The Mining and Lands Commissioner

In the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to issue permission to place fill for the construction of a single family dwelling on part of Lot 10 in Concession VI (W.F.), in the Township of Flamborough in the Regional Municipality of Hamilton-Wentworth.

Between:

James R. Turnbull
Appellant

and

Halton Region Conservation Autherity
Respondent

J. Pelech, for the appellant.
M.J. Haesler, Q.C. for the respondent

The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission under section 4 of Regulation 164 of Revised Regulations of Ontario, 1980 to place fill and construct a residence on part of Lot 10 in Concession VI (W.F.), in the Township of Flamborough in the Regional Municipality of Hamilton-Wentworth. 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 heard in Hamilton on the lst day of October, 1982.

The subject lands are a twelve and one-half acre parcel on the north side of a concession road between Concessions V and VI in the Township of Flamborough. They are situate in the vicinity of the Farkas and Recchia properties in respect of which appeals for a similar purpose have been dismissed by this tribunal. The appellant holds the title to the subject lands as trustee for a number of persons who are not disclosed but presumably it was members of his legal firm.

The history of the title of the subject lands is that they were acquired by John Bonselaar and Sandra Bonselaar in 1975 and the appellant's firm represented the purchasers in the acquisition. The appellant does counsel work and another member of the firm dealt with the purchase. Bonselaar was a builder or developer and he obtained a building permit from the municipality and proceeded to erect a house, after placing an amount of fill. Bonselaar proceeded without obtaining a survey and it subsequently transpired that he placed the fill and erected the house on a property adjoining the subject lands on the east owned by the Lyons Estate. When the error came to light the matter was ultimately resolved by a purchase of the site on which the fill was placed and the house erected at a price of $26,000 and Bonselaar obtained title from the Lyons Estate for the site on which the construction had been done. Title to the subject lands was transferred to the appellant as his firm provided the funds to acquire the Lyons' site. The funds were borrowed from the bank and have not been repaid. The deed to the appellant was dated February 8, 1977.

The evidence of the appellant was that he and his associates were satisfied as a building permit had already issued for the subject lands and contact was made with the township office who advised that there would be no difficulties. The subject lands were listed for sale from the years 1977 to 1980. An offer was received in 1980 which was conditional on a building permit being available. Upon application for a building permit the application was deferred pending approval of the respondent. At this time the appellant first became aware of the jurisdiction of the respondent in the matter.

Julian John Drake, an associate professor at McMaster University who has had considerable academic experience in connection with hydrology, gave evidence in connection with the consequences of the placing of fill and the erection of a residence from the point of view of flood plain management. It was his opinion that by reason of the width of the flood plain and the size of the storage capacity that the proposed filling and construction of a residence would have an inconsequential effect on the control of flooding. He was however, unable to give a clear opinion as to the appropriate depth of filling and suggested that a metre of fill would be adequate particularly as the existing house that was built has fill to a depth of four feet. He felt the fill should be placed to a level that would not create runoff on the house that had been built on the Lyons property. When asked how the swamp area and its holding capacity would be affected the witness stated that there would be a small negligible impact by reason of the size of the Beverley Swamp.

It was brought out on cross-examination that the Beverley Swamp is a swamp other than the Hazeland Swamp in which the subject lands are situate. Part of the evidence of the witness was based on the work of an associate professor of geography named Woo, who had done work in the Beverley Swamp.

The witness was further cross-examined in respect of the regional storm indicating that he was not aware of the elevation of the regional storm and that it wou1d be difficult to assess the point at which filling of the flood plain could be permitted. He offered the opinion that the subject lands could be made reasonably safe if adequate fill were placed. When asked with regard to the role of the swamp in flood regulation the witness indicated that if sufficient fill were placed the storage capacity of the flood plain would be reduced. If such filling was done the witness admitted that the depth of flooding on other properties in the flood plain would be increased. The witness was not able to offer a level of filling or interference with the flood plain that could be considered acceptable.

The appellant also called William L. Sears, a consulting engineer, who has had considerable experience in the area particularly in respect of municipal matters. He gave evidence that any pollution aspects resulting from the construction of the proposed residence could be adequately dealt with by the use of a holding tank which, if properly constructed, would provide protection against the pollution of the water in the swamp. The witness's position was that such a holding tank could be designed but he did not bring to this tribunal any evidence that this tribunal could adopt as a condition of permission that might issue.

In cross-examination there was some doubt as to whether the engineer had examined the subject lands or some other lands. However, he did admit that the subject lands were not situate in the Beverley Swamp.

The evidence on behalf of the respondent was that the subject lands were situate in the watershed of the Grindstone Creek, the regional flood elevation of which has not yet been defined. The position of the respondent is that the subject lands form part of the headwater swamp or a wetlands area which is subject to seasonal flooding. The area is known in the official plan as the Hazeland Swamp. A number of studies have been made in the area but Woo's report did not deal with this swamp.

The witness, J.D. Hall, indicated that he had visited the site in April and had walked on the property with hip boots. At that time there was over three feet of flooding on the subject lands in a normal spring runoff condition. In addition the level of the lands is three feet below the existing road grade.

The witness also produced evidence showing that the nature of the swamp was categorized as muck soil on the soils map of Wentworth County. He also produced a report by Phillips Engineering on the Grindstone Creek which points out the serious need for the retention abilities of the swamp in connection with downstream sewage plants and the need to retain the swamp in its existing condition. He also pointed out that there were serious flood problems downstream at Hidden Valley Road where any increase in flooding would have a serious effect. He also pointed out that the land was categorized as an environmentally sensitive area on the official plan.

With reference to pollution the respondent has some concern over the use of holdings tank. The respondent is not satisfied that in times of high water the holding tanks will not leak and will not permit the spread of pollution from the septic system. Hall did admit however that this was a technical matter and if the other aspects could be disposed of the technology might be available to deal with this aspect.

With reference to the practice of the respondent the evidence of the witness was that the treatment of the appellant was not different from the treatment awarded other applicants in the same type of circumstance.

The reply evidence dealt with the issue of what constitutes the channel of Grindstone Creek.

Counsel for the appellant made two submissions. Firstly, he submitted that in reading sections 3 and 4 of Regulation 164 it is apparent that the governing reference is "site" rather than the particular use that is proposed of the site. It was submitted that the consideration should be directed toward the concept of "site" and that the usual principle of statutory interpretation requiring a strict interpretation where rights are affected should be applied in interpreting the regulation.

It was submitted that with reference to the particular site the evidence was that it in itself had no effect on the control of flooding and that the concept of cumulative effect should not be applied unless that concept had been expressly contained in the law, i.e. the Act or the regulation. He pointed out that the subject lands are not contained in a schedule to the regulation and that there is no prohibition against its filling per se in the regulation. It was further submitted that the proposal did not constitute an alteration of the channel within the meaning of the regulation.

Secondly, it was submitted that the case, by virtue of its peculiar facts, would not set a percent which would require the respondent to follow it in subsequent applications. It was submitted that no other case could come within the perimeters of the present case. It was said that the property was acquired not for speculative purposes but to resolve a legal problem. It was further acquired at a time when the conservation authority was not actively pursuing its jurisdiction in the area by having the local municipalities enforce its jurisdiction by withholding building permits unless permission is obtained under the regulation. It was further submitted that a valid building permit was in existence at the time the land was acquired and that these three facts make the situation so unique that the case would have no precedential implications in respect of future applications.

It was further suggested that some principle of estoppel should flow from the fact that the respondent had not taken steps to exercise its jurisdiction at the time the building permit was issued and that reliance had been placed on the building permit at the time of acquisition by the appellant. It was submitted that the issue of permission in this case would have an inconsequential effect on flood plain control and that the issue of permission by virtue of the unique circumstances would be distinguishable from the Farkas decision where the land was acquired after the township had commenced enforcing the regulation or after information was available that permission would not be issued and from the Recchia case where the land was acquired in January, 1981.

Counsel for the respondent submitted that the case clearly fell within the regulation as the evidence showed that the subject lands were situate within a swamp. He admitted that the issue in the case did not fall within clauses 3 (b) or 3 (c) of the regulation.

With reference to estoppel it was suggested that there was no action taken by the respondent on which an estoppel could be based and secondly that estoppel does not apply against the Crown and that the position of the respondent was analogous to that of a Crown corporation. With reference to the uniqueness argument, it was said that the significance of the argument was nothing short of ignorance of the law from the year 1972 to the year 1975 during which time the regulation was clearly in effect. It was submitted that ignorance of the law was no excuse. With reference to the submission that the respondent had changed its policy in 1977, counsel for the respondent pointed out that it was not a change in policy but it was merely a change of enforcement practices and that the policy had not changed. With reference to precedent it was submitted that if permission were granted in this case on the basis of lack of knowledge of the law at the time of acquisition any person who has owned property prior to 1977 would be entitled to apply on the same basis. Reference was made to a number of previous decisions of this tribunal in which hardship and impecuniosity were rejected as grounds for issuing permission.

In reply it was submitted that the approach of the respondent was that in effect no applicant could obtain permission under any circumstances in effect the policy of the respondent was to create a complete prohibition, presumably as contrasted with a discretionary practice. With reference to the unique issue it was again suggested that the case could be treated as being unique on the basis that the clients of the appellant had actually applied for and obtained a building permit.

At the outset, sections 3 and 4 of Regulation 164 read,

  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 land or swamp or on a pond or swamp or in any area susceptible to flooding during a regional storm;
    2. 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
    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.

With reference to the argument of counsel for the appellant based on the word "site", this tribunal has considerable sympathy with the argument that the wording of section 4 insofar as it applies to a "site" of a building or structure is not the easiest to interpret. Most significantly however, it must be observed that the wording is contained in an exception to the prohibition and if the exception fails for want of clarity then the exception fails rather than the prohibition. Accordingly, this tribunal is left with the role of having to determine what the intent of the exception is in order to provide any relief for landowners from the absolute prohibition contained in section 3. The tribunal is also satisfied that the matter does not fall within clauses 3 (b) or (c) of the regulation. With respect to the former the subject lands do not fall within a scheduled area and secondly, this tribunal is not satisfied that the concept of diverting a channel extends to the present proposal.

In dealing with the second submission of the appellant, it is the view of this tribunal that the suggested basis of creating an exception is based on a legal or a factual basis as contrasted with a consideration of the principles that should be considered in determining whether exceptions should be created. Exceptions are normally created in dealing with a matter that is a highly scientific study, namely, hydrology and hydraulics, where recognized principles are proven to exist and to be followed by the respondent in its administration of the regulation. It is not the policy of this tribunal to set the policy for a conservation authority but it is the approach of this tribunal to ensure that the policy as administered by the conservation authority is applied uniformly to landowners or to override that policy where there is some prevailing municipal, provincial or federal concern.

Having regard to the subject lands it is noted that the subject lands fall within clause 3 (a) in two concepts. Firstly, the subject lands are situate in a swamp and secondly, although the flood plain mapping has not been completed there was agreement of the parties that the subject lands were situate in the flood plain of a regional storm. Accordingly, an application brought by a landowner in such circumstances should be proven to fall within principles of acceptable construction in both types of areas. Considerable evidence was brought by the expert witnesses for the appellant with respect to the latter aspect namely, flood control. The principles enunciated by the witnesses did not relate to any accepted or recognized principle of flood plain management but were related in effect to the alleged inconsequentiality of the proposal with reference to the particular property itself. Neither of the witnesses established that such inconsequentiality is a recognized principle of flood plain management or that it is a principle of flood plain management administered by the respondent in its application of Regulation 164. On the other hand the evidence of Hall was that the appellant was being treated in the same manner as other applicants who hold land in the same area.

With reference to the first-mentioned matter in the clause, i.e. the fact that the subject lands are within a swamp, there was no evidence whatsoever placed before me by the appellant respecting principles of swamp land management. The witness Hall for the respondent established some evidence to show that there was a significant need for the prevention of interference with the existing swamp attributes and in the absence of the establishment of some recognized principles of swamp management on which an exception could or should be created this tribunal has no alternative but to dismiss the appeal.

With reference to the final point of counsel for the appellant that the decision in this matter should be rendered in accordance with the principles of equity and natural justice it appears more appropriate to this tribunal that the decision should be rendered in accordance with the principles of flood plain management and swamp management, such being the subject of the legislation. Further, counsel did not elucidate the principles of those two bodies of law to which he referred other than the equitable remedy of estoppel. Estoppel usually requires some holding out or representation by the person to be bound and the acts of the municipality are not the acts of the respondent. Further, the principle is a rule of evidence preventing the affected person from denying the existence of the represented state of facts. It is not apparent to this tribunal that the respondent has made any relevant representation in respect of a state of facts. With reference to natural justice the appellant has been afforded the rights of a hearing, representation and counsel and the relevance of the argument for the application of principles of natural justice is not apparent.

  1. It is ordered that the appeal in this matter be and is hereby dismissed.
  2. And it is further ordered that no costs shall be payable by either party to the matter.

Dated this 14th day of December, 1982.

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