Mobile Mix Concrete Products (1971) Ltd. v. Upper Thames River Conservation Authority

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Mobile Mix Concrete Products (1971) Ltd.

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 and maintain structures at 72 Ann Street in the City of London in the County of Middlesex.

Between:

Mobile Mix Concrete Products (1971) Ltd.
Appellants

and

Upper Thames River Conservation Authority
Respondent

Reasons for judgment

Lerner Q.C. for the appellant.
R. J. Flynn Q.C. for the respondent.

The appellant appealed under subsection 2c of section 27 of The Conservation Authorities Act, as amended by The Conservation Authorities Amendment Act, 1973, c.98, s.8(4), from the refusal of the respondent to grant permission to construct a concrete batching plant on the premises municipally known as 92 Ann Street in the City of London. By Ontario Regulation 872/76 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner and the appeal was heard in London on the 20th and 21st days of January, 1977.

Under the regulation making power contained in The Conservation Authorities Act the respondent made Ontario Regulation 755/73 replacing an earlier regulation, Regulation 120 of Revised Regulations of Ontario, 1970. Sections 3 and 4 of this regulation read as follows:

  1. "Subject to section 4, no person shall,
    1. 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;
    2. place or dump fill of any kind or permit fill to be placed or dumped in the areas described in the schedules hereto whether such fill is already located in or upon such area or areas or brought to or on such area or areas from some other place or places; or
    3. straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse.
  2. 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."

The subject land lies between Ann and Piccadilly Streets in the City of London. It is approximately 150 feet wide and 410 feet long. The westerly limit of the subject land is the east bank of the north branch of the Thames River. A parcel of land approximately 450 feet in length lies between the subject land and Talbot Street which is the first street easterly of the river and parallel thereto. Generally speaking the area was described as a "scruffy", industrial area. In the vicinity of the subject land there are two van line operations, a printing shop, a radiator shop and a warehouse transformed into a "restaurant".

For many years the subject land was owned by Carling Breweries and was understood to have been the site of a brewery operation. Following the second world war a construction company acquired the land and a concrete batching plant replaced the brewery. At the extreme easterly end of the subject land there is a concrete block building which presently provides a garage for trucks in the north end and offices in the south end. This building has been erected for many years. During the past thirty years it appeared that a batching plant had been erected on three different locations on the subject land. The first batching plant was believed to have been fairly close to the concrete block building. In approximately 1961 a batching plant was erected on the westerly part of the subject land. The location of this batching plant was subject to a conflict of evidence. Associated with this batching plant there was a further building known as a boiler house and a hopper.

In 1973 the existing batching plant had become obsolete and was causing environmental problems. The owner applied for permission to construct a new plant and to dig out a wash hole fifteen feet by thirty feet to hold slag from the trucks. This application was refused by the executive committee of the respondent. Between May and July in the year 1975 the appellant erected a new portable batching plant without applying for any further permission or applying for a building permit from the City of London. In the interval there had been a series of fruitless negotiations to purchase the whole or part of the subject land for the park program of the respondent and the city under which program the city negotiates the acquisition of land. Counsel for the appellant admitted that the appellant had proceeded with the advice of counsel without a building permit or permission of the respondent by reason of the refusal to issue a permit and the failure of the local authorities to come to any satisfactory agreement in respect of the purchase of the property or an exchange of properties.

Upon the unauthorized construction coming to the attention of the respondent, it proceeded with the laying of a charge for the breach of the regulation. Subsequently, an application was made to place fill on the subject land for the purpose of preventing runoff on the property. On review of this application by the flood plain and urban drainage committee of the respondent a recommendation against the issue of the permission was made and upon notice of a hearing being issued the application was withdrawn. A subsequent application was made on July 26, 1976 "to permit maintenance & construction of certain structures in the flood plain area."

This application was supported by a survey showing the site of the batching plant erected in 1975 and two plans prepared by A. M. Spriet and Associates Limited. These plans were qualified as "as built drawings". They showed a floor plan, a roof plan and a north, east and west elevation. Mr. Spriet gave evidence that he had examined the plant and its enclosing structure for the purpose of, determining whether they complied with the requirements of the National Building Code and having found a number of deficiencies he had noted these on his plan which had been prepared for the purpose of applying for a building permit and permission of the respondent to bring the structure up to the standard of that code.

By way of general description of the structures the batching plant was described as being portable although this usage of the term is somewhat misleading in that it did not mean that the plant was mobile. The plant as such was purchased as a unit and can be moved to another site. The plant was erected on a concrete slab and a series of walls and over-hanging lean-to's were built around the plant to protect the machinery and give the plant a more acceptable appearance. The walls were made of studs and sheets of plywood covered with cheap siding and according to Mr. Spriet on the removal of the plant the walls would have no further use and would be a liability rather than an asset. In other words they would not be adaptable for any other use and their removal would involve the owner in unrecoverable costs as there would be no scrap value.

The application for permission was reviewed and following a hearing before the executive committee of the respondent the permission was refused on the grounds "that the building is in an area susceptible to flooding during a regional storm, and such construction may affect the control of flooding or pollution or the conservation of land."

During the hearing of this appeal two matters warranting preliminary comment arose.

Firstly, the key witness for the appellant was Michael John Bacon, a consultant and planner with the company of Proctor and Redfern Limited. Mr. Bacon has degrees in architecture and planning, and belongs to several professional associations. He is a director of the company and has many years of experience in ecological and planning matters. He has worked for the City of London and conservation authorities and frequently, as was done in this case, heads up groups of multidisciplinary experts that are assigned to deal with a contract.

During the presentation of Bacon's evidence, he produced a site plan, which site plan was filed as Exhibit 11, for the subject land, which appeared to have been prepared subsequent to the hearing by the executive committee. This tribunal experienced some concern as to whether the proposal of the appellant as illustrated by Exhibit 11 was different or substantially different from the proposal dealt with by the executive committee in its consideration of the appellant's application. Mr. Flynn clarified the matter considerably by pointing out that Exhibit 11, with one exception, appeared to have been the subject matter of the deliberations of the executive committee. The exception was that the proposed conveyor system was understood to be underground at the hearing before the executive committee but it now appears that the conveyor belt is to be mounted on three sets of piers and will rise from underground hoppers to the top of the batching plant, creating a steel supported structure approximately 150 feet in length of which approximately fifty feet would be situate over the plant. Mr. Flynn agreed that there would be no basis for questioning the jurisdiction of the tribunal and that the hearing should proceed on the basis of the proposal as illustrated by Exhibit 11. Needless to comment, it was felt that the additional obstruction strengthened the position of the respondent.

Secondly, at the end of the presentation of Bacon's evidence and cross-examination, the tribunal inquired as to the time counsel considered would be required for the presentation of the remainder of the hearing. This was prompted by the number of areas of consideration discussed by Bacon. The thrust of his evidence was that by reason of the advisability to consider a number of matters, each of which would entail involved technological discussions with engineers of the municipality and the respondent, any decision on the matter at this time was premature. He referred to such matters as street paving, drainage of the local area including the subject land, installation of purifying water systems, the granting of an easement for the westerly part of the subject land for public use and for the sanitary sewer and the restoration and protection of the river bank. He indicated that with technical discussion some acceptable compromise solution could be achieved which would permit, inter alia, the continuation of the batching plant in its present location. However, counsel for both parties advised that they had agreed on a prior occasion that the sole issue in this hearing would be the matter of flooding or control of flooding and that matters of pollution, erosion or conservation of lands were not in issue.

Viewing the matter in this limited way there are two areas of concern in connection with the placing of buildings, structures or fill in flood plains. The first area is the matter of reduction of the storage capacity of the flood plain. The second area of concern is the matter of placing constrictions in the flood plain of the river, which constrictions during regional storms and storms of lesser severity have the effect of blocking the flow and causing additional flooding upstream of the constriction and on occasion, causing de facto dams which on breaking cause an increased flow downstream.

Regarding the evidence on the first area the witness Bacon gave evidence that he had caused his experts in hydrology on his team to make inquiries as to the effect of loss of storage capacity in the flood plain created by the structures installed by the appellant. He had been advised by his experts that while it is possible to calculate the loss of storage capacity in this particular case the loss of storage capacity was so infinitesimal that his experts could not identify the volume of the loss in relation to the entire capacity. His advice was that the structures could not be said to have any significant effect on the storage capacity of the floodplain.

The only witness qualified in matters of hydrology at the hearing was John Y. Ding. Ding is a research engineer with the Conservation Authorities Branch in Toronto. He graduated with a degree of a Bachelor of Engineering in Taiwan in 1960 and obtained his Masters Degree from the University of Guelph in 1963. He has been in the employ of the Ministry of Natural Resources and is a member of the Association of Professional Engineers, Ontario. Ding was called by the respondent for the purpose of establishing the flows and the elevations of the regional storm in the area and he gave no evidence on the issue of loss of storage capacity or on the second area of concern, namely, the effect of the constrictions in the flood plain. This tribunal has been able to find nothing in the evidence that rebuts the hearsay evidence produced by Bacon and in respect of this area one can only conclude that the changes made by the appellant in 1975 are insignificant with reference to an increase in the loss of storage capacity. I have not overlooked the evidence of Bacon on his cross-examination when he admitted that there would be a concern if all property owners in the flood plain were permitted to make a similar encroachment with reference to the precedential implications this case involves a situation where there has been an existing encroachment on the capacity of the flood plain and in this regard the precedential implications may not be as significant as those associated with an application of first instance. I have said "may be" intentionally. Murray Thomas Kinniburgh, the Resources and Technical Supervisor of the respondent, in his evidence stated that the respondent had a policy of reallowing an existing use in the floodplain provided that the new building is located on the same ground space as a building that will be torn down. There may be adequate grounds for this policy based on the entire volume of the storage capacity of the Thames River but apart from this possibility this tribunal has some difficulty in accepting the principle that a building or structure that has become obsolete should be permitted to be replaced.

With regard to this policy of the respondent one might have thought that the policy should relate to the question of the obsolescence of the building or structure being replaced and that there might be some merit in adopting an approach that the day of obsolescence is the day of reckoning and that the policy to be adopted in respect of replacement of obsolete buildings and structures in flood plains should be considered on the same basis as an application for an original insertion into the flood plain. In my view it is important that the established policy of the respondent in this regard not be interfered with in the absence of evidence to show that the policy was unsound. So long as such is the policy of the respondent I fail to see any concern from the point of view of precedent.

I now turn to the other area of concern, namely, the constriction of the flood plain which has the effect of causing additional upstream flooding. This is frequently caused in two manners. Firstly, the obstruction itself holds back the water causing additional flooding upstream. Secondly, the obstruction collects debris or ice and may in effect cause a dam which would hold the waters back creating flooding upstream of the newly created "dam". In passing it may be noted that it is understood that it is not the practice in determining regional flood lines to make any allowance for prospective constrictions. The reason is obvious. There would be no reasonable method of determining where or to what height such constrictions might occur. The basic approach is that constrictions should be prevented and in line with this approach there would be no need for adding to the regional flood line an allowance for future constrictions.

Unfortunately, I find that the expert evidence before me was not particularly helpful with respect to constriction. The witness Bacon indicated that it is possible to calculate such matters but he had not obtained any calculation from his experts in this field. The witness Ding was not asked to provide any evidence of comparable effect by way of constriction resulting from the old batching plant and the boiler house plus the piles of aggregate as contrasted with the new combined building and the proposed conveyor belt system. Both counsel made submissions in regard to this issue but before examining the evidence and the submission of counsel it would be well to appreciate the principle against which the evidence and any conclusions therefrom should be assessed. To what would the exercise be- related? If it were established that there would be a greater risk of constriction, should the appeal be dismissed and if so on what basis? Conversely if it were not established that the risk was increased would this warrant the allowing of the appeal? Should the risk be assessed in relation to the pre-existing situation or should it be assessed in relation to the flood plain without the constriction? In other words, one might test the new situation against the old situation or one might review the situation as an application for an original intrusion into the flood plain. It may well be that the standard adopted should be an application of both tests. It is noted that in his argument, Mr. Flynn dealt with the risks arising from the structures from both points of view.

Counsel for the appellant, in his submission, suggested that the standard for consideration in these matters is not the effect on flooding or on the risk of flooding but the effect of the proposal on the "control of" flooding. He based his argument on the concluding words of section 4 of the regulation, ". . . . if in the opinion of the Authority the site of the. . . . structure. . . . will not affect the control of flooding. . . . . "  It was submitted that in considering this .case one should have regard to the issue of control of flooding and not flooding per se and that, while the expert evidence indicated that dams and channel improvements control flooding, there was nothing in the evidence to relate the structure and the proposed structure to the control of flooding. It was, in effect, suggested that the evidence only related to effect on flooding and did not relate to the effect of the structure and the proposed structures on the control of flooding.

While there is a certain amount of semantic intrigue in the argument, it is apparent that any interference with the storage capacity of or any constriction in the flood plain would have an effect on the risk of flooding and if the absence of such were the standard for granting permission in no cases could permission be granted. In my understanding of the regulation the exception in which permission may be granted is broader than this and that even where it can be shown that flooding or a risk of flooding would be effected, the permission may be granted where such a risk could be tolerated and the control measures in respect of flooding will not be effected.

The granting of permission does not turn solely on the issue of the risk of flooding but on the effect on the control of flooding where there can be alternatives in the control programs. One of the programs of control of flooding is the prevention of intrusions into the flood plain. This is equally effective as the construction of dams or channel improvements and the considerations are whether, in effect, the control programs can accommodate the proposal.

It may well be that the evidence in this case, extensive as it was, did not contain an opinion of an expert witness that intrusions into the flood plain, whether the effect of the intrusion was loss of storage capacity or a potential creation of a constriction in the flood plain or both, cause risks of flooding and that one of the controls of such risks is the prohibition of intrusions into the flood plain. I do not think it is necessary in every appeal to establish such a scientific proposal by the evidence. The principle is adopted in the law. Clause e of subsection 1 of section 27 of The Conservation Authorities Act, as amended by The Conservation Authorities Amendment Act, 1973, c.98, s. 8(2), recognizes the principle. The significant words of the regulation making power of a conservation authority are "prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure. . . . . . in any area susceptible to flooding during a regional storm . . . . . .". With the exercise of this regulation making power the principle becomes part of the law. With the regulation being made the scientific principle that the control of intrusions into a flood plain is a tool for the control of flooding becomes a matter of law and accordingly there is no need to establish this principle in evidence at each hearing.

With reference to the questions hereinbefore raised, I am satisfied that in this case in view of the recognition of the principle of reallowance by the respondent it is sufficient to review the effect of the proposed constriction in the light of the pre-existing situation and if the case can fall within the principle there would be no need to review the issue in the light of an original intrusion. Before attempting to assess the effects resulting from constriction of the flow of a regional flood I refer to the evidence that relates to this issue. Prior to the 1975 renovation program of the appellant there were, in effect, three structures erected on the subject land and used for the batching process. These structures were in addition to the concrete block garage-office building. Although there was considerable and heated dispute as to the location of the structure in which the batching plant was located, I am satisfied from examination of the photographs taken and the advertisement published prior to the commencement of the renovation program, the maps based on aerial photography, the photographs taken during construction and the plans of survey produced by both parties, that the sequence of location of these structures from the river was the boiler house, the hopper, and the batching plant. For some time I was concerned that there was some doubt by reason of the fact that the larger building shown closer to the river on the topographical maps would have to have been the boiler house. This building appeared to have been considered a lesser structure but on consideration of the evidence of John R. Webster O.L.S. and his plan of survey it is apparent that the measurements of the boiler house were twenty feet by twenty-four feet and the measurements of the batching plant without the hopper were eighteen feet by twenty feet. For some reason the appellant appeared to have advised its chief witness, Bacon, that the sequence was otherwise, as Exhibit 10, being an illustration of the elevations of the subject land showed the batching plant closer to the river. It was readily apparent that counsel for the appellant was under the same impression. Counsel for the appellant vigorously sought to establish that the site of the old batching plant was the westerly building. He invited me to consider the plan of survey by Donald A. Redmond O.L.S. attached to the original application (Exhibit 1) in conjunction with Exhibit 18, a plan of survey by the same surveyor but showing more detail. In overlaying these plans it is apparent that the new batching plant, or ready mix plant as it is shown on Exhibit 18 over lies the most westerly building which would have been the boiler house, which was shown in dotted lines under the outlines of the new plant and that the dotted line to the east of the new plant were the outlines of the old plant, except the hopper. The small projection to the north on this dotted area is consistent with the Webster plan and the photographs of the location prior to renovation. Also although the Webster and Redmond plans are drawn with different scales, the scaled measurements from the concrete block building to the dotted lines on the Redmond plan correspond with the scaled measurements to the same corners of the boiler house and plant as shown on Webster's plan. In addition, it is clear from the photographs by Nelson (Exhibit 15) and the advertisement (Exhibit 12) that the boiler house was situate to the west of the hopper and the batching plant.

Dealing more precisely with the size and location of the three structures, the boiler house was constructed approximately parallel to the river with the larger dimension of twenty-four feet being along the walls parallel to the river. The northerly and southerly walls were 20 feet in length and the northeasterly corner of the building encroached on Piccadilly Street according to the Redmond plan. This is consistent with the Webster plan. The southeasterly corner of the boiler house is distant, measured by scaling on both plans, approximately 215 feet from the concrete block building.

The southeasterly corner of the more easterly dotted area on the Redmond plan and of the building referred to as "frame loading shed" on the Webster plan, scale on both plans as being approximately 150 feet from the concrete block building. There is no doubt that this location was the location of the old batching plant which measured approximately eighteen feet on the westerly wall and twenty or twenty-one feet, according to Webster's evidence, on the southerly wall. In addition there was a projection on the northerly side measuring approximately six feet by five feet, three inches.

The distance between the southeasterly corner of the boiler house and the northwesterly corner of the old batching plant scales approximately forty feet on both plans of survey. It may be slightly less on Webster's plan. In this area there was located a hopper and according to Webster's evidence and plan the westerly limit of the hopper was twenty feet westerly of the west wall of the batching plant.

The distance between the northwesterly corner of the boiler house and the southeasterly corner of the old batching plant scale approximately 95 feet on both plans. Measuring the new combined plant in a similar direction, the distance scales approximately sixty-five feet on the Redmond plan. Another interesting measurement is the distance at right angles to the river between the most easterly corner of the boiler house and the most westerly corner of the hopper. Although the distance between these two points scales at fifteen feet on the Webster plan, the distance between the two points measured perpendicularly to the river is approximately ten feet. It would have been interesting to have heard from the experts in hydrology as to whether such a distance should be ignored in considering the effects of constriction and the three old structures considered as one structure or whether the structures should be considered separately. For whatever it is worth, it may be noted that measured perpendicularly to the river the width of the new structure was approximately sixty feet and the similar measurement for the three old structures, if treated as one unit, was ninety feet.

The general manager of the appellant, Leslie James Varga, gave evidence that the new batching plant was erected over the concrete slab on which the old batching plant was erected. In the light of the survey evidence, the photographs, the advertisement and the evidence of Stuart Robert Gallagher, a property appraiser and negotiator for the City of London who observed the renovations, I can only conclude that the new batching plant was erected over the southerly part of the boiler house, perhaps incorporating the boiler, and extended easterly almost to the westerly wall of the old batching plant. Notwithstanding Varga's evidence, the true locations are clearly established and if, on the basis of the evidence, the permission ought to be granted, I fail to see why the shareholders of the appellant should be deprived of permission by reason of Varga's evidence.

I can only surmise two reasons for Varga's position. Firstly, he may have been attempting to bring the new batching plant within the locally known reallowance policy of the respondent. Secondly, he may have assumed that the moving of a constriction closer to the river increased the hazard. Such a principle was argued by counsel for the respondent but was not supported by any expert evidence. This may be a sound assumption. I have been concerned that the interference with the flow at an elevation near the regional flood line might have more serious effects than the additional flooding caused at lower flows which could be maintained within the flood plain. However, on reflection, where the structures extend above the regional flood elevation, such as is the case here, in a case of a regional flood there can only result an increased area of constriction of the flow. Table 1 at the end of these reasons illustrates the increased interference with the flow where structures that are higher than the regional flood elevation are lowered into the flood plain.

In the absence of evidence to establish a base for comparing the new structures with the situation prior to the 1975 renovations, I have no alternative but to make assumptions for establishing a base. Needless to say such an approach may not coincide with a hydrological approach but in the circumstances I have no alternative. For the purpose of making a comparison between the two situations I propose to calculate the area of a cross-section of the flood plain drawn at right angles to the river or the flow of the river. This should reflect some indication of the effect of the two situations on the flow of the river during a regional flood.

I accept the evidence of the witness Ding as to the elevation of a regional storm. Usually the maximum observed line or the known elevation of past storms is lower than a regional storm and I know of no case where it has been higher. Ding established on the basis of recent studies an elevation of 780 feet for the regional storm. The elevation of 778.6 feet appeared to have been accepted by Bacon, Ding and Kinniburgh as the elevation of the 1937 flood. Bacon expressed some doubt as to whether in a similar storm this elevation would be achieved today by reason of changes since 1937 but he concluded that the site would still be under water if such a storm occurred again.

Exhibit 10 prepared by Bacon shows a number of elevations of the subject land. The lines on this exhibit were illustrated on Exhibit 9 and were drawn parallel with the boundaries of the subject land and not perpendicular to the flow of the river. Accordingly, there may be some variation in the distance indicated on Exhibit 10 as to the length of the new plant as contrasted with its length measured perpendicularly to the river. Exhibit 10 shows an elevation of 771 feet at the westerly wall of the new plant and an elevation of 774 feet at the easterly wall. The elevation shown at the site of the boiler house according to Bacon, or in reality the site of the old batching plant, is approximately 775 feet.

As indicated above the perpendicular width of the new plant is sixty feet. Assuming the average elevation of the ground to be 772.5 feet there would be a height of water of 7.5 feet during a regional storm with an area of loss of flow of 60 feet x 7.5 feet, i.e. 450 square feet. If one were to consider the old plant as one unit the average elevation today would be 773 feet, i.e. 771 feet at the westerly wall of the boiler house and 775 at the easterly wall of the batching plant. With a perpendicular width of ninety feet, there would be a loss of 90 feet x 7 feet, i.e. 630 square feet. If one were to treat the 1975 situation as two units, the loss would be 80 feet x 7 feet, i.e. 560 sq. feet. On this basis the present situation has an interference of 110 square feet less than the situation prior to 1975. Had the renovated structure been placed on the site of the old batching plant, the obstruction would have been 60 feet x 6.5 feet, i.e. 390 square feet.

I can only conclude that the result of these calculations is that while the placing of the new batching plant on the site of the boiler house and the land to the east thereof may have moved the batching plant per se closer to the river, the total interference with the flow from the combination of the three structures was less than the interference prior to the renovation. Further, this reduction could have been increased if the appellant had relocated the new plant closer to the concrete block building as was the case with the original batching plant.

It is necessary to add to the foregoing the effect of the proposed conveyor belt. Although the appellant was said to have plans he did not file them at the hearing. Bacon indicated that it would be supported on three concrete pillars measuring two feet by eight feet that would be parallel to the river. There would be approximately twenty-eight feet between the pillars. The proposed location of the conveyor belt and the pillars is shown on exhibits 9 and 11. While the total length of the system is over 100 feet, part of it would be above the regional flood line but there is no direct evidence on the proportions. The depth of the belt and its supporting steel work was not given in evidence. It was said by counsel for the appellant that any constriction from the conveyor belt would be offset by the reduction of the existing constriction created by piles of aggregate now dumped in the same area and trucked up a ramp into the new batching plant by front-end loader as required. The proposal was to store aggregate in underground hoppers that would not extend more than curb height above the ground.

The site plan (Exhibit 11) shows the conveyor belt starting at a location approximately ninety feet westerly of the concrete block building. On Exhibit 10 the elevation at this location is 776 feet. It would be in approximately four feet of water in a regional storm. I have no way of determining the precise angle of installation in order to determine the point at which the belt would be above the regional storm elevation. There is no evidence of the height to which it would be raised at the new batching plant, except the evidence of Bacon who stated that it would rise to a location above the batching plant. It may well be that this will create a sufficient slope to reduce the ability to retain floating debris or ice. Counsel for the appellant argued that the conveyor belt offsets the obstruction of the piles of aggregate and that there were trees along the river bank that would catch ice and debris before it would reach the conveyor. There is considerable force in the latter point. In regard to the first point one must keep in mind that in a strong current the aggregate piles would wash and tend to level and could be removed out of the flood plain in the period prior to peaking of a regional storm.  Whether this could be done with a conveyor belt was not established.

In the absence of evidence to show the angle of the conveyor belt I have prepared two sketches which appear as tables 2 and 3 to these reasons for judgment. Table 2 assumes that the total height above ground of the intersection of the easterly wall of the batching plant and the conveyor belt is sixteen feet, being ten feet above the regional flood line. This would appear to be the lowest probable location of such intersection. Table 3 is a more probable illustration with a total height of the east wall being twenty-one feet and the point of intersection being 15 feet above the regional flood line. I consider this to be more probable as the photographs taken by Gallagher of the new plant show the east wall as having a foundation of approximately six feet in height and a plywood wall of eight feet in height and the top of the plant being a further distance above the plywood section. While it is difficult to be accurate it appears that the top of the plant is at least the length of a plywood sheet above the plywood section. This would provide a total height of twenty-two feet. It is obvious from the two sketches that if the point of intersection is higher the amount of interference with the flow would be less.

As indicated in Table 2 the area of interference with the flow of a regional flood varies from 90 square feet to 150 square feet depending on whether the depth of the conveyor belt is two feet, three feet, or four feet. This area includes the area of the pillars. It is more likely, in my opinion, that the height of the intersection of the conveyor belt and the east wall or the east wall projected upwards will be more than sixteen feet and that the measurements of Table 3 will more properly illustrate the angle of the conveyor belt. Here the area of interference varies from 70 square feet to 110 square feet with similar depths. It may be noted that with the exception of a four foot deep conveyor belt in the Table 3 situation, the area of interference with the flow of a regional storm is less that the difference between the area of interference of the pre-1975 situation and the situation today in respect of the batching plant and the boiler house and is equal thereto in respect of the exception.

It appearing that the new plant interferes with the flow to the extent of 110 square feet less than the two structures that were removed in 1975, it is difficult to conclude that the proposal could be considered to create a greater constriction than had been present prior to 1975.

It must be noted that these calculations make no consideration of the interference with the flow of a regional storm caused by the piles of aggregate. On the other hand they do include a consideration of the effect of moving the batching plant to a location closer to the river than it was located prior to 1975 but no closer to the river than the boiler house was situate. Accordingly, while the new proposal may not precisely fit the wording of the reallowance policy of the respondent, the effect, insofar as flooding is concerned, can only be considered an improvement. It is most regrettable that the new plant was not located at the site of the batching plant in 1975 as this would have reduced the interference even to a greater degree. However, this may not have been feasible as it might have been necessary to move the boiler house or, if not, there would have resulted two buildings or structures instead of one.

Far more regrettable is the failure of the parties to come to an arrangement to relocate the entire operation of the appellant in 1975, which year would appear to have been an ideal occasion for the appellant to have ceased its constriction of the flood plain. I make no findings on this aspect of the case except that in allowing this appeal I consider it necessary to impose certain stipulations.

Firstly, it has become standard practice that where a structure or Building is permitted in a flood plain that an agreement be made with the conservation authority indemnifying the public authorities including the conservation authority, the local .municipality and the Province of Ontario from all claims based on or resulting from the installation of the facility and relieving the authorities from any claim in respect of the subject land and the buildings or structures thereon in respect of flooding or in respect of any schemes for compensation for flooding.

Secondly, in view of the failure to file the plans of the conveyor belt, it will be a condition that its installation be made at a slope that will result in the intersection of the bottom of the supporting steel framework of the conveyor belt and the easterly wall or the easterly wall produced upwards of the batching plant at a height of not less than 21 feet from the ground and the total depth of the conveyor belt and its supporting steel framework shall not exceed four feet.

In this case there are additional concerns respecting the issue of permission. I do not refer to the matters of drainage, pavement of the surface of the subject land, completion of streets and storm sewers and the construction of pollution prevention devices.  These matters will have to be resolved with the appropriate authorities such as the municipality, the Ministry of the Environment, etc. I refer to the continuing effect of the appellant's interference with the flood plain and the fact that the indemnity agreement in the absence of some legislative authority, may not be binding on future owners of the subject land. For the purpose of providing some significance and permanence to the indemnity agreement and preventing the indemnity agreement from becoming meaningless by a sale or transfer of the subject land and to ultimately at some future reasonable time terminate the interference with the flood plain, the agreement should provide for two additional matters. Firstly, the agreement should grant to the respondent the right to purchase the subject land at a price to be determined by arbitration under The Arbitrations Act in the event of failure to agree upon price, but without compensation for the batching plant that can be removed and for loss or disruption of business, before the appellant sells or offers to sell or transfers or offers to transfer or disposes or offers to dispose of the subject land or any part thereof to another person. Secondly, the agreement should provide for the immediate sale of or grant of easement over at a consideration determined in a similar manner of the part of the subject land lying westerly of the line drawn generally parallel to the river and as close to the westerly wall of the new batching plant as is feasible. It would seem to this tribunal that there is little need for such a strip of land for the purposes of the appellant and a significant need for the purposes of the respondent and that had full disclosure of the appellant's need to replace an obsolete plant been disclosed to the municipality or the respondent at the appropriate time a position would have been arrived at where the new plant could have been located on another site without interruption of the appellant's business and at an appropriate consideration for land that is situate in the flood plain.

Upon the filing with this tribunal of an executed copy of an agreement between the parties respecting the aforementioned matters an order will issue allowing the appeal and granting permission to construct the conveyor belt and underground hoppers.

No costs shall be payable by either party.

Dated this 24th day of March, 1977.

Original signed by

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