The Mining and Lands Commissioner in the matter of the Conservation Authorities Act

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

Wednesday, the 11th day of May, 1988.

And in the matter of

An appeal against-the refusal to issue permission to place fill and construct a single family dwelling on part of Lot 11 in Concession VII (East Flamborough) in the Town of Flamborough in the Regional Municipality of Hamilton-Wentworth.

Between:

Charles Churchill
Appellant

and

Halton Region Conservation Authority
Respondent

M. Rudolph, for the appellant.
R.I.R. Winter, Q.C. and J. Olah, for the respondent.

The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to issue permission to construct a single family dwelling, with attached garage on part of Lot 11 in Concession VII in the Town of Flamborough, formerly in the Township of East Flamborough, and municipally known as 131 7th Concession East. Under Regulation 364/82 the power and duty of hearing and determining such appeals were assigned to the Mining and Lands Commissioner. The appeal was heard in Toronto on February 25 and February 26, 1988.

The applicant and his wife own a part of Lot 11 in Concession VII in the Town of Flamborough, formerly the Township of East Flamborough, having a frontage on the concession road of 250 feet and a depth of from 556.85 on the east side to 692.95 feet on the west side. When the property was purchased in 1978 there was an existing house on the easterly part of the property. Fill had been placed for the purposes of the house, the driveway and the septic tank and tile bed.

The proposal was to sever the westerly 100 feet of the parcel which apparently is possible under the existing zoning by-laws, and place fill for the purposes of a residence, driveway and septic tank and tile bed. It was estimated that the amount of fill to be placed according to the application would be approximately 1,000 cubic yards. The application indicated that the proposed method of filling would be to place clean fill for a depth of twenty-nine inches on the existing soil and place four inches of top soil over the clean fill. In addition gravel would be placed on the part required for a driveway.

Although a plan has been prepared by the respondent of the general area which purports to outline the boundaries of the headwater swamp of the Grindstone Creek, the area has not been added to Schedule 3 of Regulation 164 of Revised Regulations of Ontario, 1980.

The appellants presented a three-fold position. Firstly it was submitted that the property was not a swamp and hence was not governed by the regulation but the tribunal should issue permission. It may be said in dealing with this submission at the outset that it has always been the position of this tribunal that, as the jurisdiction to determine whether there has been a breach of the regulation is the responsibility of the provincial courts, the Minister or this tribunal has no jurisdiction to determine an issue which may subsequently be heard by the provincial court and if application is made or an appeal is brought, the appellant attorns to the jurisdiction of the conservation authority and to the Minister on appeal from the authority and it does not lie in the mouth of an appellant to deny the jurisdiction of the conservation authority after having made an application to the authority.

Secondly it was submitted that assuming the property was a swamp the area involved was insignificant and there would be little effect on the watershed. The third issue was that the issue of precedent should not be considered in dealing with the application.

The position of the respondent was that the subject lands constitutes a pond or swamp or an area susceptible to flooding in a regional storm and consequently a permit is required under clause 3(a) of Regulation 164. It was submitted that the proposal would affect the control of flooding or pollution or the conservation of land contrary to section 4 of the regulation and that the appeal should accordingly be dismissed. It was further submitted that the matter was restricted to the issues addressed by the Conservation Authorities Act and that matters of planning and severance are not relevant to the considerations.

The tribunal assumes, without making any finding of fact, that the proposal of the appellants meets the local planning and severance requirements and will deal with the matter solely on the basis of the issues under the Conservation Authorities Act.

In his evidence, Mr. Churchill stated that the matter of the amount of fill for the septic tile bed was not resolved with the health officials but that he was prepared to take whatever steps they required. It appears that the problem relates to the amount and the type of fill that is required to underlie the tiles and it may well be that with the quantity of fill required to obtain the depths and qualities of fill required by the health authorities the depths of fill shown in the application would not meet the requirements of the health authorities. In addition there was no evidence before the tribunal to assist the tribunal in coming to a conclusion that the proposed filling in respect of the septic tile bed and the septic tank would be consistent with any concept of swamp management.

Subject to what was said above, the appellants called John Douglas Collver, a practising landscape architect with considerable experience who gave the opinion that the site in question was not a swamp. He referred to the species of trees growing on the site and mentioned that there was a mixture of hardwood and softwood trees including Manitoba and Silver maples, cedars, pine and ash which he classified as not being indigent to low lying areas. With reference to other cover, he gave evidence that he observed wild grass growing on the site and although he was familiar with the four categories of swamps frequently referred to, he expressed the opinion that the site was not a swamp. On cross-examination the witness indicated that he would defer to the opinion of a professional botanist.

In contrast the respondent called Brenda Kathleen Axon, an employee of the respondent for a period of eight years, who had considerable experience in wetland research and management in several parts of the Province. In her studies at Waterloo University she studied biology as a major option and took a position with the respondent prior to completing her course. During her experience with the respondent she had prepared inventories of wetlands and had prepared an inventory of the lands in the Bronte and Grindstone Creek watersheds. Her evidence was that the vegetation on the site was consistent with the vegetation shown in the literature outlining the definitions of swamps and that the maple, cedar and poplar species were consistent with the definition of swamps. In addition she identified shrubs and grass species which fell within the concept of hydrophytic plants which are indigenous to wetlands.

In addition the respondent called R.H. Tuffgard, the manager of water resources of the respondent, who in addition to his experience with the respondent over a period of four years had had experience in the private sector. His evidence was that from an examination of the soil on the property the soil was black, muck, organic soils which are usually classified as swamp soils.

In previous cases where evidence has been led on the issue of whether an area is a swamp that evidence has usually included the evidence of a soils engineer who has taken samples from test pits and analyzed the soil. Normally the ultimate purpose of such evidence is to establish the appropriateness of the swamp management program proposed by the appellant and on the evidence that has been produced before this tribunal the opinion of the tribunal would be that the area could be classified as a swamp and would be prepared to make such a finding if such a finding were necessary.

More relative to the subject of swamps, it may be noted that the program of erecting a building with incidental fill submitted by the appellants in their application was completely devoid of any concept of swamp or wetlands management. The program consisted of the placing of fill on the existing vegetation and covering it with topsoil and gravel on the driveway. In the view of this tribunal it cannot be considered that this program can be considered as being consistent with any concept of swamp or wetlands management.

With reference to the matter of flooding the appellants called P.B. Ashenhurst, P.Eng. as an expert witness. Mr. Ashenhurst has had considerable experience in the water management field, both in the private area and in consulting work for conservation authorities. He attended on the property on January 22, 1988 and provided the appellants with a report, a copy of which was filed as Exhibit 11. In dealing with the matter of flooding the witness reported in the second paragraph on the first page of his report as follows:

 

On January 22, 1988, I visited the site after having acquired the appropriate Fill Line Mapping for the area from the Conservation Authority. According to Mrs. Debbie Ramsey, Planner, of the Authority, there has been no flood plain analysis or mapping of the subject lands. Thus, the claim by the Authority that the lands are susceptible to flooding is without foundation. In my professional opinion, based on prior experience and visual observation of the fall of the lands and topography in the immediate area, the lands to be filled would not be susceptible to flooding. Therefore, whether the lands are filled 33" or more than five feet is irrelevant with respect to filling a flood plain.

 

It is not usual that there is significant or accurate evidence of the degree of flooding in the headwater swamps of watersheds. The difficulty that the tribunal has with Mr. Ashenhurst's conclusion is that while it may not be probable that the subject lands would be endangered by flooding by reason of the erection of the building the standard or test that the conservation authority is expected to administer as is noted in section 4 of the Regulation is "the control of flooding". The serious matters in respect of the erection of buildings in headwater swamps is not the risk to the property itself but the loss of storage capacity, flow augmentation and ground water recharge, all matters which the witness subsequently acknowledged as being important principles in the matter of water resource management.

Notwithstanding these principles the witness gave an opinion in respect of these matters. His third and fourth paragraphs read as follows:

One of the concerns of the Authority is the increase in runoff resulting from the increase in impervious surface. Typically, urban development increases the peak rate of runoff. from 300 to 500 percent over the natural conditions. Additionally, the volume of runoff is increased as a result of the decrease in pervious surface. The proposed infilling is not a typical urban development but is rural in nature with lower rates of increase in runoff. Using the Fill Line Mapping for the measurements, the lands indicated by the Authority to be either swamp or wetland in this drainage basin to the outfall at Highway 6 is contains 113.75 hectares. The lands to be filled represent a 50 m by 30 m parcel which is 0.13% of the regulated area to the outfall at Highway 6. If there were an error in over measuring the area within the fill line by ten percent, the proposed lands to be filled still only constitutes 0.15% of the regulated area. Assuming the proposed area to be filled were to be 100% impervious, the increase in flow at the outfall at Highway 6 cannot be accurately predicted or measured and any attempt to do so would be nothing more than a numbers game. Similarly, the contribution of these lands to low flow augmentation during dry seasons cannot be reasonably determined. The present low flow augmentation potential is questionable considering the lands are on the high side of the assumed "swamp".

Put into perspective, the normal accuracy of measurements in a hydraulics lab where conditions can be rigidly controlled is from 1.5 to 2.5 percent depending on the type of measurement. When compared to the lab, the hydraulics of natural conditions can only be assessed to about 5% accuracy at best assuming uniform conditions, which conditions do not exist for this drainage area. Determination of the rainfall-runoff process is even less accurate being in the range of ten percent at best. Thus, the infilling of 0.13% of a designated area will not affect the use and/or purpose of that area.

The tribunal's concern with this approach is that the conclusions are based on the amount of water that would not be assimilated by the subject lands if their swamp characteristics were removed and the results thereof considered in relation to the entire area of the subwatershed above Highway 6 which provides an embankment to the flow of water in the upper part of the watershed of the creek. The primary concern in such circumstances is not the amount of water that is released and its effect on flooding the immediate area and downstream areas but the loss of retention of waters which is probably more significant in a positive way than the prevention of the release of waters which would have an immediate effect on flooding. Notwithstanding his ascertation the witness admitted that there was an effect but took the position that it was not measureable. However, the witness on examination by the Bench acknowledged that none of the textbooks or the literature adopt a de minimis principle of flood plain management and in dealing with this matter the tribunal has never adopted. such a principle. The prime reason of the tribunal is that in fairness to all landowners the controls of the Conservation Authorities Act and the regulations should be applied to all lands in the floodplain. It would be most unfair if a number of landowners were granted permission and ultimately a firm line would have to be drawn. There is no element of a safety factor in the establishment of a regional storm and in fairness to all landowners, the position adopted by this tribunal has been that no exception should be created on the de minimis theory and that all properties should be treated equally. The purpose of the Conservation Authorities Act is to prevent the construction of buildings and the placement of fill in flood plains and areas related thereto and in its practice this tribunal has not attempted to create exceptions on the de minimis theory particularly as it has noted in the cases that have been placed before it significant changes in the elevation of the regional flood as a result of development in the flood plains.

In his re-examination the witness admitted that there was a distinction between the role of an engineer as an engineer in water resources management and an engineer giving advice as a construction consultant. The tribunal agrees that there is such a distinction but the existence of such a distinction does not establish that the conclusions of the latter should influence or govern the decisions of the former.

This witness also gave his view that the subject lands should not be categorized as a swamp. He acknowledged the four basic categories of wetlands and concluded particularly relying on certain topographic maps of the Ministry of Natural Resources that the subject lands should not be treated as being a swamp. However, the tribunal has indicated above its position with regard to this issue. The tribunal is satisfied on the evidence, even though it was pointed out by this witness that there are no definite channels in parts of the surrounding areas and there is an appearance that the channels may have been farm drainage ditches at one time, that the area falls within the category of a headlands swamp and as such the matters of retention of waters and the ground water recharge principles are matters which should be considered by a conservation authority in dealing with the present application. In this regard the evidence of the respondent indicated that there are a number of properties downstream which require the application of these two principles in a very serious way. The communities of Millgrove and Shelter Valley are presently situate below the regional storm elevation and all possible steps should be taken to prevent the increased flooding of these areas not only in the regional storm situation but in storms of lesser severity. The evidence of the respondent also indicates a need for flow augmentation for agricultural purposes and for water supply purposes. The evidence of Mr. Tuffgard outlined the practical implications of the loss of the swamp characteristics on the Grindstone Creek watershed.

Turning to the third aspect of the matter one of the reasons of the respondent for refusal of the application was the cumulative effects of the proposed project and officials of the respondent indicated to the appellant and also gave evidence at the hearing before this tribunal, that such considerations are merely an application of the doctrine of precedent and the granting of a specific application should be considered in the light of the precedent to be set for future applications. To meet this position counsel for the appellant obtained and lead evidence of a planning expert, N.S. Sibbick, to the effect that with existing planning controls, there was not more than one opportunity for a similar application. It is not the understanding of this tribunal that a principle of precedent is the same as the cumulative effects doctrine.

The cumulative effects doctrine is an engineering principle related to the hydraulic effect of changes in a flood plain. Any physical modification of the flood plain by fill, channelization, bridge abutments or other structures has an effect on the flood plain. Any activity within the flood plain such as the proposed fill may have the effect of increased flooding on site and either upstream or downstream. These activities may also have an effect on the erosion of the watercourse due to increase in flood flows and velocities. The upstream effects in this case with the subject lands being situate in the headwaters of the creek mayor may not be as significant as where the location is further downstream.

To explain the effect in layman's terms, let it be assumed that a building, structure or quantity of fill is placed within the flood plain of the watershed. The effect thereof due to the restriction created may be increased upstream flood levels, resulting in an increased depth of flooding of existing homes and property. At the same time the insertion will remove available flood plain storage. This may result in an increase in flows and velocities to downstream areas. The results are increases of flooding beyond the flooding that would have occurred and greater risks of erosion which causes the undermining of building and the removal of bank material and other structures. In this case the downstream communities of Millgrove and Hidden Valley are subject to flooding in flows of less than a regional storm. If the cumulative effects are added to the natural flows of a regional storm or lesser storms, there is an additional risk of flooding and erosion to the lands and buildings in these communities.

For the foregoing reasons it is apparent that the cumulative effects doctrine is a matter other than the issue of precedent. Precedent is an administrative or political consideration and each precedent that is created has its own cumulative effects unless those, effects are negatived by some principle of flood plain management such as an application of the incremental balanced cut and fill principle. However it is not appropriate to equate precedent and cumulative effects and the fact that there is, assuming the planning laws which are political as contrasted with engineering decisions are not changed, the lack of opportunity for similar projects does not remove the cumulative effects of the project under consideration.

In addition, in his submissions counsel for the appellants submitted that by not filing as a regulation the map filed as Exhibit 12 which had been prepared as a fill line map the respondent had waived its jurisdiction over the placing of fill. It is noted that this exhibit bears a notation that it is to form part of Schedule 3 to the regulation. The fact that the authority had not yet created the jurisdiction over fill in the opinion of this tribunal does not deprive the authority of its jurisdiction over the construction of buildings. The regulations under the Conservation Authorities Act are not planning regulations. They are regulations related to the inherent capacities of the land involved. The inherent capacity of the land relates to the construction of buildings and the failure to pass a fill regulation does not remove the jurisdiction of the respondent in that respect.

For the foregoing reasons the tribunal is satisfied that there are issues of control of flooding, pollution and conservation of land in the matter, the respondent has dealt with these issues appropriately and the appeal should be dismissed.

  1. This tribunal orders that the appeal in this matter is dismissed.
  2. This tribunal orders that no costs shall be payable by any of the parties to the matter.

Signed this 11th day of May, 1988.

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