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 erect a building on lots 10 and 11 as shown on Plan 33A in the Village of Grand Valley in the County of Dufferin.

Between:

Elizabeth Vanderzwaag
Appellant

and

Grand River Conservation Authority
Respondent

G. T. Mullin, for the appellant.

C. S. Glithero, for the respondent.

At the commencement of the hearing on motion of counsel for the appellant the name of the appellant was amended to make the registered owner, Elizabeth Vanderzwaag, the appellant in the matter.

This matter involved an appeal from the decision of the respondent refusing to grant permission to erect a multiple residence on lots 10 and 11, Plan 33-A in the Village of Grand Valley. The appeal was made to the Minister of Natural Resources and by O. Reg. 378/78 the power and duty of hearing and determining the appeal was assigned to the Mining and Lands Commissioner. The appeal was heard in Orangeville on October 18, 1978.

The subject lands consisted of two 66 foot lots measuring 186 feet on the north limit of Lot 10, 170 feet on the south limit of Lot 10 and 154 feet on the south limit of Lot 11. The lands are separated from the westerly bank of the Grand River by Water Street, which is also Highway 25, and accordingly are approximately 66 feet from the water. The lots are bounded on the west by Emma Street which runs in a northerly and southerly direction and intersects with Highway 25 at the southerly tip of Lot 12 which lies to the south of Lot 11 and is triangular in shape.

The appellant proposes to erect a three-story building on the subject lands measuring 71 feet by 32 feet. The first story is proposed to be a garage that would be floored at elevation 1,485 feet above sea level. A concrete floor would be placed on concrete footings. The walls of the garage would be eight feet in height with the lowest part of the ceiling having an elevation of 1,493 feet. The garage would be completely enclosed with poured concrete except for three nine by seven foot doors. Although the witness, Peter Vanderzwaag, indicated in the beginning that it is proposed to construct two apartments on each floor it appears that the intent is to have two floors with three apartments on each floor which would be reached by interior staircases. It is not proposed to use any fill to embank the footings. The reason for this appears to be that the appellant attempted to reduce the constriction with the flow of the river during flood periods as much as possible but there appears to be some doubt from the evidence of the engineer who was called as a witness for the respondent that such an approach is sound from a construction point of view.

The elevations of the subject property vary from 1,481 feet to 1,483 feet. The regional flood elevation in the area as established subsequent to the acquisition of the land by the appellant is 1,493 feet. The most significant flood in recent years occurred in 1972. Triton Engineering Services Limited, hereinafter referred to as "Triton", was engaged by the respondent to study a sixteen mile stretch of the Grand River between Black Creek which is north of the village to Bellwood which is south of the village. R. J. Hicks, a professional engineer who had specialized in water related problems was the project engineer for this study which reviewed the hydrology and hydraulics of the area and considered flood control measures. Hicks gave evidence for the respondent. His evidence established the regional floodline as above indicated. The study showed that the elevation of the flood on April 16, 1972 caused by an ice jam was 1,489.8 feet. The elevation reached two days later from the peak of the flood which was not affected by ice jamming was 1,488.7 feet. This flow was considered to have a return period of nineteen years. There was a significant flood in 1975 that reached an elevation of 1,488.3 feet and was considered as having a return period of twelve years. It was also concluded that a flow with a ten year return would reach an elevation of 1,488.0 feet. The witness stated that the usual checks had been made on these calculations and I have no alternative but to accept them as proved.

The witness Hicks indicated that there would be some but not a significant interference with storage capacity when it is considered that the garage doors could be opened to permit the garage to flood. The proposal places the doors on the westerly side facing Emma Street. With reference to constriction of the flood channel the witness stated that the proposed building was in a location where its constrictive effects would be offset by existing buildings to the north or upstream. He indicated that there would be a ten per cent constriction of the left channel and a 3.5 per cent constriction of the entire floodplain. The witness found it difficult to assess the effect of the constrictive influence of the proposed building but felt it would be a small obstruction to the flow during a regional storm. The witness also was of the opinion that the flow of the regional storm would have a velocity of 3.3 feet per second and as a critical velocity for grass surfaces and buildings is five to six feet per second the proposed building should not create a problem from the point of view of erosion. He did feel however that in ice jamming conditions there would be a concern from scouring although the experience was related to an area under construction following exceptional weather conditions.

The witness also indicated that there is a potential for damage to the proposed building during a regional storm from floating ice or from floating trees and other debris. He stated that the existing buildings to the north provide some measure of protection from this type of damage. He indicated that the most serious concern would be the fact that the proposed building would be in effect an island surrounded by water in low flows as well as regional storm flows. He stated that without ice jamming the evidence indicates that there would be three or four feet of flooding around the proposed building in floods with a less than ten year return period. With ice jams such elevations can be increased to the elevations reached in 1972. He pointed out that there is little time for evacuation in the event of floods created by ice jams and that the records show that in 1972 the water raised two feet in a period of approximately twenty minutes. In addition to the risk of personal injury or drowning, particularly at night, there would probably be structural damage to the property which would require repair and there would be the deposits of silt and other debris in the building and on the property which would require expenditures in respect of clean-up operations. He indicated that there might be a longer period for warning in the event of a regional storm but in such a case the depth of water would be in the vicinity of ten feet with a patent risk in respect of personal injury and loss of life. With reference to the property to the north of the subject lands at the bend in the river the witness indicated that the depth of flooding in the 1975 flood reached four feet according to the records he had examined.

A further concern with respect to the proposed building is illustrated by the third phase of the study conducted by Triton relating to flood control measures. The conclusion of this phase was that minor stream improvements such as the removal of rocks from the existing channel would have no appreciable significance. The only significant flood control program that could be envisaged by Triton was a widening and straightening of the channel to almost twice its existing width which would involve the removal of a number of buildings erected in close proximity to the river. The cost benefit analysis of such a program indicated that such a program was not warranted but the erection of further buildings such as the proposed building would hinder the carrying out of such a program if it were adopted.

Mrs. Jane DeVito, the policy planner of the respondent, gave evidence of the policy of the respondent which in brief is to prevent the construction of new residential buildings in the part of the floodplain that is below the maximum observed floodline and has recently become identified as the floodway. This policy indicates that there are exceptions to the general prohibition in respect of areas above such line where the proposal consists of infilling and in such circumstances, subject to conditions, permission is granted. She also indicated that while the engineering advice tended to minimize the storage and constriction principles the respondent was concerned with the matters of precedential implications, the protection of loss of life, the potential future cost to the public and private owners in respect of emergency situations including evacuation and restoration and the possibility of unsuspecting buyers or tenants acquiring an interest in the property without appreciation of the hazards of unnecessary developments in floodplains which in future years will require extensive protection measures.

There was a precedential implication raised in respect of a senior citizens home but the evidence appears to be that this building was erected above the floodway or the maximum observed floodline and the understanding of the respondent, whether or not it was carried out, was that fill would be placed on the land to raise the building above the regional floodline.

Through the cross-examination of the witnesses of the respondent and the evidence on behalf of the appellant the nature of the existing structures in the floodplain were established. A number of residential buildings approximately forty or fifty years of age have been erected upstream of the subject lands and two such buildings exist downstream on the westerly side of Emma Street. Apart from these two buildings there appears to be no residential construction downstream of the subject lands. Recent construction in the vicinity of the subject lands appears to have been industrial property or a sewage disposal plant which has its necessary implications as to location. In this regard it cannot be found that there are any precedential issues in favour of the permission requested and from a precedential point of view the weight of this issue should be against the appellant.

There was considerable evidence as to the official plan and the zoning by-law affecting the subject lands. It appears that the official plan designates the subject lands as being usable for residential purposes but the most recent zoning by-law zones them as a development zone which means that the area is subject to further consideration and rezoning prior to any development taking place. Counsel for the appellant indicated that this is indicative of the opinion of the municipal planning authorities that residential construction should be permitted on the subject lands, particularly as the municipal council passed a resolution that it would rezone the property to permit multiple housing. The fact that this resolution was made in July, 1976, more than two years ago, and the by-law has not been amended coupled with the fact that the existing by-law recognizes that the subject lands require rezoning with its adherent studies and political inputs make it difficult to assume that any significant weight should be given to the zoning provisions. This tribunal has consistently refused to give precedence to provisions of zoning by-laws over apparent hazards of lands under consideration.

The submissions on behalf of the appellant were to the effect that the subject lands had been acquired following reasonable attempts to determine the uses that might be made of the land and the legal advisor and the municipal officials failed to draw to the attention of the proposed purchaser the need of complying with the provisions of The Conservation Authorities Act and the regulations thereunder. In this regard counsel for the respondent submitted that the occupation of the husband of the appellant as a real estate agent and his knowledge of recent flooding offset the significance of this argument. It has been the policy of this tribunal not to make decisions based on sympathy or hardship of the owner of the land. The real issue is the suitability of the subject lands for the purpose and the implications and risks of the proposal. This tribunal has heard other appeals where municipal officials have failed to advise the landowner of the jurisdiction of the conservation authority and this tribunal can only consider that such issues must be treated as not being relevant to the considerations before the tribunal.

Counsel for the appellant also emphasized that the general manager and other staff of the respondent had advised the appellant to resubmit an application. I cannot make any assumptions from these facts. The process exists for considering applications and had officials taken the opposite approach I would expect that there would have been more serious grounds for criticizing their conduct. Counsel relied heavily on the fact that the engineering evidence of the engineer who is no longer with the respondent and the witness Hicks indicated that from an engineering point of view two of the major considerations in these matters have little significant effect, apart from their precedential implications. In this regard the matter of precedential implications is not without merit but the witness Hicks referred to other serious matters which, whether they be classed as policy matters as counsel for the appellant led one of the witnesses to concede, are significant considerations.

Counsel for the appellant also argued the infilling principle but there are a number of reasons why this principle is not applicable to the subject lands. Firstly the principle, where it is applied by the conservation authority and there are many that do not apply the principle, is applicable only in the area that is currently known as the flood fringe and the subject lands do not fall within this area. Secondly conditions are imposed which permit access from the property to land above the regional floodline so that the occupants would not be surrounded by water in the event of a regional storm. It was not established and it is difficult to foresee how such protection could be afforded to the occupants of the proposed building on the subject lands.

Counsel for the appellant also submitted that the refusal by the respondent was a policy decision, not an engineering decision, and that it failed to take into consideration such policy matters as the facts that the subject lands were lands on a plan of subdivision, that the proposed use was consistent with the official plan and that the municipality had failed to zone the land as open space conservation, which it had done with other lands in the village, and had indicated its intent to rezone the land to permit multiple housing.

Lastly counsel submitted that the only other potential issue was the matter of erosion and that the evidence of risk of erosion was very limited, being based on damage in the 1972 flood to the sewage disposal plant which was at that time under construction.

Counsel for the respondent relied on the doctrine of precedent and the potential risks of damage to property and injury to persons from the proposed building in the event of a regional storm, the prevention of such damage and injury being the mandate of the conservation authorities. He also pointed out that there was nothing in the evidence to bring the present application within any of the recognized exceptions to the general prohibition presently contained in section 3(b) of O. Reg. 356/74 which prohibits any construction in an area susceptible to flooding during a regional storm.

I have indicated above that the argument in respect of precedent, while it bears with it an implication of arbitrariness, is not insignificant. The cumulative effect of minor interferences with storage capacity and constriction of flows has long been recognized. Suffice it to observe that if the interference is merely 3.5 per cent it would only take thirty such constrictions to completely exhaust the capacity. Apart from this aspect of the matter it is patent that the proposed building would create risks of damage to the building itself and to the property of tenants in the event of floods of the intensity that have occurred in the past. No adequate method of evacuation of the garage was established and doubtless cannot be established to prevent the damage that would occur to automobiles and other property stored in the garage in the event that two or three feet of water is present in the garage.

However the standard of the regulation is not related to recorded storms or floods. The standard of the regulation is related to regional storms and where the entire basement would be flooded, apart from evacuation which might be possible, the possibility of damage to property is more significant. However a more serious aspect is the risk of injury or death to the occupants of the proposed building. The evidence does not suggest that the site is comparable to Raymore Drive during Hurricane Hazel where fourteen residences were swept away and thirty-six persons drowned. There was no evidence to indicate that the velocity of the regional storm flow would cause this type of destruction. However, there can be no assurance that panic,particularly among the young and the old, would not occur and the risk ofdrowning is clearly apparent. One cannot assume that the occupants would remain in the building and there would be no way to service the building in the event of fire or the need for medical services.

It is trite to say that the purpose of The Conservation Authorities Act and the regulations thereunder is to prevent the reoccurrence of such tragedies as Hurricane Hazel and the creation of a residential building in an area that would be subject to ten feet of flooding in a regional storm cannot be considered as being consistent with the object of preventing the consequences of such storms.

The hazards and risks associated with any residence being surrounded by ten feet of flood water are clearly demonstrated and it cannot be concluded that the intent of that Act would be implemented if the proposed building were permitted.

More specifically the power of granting the permission is exercisable where the authority is of the opinion that the proposal will not "effect the control of flooding or pollution or the conservation of land." This quotation is taken from section 4 of O. Reg. 356/74. The evidence of the witness Hicks in my view clearly established that any flood control program that might be established for the Village of Grand Bend would be seriously effected by the construction of the proposed building. The issues of precendent in respect of storage capacity and constriction of flow relate to this matter. If this building and other buildings are constructed in the floodway, the costs of any flood control system would be increased by the cost of their removal and the prospects for a system are correspondingly reduced. Thus, there would be an effect on the control of flooding.

There was no evidence that the proposal fell within any recognized exception to the general principle that construction should not be permitted in the floodplains of regional storms and I cannot conclude that the decision of the respondent was improper.

It is ordere that the appeal in this matter be and is hereby dismissed.

It is further ordered that no costs shall be payable by either of the parties hereto.

Dated this 3rd day of November, 1978.

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