The Mining and Lands Commissioner

In the matter of the Conservation Authorities Act

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

Thursday, the 8th
of June, 1989.

And in the matter of

An appeal against the refusal to issue permission to place fill for the replacement of an existing sanitary weeping system servicing individual camper trailers with a central collecting and holding facility for the campground on Lot 71, German Company Tract, Regional Road 86, in the Township of Woolwich in the Regional Municipality of Waterloo.

Between:

Margaret Kale
Appellant

and

Grand River Conversation Authority
Respondent

R.W. Howell, for the appellant.
J.M. Harris, Q.C., for the respondent.

The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to issue permission to place fill for the replacement of an existing sanitary weeping system servicing individual camper trailers with a central collection and holding facility for the campground on Lot 71, German Company Tract, Regional Road 86, in the Township of Woolwich, in the Regional Municipality of Waterloo. Under 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 Toronto on, April 6 and 7, 1989.

The subject lands are a 25 acre parcel of land, triangular in shape and bounded on the northeast by Regional Road 86, on the south by the Grand River and on the northwest by lands of other persons which are used for agricultural purposes.

The subject lands were developed as a campground for trailers both on a short-term and yearly basis, the development beginning as early as 1967. There was no evidence as to the time of the development of the campground but the appellant and her late husband acquired the subject lands in 1979 at a price of $425,000 which would indicate that a substantial part if not all of the existing development of the subject lands had been completed by that date. The appellant and her husband managed the campground until one year ago at which time the husband died. Thereafter the appellant carried on with the assistance of Lewis Elmer Reed and his wife as managers of the campground. The appellant did not appear at the hearing as she requires daily dialysis and Reed appeared in her stead.

Reed has had a fairly long association with the campground. He first leased a site on the campground in the week prior to the flood of May 17, 1974 and accordingly his association is longer than that of the appellant.

The subject lands have always been zoned as agricultural lands. However, at the time of development the zoning by-law of the Township of Woolwich permitted certain recreational uses on agricultural lands which uses have ceased to be permitted in subsequent amendments of the by-law. In the northerly apex of the subject lands there is an entrance to Hwy. 86, an office, tennis courts, a utility barn, a weeping tile bed and eleven campsites along the northwesterly boundary which are serviced by the tile bed.

The remaining campsites are laid out along a number of streets that have been established upon the subject lands with the exception of approximately one-quarter of the subject lands situate at the southwest part and a strip along the Grand River. These areas have not been developed because, in the words of Reed, they are annually covered with ice jams which are so erosive that the growth of trees does not occur on these lands. He also indicated that the same conditions extend approximately one-quarter of a mile downstream to a famous covered bridge known as the "Montrose Covered Bridge".

The westerly part of the development is laid out along a series of streets in a north-south direction. First Street runs parallel to the northwesterly boundary. Elm Street, Cedar Street and Oak Street similarly run in a north-south direction. The easterly side of the property is laid out with a street known as Willow Street running parallel to the northeasterly boundary and a series of streets called Second Street, Third Street, Fourth Street, Fifth Street, Sixth Street and Eighth Street laid out in an east-west direction. Sixth Street extends westerly across the westerly part of the property as well. A tier of campsites is laid out on each side of the streets. It may be noted that there was no Seventh Street. Eighth Street was laid out above the bank of the Grand River and an area between it and the tier of lots along the southerly side of Sixth Street was used for weekend campers only although the evidence would seem to indicate that there are two or three sites on which trailers have been placed on a permanent basis on Eighth Street. Trailers so placed on a permanent basis are usually removed in the fall and placed on higher ground.

A comfort station has been constructed between Elm Street and Cedar Street in the westerly part of the subject lands and between the sites on the westerly side of Willow Street and the ends of the numbered streets in the easterly part of the campground.

The present matter came to light as a result of the treatment of sewage in connection with the trailers that were placed on the rented campsites. Paul Raydon Stone, the Manager of Environmental Health Services of the health unit of the Regional Municipality of Waterloo gave evidence for the respondent. He indicated that in the early stages of his career he dealt with the subject property at the time of its original establishment and in 1967 issued a stop work order because sewage facilities were being prepared without any approval. His evidence was that in 1968 the matter was resolved with it being agreed that there would be no tile beds and that the 28 sites upon the property would be serviced by a holding tank near the office and eight pail privies which would be serviced daily. He caused a search to made of the files and no record was found of any approval of the three existing tile beds or the comfort stations. It was said in evidence by Reed and accepted by the consultant for the appellant that some of the campsites lying between Elm Street and Cedar Street were serviced by the tile bed associated with the comfort station in the westerly part of the campgrounds.

Notwithstanding the provision of the comfort stations the tenants of the campsites developed a practice of placing steel barrels with holes and a certain amount of crushed rock as dry wells underneath their trailers. This practice was fairly extensive and ultimately complaints of running sewage were received by the health officers. As a result of inspections made in 1986 and 1987 it was concluded that there were 112 trailer sites which contained unapproved sewage facilities and which constituted a nuisance within the terms of reference of those officials. Consequently the appellant was required to take action and she caused a proposal for the construction of sewage lines and holding tanks to be prepared by Canviro Consultants. The proposal was submitted to the respondent and the appellants were advised that any approval that might be issued would be subject to the approval of the respondent.

The respondent dealt with the matter and refused an application for approval under the Conservation Authorities Act.

Lloyd Alexander Davidson, a member of Canviro Consultants, gave evidence on the proposal that they prepared for the appellant. They accepted the approach that a series of tile beds in the flood plain would be unacceptable and developed a class 5 holding tank system which in the opinion of the engineers and also in the opinion of Stone, whose opinion would be subject to further review by engineers of the Ministry of the Environment, met the requirements of the Ministry of the Environment in respect of that class of a sanitary sewage system.

The system consisted of a series of interconnected plastic pipes leading from each campsite to six holding tanks located along the southerly side of the campsites. By way of exception, the campsites on Eighth Street would be serviced by a double holding tank which was situate slightly to the north of the street.

The proposal includes a servicing of approximately 210 trailer sites. The evidence indicates that approximately 170 trailers are situate on the site on a full-time basis and that additional trailers are on the site during the summer as the travelling public uses the campgrounds. There was some suggestion in the evidence that the proposal was an attempt to enlarge the use of the area. However this tribunal has difficulty with this submission. The fact that Reed was allotted a site in 1974 on Eighth Street indicates to the tribunal that the existing layout was probably in effect on that date and the tribunal is satisfied that there is no serious attempt in the present proposal to enlarge the number of campsites presently on the subject lands. The evidence indicates that the proposal could be extended to include those campsites that presently are serviced by tile beds if desired. The number of 210 does not include the campsites on the northerly side of Eighth Street which are used for weekend campers only.

The plans and specifications indicated the size and location of the feeder pipes and the location of the holding tanks. The report contained recommended specifications for the holding tanks including anchors to prevent the holding tanks from floating in the event the water table rose to a height which would cause the tanks to float. Although there was considerable cross-examination of Davidson and although engineering evidence was provided by the respondent there was no serious suggestion that the proposal of the consultant was unworkable other than that it was the first such proposal he had prepared. It did appear from the discussions with the bench that the allegation of potential pollution from water getting into the system in the event of a flood could be eliminated with a relatively slight increase in cost by the installation of a flapper or similar valve at the intakes from the trailers and by the provision of threaded caps on the pump-out stand pipes which could be kept closed except when the holding tanks were pumped out. The estimated cost of the installation was $257,000 but the consultants felt that with a certain amount of local labour the cost could be reduced to approximately $175,000.

Involved in the proposal was the obtaining of a contract for the haulage of the effluent from the holding tanks and the evidence indicated that the contract could be negotiated with a qualified hauler who would have a source to which he could take the material.

Counsel for the appellant called as a witness, Mark Lyon Dorfman, an acknowledged professional planner who gave evidence as an expert witness as to the zoning provisions respecting the subject lands and concluded that in his opinion the use of the subject lands as a campground was a legal non-conforming use. In coming to this conclusion he traced the history of the by-law, the official plan of the township and the official plan of the region.

The subject lands are highly vulnerable to flooding. According to the official flood plain mapping, a copy of which was filed as Exhibit 9, the regional flood elevation would include practically the entire site. However, the appellant has provided the respondent with certain spot elevations which the respondent adopted with the result that the line was amended in respect of the subject lands to place it slightly above Second Street. The elevation of the 100 year flood is between that line and Second Street.

Taking into account the revised elevations there are serious depths of flooding in varying storm situations. These elevations were set out in Exhibit 11 which shows the various elevations as follows:

Site grades

1 Sixth Street (50m from bank) 1055.0 feet
2 Fifth Street (75m from bank) 1057.5 feet

Flood levels

Event Flow (cubic feet per second) Elevation (feet) Depth at Grade (feet)
At Sixth St.
Depth at Grade (feet)
At Fifth St.
Regional Storm 39,000 1066.7 11.7 9.2
100-year Flood 35,700 1065.9 10.9 8.4
5-year Flood 19,600 1062.3 7.3 4.8

Observed summer floods

Event Flow (cubic feet per second) Elevation (feet) Depth at Grade (feet)
At Sixth St.
Depth at Grade (feet)
At Fifth St.
May 17, 1974 23,800 1062.8 7.8 5.3
June 30, 1976 14,700 1060.8 5.8 3.3
Sept. 11, 1986 12,700 1060.0 5.0 2.5

Occurrence of flooding (19 years record)

Level Greater Than Annual May - October
1055 feet 17 4 (1974, 76, 86)
1057.5 feet 16 3 (1974, 76, 86)
1060.0 feet 5 3 (1974, 76, 86)
1062.5 feet 1 1 (1974)

In summary it will be noted that there are very serious depths of flooding not only in the regional storm situation but in the 5 year flood and in the observed summer floods noted. This evidence is supported by the evidence of Reed who indicated that in the 1974 flood he did not observe the conditions but the then owner moved his trailer which had recently been placed on the north side of Eighth Street. When he returned on the Friday night he was told that the flood had extended as high as Sixth Street but by that time the water had receded. He also indicated that damage had been done to four trailers that the owner of the campground was unable to move in time. He also indicated that he had been told that a friend who had a campsite in the area just north of Eighth Street had water that was waist high inside his trailer and he had to take refuge on the top of his stove. It was his opinion that none of the trailers had actually moved during this flood although the evidence of Lorraine Minshall, P.Eng. was that trailers could be floated in the depths of water that would have occurred on the subject lands.

Not only is there a serious depth of flood waters in respect of the subject lands but the velocities were estimated by Minshall to be in the range of two and one-half to three feet per second, a flow in which it is most difficult to stand or walk where the depths of flooding are two feet or greater.

A third aspect of the flooding risks associated with the subject lands is the problem of ice jamming. The evidence of such ice jamming occurring is supported by Reed's evidence which was noted above. However the more important aspect of this matter is that the elevations listed above do not take into account the occurrence of a regional flood at the time of an ice jam and higher elevations can be obtained in such an event.

A fourth serious aspect of flooding is applicable to the subject lands. The evidence of Minshall indicated that this stretch of the Grand River contains the flows of the tributary known as the Irvine Creek and that this watershed has characteristics that result in fast rising flood elevations particularly in the narrow gorge-like channels that exist in this part of the Grand River. The consequence is that warning systems cannot be devised to provide adequate warning in respect of serious flash thunderstorms and the effects from this tributary reach the subject lands very quickly. This difficulty was noted in the evidence as the owners had made complaints to the respondent's officials regarding lack of warning in some of the floods that have occurred.

In its reasons for refusing its permission, the respondent outlined the following objectives of its regulation,

  1. Prevent loss of life and create a safer environment for the people of the watershed.
  2. Prevent property damage.
  3. Reduce public and private expenditure for emergency operation, evacuation and restoration.
  4. Minimize the hazardous and unnecessary development of floodplains which in future years will require expensive protection measures.
  5. Protect unwary land and property buyers against victimization brought about by purchase of property in flood or erosion hazard areas.

The above five matters were not stated as reasons but as objectives of the regulation of the respondent as it applies generally and to the application. The witnesses for the respondent pointed out that many of the risks associated with these matters are applicable to the subject lands and its use as a campground. However the tribunal is satisfied that the real reason of the respondent for refusing the application is its policy in respect of existing developments in the floodway and its attempt through its policy to reduce the long term continuance of such use or occupation by withholding permission for additions and renovations. In the evidence and in the submissions reference was made to the provision on pages 3.10 and 3.11 of the Policies, Guidelines and Procedures for the administration of: Fill, Construction and Alteration to Waterways of the respondent, Exhibit 8, dealing with permissible uses in floodways, the floodway being the area below the elevation of the 100 year flood and the greater part of the proposal being situate in that area. On p. 3.11 a number of permissible uses are set out with the following wording,

Uses not appreciabley damaged by flood waters shall be permitted in this zone save and except permanent or mobile structures for human occupation.

In the opinion of this tribunal the thrust of this provision is to prevent the establishment of mobile structures in a floodway and this tribunal has considerable difficulty in concluding that this provision is the relevant one for consideration. It is apparent to the tribunal on the evidence that mobile structures are, have been and probably for some considerable period of time will be situate on the subject lands. The tribunal considers that little weight should be placed on the fact that with a better sewage system the existence of the mobile structures in the flood plain is given greater permanence. Minshall, in her evidence, stated that the attachment of such vehicles was neither advisable nor desirable. The difficulty of the tribunal with this position is that the evidence clearly indicates that with the exception of those trailers that have self-contained holding tanks, the trailers are presently there and are presently attached.

In the view of this tribunal the real policy issue involved in this case is the policy of the respondent regarding an attempt to alleviate against the expansion of existing undesirable development. The provisions in the written policy are found at p. 3.16 and p. 3.17 of the written policy, Exhibit 8, which read:

3.4.5. Additions and Renovations to Existing Development

Construction of additions or renovations which are estimated to be equal to fifty percent (50%) or more of the market value of the structure or works shall be constituted as major repairs or alterations and not as maintenance of such structures or works and will be subject to the same policies as those applying to construction of new structures or works.

Construction of minor works valued at less than 50% of market value will be reviewed taking into consideration the provision of section 3.4.8, "Additional Criteria Considered in the Review of Applications for Basements, Renovations, Additions and Rebuilding".

...

3.4.8. Additional Criteria Considered in the Review of Basements, Renovations, Additions and Rebuilding

Applications for basements, renovations, additions or rebuilding may be given due consideration by the Authority after taking into account:

  1. the existing flooding depths and associated hazards.
  2. the potential impacts of flooding and associated hazards.
  3. the proposed methods by which these impacts may be overcome in a manner consistent with accepted engineering techniques and the adjacent site grades and drainage.
  4. the feasibility of re-establishing the proposed works in a different location on the same property where there are improved conditions.

This policy, although it relates more to buildings than to the type of proposal under consideration, appears to the tribunal to be the reasoning behind the decision of the respondent and the recommendations of its officials. Richard Paul Emerson referred to the entrenching of the use through the addition of significant capital inputs to the property. Minshall, in her evidence dealing with item 3.4.8, indicated that in her opinion the depth of flooding and the associated risks were such that the permissable additions contemplated by this provision should not be granted and the expenditure of further capital investments should not be made. She did go on to suggest that the campground could continue its operation without the proposal. She did not expound on how this could be achieved although counsel for the appellant indicated to her that she was in effect suggesting that the campground should be moved to a site above the flood plain.

Turning to the argument of counsel, counsel for the appellant relied heavily on the status of legal non-conforming use. In reply counsel for the respondent submitted that, while the use of the land might fall within this category, the use of the existing sewage system was an illegal use never having been approved in any sense and that the proposal should be considered an illegal non-conforming use. This tribunal is not aware of the meaning of the phrase "illegal non-conforming use". In the view of this tribunal a more appropriate response would have been that matters of zoning are not matters of flood plain management. This tribunal has adopted this position on many occasions and this case clearly illustrates that principles related to zoning are not parallel to and cannot be expected to be made parallel to principles of flood plain management.

Counsel for the appellant relied on the adequacy of the proposal based on the recommendation of Davidson and submitted that the proposal did not in effect remove any water from the Grand River, straighten, change, divert or interfere in any way with the existing channel, would not affect the flow of the river or the topography of the land and hence would not pollute the land or river or affect flooding. The tribunal is satisfied that these matters can be accepted, that the issues raised by the respondent are issues more related to the original creation of the campgrounds and that the sole issue to be determined is whether the policy of the respondent of resisting the increase of the capital input into buildings or structures in the floodway should prevail. No evidence was placed before this tribunal that the policy of the respondent as expressed in item 3.4.8 was not followed by the respondent in its administration. No cases were brought to the attention of this tribunal where permission had been granted in analogous cases for a similar amount of capital expenditure. On the evidence before this tribunal, the tribunal cannot find that, notwithstanding the written policy of the respondent, it had an implied policy of granting permission in such circumstances.

It was said that the policy of the respondent was in line with provincial policies and reference was made to provisions respecting "new development". This tribunal has considerable difficulty in treating the proposal as "new development" and would, in its opinion, characterize the proposal as an improvement of an existing, although unauthorized, development.

Having regard to the policy of the respondent in respect of additions it can only be concluded that, while there may be sites in Ontario that are subject to greater risks to persons or property, the risks associated with the subject lands are extreme and within its written policy the respondent exercised its discretion to refuse the application. It can be said that very serious risks were present to justify the decision made by the respondent. As this tribunal has said on previous occasions it is not the responsibility of this tribunal to make the policy for a conservation authority and on the evidence the tribunal can only conclude that the decision of the respondent was within its policy both express or implied.

Turning to the question of whether the decision of the respondent should be overturned on the basis of overriding federal, provincial or municipal concern, the evidence did not establish any such concern other than the matter of pollution as it may arise in the environmental Acts of the province. Minshall's evidence was that the campground could continue and such concerns could be met. This tribunal is unable, without the assistance of expert testimony, to make any decision in this regard and accordingly can only conclude that there is no federal, provincial or municipal overriding concern which should result in the reversal of the decision. Accordingly the appeal will be dismissed.

  1. This tribunal orders that the appeal is dismissed.
  2. This tribunal orders that no costs shall be payable by either party to the appeal.

Signed this 8th day of June, 1989.

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