The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to grant permission to construct an institutional building and parking facilities on part of Block A, Registered Plan 1899Y and part of Block X, Registered Plan 2772Y in the Borough of North York.
United Jewish Welfare Fund of Toronto
The Metropolitan Toronto and Region Conservation Authority
M. H. Chusid for the appellant.
J. B. Conlin, Q.C. and R. G. Doumani for the respondent.
The appellant appealed to the Minister of Natural Resources from the decision of the respondent dated the 15th day of December, 1976 refusing permission to construct an institutional building and parking facilities on the floodplain of the Don River. By Ontario Regulation 65/77 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner and the appeal was heard in Toronto on the 18th and 19th of April, 1977.
The Young Men's Hebrew Association - Young Women's Hebrew Association, hereinafter referred to as "the Y", owns a parcel of land that is situate on the westerly limit of Bathurst Street as widened. The property is situate a short distance northerly of Sheppard Avenue and has a frontage of approximately 1,700 feet and a depth of between 700 and 800 feet. At present there is situate on the property a number of recreational and cultural facilities.
The appellant is the major central agency of the total Jewish community in Metropolitan Toronto. Its history goes back to 1917 and currently it administers matters of cultural, social, educational and recreational aspects of the Jewish community. It is made up of representatives from practically every Jewish organization in the community and has members who are not representatives of groups. The appellant is funded by the United Jewish Appeal Campaign and the United Community Fund. It provides funds to many of the organizations that are represented including the Y and provides services in respect of family agencies, hospitals, homes for the elderly, libraries and similar social and educational programs.
For some time the appellant has been looking for a location on which it could erect a building to house the administrative officials of the many programs that are operated by the fund or through the fund. Presently these officials are located in eight buildings across the city. The headquarters is at 150 Beverly Street which is no longer located in the part of the city that houses the Jewish community which part is presently found within the corridor of one half to one mile from Bathurst Street. The family agencies are located at 3130 Bathurst Street which is northerly of Lawrence Avenue. The library is located at 22 Glen Park. The appellant had hoped to find one location at which all these agencies might be housed in one building resulting in the avoidance of duplication of maintenance and support for the programs and providing a location from which the recipients of the programs might obtain all the services at one location. Some of the programs have duplicate facilities and operating expenses which would be eliminated, saving unnecessary expenditure of funds if a central location can be obtained.
The appellant has been able to make tentative arrangements with the Y for the erection of a proposed building on the aforementioned parcel owned by the Y. Other locations have been considered and no vacant site in the corridor in which the majority of Jewish people live is available with the exception of one other site which is situate on Bathurst Street southerly of the subject lands. This site is not satisfactory. The subject lands are a most desirable location for the appellant as the land cost of the arrangement to use the site is nominal, as they are located centrally within the aforementioned corridor and as these programs could be integrated with the program of the Y creating the concept of a central Jewish campus.
The appellant engaged Mark David Lipson, a professional architect, to investigate the feasibility of the subject lands as a site for the proposed administration building. He gave evidence that he consulted with municipal officials regarding traffic and planning matters. Officials of the traffic departments of the metropolitan government and of the Borough of North York indicated that the traffic situation would be acceptable provided no additional entrances are necessary and the traffic official from the borough indicated that a pedestrian access from Bathurst Street would be acceptable and perhaps desirable as this would obviate the need of pedestrian traffic walking through the parking area.
On consulting with officials of the North York planning staff they advised that the lands were zoned "green belt" and that it would be necessary to make a zoning change. The witness indicated that a procedure referred to as a specific amendment for the proposed building appeared to be satisfactory and interesting to the planning staff. However, the planning staff referred him to the respondent and in December, 1975 he consulted with John Maletich of the staff of the respondent who pointed out that the concern was that the proposed building was situate in the valley floor of the west branch of the Don River and would have the detriments of reducing the storage capacity of the floodplain and constituting a constriction of the floodplain. He suggested that if the proposal were proceeded with the building should have no basement and the services should be erected above the floodline.
Following his discussion with Maletich and obtaining instructions from the building committee of the appellant the witness prepared a preliminary plan of the proposed office building which would be constructed on 42 concrete pillars approximately 2 feet square. The building would be approximately 125 feet square. It would be composed of six or seven stories having a total height of eighty to ninety feet. It would be situate approximately 35 feet westerly of Bathurst Street as widened and approximately 125 to 135 feet southerly of the existing bed of the river. The square footage of the land to be covered by the building is 19,500 square feet. The first floor would contain approximately 18,000 square feet and each of the remaining floors would contain approximately 16,625 square feet making a total of approximately 96,125 square feet.
The first floor of the building would extend beyond the other floors. It is proposed that a library be placed on this floor and that it extend toward the south obtaining the benefit of the natural ravine outlook from the wooded slopes at the south side of the subject lands. It is proposed to have 440 parking spaces which currently exist as a result of an extension program of the Y which has currently been completed and will be referred to subsequently.
The proposal is that there would be no basement and the area between the concrete pillars would be used as a parking lot, and as a site for access devices to the building.
Access to the building will be through stairwells, exterior elevators from the parking area on the first floor and an elevated walkway from Bathurst Street leading to the first floor of the building. It is also proposed that there be a ramp for wheelchairs.
In the proposal, the occupied area of the ground level would be as follows:
42 pillars at 4 square feet each – 168 square feet
lobby - 20 feet by 20 feet – 400 square feet
2 stairwells at 8 feet by 20 feet – 320 square feet
exterior stairwell and ramp – 800 square feet
Total – 1688 square feet
Some of these potential obstructions are not necessarily essential and only the pillars and the stairwells are essential. The other items are optional.
Following the preparation of the preliminary site plans an application was made to the Borough of North York for rezoning on the basis of what was referred to as a specific amendment. This application was made in January, 1976. Following requests for additional information and further consultation with the building committee of the appellant an initial plan was submitted in March. However, by August it became apparent that the respondent was objecting to the application for rezoning and the appellant was referred to the objections of the staff of the respondent and requested to clarify this situation. On August 13, 1976 there was a meeting with John Maletich of the respondent's staff for the purpose of determining whether the building could be designed to alleviate the problems and the concerns. In the absence of supporting data the company of Cummings, Cockburn and Associates Limited, municipal consulting engineers, was engaged and the witness collaborated with Keith Lathem of that organization in the obtaining of research and data on the problem and methods of dealing with it.
Before dealing with the evidence of Keith Lathem it may be well to outline a description and the history of the lands of the Y. The west branch of the Don River flows through the parcel. In the state of nature it entered the parcel at the westerly limit of the parcel at a location approximately one-quarter of the distance southerly from the north limit of the property. It immediately formed an oxbow in a northerly, easterly, southerly and westerly direction returning toward the westerly limit of the lot at a location approximately 80 feet southerly of the beginning of the oxbow. The river continued in a general southerly direction to a point approximately one-quarter of the distance from the southerly limit of the property and formed a second oxbow flowing in a southwesterly, southerly and southeasterly direction towards Bathurst Street. The greater part if not the whole of the lands of the Y are contained within the schedules to Ontario Regulation 735/73, clause b of section 3 of which prohibits the placing of fill in the lands described in the schedules without permission. The subject lands are included on Sheet 5-W which is one of the sheets of the respondent that have been filed with the Registrar of Regulations and are referred to in the regulation. This sheet also showed the floodline that was observed during Hurricane Hazel in 1954 and the floodline of a regional storm. On Sheet 5-W a note refers to this line as follows:
Design river storage - calculated by transposing to this watershed the intense rainfall which occurred over the Humber River basin during storm Hazel Oct. 15, 1954."
Approximately in 1958 before the respondent made the predecessor of the present regulation the Y constructed a building and other facilities in the northerly portion of their land. The Y consulted with the respondent at that time and the respondent pointed out erosion hazards and problems particularly in connection with the swimming pool that was proposed to be erected. Notwithstanding the advice of the respondent the Y went ahead with their proposals. By March, 1960 erosion had developed on the property of the Y and the Y submitted a plan for a diversion of the west branch of the Don River and requested the respondent to undertake the work. The respondent in the first instance rejected the proposal on the basis that the Y had been given prior warning of the dangers and notwithstanding this warning had proceeded with the construction of the building and other facilities. An official of the respondent recommended W. O. Chisholm a professional engineer who specialized in this type of work to the Y and a number of slabs were placed in the river by the Y but these were not satisfactory and did not solve the problem. There were further representations in 1963 and 1964 and following continued erosion and references to elected representatives a committee known as the Technical Advisory Committee on Parks and Recreation, established with representations from Metro council, North York and the respondent, was charged with studying the erosion problem on the property of the Y. In 1965 a preliminary study funded by the Metro council and the province was conducted and in 1966 a report was received and approved by the respondent. It was forwarded for technical approval to the Conservation Authorities Branch which approved the design in 1966 This proposal was prepared by W. O. Chisholm and Associates (Eastern) Limited and diverted the channel so that it entered the property of the Y at a more northerly location, straightened the northerly oxbow and at the beginning of the southerly oxbow curved the channel towards Bathurst Street. The channel of the stream was widened from approximately 20 feet to 60 feet in width. With the removal of the oxbows from the river the length of the channel was considerably shortened necessitating the construction of certain structures both at the upper end and the lower end of the diversion.
The upper structure was a drop structure which had the effect of dropping the water a perpendicular distance of approximately sixteen feet thereby reducing the increased slope resulting from the shortening of the stream. More will be said of the structure at the other end later. Other improvements involved the placing of gabions along the walls of the new channel. The fill from the new channel was placed in the old channel, particularly the southerly oxbow, which was contained in the southerly quarter of the lands of the Y. In addition fill was placed in this southerly area from road construction in connection with Bathurst Street with the result that there is a tract of land lying between the new channel and the southerly limit of the Y property measuring approximately 300 feet in width. This project was funded with a fifty per cent payment by Ontario and a fifty per cent payment by the respondent which latter fifty per cent was contributed to in the amount of one-third by the Y, one-third by North York and one-third by the general Metro funds.
Before leaving the diversion it should be noted that as part of a scheme of the respondent which was funded by federal and provincial funds a dam known as the G. Ross Lord Dam, hereinafter referred to as "the Lord Dam", has been constructed above Finch Avenue which is the first major street to the north of the subject lands. The site of the dam is approximately one mile to the north and the diversion was constructed to a design standard of a flow of 5,200 cfs being the controlled discharge of the Lord Dam during a regional storm of 4,800 cfs plus an additional flow of 400 cfs for the flow that would be added to the river in the intervening area.
Upon completion of the diversion the Y applied to the respondent for approval of the construction of a physical education wing to the existing building, a theatre and an art and music section. The respondent being aware that this was part of the original proposals dating back to 1960 and having noted that no structures would be located in the floodplain as established during Hurricane Hazel approved the proposals subject to a number of conditions. These conditions were contained in a letter of November 26, 1973 from E. F. Sutter to the architect for the proposal and read as follows:
- no building openings being located below the elevation of 505 as indicated on our Flood Line Map Sheet No. 5W of the Don River;
- a minimum amount of fill being introduced in the area of the proposed parking lot;
- the area of the parking lot being suitably landscaped and properly drained;
- no fill of any kind being placed in the remaining portion of the valley lands;
- no further buildings and/or additions being applied for on the remaining valley lands;
- this Authority having the opportunity to approve the final grading plans for the proposed parking area and vehicular structure across the existing channel;
- the proposal conforming to all existing municipal bylaws and regulations."
This project has been recently completed and in connection therewith the area in the southerly part of the Y property has been developed into a parking lot and two bridges now cross the new channel, one having been constructed during the diversion for pedestrian traffic and one having been constructed for vehicular traffic during the extension program. The new theatre is referred to as the Koffler Centre for the Arts.
In 1973 Marshall Macklin Monaghan Limited prepared a plan of elevations of the area following the construction of the diversion and this plan was filed as Exhibit 1. This plan shows the elevation of the new channel as being 490 feet at the easterly limit of the property of the Y and 494 feet at the upper end of the diversion. These elevations are somewhat higher than the elevations proposed in the Chisholm design but are probably within the degrees of accuracy contracted for although these degrees are not shown on the plan. In addition it shows the elevations of the subject lands varying from 507 feet to 514 feet or more particularly these contours are related to the site of the proposed building although such is not precisely surveyed at the moment. The architect Mr. Lipson assumed the elevation for the parking lot to be 511 feet and these elevations appear to be relatively consistent. Contrasted with this the elevation of the bed of the stream in its natural state was 495 feet according to the Sheet 5W and according to the Chisholm plan. The elevation for the regional storm in this area according to the Sheet 5W is approximately 505 feet. More specifically the site of the proposed building falls generally within the regional floodplain of the river in its natural state and the northwest corner of the building is located over the actual channel of the natural bed of the river.
In support of its case the appellant called Keith W. M. Lathem a professional engineer who is well qualified in matters of hydrology, hydraulics and photogrammetry. Lathem had been engaged to determine whether the proposed building and structures were subject to flooding and would constitute a constriction of the floodplain. He obtained data from the office of the respondent on elevations and on the Lord Dam. He prepared a report that was filed as Exhibit 9. In preparing the report he made a field survey to check a number of structures and take a number of elevations and he concluded that with the Lord Dam in operation the flow of the river with the maximum discharge from the Lord Dam under controlled situations would be contained wholly within the channel of the diversion. Further he assumed that the Lord Dam would cease to be functional and with the full flow of the regional storm, which was said to be 12,650 cfs, there would be some overtopping of the channel and the flood might approach the corner of the proposed building closest to the river. In his estimation an elevation of 508 feet might be obtained. The reason for this was the fact that some of the flow might be obstructed by the pedestrian bridge and the vehicular bridge. Accordingly, he concluded that under present conditions the site of the proposed building would not be subject to flooding even in the event of the Lord Dam failing to operate and the full flow of a regional storm were to pass through the diversion.
The witness also considered the matter of constriction of the channel and prepared three cross-sections of the floodplain in the area of the site of the proposed building. He concluded that the building itself would not become a constriction and that the proposed building would not be endangered by a flood from a storm of the magnitude of Hurricane Hazel centred over the watershed.
He gave his opinion that the definition of a regional storm contained in Ontario Regulation 735/73 was a definition of a Hurricane Hazel storm and he expressed the opinion that this is the standard adopted in this area in connection with regional storms. He stated that in his opinion, it is beyond doubt that the lands are not susceptible to flooding during a regional storm.
The reasons for refusal given by the respondent having included the possible effects of a storm referred to as a maximum probable storm, the witness was asked his opinion on the nature of such a storm. The witness indicated that he was of the opinion that such a storm had never occurred in the area or in this region. It is a storm the hazards of which are much greater than the hazards of Hurricane Hazel and the principle of the theory involves the transposing of all of the worst storm experience and applying it to the particular area with a maximization of all factors including moisture, temperature and rainfall. The term according to the witness is applied to the construction of larger dams and is used for the establishment of safety standards particularly where there is a significant hazard to downstream properties. In the witness's opinion it is a standard which would ensure that a dam would not fail under the worst of circumstances. Further in the witness's opinion this test was not normally applied and to his knowledge has never applied in determining the extent of floodplains. The reasons for the application of such a stringent standard are that dams are very expensive to construct and the additional costs of the higher standards of safety far outweigh the economic cost of the risk of construction to a lower standard and secondly, by their nature dams concentrate energy and create hazards to downstream property. With regard to this aspect the additional costs of construction are less expensive than the cost of zoning lands and removing them from use to the extent necessary to give protection from maximum probable storms. The witness pointed out that if a dam fails it creates a threat to the very properties it was designed to protect.
The witness was asked his view of the policy of the respondent in the event the respondent were to adopt the concept of a maximum probable storm floodplain. The witness answered that obviously the addition to the Y building or the Ontario Science Centre would not have been approved and that there would be dangers in Hoggs Hollow and many places in Toronto. The witness went so far as to suggest that if such a policy had been adopted the City of Toronto may not have been built. In the opinion of the witness the use of this standard in the reasons of the respondent was unwarranted.
The witness was asked to give his opinion on the reasons for refusing permission by the respondent which are as follows:
- The subject site lies within the area which was flooded during Hurricane Hazel 1954, as defined on Authority Flood Line Map Sheet #5W of the Don River, which forms part of the Schedule to Ontario Regulation 735/73:
- The policy adopted by the Authority under the Plan for Flood Control and Water Conservation recognizes that the construction of control works cannot be considered to have the effect of eliminating flooding and thereby releasing flood plain land for development purposes:
- Under the maximum probable flood, the G. Ross Lord Dam would be required to pass the full flow of the watershed above the dam and would, under those extreme conditions, have limited effect as a flood control structure. In order to safeguard downstream communities and human life, which would be in jeopardy if the dam failed, the spillway of the G. Ross Lord Dam is designed to pass the maximum probable flood. Conditions similar to this flood would be created if the full reservoir had to be lowered rapidly as the result of an impending severe storm, or if the dam could not be operated:
- The channel constructed on the subject property, under conditions in excess of the design flood, could fail. If the channel were overtopped, it would fail, with resultant flooding and erosion of the adjacent flood plain."
On the first reason counsel for the respondent objected to the question on the basis that the reason constituted a statement of fact to be determined by this tribunal. Notwithstanding the objection, the witness was permitted to answer the question and he gave the opinion that as the channel had moved 250 feet in a northerly direction and had been enlarged two and a half times in width and had been protected with gabions and as the velocity had been reduced by the installation of drop structures, any reference to the 1954 floodline is not relevant and in his opinion there is no comparison between the 1954 situation and today's situation below an elevation of 510 feet.
Upon objection to the view of the witness with regard to the second reason, the question was withdrawn.
With reference to the third reason the witness agreed with the stated hypothesis and acknowledged that under such a storm the protective devices would not prevent flooding downstream of the Lord Dam and further suggested that if the dam were operated to its capacity and failed during such a storm there would be a double risk of damage downstream with the secondary risk of damage arising from the failure of the dam to hold the full reservoir and the subsequent release of the volume of water contained in the headpond.
On the fourth reason the witness agreed that under conditions that would overtop the new channel there is a risk of failure of the new dam to contain the flow and that there would be resultant flooding and erosion. However, in the witness's opinion the emphasis on the possibility of such a threat was "more positive" than there is scientific justification for being concerned in respect of such a risk.
The witness was referred to the report of the staff to the respondent dated December 14, 1976 which mentioned, among others, two points the first of which was that there is no guarantee that a flood greater than a regional storm will not occur and secondly, that it was the policy of the authority whether written or not that once a dam or channel improvement is constructed, the regulation should not be reduced. The witness was not prepared to disagree that there is a possibility of a storm of greater magnitude than a regional storm occurring. He also admitted that he was familiar with the policy respecting the effect of improvements but was not aware of such a policy ever having been placed in any regulation.
In conclusion the witness gave his opinion that the giving of the permission sought would not effect the control of flooding, pollution or conservation of land. The proposal was not a constriction of the floor of the valley and with or without the Lord Dam in a regional storm the proposed building would barely be approached by the flood.
With reference to the probability of flood damage to the proposed building the witness pointed out that there has only been recorded in the Toronto area one storm of the magnitude of a regional storm. By definition a maximum probable storm is one that has never happened. However, if a storm of the magnitude of Hurricane Hazel again occurs there would be, no doubt, substantial damage, which by reason of inflation may equal the damages done by Hurricane Hazel but in extent would be less by reason of the structures and the programs of the respondent.
When asked his opinion on the unanimity of Ontario Government bodies on the use of the term "maximum probable storm" the witness pointed out that he is the chairman of a committee on a manual on urban drainage and that there are differences of opinion respecting the term not only among departments but among professionals outside of government. One of the reasons for the lack of unanimity is that there are three different standards across the province that are used in establishing criteria for regional storms. The witness went on to point out that he did not accept as satisfactory the adoption of a maximum probable flood line as a standard of protection because the likelihood of such a storm occurring is most remote and politically the cost of protecting floodplains and controlling the use of floodplains to such a standard would be unacceptable.
On cross-examination Lathem admitted that there could be storms of a range of severity between a regional storm and a maximum probable storm which would exceed the level of protection provided by the dam and the diversion. After obtaining the agreement of the witness as to the design of the Lord Dam permitting a discharge of 4,800 cfs and retaining the balance of a regional flood flow of 12,650 cfs and further the dam being designed with gates capable of passing large flows including a maximum probable flow of 26,000 cfs, the evidence respecting the effect of flows through the diversion in excess of 5,200 cfs is as follows:
Q. But is it not possible that we might have a precipitation in excess of Hurricane Hazel which might not necessarily be maximum possible?
A. Maximum possible or maximum probable?
Q. Maximum probable.
A. Well, that is true ---
Q. Suppose it was ten per cent more ---
A. Ten per cent more than Hurricane Hazel?
Q. Yes. Suppose it was ten per cent more. Then you would have to let go more than 4,800 at the dam to keep it in balance up there wouldn't you?
A. Likely, yes.
Q. So that means you have to crack the gates? Is that right? You can't do it through the escape route. So you have to crack the gates and therefore at 4,800 it would be more or at least add something -- ten per cent -- more than the 12,650 you would be dumping into the river below the G. Ross Lord Darn. Something in excess of 4,800. Is that right?
A. Could be.
Q. And if you were, then the design for 5,200 on site down here would not be adequate to accommodate it? Right?
There is a little bit of freeboard in the channel.
Q. All right. What do you say you have done is to take the entire 12,650 and let it sweep down here and you found it between the heavy dashed line which is on side of the curve and the other one -the heavy dashed line over here just touching the building. Is that right?
Q. Now that is what you say would occur, but when that overtopped that, I suggest to you that it would affect the gabions because it would scour them out and seriously damage the channel, would you agree with me?
A. Well, I think it sure could. I think the point that was made in the authority's staff report was that the area was paved but that it may not always remain paved and therefore you may get considerable erosion in the area. That was the statement that they made. Again I think it depends on the landscaping and the grading that is carried out on the parking lot and in the vicinity of the building.
Q. I use the language you precisely used earlier. Would you agree with me that the lining of the channel, especially a channel of that kind for erosion control, would not make the area floodproof?
A. No, it would not do that.
Q. And, is there in fact some experience that you have had with respect to designing erosion control channels for the conservation authority I represent?
A. Yes, a firm that I used to work with did some channel work for the Metropolitan Toronto Region Conservation Authority.
A. In Highland Creek.
Q. Do you know what happened to it as a result of a storm that was hardly Hurricane Hazel or anything like it in August of last year?
A. I have no first hand knowledge. I understand that there was some damage created to the channel -- the conservation authority -- I was involved in the design of some parts of that. The conservation authority certainly did not contact me to examine or comment on the damage so I have no first hand knowledge of that particular thing. But I can tell you ---
Q. But without doing that -- without doing violence -- I am not intending to do violence to it -- I am just trying to indicate or asking you if you would agree that when overtopped these gabions would eventually or frequently be very severely eroded away?
A. Yes. I would like to make one more point about that since you brought it up. There was never any intent that those channels be designed for Hurricane Hazel.
Q. I never suggested for a moment that they were. They were designed to some criteria - hopefully to keep erosion from occurring.
A. The other point I'd like to make. I have never seen any indication that this storm was more severe than Hurricane Hazel.
Q. I didn't suggest that it was.
Q. The reason I don't under any circumstance want to put it on any higher basis than to say that when one undertakes a channelization of that land you can hardly accept it as something that will avoid some kind of flooding, erosion and scouring of the surrounding territory to the detriment of whatever happens to be adjacent to it. Is that fair?
A. Yes that is right.
Q. Well, then in so far as this area itself is concerned we are right, are we not, that the water whatever it is, whether it is plus ten per cent of the 48 up there or 12,650, or whatever, its outpour has to come around that corner. Is that right?
Q. Now then, you say, and you said it with a certain degree of absolute certainty, that the reason was because of these interruptions of the bridges and so forth that cause loss of headway. Loss of headway, does that just mean it creates a damming effect and backs it up?
Q. I am suggesting to you that it might well have come down or it could come down and continue scouring in there if it overtopped that gabion work. Would you agree with me that it would be very possible for it to flow down the parking lot and scour out underneath the asphalt?
A. I suppose if you had some spring or something under the asphalt, you might get some scour under the asphalt, but the surface flow, unless it starts to lift part of the asphalt, it is not likely to scour."
The witness admitted that in making his conclusions he did not take into account the possibility of cars interfering with the loss of storage capacity. His view was that cars would be removed from the floodplain prior to the peaking of a flood. Also he would not agree that the 42 pillars and the lobbies, stairwells and elevators would cause a potential constriction of the channel. His reasoning was that they would not be in the channel even during a regional flood.
In his report the witness made the statement that the constriction of the Ontario Science Centre and other buildings in the floodplain prompted the construction of two devices, namely the channel improvement project on the lands of the Y and the Lord Dam. On cross-examination as to the accuracy of this reason, the witness indicated that there are two effects of the construction of dams related to the matter of silting. He stated that detrimental downstream effects can be expected from dam construction. Firstly, through the sedimentation of silt in the headpond the discharge from the dam is clearer than the flow would be in a state of nature and the water has a greater ability to pick up earth and create erosion. In addition it has a greater energy potential that contributes to erosion. Secondly, the sedimentation process causes filling of the headpond or reduction of the capacity of the headpond to perform its function which in the case of the Lord Dam was to contain, subject to the controlled discharge of 4,800 cfs, the flow of a regional storm. The result would be a further ability of the discharge to create scouring downstream.
The witness was strongly cross-examined on his alleged statement that it was impossible for the flood waters to reach the yellow line in Exhibit 13 which line represents the regional flood line of the channel prior to diversion. The witness would only retract from this position in the event the channel took again its 1954 course and the drainage capacity of the Bathurst Street bridge was reduced by 60 per cent. He did not reflect any experience on the matter of streams seeking former channels during regional storms and particularly Hurricane Hazel and indicated that no such expertise has been developed.
The following questions and answers were put in evidence:
Q. Finally, I want to ask you whether or not you in fact calculated the results of that formula that was shown to you by my friend Mr. Chusid. Did you calculate it and ascertain the answer that it was Hazel?
A. The formula, the chart, the table?
Q. Yes, did you work it?
A. I didn't work out the flood flow for this particular project. We merely made use of the data that was given to us by the conservation authority.
Q. In other words, may we then take it that when you gave those answers to my friend as to what kind of a storm that is, you said similar to Hazel, I would think, I assume, that it's intended to be that ---'You didn't work it out to determine --
A. I have worked Hazel out hundreds of times but not in this particular case. I've always used that same distribution."
The witness also admitted that in making his calculations he did no extensive examination of or take into consideration the conditions downstream from the Bathurst Street bridge. He stated that in determining the roughness coefficient for his calculation of an elevation of 507 feet at the Bathurst Street bridge he examined the river a short distance below Bathurst Street but did not make an examination as far as Sheppard Avenue. With reference to the structure under the Bathurst Street bridge which the witness referred to as a drop structure, he admitted that it is substantially different in nature from the structure at the upper end of the diversion in that it does not provide for any drop in the invert or bottom of the channel compared with the sixteen foot drop at the upper structure and that the structure at Bathurst Street was comparatively level with large concrete blocks or baffles at the discharge end. These blocks are erected in rows with the blocks in subsequent rows being placed in line with the apertures in the immediately preceding row. He admitted that if there were stream improvements downstream the velocity would increase with increased risks of erosion and scouring. He indicated that in his view the significance of the structure was its intended effect on the flow upstream of Bathurst Street and that it would create a backwater effect in this part of the river.
Two expert witnesses were called on behalf of the respondent. Firstly, Ross Lord, Ph. D., who was the chairman of the respondent from 1958 until 1972 and who in addition had a career in mechanical and civil engineering at the University of Toronto, gave evidence on the history of the formation of the respondent and the development of a plan for the programs of, or, in the words of The Conservation Authorities Act, a scheme of the respondent. The plan was entitled "Plan for Flood Control and Water Conservation", was printed in 1959 and is hereinafter referred to as "the Plan". The Plan was adopted by the authority, the participating municipalities and the provincial and federal governments resulting in a four point program. Part of the program involved the building of dams and the federal and provincial governments entered into agreements respecting the financing of these dams.
With reference to the purpose of construction of dams and the implications thereof, Dr. Lord gave the opinion that dams are designed to reduce a flood flow, if possible, to a flow below the dam which would not cause damage to people and property outside the river valley and also, if possible, to reduce the occurrence of erosion in the river valley. In his opinion it is impossible to obtain enough funds to build dams to prevent all flood flows in a river valley because the valley is part of the flood flow system. In his view conservation authorities should be concerned regarding the entire valley and storms of the magnitude of Hurricane Hazel or a greater magnitude and while with reference to the specific application his view was based on the evidence he had heard at the hearing and his experience and was not based on a professional analysis of all of the data, he was of the opinion that the site of the proposed building is within the river valley and cannot expect protection from the Lord Dam. He referred to the experience in United States where the U.S. Corp of Engineers, that has the responsibility of building dams, cannot control the use of the river valley and many billions of dollars of public funds expended by the corp have been rendered negative by the municipalities that have permitted building in the valley.
When asked as to the result of a storm that is greater than Hurricane Hazel and less than a maximum probable storm he pointed out that such a storm could occur at a time when the dam would have little effect as the reservoir may be full or partially filled because one cannot predict against the occurrence of recurring rainfall. At such a time there is a possibility that the dam would break although this result would be remote because the dam was designed to pass a maximum probable flow i.e. 26,000 cfs. Apart from this result, there could arise a situation where the gabion channel would be overtopped by one or two feet and the gabions themselves would be undermined, creating a damming effect and a breakdown of the channel sides. This could lead to an erosion which might undermine the proposed building and the parking lot under it. The columns of the building would undoubtedly interrupt the flow of large trees or whatever that might come down the channel and lead to a blockage of the channel under Bathurst Street and create quite a flood hazard and property loss.
When asked the result of a maximum probable flow of 26,000 cfs, Dr. Lord stated that there would be "a very, very terrible flood." When asked the result of an intervening amount of flow, he stated that if a flood greater than the design flood occurred, there would or might be damage downstream.
The witness commented on the concept of the 100 year storm which deals with the probability of recurrence rather than the time of recurrence. He agreed that the provision of flood protection against a maximum probable storm is beyond the public purse and that one cannot provide sufficient sites or storage capacity to adopt such a standard of flood protection. When asked the purpose of building dams to the design storm standard, Dr. Lord stated that it was done with the hope that downstream areas, bridges and river channels will not be damaged until we meet a storm greater than Hurricane Hazel. He further stated that there are calculated risks in building such dams and that some experts recommend against the construction of dams and in lieu thereof, the acquisition of land in the floodplain. He disagreed with such a policy in this area because with the grades of our rivers, a storm of the magnitude of Hurricane Hazel would do tremendous damage. He stated that a policy along the latter approach has been adopted in the Highland Creek area where during 1976 upon two considerable storms occurring on two consecutive days approximately one-half million dollars damage occurred to the publicly owned structures in the acquired lands. He estimated that without dams, a Hurricane Hazel storm would cause 50 million dollars damage to the Metro area.
The witness pointed out that with increasing urbanization in the area to the north of the Lord Dam the regional flood flow would be increased because of the fast runoff resulting from the use of asphalt and concrete with the result that the flow of 12,650 will increase. Accordingly, the protective measures downstream that have been constructed to this standard, such as the Lord Dam, cannot provide the protection they were designed to provide and in the event of a 100 year storm damage will occur notwithstanding the construction of such measures.
On cross-examination Dr. Lord agreed that a regional storm as defined in Ontario Regulation 735/73 is a storm of the standard of the Hurricane Hazel storm which is similar to the 100 year storm.
He indicated that he would expect that the lands of the Y would be flooded to an elevation during such a storm but he had not calculated the elevation. He also indicated that he thought, subject to calculation, that there is no risk of flooding of the existing buildings of the Y during a regional storm. When asked to comment on the difference between the present proposal which has a ground elevation of 511 feet and a first floor elevation of 526 feet and the elevation of 505 feet required as a condition of the permission for the extension, he stated that he believed that the flood water might reach 511 above the bridge but preferred others be asked the question. When asked if such would be a risk to the existing buildings he indicated that it might be. When asked to compare the risks between the extension and the proposal of the appellant he agreed that subject to the validity of the elevations, there would be less risk in connection with the proposal.
With reference to Dr. Lord's evidence of the depth of water in a storm that exceeded Hurricane Hazel by ten per cent, Mr. Chusid put to the witness a calculation of the appellant's consultant, Lathem, that such a flow would result in an increase of approximately 2 inches. While not having calculated the amount, Dr. Lord disagreed and expressed a view that it might be several feet. This lead to the witness admitting that his concern was qualified with the lack of calculation of the elevation. He further admitted that the area of concern was storms in excess of Hurricane Hazel in respect of which he agreed that there is no significant protection in the Metro area. His reason for his concern was "that there are economic and physical limits beyond which protection cannot be provided and that the only method of dealing with the risks is to prevent the development of lands in the floodplains.
Dr. Lord indicated that while the 100 year storm terminology might be used by engineers in tropical areas they probably applied different criteria to the term than the criteria applied in the more northern areas. When asked as to his views on why the appellant was being met with greater standards than those respecting the regional storm which standard is established in the regulation and is the standard to which the dam was constructed the witness stated that he did not think that the respondent was imposing a greater standard. He felt that when a storm of the intensity of Hurricane Hazel occurs, there could be flooding on the site.
In this regard Mr. Chusid referred to the report of the staff of the respondent, which stated that it was the policy of the respondent, whether written or not, that once a dam or channel improvement is constructed, the regulations should not be "reduced". He suggested that this approach failed to take into consideration the expenditure of public funds and notwithstanding such expenditure the respondent refuses to regard anything but the state of affairs at the time of Hurricane Hazel. Dr. Lord replied that the principle was that there is a great fear that where dams and channel improvements are constructed, the construction will be taken as a save-all measure and most flood control engineers do not want people to move into the floodplain as they have in United States. His principle was that because we put in a dam we should not squeeze into the floodplain. He indicated that he considers us fortunate to have fine valleys and fine floodplains and we should try to stay out of the valleys. He referred to some recent American experience where people had built in the floodplain and a storm of an intensity that had not been experienced for many years occurred with the result that it became necessary to clear out the entire valley. In his opinion, when the water comes to the edge of the building there is a squeezing of the floodplain.
After Mr. Chusid suggested to the witness that housing subdivisions and factories ought not to be erected in floodplains, he inquired as to the extent of recreational facilities contemplated by the Plan. Dr. Lord indicated that more than grass areas were involved and that washrooms and refreshment stands would be acceptable, keeping in mind that they might be destroyed in a flood and that they ought not to impede the flow of the river during flooding. Dr. Lord admitted that there was a degree of danger to the patrons of such facilities but was hopeful that the flood warning system should prevent such risk from maturing. The questioning led to the Ontario Science Centre and counsel for the respondent agreed that there would be more people in the centre during a busy occasion than would ever be in the proposed building. This led to inquiring from the witness whether there is an area of use between pure recreation and private use that would warrant a building, otherwise objectionable, to be permitted as an exception by reason of its use. The witness's view was that the type of use makes no difference and that the respondent opposed, or at least was not in favour of, the construction of the centre. The witness went further and indicated that in his opinion the proposed use i.e. community, non-profit, social and cultural use, indicates that the building ought not to be built. When asked what his opinion would have been in connection with the extension, the witness pointed out that he was not at that time associated with the respondent, and assuming that the extension and the proposed building would be on the same elevation, he indicated that he would have opposed the extension. When it was suggested to the witness that his view was more pristine than the current view of the respondent, he indicated that his view is a long term view, in the best interest of the public. He also pointed out the precedential implications of allowing applications such as the present application, based on prior intrusions into the floodplain, as such erodes the protection afforded and increases the hazard. His view was that one should give way only where there is a well defined valley and then only reluctantly.
Mr. Chusid referred the witness to the following paragraph on page 30 of the Plan:
The question arises, how often, and at what cost, the public should continue to subsidize victims of known risks. When persons knowingly develop the flood plain, should the public be expected to afford protection for such unwise acts, or to subsidize the recurring losses which are suffered as a result of floods? Past experience indicates that it is expected. But the public surely has the right to decide what development shall be permitted on unprotected flood plain land."
After pointing out that the paragraph has reference to "unprotected" land in floodplains he sought the concurrence of the witness that the proper approach by a conservation authority is the balancing of control of flooding on one hand and need and purpose on the other hand. While the witness concurred he expressed a preference of erring in favour of a prohibition than the creation of a building that might cause trouble.
Mr. Chusid suggested to the witness that the purpose of gabions was to buy time to permit persons in a floodplain to escape. Dr. Lord replied that the purpose of gabions is to prevent erosion and where they fail they do create additional hazards by blocking the channel and causing even greater erosion than if they had not been present. Following this approach and the fact that the gabions in Highland Creek had not been designed to a 100 year storm, Mr. Chusid suggested that there was a strangeness to a policy that would permit the installation of protective devices that provide only a measure of protection and which would be known to create an increased hazard in storms of greater intensity than the design of the improvements. The witness stated that it was a matter of economics and what one can afford. Beyond what can be afforded, the cost of a more serious storm must be assumed, even if as Mr. Chusid suggested that his evidence disclosed, the conservation authority contributes to the amount of damage by the broken improvement in the severe situation. Mr. Chusid suggested to the witness that the test in conservation matters appears to be a balancing of risk and the witness concurred, subject to the judgment derived from experience.
In reply Mr. Conlin pointed out that the plan of the proposed building shows an elevation of 511 for the parking lot and 521 for the first floor. He asked the witness to compare the effect on the outside of the curve of the diversion as contrasted with the inside of the curve. The witness indicated that the outside would be higher.
He also asked the witness to compare the proposed site with the site of the Ontario Science Centre and it was pointed out that while there is a narrow valley with steep walls at the subject site, the centre is below Eglinton Avenue and Serena Gundy Park where there is a broader valley, several times as wide as the valley at the subject site and the velocities and the overflow would be lower.
The second expert witness called on behalf of the respondent was Professor Hans J. Leutheusser. Professor Leutheusser is a professor of mechanical engineering at the University of Toronto specializing in fundamental and applied fluid mechanics. After having obtained a graduate degree in Germany in civil engineering, and obtaining a diploma in the speciality of hydraulic engineering, the witness performed professional work in Europe before coming to Canada where he obtained the degrees of Master of Applied Science in 1957 and Doctor of Philosophy in 1961.
Professor Leutheusser was consulted by W. O. Chisholm and Associates (Eastern) Limited, in connection with the engineering of the diversion on the property of the Y. This witness dealt with the structure under the Bathurst Street bridge at the lower end of the diversion. He stated that although the distinction may not be apparent to a layperson, the structure was not a drop structure and was, in fact, a structure that was designed to meet another purpose. The purpose of a drop structure is to reduce the velocity created by the shortening of the length of the stream by the removal of the oxbows. However, the purpose of the structure under the bridge was not to reduce the velocity of the flow in the diversion but to provide a device for future protection in the event that future developments have the result of lessening the roughness of the downstream channel of the river below Bathurst Street.
To briefly describe the structure, the banks of the diversion are sloped. As the diversion nears the bridge it is necessary to change the shape of the flow to a rectangular shape as the sides of the opening in the bridge are perpendicular. As the invert or the bottom of the diversion nears the bridge the elevation is raised. In addition, a series of concrete baffles have been erected around which the water must flow.
The witness indicated that the reason for the structure arises from studies that he made in connection with the roughness of the channel downstream from Bathurst Street. In studying the matter, he found that the acceptable coefficients of roughness for similar channels did not result in the elevation that has been established for the flows during Hurricane Hazel in this part of the channel. The witness made a number of calculations using various coefficients of roughness and in order to obtain the elevation actually reached during Hurricane Hazel it was necessary to ascribe a roughness coefficient far in excess of any roughness coefficient previously used. The witness admitted that he found this most unusual, but not surprising, in that the determination of roughness coefficients has been an empirical process and prior to his work had never been established on any scientific formula or basis. In view of the newness of his theory he published it in The Journal of the Hydraulic Division, A.S.C.E. Volume 99, No. HY7, and notwithstanding invitations to question the formula developed and the presentation of the paper at a meeting of the American Society of Civil Engineers, there has been no criticism of his hypothesis. In fact, he feels that his hypothesis has been accepted and has subsequently been extended.
Consequently, in view of the high roughness coefficient established it was necessary in designing the diversion to insert in the diversion a device for guarding against the future reduction of this roughness coefficient by developments in the part of the floodplain south of Bathurst Street. Accordingly, this structure that raised the invert and placed baffles in the flow was designed for the purpose of preventing the development of a supercritical flow in the event of a future smoothening of the channel. The effect of a supercritical flow would be an unwarranted erosion resulting from the increased velocity of the flow.
The significance of the coefficient was said to be that there was considerable doubt as to the validity of the computations made by the witness Lathem in assessing the effect of the flow of the regional storm through the diversion. Professor Leutheusser was of the opinion that the elevation of a regional storm calculated by Lathem of 507 feet at the bridge was in error as he had failed to take into consideration the unusual roughness coefficient that Professor Leutheusser had established for the portion of the channel immediately downstream of Bathurst Street. In his opinion, if the proper coefficient had been used the elevation at the bridge would be 511 feet and the other elevations raised by four feet. This of course would mean that there would be an elevation of 512 feet at the edge of the site of the proposed building where Lathem had calculated an elevation of 508 feet and a greater risk of overtopping of the banks which the witness Lathem had admitted might result in erosion of the banks and undermining of the proposed building in the event of a flow of that magnitude.
It is noted that in cross-examination the witness refused to comment on the nature of the flooding on the grounds that he was not a hydrology expert. Needless to say, I do not appreciate how this could effect the validity of his evidence that related to hydraulics, or as it was said by this witness to be currently known, fluid mechanics. Certainly, the effect of a flow through an artificial channel would be within the area of expertise of the witness.
With reference to the effect of the structure on the flows through the bridge, the witness indicated that with increased flows at the bridge, there would be no substantial effect on flows up to a flow of 12,700 cfs or perhaps 13,000 cfs but beyond these flows, the structure would become obstructive and would lead to complete flooding of the upstream part of the channel.
The third witness for the respondent was Kenneth G. Higgs, its Secretary-Treasurer, who has been with the respondent and its predecessor since 1952. Higgs referred in more detail to the four major components of the Plan for flood control and water conservation. These four components are as follows:
- The construction of multi-purpose dams and reservoirs. The purpose of such dams may include flood control, supplements for summer flow or recreation.
- Construction of channel improvements. This work would be done particularly in areas where it was not practical to evacuate in the event of an emergency such as at Woodbridge and Black Creek.
- Management of floodplain land. This is done through acquisition, regulation and working with the municipalities in regard to zoning and planning in respect of floodplain lands.
- Flood warning and forecasting systems.
The witness stated that after approval by the participating municipalities and the Conservation Authorities Branch, the provincial cabinet approved the proposals and the province entered into an agreement with the respondent respecting the implementation of the proposals and further the province entered into an agreement with the federal government to provide for funding. It was pointed out that both agreements endorsed the four-point program and in effect, required the respondent through paragraph 18 of both agreements, to acquire or insure the zoning of floodplain lands for use in perpetuity for flood and recreational purposes only.
The witness pointed out that for the purpose of implementing the obligation under the agreements, the respondent had prepared floodline maps of the valleys and had arranged with municipalities to pass by-laws under The Planning Act to control the use thereof. Thirdly, a program for the acquisition of lands was set up and since 1962, when a master plan prepared by the respondent was approved by the provincial department, the program of acquisition of floodplain lands has continued and as late as one year ago was extended to areas outside Metro to the headwaters of the various rivers. Further the respondent was one of the first conservation authorities to make regulations respecting the control of building in the floodplain and the placing of fill.
The witness then outlined his association with the subject lands and I have outlined hereinbefore the history regarding the development to date of the lands of the Y.
With reference to the reasons for the refusal of the executive committee of the respondent to grant the permission requested, the witness indicated that there was a concern of the possibility of the overtopping of the gabions causing them to be dislodged. The witness referred to situations on Massey Creek, a tributary of the Don River, where the gabions had been overtopped and the wall of gabions fell into the waters, blocking the stream. In addition, they have had experience with children cutting the wires permitting the baskets to release the stones. He also referred to the Highland Creek improvement works and showed photographs of various places on Highland Creek that had been damaged by the 1976 storm.
On cross-examination, the witness was examined fairly extensively on the nature of the program on Highland Creek and the witness pointed out that the approach of the respondent in connection with Highland Creek was not the approach followed in other watersheds. He pointed out that for economic reasons the approach in connection with that watershed has been the acquisition of the land by the public authorities, the establishment of erosion control devices and the use of the acquired lands for recreational purposes. After having pointed out to the witness that the Plan at p. 18 illustrates an undermining of buildings and contains the following excerpt:
Encroachments on the flood plain of Highland Creek by buildings is an exceedingly dangerous practice and many of these buildings were destroyed during the 1954 flood. For engineering and economic reasons, it is deemed more practical to acquire flood plain land than to construct protective works on the Highland Creek",
counsel for the appellant suggested that the production of "disaster" photographs taken last year was unfair as they were taken of an area that has from the inception of the program of the respondent been known to be a potentially dangerous area. When asked to compare the two watersheds, the witness asked for a more specific location and indicated that in his understanding the portion of the Don River under consideration and the Morningside area of the Highland Creek were equally dangerous situations.
With reference to the channelization program the witness indicated that the respondent was of the opinion that the Y having proceeded with the original buildings at a time when it had been warned and was aware of the hazards, the respondent did not feel obligated to proceed at public expense with remedial works to protect the buildings and structures from the erosion hazard of which the Y had been warned. It was suggested to the witness that higher levels of government recognized the public function of the Y and accordingly, agreed to provide the diversion.
With reference to the conditions of the approval of the extension, the witness indicated that, with the exception of the vehicle bridge and certain easements and the prohibition against any future building, the conditions have been complied with. With reference to the elevation mentioned of 505 feet, the witness explained that in his belief this was the observed high water mark of Hurricane Hazel and the respondent was looking for the level of protection necessary to protect against a storm the equivalent of Hurricane Hazel.
When asked as to why an elevation of 505 was satisfactory for the extension and refusal was made at an elevation of 510 to 512 feet, the witness indicated that the reason for refusing was not related to the elevation but to the fact that no further encroachment by buildings in the floodplain should be permitted. When questioned as to the extent of the floodplain, the witness indicated that in his understanding the entire valley was the floodplain and had been created by the river at some time. Upon it being pointed out to the witness that the jurisdiction of the conservation authority is only in the area susceptible to flooding during a regional flood, the witness took the view that a channel as reconstructed, could fail in circumstances of less severity than Hurricane Hazel or even in normal spring floods and that this was the type of situation the regulations were designed to control.
In his reply evidence the witness gave evidence that there is no distinction between private and public use as far as hazards are concerned. He further pointed out that the fact the use was charitable was not relevant and the erection of a similar building at the Eglinton Flats at Bloor and Jane Streets by the United Appeal would be equally unacceptable.
With reference to the Highland Creek situation, it was pointed out that the only building that had been permitted to be erected was the headquarters for Metro Parks and that this building has not been damaged apart from being flooded during the 1976 flood. The damage that had occurred was done to bridges, bicycle paths, roads and gabions. During the 1976 flood there was only one building destroyed, and that was a private house at the very top of the valley.
In response to questions from the tribunal, the witness indicated that between $500,000 and $600,000 had been spent on the channelization project on the subject lands. The witness could not bring to mind any similar situations where a landowner could request channelization work of a similar nature or extent. The witness did recall that the Borough of East York had requested permission to erect a youth centre in the floodplain further downstream, and that this public building had been refused.
Basically the argument of the appellant was two-fold. It was said firstly that with the construction of the channel improvements the site of the proposed building no longer is situate within the area that is subject to the jurisdiction of the respondent. Secondly, it was said that assuming the respondent continues to have jurisdiction the respondent failed to exercise its discretion properly in that,
- the respondent failed to give effect to the fact that with the channel improvements the site was no longer subject to flooding;
- the respondent applied a policy, written or unwritten, as it said, in coming to its decision rather than consider the facts of the case;
- the respondent applied principles of a maximum probable storm rather than principles respecting a regional storm which is the limit of its jurisdiction; and
- the respondent had failed to give effect to the proposed use of the building for charitable purposes, particularly when the regulation requires this information to be filed as part of the application.
He also submitted that the respondent had not presented to this tribunal any significant evidence to dispute the evidence of his witness Lathem that the risks had been obviated by the channel improvements. He took the position that the evidence of Dr. Lord was not opinion evidence as he had made no calculations and that the evidence of Professor Leutheusser was questionable as it dealt only with one location and at that location was founded on a novel principle that was admitted by the author of the principle to have a completely unexpected application. Thence, he pointed out that the respondent in approving the design of the channelization works accepted a standard based on the existence and operation within its design of the Lord Dam.
Lastly, he emphasized the great importance of the granting of a permit to the applicant. The applicant has an extensive public service to perform which is now housed in unsatisfactory conditions at various locations. All these segregated functions could be consolidated at a location which would join them with an existing facility which is compatible with and which is related to the existing user.
The argument of the respondent was that the key words in the Act and in the regulation in respect of this application are "susceptible to flooding". Counsel suggested that this is a standard that is lesser than the reasonable probability test and that where there is a possibility and a concern such as were expressed by Dr. Lord and Professor Leutheusser, these constitute a susceptibility to flooding. Secondly, it was argued that the erection of the proposed building was contrary to the principles of the Plan that was propounded in 1959 and was subsequently endorsed by a provincial order in council, an agreement with the province and an agreement between the province and the federal government. Counsel raised some suggestion that the regional storm may not be the 100 year storm or a storm that equates with Hurricane Hazel and that the evidence of the applicant failed to establish that the site was not susceptible to flooding by a regional storm which he suggested was the standard of proof that the applicant should show in this type of an appeal. He submitted that it was impractical to rely on the "principle of perfection", that arises from an assumption that the dam and the channel improvements were properly designed, continue to operate without interference, do not become silted and are operated fully and properly without malfunction at all times in the future and that one cannot rely on a purely technical application to establish that the proposed site has ceased to be "susceptible to flooding". He suggested that the witness for the appellant admitted that in storms of over ten per cent greater intensity than Hurricane Hazel there would be a risk of overtopping of the gabion improvements and in this regard he pointed out that it was admitted that if the headpond were full and a Hurricane Hazel storm occurred it was necessary to pass the full flow because the Lord Dam is so designed that the gates of the dam will permit such a flow. In the absence of such a design the dam would overtop and fail. Accordingly, one cannot assume that the dam will operate with a perfection necessary to justify the construction of the proposed building. Further with the likelihood of further urbanization in the upstream part of the watershed, the flow of a regional storm may increase with the result that the design of the Lord Dam may become inadequate.
It was also pointed out that the standard of construction of the channel improvements related to a flow of 5,200 cfs and did not relate to what was referred to as "flood proofing". The purpose of the channelization works was to prevent erosion which was occurring during normal times and it was not designed to a standard that would protect the banks and prevent the river from changing its channel in the event of a regional storm or a storm of higher degree.
More particularly, the argument related to the hazards of the diversion is as follows. The Lord Dam has been constructed in such a way that the gates of the dam will pass a flood having a maximum probable flow. Inherent in this is the ability to pass a regional flood and any floods between a maximum probable flood and a regional flood and also any floods below or of lesser intensity than a regional flood. The dam has been constructed in this manner because it is an earth filled dam and if there were topping of the dam, the dam would probably fail. It was admitted that if a maximum probable flow were to occur the end result would be catastrophic and large areas would be affected. However, the conservation authority is not expected to go beyond economic reasonability in providing protection and have built, as part of their program, control dams and channel improvements works that not necessarily will keep water in the channel in all circumstances. In the present case any flow above 5,200 cfs may cause problems because the channel improvement was not designed to a regional flood design. It was only designed to this standard as the objective was to prevent erosion of existing facilities and not to design a channel that would contain a regional flood or intermediate flows. The purpose of the introduction of the pictorial evidence of the effects of the 1976 storm on Highland Creek was to show the effect of flows in excess of designed flows but flows that are less than regional storm flows and to establish that in such intermediate flows there is a severe risk of failure of channel improvements that have not been constructed to regional flow design. In the present case if it becomes necessary to pass regional flows for any reason occurring upstream the new channel would be topped and the water would flow further south and under the proposed building. Further, it was submitted that the evidence, including the evidence of the witness Lathem, showed that this is possible if the flow released by the dam is less than the regional flood flow but greater than the designed flow for the channel. In other words, risk occurs not only at regional flood flows but at all flows out of the dam below regional flood flows down to a level of 5,200 cfs. There being a risk with such flows, it is clear that the proposal is susceptible to flooding during storms of lesser intensity than a regional storm and, a fortiori during a regional storm.
Counsel went on to point out if there were overtopping of the diversion and a tendency of the river to revert to its original channel, which would be under the proposed building, there is a serious possibility of blockage from debris and trees.
While it was admitted that in deciding whether permission should issue there is a balancing of conflicting issues it was submitted that it was not proper to balance public good against the issue of susceptibility to flooding. It was also submitted that the matter of rezoning is not relevant to the considerations.
Counsel for the respondent submitted that the granting of the permission requested in this case would constitute a dangerous precedent and that any other groups with any charitable purposes would be able to obtain sites in any floodplain at a nominal consideration and be equally entitled to permission to erect office or administrative buildings.
In his reply submissions, counsel for the appellant suggested that the present case is singular in that the channel improvements have been designed by an independent consultant with the assistance of a university professor and accordingly, are very carefully designed with a view toward the 100 year storm and that there would, unlikely, be any other similar situations of comparative significance. He also submitted that the statistics on p. 3 of the Plan respecting the frequency of floods are not relevant to show that increasing urbanization causes greater storms. He submitted that storms occur regardless of urbanization and that the effect of urbanization is the degree of damage rather than the frequency of the storms. He also submitted that there had been adequate acknowledgement by Dr. Lord that the storm referred to in Ontario Regulation 735/73 was the Hurricane Hazel equivalent. With respect to zoning, counsel pointed out that the mentioning of the need of amendments to the existing zoning was not done for the purpose of creating an impression that this tribunal could treat the matter lightly, and leave the ultimate decision to the local municipal authorities.
Before considering the arguments of counsel and the implications of the evidence produced, it may be helpful to examine in a general way the role of a conservation authority under The Conservation Authorities Act. Section 19 of the Act outlines the objects of an authority. The section reads as follows:
- 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."
It may be noted that in earlier statutes the concept of "objects" of an authority was found in section 15 of The Conservation Authorities Act, R.S.O. 1960 c.62, which reads as follows:
- The objects of an authority are to undertake and effect such scheme or schemes in respect of the watershed or part thereof for which it is established as the authority determines.
It is noted that the change, which was made by The Conservation Authorities Act, 1968, was to change the concept of "a scheme" to the concept of "a program". Section 20 of the present Act sets out a number of powers of a conservation authority for the purpose of accomplishing its objects. Without setting these powers out in detail it may be noted that many of the powers contained in this section relate to powers associated with ownership of land, including the acquisition of ownership of land by a conservation authority and agreements with private and public owners of land. Not only does a conservation authority have powers of or related to the ownership of land but it has a legislative and an administrative power. Subsection 1 of section 27 of the Act contains a number of clauses providing areas in which a conservation authority may exercise a legislative power, in the broad sense of the word, in that it may make regulations in respect of matters set out in the clauses. In addition, a conservation authority, through the exercise of the legislative power, creates in itself an administrative jurisdiction whereunder the performance of acts otherwise within the power of a landowner cannot be performed without permission of the conservation authority. In this regard I refer to clauses e and f which, as amended to date, read as follows:
- prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of such regulations;
- prohibiting or regulating or requiring the permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill."
Pursuant to these two clauses, sections 3 and 4 of Ontario Regulation 735/73 were made and read as follows:
- Subject to section 4, no person shall,
- construct any building or structure or permit any building or structure to be constructed in or on a pond or swamp or in any area susceptible to flooding during a regional storm;
- place or dump fill or permit fill to be placed or dumped in the areas described in the schedules whether such fill is already located in or upon such area, or brought to or on such area from some other place or places; or
- straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse.
- Subject to The Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land."
Against this legislative background, which has been updated in recent years, one can assess, the nature of the Plan and the role of the respondent and other public bodies in implementing it. Inherent in such an assessment is the fact that the Legislature, although it has permitted or authorized a scheme or a program of wide scope, has not granted to the conservation authority the complete legislative jurisdiction over all aspects of the program and certain aspects of any program are dependent on negotiation with landowners, such as reforestation agreements, and on the exercise of the legislative jurisdiction of other legislative bodies i.e. planning legislation of municipalities. This concept is apparent in the third component of the Plan set out in the evidence of the witness Higgs. Where the program is dependant on planning and zoning, there is nothing in the Act, that I am aware of, that either vests any jurisdiction in the conservation authority to control these matters or to, by the establishment of a program, fix any zoning legislation of a municipality on which the program depends in such a way that the usual modifications thereof cannot be made. Further, there is implicit in this arrangement, the principle that the program, per se, is not a legislative instrument and cannot affect rights of landowners whose lands have been included in the program. The interesting question arises as to whether, in a situation where the program is dependent on both legislative bodies exercising their respective jurisdiction, the program can be used as a device to make either jurisdiction all encompassing of the geographical area of the program.
The reliance by the respondent on the Plan appears to be based on an extension or blanketing of the entire geographical area of the program with the controls that are applicable only to part of the area. I have considerable difficulty in accepting the approach that, even though the subject lands fall outside the geographic limit of the legislative jurisdiction of the respondent the controls of that jurisdiction should be extended to the entire area on the basis that the subject lands fall within the area covered by the Plan and are subject to risks notwithstanding that the risks are beyond the geo-graphic limit of the legislative jurisdiction. Assuming that the subject lands are above the elevation of the regional storm, I am of the opinion that the legislative power of a conservation authority contain in clause e of subsection 1 of section 27 of the Act cannot be extended by the device of a program and that, unless there is some other legislative control such as that contained in clause b or f, the legislative control over the use of lands outside the ambit of such legislative jurisdiction rests solely with the municipality. I cannot accept the proposition that because there is administrative power to control the construction of buildings and structures obtained through an exercise of a legislative power (in the broad sense of including regulation-making power) with a geographical limitation, that administrative power can be exercised beyond the geographic limits on the basis that firstly, there are in fact risks and secondly, there is a scheme or a program to prevent the results of such risks.
Closely related to this issue is the logistical parodox of the primary argument of the appellant, i.e. that the extent of the result of the exercise of the legislation power i.e. the regulation, is a question of fact and with the changing of the facts, the regulation no longer applies to a fact situation outside the ambit of the regulation because it no longer falls within it, and therefore notwithstanding the application of the appellant for permission, there is no legal need of such permission. Of course, the logical conclusion is that, if such is the case, the appeal ought to be dismissed on the ground of absence of jurisdiction to grant the relief sought. In this regard the approach of counsel was that if there is doubt as to jurisdiction or a continuum of jurisdiction a landowner should not be left in the precarious position of taking a chance on prosecution of an offence and should apply to the administrative body which should, unless there was good reason to do so otherwise, issue the permission.
Having regard to the regulation and the evidence there are three issues:
- Are the subject lands an "area susceptible to flooding during a regional storm?"
- If the answer to No.1 is yes, would the site of the proposed building and the method of construction affect the control of
- flooding; or
- conservation of land.
A fourth issue of whether the control of pollution would be affected is not involved in this case. The third issue i.e. control of conservation of land, includes the issue of erosion, which although not dealt with by this tribunal in any previous cases and although not emphasized in the evidence or the argument to the same extent as flooding was dealt with, appears to this tribunal on consideration of the case to be the more significant concern. Perhaps the reason for this lesser treatment is that the legislative jurisdiction in respect of erosion is in clauses b and f of subsection 1 of section 27 of the Act while legislative jurisdiction in respect of the application under consideration is found in clause e. However, section 4 of the regulation makes it clear that control of conservation of land, which surely includes the control of erosion, is a consideration in applications under clause a of section 3 of the regulation. Section 4 does not make the considerations respective and I see no reason to interpret the three considerations in a respective manner and I conclude that all three considerations are valid and intended in respect of an application under clause a or b or c of section 3.
In dealing with the first issue it may be noted that there are two aspects. Firstly, the question was raised by counsel for the respondent that the Hurricane Hazel standard and the 100 years storm standard may not be the standard required by the regulation and he suggested that the appellant had failed to establish that such was the case. I have difficulty with both aspects of the submission. I fail to see why the onus of establishing the effect of the regulation should fall on the landowner. Surely the conservation authority that makes the regulation and has some access to and knowledge of these highly complex matters should bear this burden and it would be most unfair for a landowner to have to call scientific evidence to tell a conservation authority what the regulation means in every case. The fact that the function being exercised by the granting of a permit is an administrative function adds further support to a rejection of such a highly legal approach. Secondly, the cross-examination of Dr. Lord satisfied me that the category of storm contemplated by the regulation was a 100 year storm or a storm equivalent to Hurricane Hazel.
Secondly, it is necessary to determine the significance of the use of the word "susceptible" by the Legislature in delegating legislative jurisdiction to conservation authorities. In this regard one must first determine the meaning of the word and secondly, must consider the effect of the diversion in respect of the legislative jurisdiction delegated to conservation authorities.
At the outset it was not shown that the word has any significant professional or technical meaning in the sciences of hydraulics or hydrology and accordingly the test of the meaning of the word is its common and ordinary meaning. Also I am not aware of any judicial interpretation of the word. In the Concise Oxford dictionary the word is given the following meaning:
admitting of (passage is susceptible of another interpretation; facts not susceptible of proof), open or liable or accessible or sensitive to (very susceptible to pain, injury, kindness, female charms) ; impressionable, sensitive, readily touched with emotion, touchy.
In Webster's New International Dictionary, Second Edition, the following meanings are given:
- Of such a nature, character or constition as to admit or permit; capable of submitting successfully to the action, process or operation; -- with of, followed usually by an action noun (or, less often a verbal noun); as, a theory susceptible of proof; a gem susceptible of a brilliant polish; a theme susceptible of being developed (or of development).
- Such in constitution or temperament as to be open, subject, or unresistant; exposed or liable through weakness, sensitiveness, impressionableness, amorousness, etc.; -- now commonly with to (some external stimulus, influence, agency, etc.) ; as, a person susceptible to infection, criticism or women.
- Of such a disposition or temperament, or in such a mood as to be capable (usually emotionally capable); having or capable of having or arousing the feeling, thought, or desire; -- chiefly with of, sometimes with to; as, a heart not susceptible of pity; too old to be susceptible of enthusiasm or insight. Now rare.
- Easily affected or moved; impressionable; responsive; as, susceptible children or minds.
- Sensitive or having little resistance (to a given infectious disease, toxin, or foreign protein). Syn-Receptive, impressionable, sensible, sensitive, soft-hearted, tenderhearted, Ant. - - hard. "
It will be noted that while the definitions relate primarily to human attributes, both physical and mental, they, in some instances, refer to inanimate objects such as theories or gems. It will also be noted that the word is used in describing the constitution or the inherent qualities of persons or things. The word frequently is used in conjunction with qualities that are weaknesses or subnormal self-protective abilities. The interesting question arises as to the reason the Legislature adopted this word instead of the word "subject" which is frequently used in statutes. Was the intent merely to better relate to the temporal rarity of regional storms or was it to reduce the necessity of establishing within the appropriate legal standards of proof the occurrence or risk of occurrence of flooding? In other words, was the use of the word adopted to obviate the need of showing, in civil cases at least, the risk of flooding within the test of balance of probability and to make the provisions of regulations applicable where the evidence of the occurrance of flooding may not establish proof within such test?
With reference to the first alternative the scientific community has established principles respecting the occurrence of and the frequency of regional storms. I know of no need to qualify references to this concept for the purposes of providing language that might be synonymous with some temporal aspect of the concept. Accordingly the only conclusion that can be adopted is that the Legislature adopted the term in order to give a broader geographical ambit to the regulations that may be made, with the result that lands that could not be proved to be subject to flooding in such events but which have a risk or constitution that can be shown to make it likely that flooding would harmfully affect, in some way, the lands are brought within such ambit. I do not think that the word goes so far as to permit consideration of all possibilities but the word carries with it a connotation of risks as contrasted with proven facts. Consistent with this broader approach is the granting of administrative jurisdiction to create exceptions administratively by way of a permit in writing.
While I cannot agree with counsel for the respondent that the use of word "susceptible" is sufficiently broad to extend the I ambit of the regulations to areas affected by storms of greater intensity than a regional storm as defined in the specific regulation, I believe the word carries with it an intention to permit the application of the regulations to sensitive areas that have subnormal abilities to resist flooding, even though they may be at an elevation above that to which it could be proved that flood waters would rise. For example, if the area contains a soft sandy soil at the elevation of the regional storm, it is quite foreseeable that with the washing away of the soil to the elevation of the regional storm, the land behind will fall into the valley and become part of the regional floodplain even though it is not today within such floodplain or could not today be said to be "subject" to flooding by a regional storm.
The second point to be considered in respect of the word "susceptible" is whether the word has the capability of supporting a legal doctrine analagous to the legal doctrines of "once a fraud, always a fraud"; "once a mortgage, always a mortgage" and "once a recompense, always a recompense," - see Black's Law Dictionary, 3 rd Edition, p.1292 -- which doctrine might be stated as "once a floodplain, always a floodplain". In other words, do control works such as the placing of fill to a height above the regional floodlines and the diversion of the channel remove the former channel from the jurisdiction of the conservation authority and effectively amend the regulation by substituting the new channel with its floodplain for the old channel and its floodplain.
I am not aware of any legal principle that would assert that there is a continuum of jurisdiction in respect of the old channel. The only principles that appears to me to govern the situation are that the intent of the Act as a whole should be considered and where there is an interference with a private right the statute should be construed strictly.
In regard to the first principle, it is apparent that one of the prime purposes of the Act is to create hydraulic or hydrological control over the ravages of periodic floods and that with restrictions the jurisdiction in this regard is given to conservation authorities. To the degree that the Act deals with scientific matters it is relevant to note the views of the scientists in regard to the effect that ought to be given to control works. It is noted that Dr. Lord was of the opinion that the relevant science does not accept control works as adequate grounds for adopting a principle that with control works the standards of the law and the risks that existed before the construction of the works can be ignored. He indicated that through errors of construction, deterioration and errors of operation, works cannot be relied upon and new construction in floodplains should not be permitted through reliance on control works. Suffice it to refer to the 1977 Book of the Year of the Encyclopedia Britannica at p. 315 and 316 to note the effects of reliance on dams and embankments:
"Dams. In 1976 increasing public awareness of their environmental consequences, galloping inflation worldwide, and a number of disastrous failures combined to make life difficult for those who had to plan, design, finance, construct, and manage large dam projects.........................
The price of cement and labour costs resulted in a swing toward embankments and rock-fill dams to the extent that only 2% of the dams under construction in the U.S. were of concrete. The preponderance of embankment dams under construction lent point to the occurrence of a number of recent failures in this type of dam. In June 1976 the Teton Dam in eastern Idaho collapsed. Eleven persons were killed, and damage to property was such that 30,000 people had to be evacuated. The dam was an earth embankment with a crest length of 929 m and a height of 93 m. At the time of failure it was 97% complete and already impounded 308 million cu m. Leakage was noted two days before the collapse but did not increase to a level sufficient to cause alarm until the morning of the failure, giving only a few hours in which to warn the inhabitants of the valley. After the collapse of the dam, an avalanche of water surged toward Rexburg and Idaho Falls,spreading into a lake covering 25 sq mi.
Controversy had surrounded the Teton Dam from its inception, and the project was questioned on safety grounds by those opposed to its construction, who cited fears concerning the walls and floor of the canyon. These are formed of porous rocks" with large fissures, and extensive grout curtains were to be provided to counter this situation. The U.S. had introduced the Dam Safety Act of 1972 to deal with safety aspects of dam construction, prompted by the Buffalo Creek Dam failure in West Virginia in February 1972, when 125 people were killed and some 4,000 made homeless by the collapse of a tailings dam. The Teton Dam, however, was not covered by this act as it was under the jurisdiction of the U.S. Bureau of Reclamation. Another embankment dam to fail in 1976 was that at Ropptjern, Norway, causing extensive damage but no loss of life.
Although the Tarbela Dam was completed in 1975, the fertile plains of Pakistan still awaited the huge volume of irrigation water promised by this project. The outlet works upon which the whole project depended had suffered an astonishing series of mishaps whose causes seemed far from clear to the many experts called upon to express an opinion. In August 1974 extensive damage occurred to tunnels 1 and 2, when concrete and debris were observed being discharged at the downstream end. This meant drawing down the reservoir and the loss of another year's impounding. More troubles were in store, however, for the outer chutes for tunnels 3 and 4 were badly damaged during the drawdown operation; damage was also suspected in the stilling basins of the reservoir, but this could not be observed because of the amount of debris deposited.
In the spring of 1975 tunnels 3 and 4 were again used to supply irrigation water, but this led to massive damage to the floors of the stilling basins and erosion and undercutting of the dividing walls to the extent that huge caverns were formed in the foundation rock. The situation was critical and the danger of a complete collapse was averted only by remarkable work involving divers and the placing of some 56,000 cu yd of concrete under water in less than a month. Although this work was successful in stabilizing the dividing walls, the floors of the stilling basins again suffered severe damage when the tunnels were operated in 1976. Huge blocks of concrete were taken out, but experts failed to agree as to the cause of the repeated failures in this area of the work. Some attributed it to cavitation and faulty design, and others to uplift, suggesting a possible connection with the troubles experienced immediately upstream of the dam where the location and plugging of sinkholes that had repeatedly formed in the area amounted to a major remedial operation on is own."
Further at p. 257 the following events are noted:
"Oct. 1 La Paz, Mexico. A 30-ft-high earthen dam burst under the impact of Hurricane Liza, which packed 130-mph winds and dumped 5 1/2in of rain on the city; a 5-ft wall of water swept across a shantytown in La Paz and killed at least 630 persons; tens of thousands of persons were rendered homeless by the disaster.
Oct. 6 Near Pereira, Colombia. Heavy rains caused a dike to burst shortly after midnight; at least 47 persons lost their lives and about 30 others were injured.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nov. 6 Trapani, Sicily, Italy. Heavy rains, which could not be carried off by Trapani's inadequate sewer system, generated floodwaters that took the lives of ten persons."
With tragedies of this extent occurring throughout the world, one can appreciate the significance of the reluctance of those familiar with dams and other improvements to rely on the improvements and permit the use of lands subject to a regional storm in the state of nature to be treated as if they were free of risk by reason of the construction of the darns or other control works. However, it puts an extreme weight on the words "susceptible to flooding in regional storms" to hold that the phrase is sufficient to retain legislative jurisdiction where the facts have changed to the degree that the lands in question can be said no longer to be susceptible to flooding but because they once were so susceptible, they continue to be subject to the jurisdiction, notwithstanding the cessation of the condition of jurisdiction. In my view, it is necessary to show a continuing susceptibility where it is alleged that there is a continuum of legislative jurisdiction. If it had been the intent of the Legislature to continue the jurisdiction notwithstanding a change of fact, it could have so provided and having failed to do so, I can only conclude that jurisdiction is dependent on susceptibility.
Having concluded that there is no legal basis for determining that there is a continuum of legislative jurisdiction apart from the factual test of susceptibility I now turn to the question of whether in this case, there is a susceptibility to flooding during regional storms. In so doing, I discount all discussions of the effect of storms of greater intensity than Hurricane Hazel. In my opinion, concern and responsibility for such storms have not been placed upon conservation authorities, except to the degree that they can finance projects, within their budgets, or influence zoning laws or control the placing of fill through regulation or exercise a right of ownership through acquisition or agreement with the owner of land. Apart from these powers there is no legislative or administrative power to control the rights of landowners in respect of the construction of buildings or structures on lands that would only be susceptible to flooding during the storms of an intensity greater than a regional storm. Admittedly, it appears that a conservation authority could extend its legislative jurisdiction by defining a regional storm as one with criteria in excess of the criteria now used but such would only occur with the approval of the Lieutenant Governor in Council and would be dependent on the policy of the cabinet of the day. But regardless of the breadth of the definition, a conservation authority cannot extend its legislative jurisdiction by expressing concern for risks in excess of the susceptibility of the lands in question to the regional storm as defined by it.
To consolidate the evidence regarding the subject lands, it is proposed to erect the building with the northerly edge of the building situate on the site of the channel of the Don River in the natural state. The elevation was 495 feet. At the south end of the proposed building, the elevation according to the Chisholm plan was 510 to 511 feet. The area is now or is proposed to be filled to a total elevation of 511 feet making a total depth of fill on the natural channel of the river of sixteen feet. A considerable amount of fill from the diversion and from the reconstruction of the Bathurst Street bridge has been placed on this natural channel. The elevation of the present channel is approximately 490 feet. The new channel is approximately 125 feet northerly of the natural channel. The elevation during Hurricane Hazel and the regional storm elevation, according to Sheet No.5 are in the vicinity of 505 feet. Lathem's calculation of the regional storm elevation is 508 feet and Professor Leutheusser calculated it to be 512 feet, i.e. four feet higher than Lathem's calculation. The regional storm flow has been accepted as 12,650 cfs but the design of the diversion is related to a flow of 5,200, being the controlled discharge of the Lord Dam during a regional storm plus 400 cfs for intermediate downstream additions.
The difficulty I find with the position of the consultant for the appellant, is that he applied a computer program to the floodplain in the same manner as he would have applied it to any floodplain and in this regard, apart from comments of counsel for the respondent and the doubt created by Professor Leutheusser's evidence regarding the roughness coefficient, I heard no evidence to show that the program was not appropriate for application in normal cases, but he did not take into consideration the effect of erosion. In fact, when asked if any consideration had been taken in this regard, he indicated that there is no expertise or literature on the behavior of diverted streams in returning to their original channels. The significant facts are that the diversion is only designed for a flow of 5,200 cfs and with failures in operation or maintenance, there could be a series of flows up to the regional flow which could cause erosion of the gabion walls and permit the river to wash away the sixteen feet of fill and revert to its original channel. Doctor Lord emphasized this occurring during a regional storm or storms of greater intensity but on the evidence I am convinced the erosion problem exists with storms of lesser intensity. Further, if Professor Leutheusser is correct and I have no reason to question his determination of the roughness coefficient, there is a serious problem in the event of the situation calculated by the consultant for the appellant of a regional flow overtopping the diversion by a depth of four feet. As in any flooding there are the risks of constriction arising from the pillars and the dislodged gabions and other debris that may be entrapped.
What are the risks of erosion? The engineering accomplishments have turned the course of a major river from its natural course in a westerly direction to an easterly direction. The diversion was constructed for the purpose of correcting an erosion problem in connection with existing facilities at a time when the buildings on the subject land were above the regional storm elevation. The diversion was not designed to the regional storm flow, presumably for two reasons i.e. there was no need to protect buildings as they were above the regional storm elevation and the nature of the structures that were affected by the erosion in relation to the cost of the diversion warranted reliance on a designed flow equivalent to the discharge of the Lord Dam. Had the purpose of the diversion been to protect future buildings in the area below the regional storm elevation, one would have thought that the design would have related to the regional storm. Even assuming that the construction of buildings in an area below the regional storm elevation were permitted, surely the protection should be of such a design. The design of the diversion would be a weak link in a chain of protection.
Accordingly, when the potentials of erosion are considered it is clear that the subject lands are susceptible to flooding during a regional storm. Also accepting Professor Leutheusser's evidence, there would be four feet of flooding during a regional storm flow through the diversion and I conclude that this is sufficient to bring the site of the proposed building within the test of "susceptible to flooding during a regional storm."
It having been established that the proposal is within the jurisdiction of the respondent, the question arises as to whether the respondent was incorrect in refusing to grant the permit requested. Under section 4 of the regulation, such a permit may be issued where the respondent is satisfied that the control of three matters are not affected. The matter of control of pollution is not in issue. The issue of control of flooding and conservation of land, which in my opinion includes the control of erosion, are in issue.
It will be noted that it is not the effect on the issues that is the proper subject of the consideration by the respondent but that the consideration is whether the site of the building or structure and the method of construction affects the control of the issues. The significance of the wording was discussed in the case of Mobile Mix Concrete Products (1971) Ltd. v. Upper Thames River Conservation Authority and without repeating the discussion of the point suffice it to reiterate that the principle is not that the conservation authority must be satisfied that flooding or conservation of land will not be affected but that the control programs exercised by the conservation authority can or must accommodate the proposal. One of such control programs in respect of flooding is the prevention of intrusions into the floodplain of or, more legally expressed, an area susceptible to flooding during, a regional storm. As indicated above the approach of all conservation authorities that has come to my attention has been to treat improvements as devices for the better protection of existing development and not as a device opening the floodplain to further development.
Also it is significant that the considerations of a conservation authority are not to be related solely to the subject lands. The word "control" brings in the concern for other lands benefited by the control programs and the considerations must relate to upstream and downstream properties as well as the subject lands. The consideration cannot be limited to the effects in respect of the subject lands but in respect of the whole area under the control program.
There are two concerns regarding flooding. Firstly, intrusions in the floodplain displace the existing storage capacity of the floodplain. Although there does appear to be some discrepancy between the existing minimum elevation of 508 feet according to Lathem and Lipson's proposed ground level of 511 feet, there has been no suggestion that additional fill will be placed and it is understood that the application did not request permission to place fill. Assuming such to be the case the reduction of the loss of storage space has been kept to a minimum by the proposed erection of the building on pillars and staircases and other means of entrance leading to an elevated first floor. While these pillars and devices do, to a degree, reduce the storage capacity, their significance is of greater concern in respect of the matter of constriction of the floodplain. The concern here is that in the event of a regional storm which according to Professor Leutheusser's evidence would place up to four feet of water on the proposed site, the pillars have a backwater effect and also create a potential dam as debris carried by the flow may lodge around the pillars and become a dam backing up water for a time and suddenly releasing an increased flow when the debris is overtopped or released. Dr. Lord dealt with these risks in his evidence and on the other hand, Lathem made three cross-sections and concluded that there would be no constriction. However, Lathem's work was not based on the elevation determined by Professor Leutheusser but on his own calculation which did not take into consideration the extreme downstream roughness coefficient.
In its natural condition, which appears to be the proper perspective for viewing these matters in the light of existing scientific knowledge, experience and applied practice, the site would be subject to ten feet of flooding during a regional storm. The natural elevation was 495 feet and the estimated regional flood line prior to the placing of fill in the past was 505 feet. With changing circumstances, fill being the only circumstance given in evidence, the regional storm elevation has become 508 feet (Lathem) or 512 feet depending on which formula is applied. There has, as a result of the erosion control project or at least, since the erosion project, become a higher estimated regional flood elevation and the site is subject to up to four feet of flooding in a regional storm flow through the diversion. This degree of flooding plus the potential of constriction are valid areas of concern.
However as is indicated above the control of conservation of land, including the prevention of erosion, is of serious if not more serious concern.
The absence of expertise on the ability of rivers to return to natural channels coupled with the fact that the diversion is not designed to flows above 5,200 cfs create doubts as to the safety of the proposal from a consideration of erosion. I assume the "floodproofing" of the proposed building is to the usual standard of such structures that have been designed, if not erected. I have never heard of a situation where a "floodproofed" building was permitted in the natural channel of a major river. Any such examples that I have been referred to and I must say, not in this case but in other cases, were placed in the higher elevations of wide floodplains where the interference with the storage capacity and the risks of constriction are not as significant as they are in cases of narrow floodplains such as the one in question. Further there was no evidence to establish that the standard of construction proposed would have been adequate to meet the potential risks of erosion which for want of evidence to the contrary, I assume would be greater in the natural course in the event the river reverted to its original channel or in a more southeasterly location from the present location than for "floodproofing" on the fringe of a wide floodplain.
From what has been noted above and from the evidence of Dr. Lord, it is clear that the practice of relying on improvements is not a sound practice and that areas below improvements should not be developed with the false sense of security that the risks are contained. I have noted above that there are risks both in the area of flooding during regional storms and in the area of erosion from storms of less than regional flood intensity. I cannot conclude that the respondent was wrong in refusing the permit requested.
The respondent raised the issue of the condition of the permit for the extension. In passing it may be noted that it appears that the respondent issued this permit without recalculating elevations as a result of the placing of fill in the valley during the construction of the diversion and the Bathurst Street bridge. The reliance on the elevation of 505 feet for the flood elevation in the permit fails to reflect the new levels calculated by the witnesses Lathem and Leutheusser. There may be existing problems in respect of the subject lands without adding to the existing problems. However, the point under consideration, is the effect if any of the condition. Counsel did not address me on the question of whether it was a valid condition in respect of the permit issued or whether it constituted an implied agreement or estoppel against the owners of the entire parcel. There may also be some question as to whether it can bind future owners. In view of the conclusion I have come to, I do not pursue these issues.
Counsel for the respondent raised the issue of precedent and counsel for the appellant relied on the charitable nature of the appellant and the proximity of the improvements in response. As indicated above, reliance on improvements cannot be accepted as a sound ground for dealing with these matters. The question of the charitable purpose of the appellant leads to the question of whether the purpose of the proposal is relevant in balancing the interests involved. Counsel for the respondent submitted that purpose was not relevant and counsel for the appellant referred to clause d of subsection 1 of section 6 of Regulation 735/73 which requires as part of the application for a permit,
- four copies of a statement of the proposed use of the building or structure following completion of the construction."
In my opinion the purpose of the building is a relevant consideration but to be a weighty consideration the purpose must relate to necessity rather than utility or as in this case, lower capital costs for charitable institutions. The balance, that was referred to by counsel -- is a balancing between the risks of nature and the ability of society to devise and afford adequate or acceptable measures to cope with these risks. In such a balancing, installations of necessity, such as roads, pipelines, sewers, firehalls for existing communities, are examples of structures that cannot be placed other than in the floodplains. It would be a considerable extension of these purposes of necessity to extend the list to include sites for office accommodation of charitable institutions. There is no suggestion that the community to be served is situate within the floodplain in order that an analogy might be made to such a firehall or if such were the case, that there is any need for erection in a floodplain. The respondent has expended a considerable effort in clearing floodplains in the area under its jurisdiction and in my view the proposal would be a serious reversal, keeping in mind its policy regarding the proposal of the Borough of East York. While the concept of discretion in an administrative function mitigates against the application of judicial concepts of precedent, there are situations that set parameters, if not precedents, and in view of the great number of social and charitable agencies that exist today, the difficulty of resisting applications, particularly those on the fringe of wide floodplains, is surely apparent.
To conclude, while one is sympathetic with the causes and the financial difficulties of charitable institutions, the expenditure of the amount of quasi-public funds necessary to construct the proposed building in the natural channel of one of Ontario's major rivers should not be authorized and the risks to the occupants therein, minimal as this type of risk may be through flood warning systems, and to upstream and downstream properties should not be permitted. We are not dealing with the headwaters of a tributary of a small stream. The history of this river is illustrated in the Plan and in the absence of adequate scientific evidence and experience to prove that the generally accepted principle, i.e. that improvements such as dams, diversions and dykes should not be relied upon to permit development in areas that were clearly in a position of danger in a state of nature, is wrong, and with the dangers of adopting, in the light of recent world wide experience, a contrary principle, I cannot conclude that the principle followed by the respondent ought to be overlooked solely on the basis of the convenience of charitable institutions.
This decision has been made on the assumption that the application of the appellant did not involve the placing of fill. It may well be that, had the application involved such a matter, some of the arguments raised on behalf of the respondent and not applied herein would have been relevant. Needless to say the arguments would not have been of assistance to the appellant and I leave any discussions of such matters to an appropriate occasion.
It is ordered that the appeal in this matter be and is hereby dismissed.
And it is further ordered that no costs shall be payable by either party thereto.
Dated this 16th day of June, 1977.
Original signed by G.H. Ferguson, Q.C.
Mining and Lands Commissioner.