed without impinging on the top of the slope and the erosion hazard area, as well as respecting the set back from the top of bank as outlined in the Policy or program document.

Mr. Burton questioned the ability of the Authority’s witnesses to conclude that there was or was not a deck on the site in the past since they did not actually visit the rear yard of the property. The tribunal finds that it does not matter whether the staff witnesses actually were able to visit the rear yard on the actual site or not, since there was nothing remaining of any previous deck for them to see, having been removed by Mr. Louro or his contractors.

Ms. Lewis and Mr. Heuchert did view the valley slope from the valley floor and received and reviewed reports from the TRCA’s Enforcement Officer who did visit the back yard of the Louro property. These visits resulted in the Notice of Infraction and the subsequent direction by the Court, a matter which is on hold at this time. From these actions, they would have been able to determine what was occurring or had occurred on the valley slope itself and observed the ‘new’ deck overhanging the top of bank. Based on the evidence from the Respondent, the tribunal understands that no one from the Authority was able to determine whether a deck had existed on the site in the past. By the time the Enforcement Officer saw the property, the new deck was almost completed. There was no past evidence, only piles of wood stored on the table land or laying on the valley slope. The form letter (Ex. 2a – Tab 7) signed by some neighbors, does not give the tribunal sufficient confidence to determine the existence of a deck on this site in the past.

In fairness, however, the tribunal does accept that some sort of structure had existed at the rear of this property in the past. The question remains as to whether or not the structure existed as a deck when Mr. Louro purchased the property in 2007. Something might have been there, but could it be defined as a ‘deck structure’? In the Summary of Facts document (Ex. 4), Mr. Burton stated:

       “At the time of the purchase, the Property had an old wooden deck at the rear of the property which was in a state of extreme disrepair and a safety risk.”
       (Tab 1 – item 3)

This statement of the Appellant informs the tribunal that the deck was falling down and was unsafe to use. Mr. Louro undoubtedly had put up some kind of barrier to prevent the family and any other person/s from attempting to use it. It no longer, then, could be said to be a deck. As a result, the tribunal will take the view that a deck had existed in the past but no longer does. If it was unsafe to walk on, as shown by the disintegration onto the valley slope, the tribunal finds that it ceased to be a deck structure. There is no evidence as to how long this state of affairs was underway and as a result, the tribunal finds that the application will be reviewed, as defined in Issue 1, as a New Development projecting into a valley corridor.

ISSUE 3:        Does the proposal to develop a deck structure on the valley wall have an impact on the control of erosion and the conservation of land?

This issue is the prime reason why the “after the fact” application to construct/retain a deck structure at the top and on the Humber Valley wall was refused by the Toronto and Region Conservation Authority. The history of the deck project as well as the appellant’s Summary of Facts (Ex. 4) have been reviewed and several of the points have been dealt with in Issues 1 and 2.

The history of this deck project has been fraught with Violation Notices and one Order to Comply. The Louro family purchased the property at 100 Old Mill Rd. sometime in 2007. The first letter received from the City of Toronto Parks, Forestry & Recreation Department and directed to Maria Louro, wife of the Appellant, was a Notice of Infraction, dated September 19, 2008.  This Notice described the installation of six concrete footings within the  “minimum protection distance of a large oak tree located at the top of bank at the rear of the subject property”. (Ex. 5) The letter indicated that “injury to a tree” had been allowed to occur in a protected area and remedial action, in the form of tree planting, was required in order to avoid legal action.

The tribunal also noted that this letter (September 19, 2008) informed Mrs. Louro that their property was regulated by the TRCA’s Ontario Regulation 166/06 and a TRCA permit was required to change the grade within the valley and stream corridors. The family was directed to contact the Authority. It does not appear that this notice or letter was copied to the TRCA.

The next correspondence was an Order to Comply, issued by the City of Toronto, in which Mrs. Louro was “advised to cease work on the construction of the deck until a permit authorizing construction has been issued. Failure to obtain a permit shall require removal of the unauthorized construction.” This order was issued on October 7, 2009, over a year after the first Infraction order.

A second Notice of Infraction was issued on November 30, 2009. By then, it appears that “a large deck was constructed”. The Forestry Department again was concerned about the oak tree and the fact that the deck was constructed around the base of this tree, again creating injury of the tree. (Ex. 11) Again remedial action was requested in the form of the planting of “5 native trees and 25 native shrubs” in order to avoid legal action. It appears that discussions then took place and a landscape plan was developed and approved by the City and the plantings were carried out. Mr. Louro was notified that he had satisfied the Department’s planting requirement by an email, dated July 7, 2011 and a letter dated September 26, 2012. Mr. Louro was told to maintain the big oak tree and that there is always “sufficient gap between the deck and the tree trunk to avoid injuring the tree.” (Schedule A – Ex. 4)

This history is provided in order to point out the delay that took place in seeking permission from the City and more particularly, from the TRCA.  By a letter dated October 7, 2009, the TRCA issued a Violation of Ontario Regulation 166/06 Notice, to Maria Louro. It appears that the Enforcement Officer, Mr. Paul Nowak, had a discussion, on September 30, 2009, with someone who stated she was Mrs. Louro. Mr. Nowak indicated that the Authority had jurisdiction over the area where the deck had been built. This discussion was outlined in a letter dated October 5, 2009, in which Mrs. Louro was informed that a Violation Notice was being issued. The letter indicated that it was reminding the owners of the Regulation and basically requested that the “recently constructed structure and placed fill be removed and the area restored to the satisfaction of this agency.”

Of note to the tribunal is timing of these Notices and Letters. Despite being informed, in writing, in the September 19, 2008, City of Toronto letter that a permit from the Conservation Authority was required, it is a year later, October 7, 2009, that the Authority became involved in the process. Approvals did not seem to matter to Mr. or Mrs. Louro with regard to this deck. Mr. Louro indicated that some of this correspondence went missing and that he had never seen it, but we are discussing at least five different documents, three of which were Notices of Infraction and one an Order to Comply.  The tribunal does not accept that these documents might have gone missing during the crucial time period when the supposed old deck was taken out and the new one was under construction.

It is noted that, apparently due to the time of year, Mr. Louro was not able to secure the needed reports until the late spring of 2010 in order to submit an application for a permit to the TRCA. The actual application is dated September 10, 2010, well after the deck was completed and would have been in use by the family.

At any rate, the tribunal must deal with this ‘after the fact’ situation - the deck does not exist in the legal sense as it does not have a permit and what is being sought is a permit to build it. At this point, the TRCA’s rules and or Regulations and Policies take precedence, not how the deck was built but how it should be built to avoid any problems.  Any construction details, especially with regard to drainage issues, must be viewed as proposals by the tribunal.

The tribunal finds that the following points, which are listed in the appellant’s Summary of Facts (Ex. 4), are important in reaching a decision in this matter.

5.   The new deck has been built around a large mature tree which has been preserved in accordance with the direction from the City of Toronto Forestry’s Department. The root system of the large mature tree has been protected.

7.   In particular, an arborculturist and a geotechnical engineer were retained and reports commissioned to ensure that no damage resulted to the remaining mature foliage in the area, and so as to insure slope stability.

10. The deck is not built over an unstable portion of the valley wall slope;

11. The deck does not affect and has no impact on the control of erosion and in conservation of land;

12. The deck has no negative impact on a portion of the undeveloped valley corridor and does not degrade the habitat function of the valley system;

13. The deck is not located within an erosion hazard;

14. The slope and ground beyond the long term slope crest line is stable;

15. The construction of the deck did not result in the removal of ground cover.

Based on the evidence provided by both the appellant and the respondent, it is difficult for the tribunal to accept these “facts” as being interpreted in the correct manner. A discussion of these ‘facts’ can be broken down into three categories or topics:

  1. the issue of the existing and recently planted vegetation;
  2. the impact on the valley’s habitat function within the context of the conservation of  land;
  3. the issue of erosion control and slope stability.

1.         Existing and recently planted vegetation; (Summary of Facts Points 5, 7 and 15)

Mr. Louro did receive a release from the Urban Forestry Department of the City of Toronto with regard to the plantings he was required to undertake on the slope after the deck was built. There is a caveat stipulated, however, in the Release letter or email with regard to the oak tree, requiring that a 15cm gap be maintained between the deck and the tree trunk to avoid injuring the tree. Whether the Forestry Department will keep watch on this matter is not known as the only evidence provided about this matter was in letter form. No cross examination was possible to allow the tribunal to determine an opinion regarding the long term success for the tree and the plantings. However, the tribunal acknowledges that some action was taken, but concerns remain.

It is noted from the photographs and the tribunal’s site visit that the trunks of the oak tree have been tied together. This gives the impression that there already is a concern for the future of the tree by the Louro family. As noted by the TRCA staff, environmental forces can impact the continued existence of the oak tree, which basically is attached to the deck. If it falls, there could be significant impact to the stability of the deck. Picture 1 illustrates the rapid “unnatural” erosion around the root structure of the oak tree which the Authority indicates was caused by the old collapsed deck creating a v-shaped gully on the north side of the tree causing the exposure and compromising of the root structure.

The tribunal accepts Mr. Heurchert’s and Ms. Lewis’ evidence with regard to the impact of a deck on the physical characteristics of the slope, including the health of the oak tree and the recent plantings. Evidence was submitted that the slats or deck boards are close together (1/4 inch) and may be too close to provide adequate drainage in the form of drip lines through the deck onto the plants below. Mr. Louro indicated that the deck “was built to minimize drainage” but the appellant’s witnesses did not discuss this aspect of the deck construction. Although the Toronto Forestry Department considered the required plantings to have been “successfully established”, (Ex. 4) Ms. Lewis pointed out that these plants could well become starved for sunlight and moisture, being under the deck structure itself. A further concern expressed by Ms. Lewis is the opposite of too little moisture in that, rainfall hitting the deck will flow over the sides onto the slope, possibly creating gullies and erosion on the slope below the deck.

The tribunal accepts this evidence as referring to a deck that might be built.   Concerns remain about the long term outcome for the valley slope if a deck was built or remains. The words used here are ‘could”, and “possible creation” which might be interpreted as “guessing at an outcome.” The tribunal, however, accepts the expertise of the TRCA witnesses who have a lengthy experience with the geomorphology of the area and the impact that nature has on these landforms.

2.         Impact on the valley’s habitat function within the context of the conservation of land: (Summary of Facts – 7, 11, 12)

The tribunal accepts the description of ‘conservation of land’ as first described by Commissioner Kamerman in her decision regarding MTRCA v. 611428 Ontario Limited, (unreported) (tribunal file CA 007-92), February 11, 1994. This tribunal reiterated this description in Russell v. TRCA, (unreported) (tribunal file CA 003-05), May 27, 2009.  The broad interpretation was and is accepted as including “all aspects of the physical environment, be it terrestrial, aquatic, biological, botanic or air and the relationship between them”. The word “ecosystem” has been found “to be included in the definition of “land” as used in “conservation of Land”.

Russell outlines the argument ascribed to by this tribunal (Issue 4 - Russell). In addition, the tribunal has noted that the Valley and Stream Corridor Management Program has a clear objective as outlined under Issue 1. To reiterate, the Policy looks to environmental protection and prevention of new hazards. Section 2.2.2. B) elaborates:

       “To prevent development that negatively impacts on the natural landform, functions and features and/or affects the control of flooding, pollution or conservation of        land within valley and stream corridors.”

Ms. Lewis carefully took the tribunal through the important principles and goals of the Policy document. It is acknowledged that the Louro property is not a major part of the ‘significant’ system, but it is part of a connecting link within the valley’s natural heritage system and as such has a role to play. The tribunal acknowledges and accepts Ms. Lewis’ position that:

       “decks or any other structures that intrude into the natural heritage system are harmful and not conducive to the long term functioning of that system”.

The Louro deck obviously does intrude into the natural heritage system, and it has been constructed for no other reason than it would be nice. The need to protect what is left of the natural heritage system is a major goal of the TRCA, a goal which still allows homeowners who have property on the edges of valleys to enjoy what is there without having to basically confiscate the valley system and the ecosystem from being a benefit for the community as a whole.

The tribunal finds that there is an impact on the conservation of land, producing a negative impact, no matter how small. Add all the impacts together, and the result is a continued degradation of the valley slopes and eventually the valleys themselves. Much effort, as well as dollars, has gone into the acquisition, restoration and maintenance of the Humber Valley system which has been a benefit to the whole community. It is the concept of the wise use of land that would see this type of action continue.

3.         Erosion control and slope stability: (Summary of Facts – 7, 10, 11, 13)

This discussion is of the greatest significance to the tribunal’s decision. It basically deals with the physical geography of the Louro property and relates to the long term stability of the slope and thus to the safety of the deck users.

Fact #7 alludes to the geotechnical report and that the vegetation was planted “so as to insure slope stability”. Fact #10 states that “the deck is not built over an unstable portion of the valley wall slope”.  Fact #11 boldly states that “the deck does not affect and has no impact on the control of erosion”, while Fact #13 informs that the deck is not located in an “erosion hazard”.

Most of these points can be answered by reference to the Pazin Geotechnical report. (Ex. 2a - tab 5) The tribunal notes that this report was viewed as being entirely supportive of the appellant’s application, whereas, the respondents viewed it differently, as does the tribunal.

Mr. Mohan, the person responsible for the report, did not see the previous structure that may have existed on the site, nor was he able to comment on the construction of the deck, since his firm was engaged after the construction was underway. The report had the dual purpose of assessing the stability of the existing slope and of the footings installed to support the new deck. The tribunal notes the use of the words “which was constructed recently at the edge of the top of bank” supporting the fact that the report could be considered an ‘after the fact’ report.

Mr. Mohan noted surface erosion in the upper part of the slope, which he credited to falling debris.  He also noted that the plantings that had been ordered by the Toronto Forestry Department were complete and approved by City staff.

With regard to the soils, a test pit was dug to an approximate depth of 2 metres below existing grade, through topsoil, silty fine sand and silt layers to an approximate depth of 0.9 metres. The soil appeared dry and compacted down to the shale bedrock layer and was considered stable, based on the fact that the walls of the excavation remained stable.

According to Cross section A-1 on the Plot Plan of the Pazin Report, the test pit was dug approximately 1.5. metres from the inside edge (house side) of the deck construction. In addition, Plate 3 indicates that the pit was dug just back of the first (inland) set of footings and just inland from where the safe gradient line is shown to intersect the tableland above the valley edge. This gradient line is significant to the discussion due to Mr. Mohan’s evidence with regard to the slope itself. Of particular note was the statement that:

       “Inspection of the slope indicated that the slope is, EXCEPT AT THE TOP, inclined at a fairly uniform angle of approximately 35 degrees to the horizontal. AT        THE TOP, the slope is inclined at much steeper angles, 50 degrees and more.”

This statement clearly informs the tribunal that the slope is being described in two parts – the upper part at a 50 degree angle + and the lower and majority of the slope at 35 degrees, it being overgrown with “numerous trees”. The description provided by the Pazin Report informs that the slope in the lower part “in its present state, is stable”. It is the upper portion that is significant to the Louro decision.

The ‘proposed’ deck structure, the oak tree and some of the plantings are located within this upper portion of the slope. Page 3 of the report describes the safe gradient of the slope as follows:

       “The safe gradient in the Shale bedrock was determined to be 1 vertical on 1.4. horizontal (IV:1,4H), and through the dry” non-cohesive, compact to dense sand,        silt and silt till, we determined the safe gradient to be IV:2H. Plotting the safe gradients on the Cross-Section, indicated that the Long-term Slope Crest Line is        located at approximately 6 m. behind the existing top of bank”

Plate 3 provides a ‘visual’ of the cross section used to determine the location of the ‘safe gradient’.  The 50 degree upper slope can be described as beginning to steepen towards the top of the slope at the 26-27 m. height, then curving inland at the 30 m. point and rounding to form the table land at approximately the 31-32 m. height.  It is in this area that the deck ‘would be’ or has been constructed.

Basically, the safe gradient line is the extension upwards of the lower or 35 degree existing slope line until it intersects with the surface behind the existing top of bank. In this case, it has been located 6 metres behind the existing top of bank. It should be noted that almost three-quarters of the deck would be built beyond the safe gradient line, as defined by the Pazin Report. [3]

The Pazin  report concluded with the following statement, which the tribunal  finds to be important in analyzing this report. Although it states that from a geotechnical point of view:

       “the deck footings established on the bedrock in such a manner would be safe. However, it should be noted that we did not inspect the footing works. Therefore,        confirmation of the founding depth as noted above is necessary to conclude that the footings were constructed in a safe manner.” (Ex.2a - tab 6 - p. 3)

Mr. Mohan clearly leaves the reader of his report dangling. He indicates in bold print that he was not able to confirm that the deck construction was safe since he did not inspect the footing works either during or after the work was done. The question thus arises as to why he did not do so in order to provide a definitive report. The tribunal only can assume that he was not hired to go any further with his investigation but he certainly suggested that that some sort of confirmation should be undertaken. In addition, since Mr. Mohan was not called as a witness by the appellant, neither the respondent nor the tribunal were able to ask any further questions that might have clarified the situation. Again, the tribunal must point out that it is the responsibility of the appellant to prove their case. The presence of the persons who undertook the reports that were submitted would have been of assistance.

Although the Pazin report states that the lower slope would be stable and at least some of the footings on the upper slope were on stable bedrock, the points raised by the respondent as to the potential for a storm event uprooting the oak tree leading to the possible collapse of the area under the deck where the footings are or would be. In addition, the effect of the surface drainage from and through the deck onto the area under the deck and from the edges of the deck, leading to the lower slope, could result in slope erosion.

As a result of this discussion and its conclusions, the tribunal finds that the Pazin Report basically supports the respondent’s position by establishing the safe gradient line as being 6 metres behind the existing top of bank and reinforces the tribunals concerns regarding the long term stability of the upper slope.

To complete the discussion of this point, the tribunal must refer to the Valley and Stream Corridor Management Program. There are two definitions for Valley Corridor boundaries in the Policy document. (p.13)

  1. If the valley slope is stable, a minimum of 10 metres inland from the top of the valley bank; OR
  2. If the valley slope is not stable, a minimum of 10 metres inland from the predicted long term stable slope projected from the existing stable/stabilized toe (base) of the slope….” (Figures 5 and 6).

The triangle created by the safe gradient line (6 metres from the edge of the existing top of the valley bank) is the area where erosion is most likely to occur. According to the Provincial Policy Statement, which the tribunal must take into account in making a decision, the area between the safe gradient line and the existing top of bank would also be considered as part of an ‘erosion hazard zone” which the tribunal recognizes as an unstable portion of this valley wall and as such, the set back from the ‘predicted long term stable slope’ would be 10 metres. This result, according to the definition above, is a set back from the top of the existing valley slope of 6 metres, plus ten metres from this point (predicted top) for a total set back of 16 metres.

It is clear to the tribunal that at least 50-75% of the deck or ‘proposed deck’ would be located within the safe gradient area and 100% would be located in the larger erosion hazard zone. As such, with regard to this issue, the tribunal accepts that development should not take place in either the erosion hazard zone or within the area outlined by the safe gradient line.

The Valley and Stream Corridor Management Program deals with three catego-ries, as noted earlier. Basically, it does not permit new development within stream and valley corridors except under certain conditions. Minor additions within active erosion zones adjacent to the top of valley slope are not allowed (p. 39) The tribunal has found that it will deal with this matter in a separate issue, under the definition for new development accepted in Issue 2.

ISSUE 4:        How does the tribunal’s accepted definition of new development relate to the definition outlined in the Valley and Stream Corridor Management Program?

The tribunal has indicated that it accepts the Louro deck application as a new structure under the following definition for New Development.

       “New Development will be accepted as encompassing new construction, or proposed renewal/rebuilding of existing construction, either of which involves incursion        into the valley corridors;”   (p. 34 – Issue 1)

The Management Program discusses ‘New Development’ in Section 4.1. (p. 25). This policy states that:

       “The main thrust of the Authority’s policies and procedures for undeveloped valley and stream corridors is to prevent new development that would introduce risk        to life and property associated with flooding, erosion and slope stability and/or is not compatible with the protection and rehabilitation of these natural resources in        their natural state”

In examining this statement, the tribunal notes that it speaks to ‘undeveloped’ valley and stream corridors. Based on how the Program describes these corridors, the tribunal views this section of the Humber corridor as undeveloped. The table lands around the Louro lands have been developed, but the valley and the valley walls are undeveloped open space in which there are some public facilities such as pathways and service roads, as well as some recreational structures, both active and passive, but there is no residential development in the form of habitable dwellings. The exceptions are the numerous decks that have been built, without a permit, over the edge of the slope, such as the deck in this application.

The other part of this statement refers to an analysis of the impacts of new development. The questions being asked lead the tribunal to a negative conclusion concerning the Louro deck project.

The Valley and Stream Corridor Management Program does not accept new urban development as being permitted within valley and stream corridors. (4.1.1. A) There is an exception that would allow new development to occur in “areas of existing development “. These areas would include grandfathered developments on valley slopes and valley floors, especially developments detailed in “Special Policy Areas” such as the downtowns of older municipalities like Brampton and Milton. This certainly does not apply to the Louro proposal.

Section 4.1.1. K) states that “Development proposals adjacent to valley and stream corridors should protect and establish linkages to adjacent greenspaces and built communities.” This underpins Ms. Lewis’ evidence regarding the need to maintain every bit of corridor greenspace that is possible. Structural incursion by humans causes problems, while the passive use has limited impacts.

No matter what category or definition is given to this proposal to build or maintain the deck on the Louro property, it produces an incursion into the valley corridor and the area where development of any kind should not occur. The tribunal views the Louro proposal as ‘new construction’ and, as such, finds that such development is not permitted.

Issue 5:           Does the matter of precedent have an impact upon the decision?

The tribunal is cognizant of the fact that almost every applicant for a permit, submits that the issue of precedent is not relative to their application. However, it is a matter of constant concern for conservation authorities, as the loss of even a small part of the natural heritage system or ecosystem constitutes a negative effect on the conservation of land. The applications present “unending pressure” on the provinces river valleys and natural heritage areas, areas that have been diminished as time passes. The tribunal agrees with the respondent that it constitutes ‘a cumulative’ “death by a 1000 cuts”. (p. 18)  This is not a policy that is ascribed to by the TRCA, the Province or the tribunal.

Previous decisions have clearly viewed the problem of precedent as a serious matter.  Decisions by various tribunals have been submitted to this tribunal with regard to the seriousness of this issue, such as Nagy v. MTRCA, (unreported) (tribunal file 1502DO), March 19, 1979, Russell v. TRCA, (unreported) (tribunal file CA 006-05), May 27, 2009 and Hope v. RVCA, (unreported) (tribunal file CA 006-05), January 18, 2006. If this application were to be approved, future applicants would certainly use the decision to denigrate conservation authority policy documents in order to gain approval.

The Louro deck is just one of many that have been built in this manner, that is without a permit. As Mr. Wigley pointed out, there is nothing “unique or socially redeeming about this deck”. As found in other decisions, “it is hard to see that there is any benefit to society or the common good from the proposal.” (Blake v. GRCA, (unreported) (tribunal file 2221DO), March 20, 1992.  Just because Mr. Louro built the deck and it will be expensive to remove, does not mean that this deck should continue to remain in the area that has been shown to be in an erosion hazard zone as defined by the Provincial Policy Statement on the one hand, and on the other hand, through the appellants own Pazin Geotechnical Report, as being beyond the established “safe gradient” boundary. Both these factors guide the tribunal to dismiss the application.

CONCLUSIONS

The tribunal has received many appeals, in recent years, that have resulted from the Appellant’s having proceeded with construction of some sort onto the top of the valley or onto the slope and in some cases, into the valley floor and floodplain itself. These “after the fact” applications are a cause of concern both to the conservation authorities and to the tribunal, as the applicants, naturally, want to keep what they have built. These appeals, however, have a cost implication to the public since both the conservation authorities and the tribunals are publicly funded. The public’s awareness for the need for a permit to undertake any activity in these vulnerable areas seems to have receded in recent years.

Such appeals must also be looked at ‘as if new’, in order to provide a fair hearing to the appellants.  However, they are not ‘new’. The structure is there and it shouldn’t be. The implications for the Appellant are that they will be allowed to keep the structure or would have to bear the cost of removal and restoration of the disturbed area. In many cases, this cost could be significant.  The need for approval and a permit is not as onerous in more rural and smaller conservation jurisdictions where the Authority staff, although limited, are able to discover these infractions early in the process. However, in large areas such as that of the TRCA, it is a difficult problem to be aware of every infraction that takes place and catch it before it goes too far. In cases of backyards with deep valleys, it is extremely difficult for the Authority staff. The bigger the city, the less the public seems aware of what they can or cannot do.

With regard to the Louro activity, Mr. Louro was certainly aware of the existence of the TRCA. He had actually sought approval for the expansion of his house into an area of possible concern. This expansion was not in the rear portion of the lot and as such, did not need a permit. However, the Louro deck was then constructed in that area of concern, without any request for approval from the Authority. In this case, the tribunal does not accept an excuse that a permit was not required.

Based on the conclusions to all five of the Issues that the tribunal determined required answers, it is clear that this deck should not be located within the erosion area or the safe gradient area at the top of the slope. There appears to be sufficient room on the table land to erect a deck, if one is needed at all, without impinging onto hazardous areas. As a result, the tribunal finds that the deck would interfere with the natural heritage of the valley system in this area and that it has an impact on the conservation of land. As a result, the tribunal will order that the appeal in this matter be dismissed.

The tribunal is aware that it will be costly to rectify the situation. Therefore, the tribunal further finds that no costs shall be payable by either of the parties to this matter.


1 Photographs of the site are found in Exhibit 2a – Tab 7.

2 Mr. Louro indicated that it was his mother, not his wife, who spoke to the TRCA staff person.

3 The Pazin report does indicate that a light structure such as a deck with the footings established on the bedrock – some inside and some outside the safe gradient area – would be safe.  No inspection of the footings was possible.