This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Nella Soufan.
The Mining and Land Commissioner in the matter of the Conservation Authorities Act
G.H. Ferguson, Q.C.
Mining and Lands Commissioner
Thursday, the 1st day of June, 1989.
An appeal against the refusal to issue permission to renovate the interiors of two existing buildings, municipally known as 1 and 3 High Street, in the City of London in the County of Middlesex.
Upper Thames River Conservation Authority
J.J.M. Hoffer, for the appellant
R.G. Inglis, for the respondent
The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission retroactively for the renovation of the interior of two existing buildings, municipally known as 1 and 3 High Street, in the City of London, in the County of Middlesex. By Ontario Regulation 364/82 the power and duty of hearing and determining such appeals were assigned to the Mining and Lands Commissioner. The appeal was held in London on December 6 and 7, 1988.
As a preliminary matter counsel for the appellant took the position that the respondent had no jurisdiction to deal with the matter. The issue was whether the renovations consitituted the construction of a building, extended by definition to mean "a building or structure of any kind". In the view of this tribunal such an issue would not be an appropriate matter for the Minister of Natural Resources to determine on an administrative appeal. The tribunal has delayed issuing a decision on the appeal by reason of the fact that the issue was placed before the regular courts in a related matter. However counsel for both parties have indicated that the tribunal should proceed with its consideration of the matter.
The tribunal adopts the position that for the purposes of the appeal it assumes that the respondent had jurisdiction to deal with the matter. A decision based on such an assumption would have no overriding effect on an opposite decision that may be made by any court. The tribunal assumes that it has jurisdiction by virture of the appeal having been brought by the appellant. Whether the assumption of jurisdiction is based on the legal principle of election, attornment or abuse of process this tribunal assumes that the respondent had jurisdiction and that on the appeal by the appellant to the Minister of Natural Resources the Minister also has jurisdiction.
In passing it may be noted that this tribunal can see no greater example of the principle of "sucking and blowing" than an appellant applying to the respondent and appealing to the Minister requesting permission under the Conservation Authorities Act and asserting that neither the respondent nor the Minister has jurisdiction to deal with the matter.
Turning to the facts of the case the subject lands are located at the southwest corner of the intersection of the Thames River and High Street in the City of London. High Street intersects with Wellington Street, one of the key streets running in a north and south direction in the City of London. A bridge crosses the Thames River as part of the street.
The subect lands have a frontage on Front Street, the first street southerly of the river, of approximately two hundred and seventy feet. The easterly boundary along High Street measures 167.36 feet. The westerly boundary measures one hundred and twenty-three feet. Two buildings are located on the subject lands. The westerly building is numbered 1 High Street. It is a two-storey brick building measuring approximately thirty-five feet by forty fee. It is located approximately 21.6 feet from the water's edge of the river. The floor of the second storey of the building is at the same elevation as High Street and is connected thereto by a walkway. This building will be referred to as "Building No. 1".
A second brick building is situate to the west of Building No. 1. There may be some confusion as to the municipal number of this building as the notice of appeal referred to it as "3 High Street". The more appropriate municipal number may be "6 Front Street". The building will be referred to as "Building No. 2".
The first floor of Building No. 2 measures approximately eighty feet by twenty-eight feet. The second storey measures approximately fifty-five feet by twenty-eight feet. It commences at the easterly end of the building. At some time in the past the westerly end of the first floor contained a two-car garage. The use of the easterly end of the first floor is somewhat in doubt according to the evidence. In the appellant's evidence she indicated that there had been some occupancy of one of the areas. It seems that prior to the construction done by the appellant the westerly area was used as a workshop. The evidence indicates that the easterly area had garage doors and the appellant's evidence was that the doors were taken out and windows placed in lieu of the doors. However, the application to the respondent reads "1 High Street from duplex to four-plex including ....6 Front Street from four-plex to six-plex residential". The tribunal can only conclude that, with reference to Building No. 2, the intention was to add two new residential units to the first floor of the building.
On the evidence the proposed use of the buildings was not clear. Exhibit 8 was a floor plan that had been prepared in June, 1988 and illustrated that one general office and three residential units would be constructed in Building No. 1. Evidence contained in the appellant's briefs indicated that this position had been varied. The evidence of the witnesses for the respondent indicated that they had not been made aware of any changes or had not been aware of the plans on which the municipality has issued a building permit. Accordingly this tribunal can only deal with the matter on the basis of the application, namely that the entire areas would have residential usuage and that two new residential units were being created, one at either end of the first floor of Building No. 2.
Building No. 2 is situate much closer to the Thames River than Building No. 1. At the easterly end it is 19.6 feet from the water's edge. At the westerly end it is 19.6 feet from the water's edge. At the westerly end it is 9.8 feet from the water's edge.
In addition to changes in the buildings the appellant has constructed fences, parking areas and a garbage enclosure.
There is no indication of any protective works to protect the subject property from flooding from the Thamses River. Berms have been place on the northerly shore of the river but there was no evidence that such berms were of any assistance to the subject lands. A concrete embankment is situate along the river bank running westerly from the bridge for a distance of approximately sixty-five feet. None of the photographs indicate that the wall is higher than the existing ground level.
Turning to the flood elevations as they affect the subject property, the elevation of the subject lands varies from 235 metres to 237.1 metres. The elevation of the one in one hundred year flood is 237.6 metres creating flooding of .5 metres at the highest point and 2.6 metres at the bank of the river. These figures convert to twenty inches and eight feet, eight inches approximately respectively. The elevation of the regional storm, the storm described in the regulation of the respondent, is 238.9 metres. This would indicate that there would be 1.8 metres of flooding at the highest point on the subject lands and 3.9 metres at the bank of the river. These figures converst to approximately six feet and twelve feet respectively. The elevation of the regulatory flood, a flood of less intensity than the regional flood but one adopted by the respondent for administrative purposes, is 238.2 metres. Such a flood would have elevations of 1.1. metres at the highest point and 3.2 metres at the bank of the river. These figures convert to the three feet, eight inches and ten feet, eight inches apprixmately.
The evidence of the appellant was that she had approximately $85,000 on the building and an additional sum for legal and other costs. The proposed changes were said not to be completed.
The crux of the appeal is that two new residential units have been created out of areas that were previously used as garages or workshops in an area that is subject to flooding varying from three feet, eight inches to ten feet, eight inches in a regulatory storm. No evidence was produced to show that the respondent had in the past issued permission in respect of the creation of such residential premises.
Counsel for the appellant made three submissions. His third submission dealt with the jurisdiction of the respondent and as indicated above, this question of law is not being considered in this matter. His first submission related to the exercise of the discretion of the respondent and it was submitted that the qualifications of the exercise of the discretion contained in the regulation were otherwise than the reasons given by the respondent for refusing the application. It was submitted that the considerations should be directed to the site of the building or the method of construction and the causal relation thereof to the control of flooding. It was submitted that the Executive Committee did not direct its mind to these matters but relied on policies, particularly policies of the province. It was submitted that the increase in the value of the buildings was an improper consideration and that this issue on the evidence was the prevalent consideration of the respondent. It was noted that the regulation did not refer to this consideration.
It was submitted that the sole or prime consideration should have related to "the control of flooding" and that the evidence indicated that such a matter was not in issue. In this regard reference was made to the following two paragraphs on p.2 of the minutes of the respondent of August 11, 1988 at which meeting the decision to refuse the application was made:
Mr. Flitton noted that all the construction has been confined to the interior of the building and that the exterior had not been increased in size. Therefore, the water flows would not be impeded. He also noted that the property had been in poor state of repair for several years, and the applicant through this Application is attempting to remedy this situation.
Mr. Diver noted that the Authority is not addressing the matter of impeding water flows. It is however, addressing the matter that with the renovation of the two units which are located in the floodplain, the property value and hence the floodplain, the property value and hence the potential for damage has increased by approximately 40%. This is contrary to the provincial policies and the Conservation Authority's Regulations.
It was submitted that there is nothing in any of the guidelines placed in evidence that mentions internal renovation and that Diver, the Land Use Co-ordinator of the respondent, in his evidence, was unable to refer to any such provision.
With reference to the provinical policies placed in evidence, it was submitted that they had not been filed under the Regulations Act or published in the Ontario Gazette and in the absence of such action the citizen is not bound by the documents. It was submitted that such a policy statement cannot affect the property rights of landowners.
It was further submitted that there was nothing in the regulation that provided for the increase in value of a property being considered as a ground for refusing an application.
Reference was also made to the relation between a statute and a regulation made thereunder as set out in 31 C.E.D. at p. 133 and following and it was submitted that policies cannot change the law and that because the reasons given did not relate to the issues mentioned in the regulation but related to extraneous matters that the decision of the Executive committee was unsound in law.
The second major argument of counsel for the appellant was that, in effect, the real reason for the refusal was a desire of the respondent to acquire the subject lands, the intention to acquiare having been on record for many years and being freely admitted in the evidence. In passing this tribunal considers this issue to have no relevance to the merits, if any, of the applicaiton and facts related thereto should not be considered in making the decision.
It was submitted that the substance of the decision of the respondent was that the development carried out by the appellant created a greater insurance loss and a greater density of people in residence in the buildings. It was submitted that the increase in the number of units did not necessarily increase the number of residents in the buildings and that a conclusion that there would be a risk to a greater number of persons is an unsupportable assumption. It was also submitted that no proper evidence of an increase in value was established and that Diver was not a valuator or a qualified valuator for this purpose.
It was further submitted that the provincial policies, particularly as set out at p. 3 of the Policy Statement on Flood Plain Planning recognize acquisition of lands as a tool of flood plain management but it does not suggest that the policy should be to delay any maintenance of a building until its market value is nominal. It was suggested that the role of a conservation authority under this part of the policy was to erect protective measures or acquire. It may be noted that the latter is qualified and limited to cases when a cost benefit analysis may indicate that acquisition and the removal of buildings from the flood plain is more appropriate than the construction of protective works. There is always the matter of availability of funds.
Apart from the comments on jurisdiction, the submissions of cousnel for the respondent commenced with the submission that the decision was consistent with provincial policy as set out in the 1982 Policy Statement, Exhibit 2, Tab 7, as enlarged by the 1988 Policy Statement, Exhibit 2, Tab 8 and the policy of the respondent, Exhibit 2, Tab 9. He submitted that becuase the provincial statements are statements of policy they need not be filed under the Regulations Act or published in the Ontario Gazette and their sanctions lie in the administrative decisions of the respondent under the Conservation Authorities Act. He submitted that in interpreting such policy statements in respect of the present application, the application falls within the concept of "new development" which is prohibited in all three policy statements. He submitted that the conversion of two two-car garages into apartments, the replacement of garage doors with windows and the creation of sleeping quarters in areas susceptible to flooding should be interpreted as "new development". He added to these changes the construction of parking lots, fences and an accessory building and submitted that what had been there before was substantially altered with new walls, plumbing and wiring.
On the issue of the appropriate matters to be considered in an application, it was submitted that the number of people residing in the flood plain was a relevant consideration as it reflects on the concern for loss of life and that the increase in property value was also a proper consideration.
On the issue of acquisition it was submitted that there was no duty to warn prospective purchasers and if done there might be lawsuits, presumably in the nature of libel of title or inducing breach of contract. As indicated above this tribunal considers this issue not to be relevant.
Counsel also referred to the evidence produced by the appellant which indicated that the plans placed before the respondent had been changed for the purpose of obtaining a building permit from the municipality, and the changes may further increase the value of the property resulting in greater losses to property in floods and increases in the responsibilities of the respondent and the province if flood damages are paid.
Counsel for the respondent also questioned the theory that more bedrooms meant less occupants of the entire buildings. He pointed out the increased risk to persons living and sleeping in quarters that formerly were garages. He also referred to the lack of access to and egress from the buildings, particularly Building No. 2. With respect to Building No. 1 it was submitted that the existing access to the second floor might be destroyed in a regional flood. He submitted there would be more stress on the warning system operated by the municipality in the event of floods resulting from more people being in the flood plain. He pointed out that the granting of permission in this case would encourage others to want to live in flood plains and that permission had been refused in cases situate much further from the Thames River.
In summation it was submitted that there is no principle of flood plain management under which the work done by the appellant can be permitted and while the Conservation Authorities Act may be said to restrict the rights of landowners, it is analogous to the Building code which as similar results and similar penalties; all based on the greater good of the community.
In reply, counsel for the appellant submitted that the exercise of the discreation was limited to the site or method of construction and that increases in value of building or contents was beyond the proper considerations of the respondent. With reference to policies it was submitted that there was no evidence that the 1982 policies or the 1988 policies were used and it was argued that these are applicable only to "new construction". Other submissions went to the third issue. By way of reference to precedent it was noted that in the case of Watson v. Upper Thames River Conservation Authority the issue was new construction and the refusal of permission in that case was not a precedent for refusal in this case, particularly as it involved the placing of fill, other utilization of the storage capacity of the flood plain and the conversion of a barn to a residence as contrasted with changing a residence to a residence. Reliance was made on the paragraph on p. 4 reading,
The tribunal has considered the examples brought forth in the evidence. In each of the cases there was either an application of some recognized principle or the building was proceeding without the permission of the respondent. The tribunal is not able to conclude that the respondent has a policy of permitting residential construction in circumstances such as the present case and cannot find that the respondent has a policy, either express or implied which is being denied to the appellant.
It was submitted that the only position the respondent should take in respect of the appellant's property under the provincial policy was to protect or acquire the property.
Reference was also made to the comments of counsel for the respondent regarding penalties. In the view of this tribunal the consideration of the effect of breach of a regulation is a matter for the provincial court rather than this tribunal and is not helpful in considering the policy that should be adopted.
Assuming, as indicated above, that the matter fell within the jurisdiction of the respondent, the tribunal is satisfied that there is nothing in the written policies either of the provnicie or of the respondent specifically dealing with the conversion of garages and other utility buildings into residential properties. It is a fair interpretation that references to existing conditions are references to buildings as they are standing and such references do not address the issue of the conversion of such utility areas to residential construction.
With reference to the approaches of counsel to the proper interpretation of the Act and the regulations, the tribunal agrees with the interpretation submitted by counsel for the respondent and cannot accept the principle expounded by counsel for the appellant that the considerations by a conservation authority in determining whether its discretion will be exercised must be limited to the three points mentioned in which jurisdiction to grant the permission is provided. The provisions of the Act and the regulations are set out in full. Clause 28(1)(e) of the Act reads:
28. (1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under it jurisdiction,
(e) 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; and
Having regard to the nature of the delegated legislation it will be noted that clause (e) provides for three classes of control, namely, prohibition, regulation or permission.
Section 3 and 4 of Onario Regulation 171/88 read as follows:
No person shall,
except in accordance with a permission issued under section 4.
As may be noted from section 3 and 4 and reading the regulation in its entirety only two of the classes of controls authorized by clause 28(1)(e) have been adopted. This situation is not singular to the respondent. None of the other conservation authorities in Ontario have attempted to make regulations which spell out in detail regulatory provisions. Consequently there are only two methods of control in use in the area under the jurisdiction of the respondent. The first area is prohibition and that has been enacted in section 3. The second area is a requirement of permission which is dealt with in section 4. In reading section 4 it is the opinion of this tribunal that the words that counsel for the appellant attempted to use as limiting words on the discretion of the respondent, namely, "if, in the opinion of the authority, the site of the building . . . and the method of construction . . . will not affect the control of flooding or pollution or the conservation of land", do not completely control the discretion of the conservation authority. In the opinion of this tribunal and in accordance with the decisions that have been made over approximately fifteen years, the words "control of flooding" have been given a fairly broad interpretation and have extended to matters of the programs carried out by the conservation authorities including warning systems, protection of property and the protection of the lives of individuals. It is the view of this tribunal that the words relied on by counsel for the appellant are the conditions precedent of the exercise of its discretion by the respondent but they are not words limiting the extent of the discretion that has been granted to the respondent. This particular case in itself illustrates the risk that can occur if it were to be said that permission must be gratned because there is no interference with flood levels, storage capacity or flows. In the Timmins flood, a flood more analogous to the one in one hundred year storm, death occurred where people were sleeping in basements that were below the elevation of the regional storm. This tribunal finds it difficult to conceive that the purposes of the Conservation Authorities Act would be met by permitting the creation of new residential premises in an area that is susceptible to flooding to a depth from three feet, eight inches to ten feet, eight inches.
It is trite law that the word "may" is discretionary and in the context a discretionary power is given to the conservation authority to issue the written permission. Regardless of the breadth of wording that may be attributed to the phrase "control of flooding" the interpretation of this tribunal is that the exercise of the discretionary power is not limited by the words at the end of section 4 of the regulation but, to enable the purposes of the Act to be carried out the proper interpretation of the section is to permit the exercise of the discretion in those circumstances mentioned but there is nothing in the section which limites the discretion to those circumstances. There can be no suggestion that the discretion provided for the authority should be exercised where the purposes and the objectives of the Act would not be met in the circumstances of the case.
The interpretation pressed on the tribunal by counsel for the appellant was that the limiting words should be treated as words of regulation which limit prohibition contained in section 3 of the regulation. This tribunal is not satisfied that such is the appropriate interpretation and is of the opinion that the better interpretation is one which indicates that the latter words of section 4 open the door for the exercise of the discretion but do not limit or control it. Such being the case it cannot be said that a conservation authority cannot refuse an application where its policies, the policies of the province or the objectives and purposes of the Conservation Authorities Act would not be met by the granting of permission.
It is trite that the purpose of the Conservation Authorities Act and the objective of the legislation is to pervent the damage to property and loss of life that occurred in floods such as Hurrican Hazel and the Timmins storm. The fact that a structure or a work does not interfere with the flows of the channel or utilize flood storage capacity is not in itself sufficient to warrant the granting of permission where other factors within the objectives of the legislation exist. In the opinion of this tribunal the respondent was justified in considering the risk to life that was apparent by the construction of new residential units in an area subject to flooding to depths from three feet, eight inches to ten feet, eight inches in a regulatory flood.
With reference to the submission of counsel for the appellant that the policy statements were not binding because they had not been dealt with under the Regulations Act, in the opinion of this tribunal this argument fails to consider the historic difference between policy and law. The argument of counsel for the respondent that there was no need of such filing and publication is more in line with the accepted legal position and the enforcement of such policy is an administrative matter to be carried out as an administrative act by the municipality, the conservation authority or other administrative body.
With reference to the policy applied by the respondent in respect of applications there was no evidence placed before the tribunal that indicated that the written policy of the respondent specifically dealt with conversion of workshops and garages to residential units. Further there was no evidence that the respondent had permitted the creation of residential units in areas subject to the depth of flooding noted above. This tribunal can find nothing in the evidence that suggests that the appellant was denied the benefit of any express or implied policy of the respondent in this matter.
On occasion decisions of conservation authorities are reversed on the basis of overriding federal, provincial or municipal concerns. There was no evidence before this tribunal to justify this tribunal taking such action in this case and accordingly the appeal will be dismissed.
Both counsel asked for costs on a solicitor and client basis. This tribunal has considered this matter and comparing this case with other cases heard by the tribunal the tribunal is of the opinion that this is not a case that warrants the awarding of any costs.
Signed this 1st day of June, 1989.
Original signed by G.H. Ferguson, Q.C.
Mining and Lands Commissioner