Jan Gawrylik v. Grand River Conservation Authority

This reasoned decision has been issued by the Ontario Mining and Lands Commissioner under the Conservation Authorities Act for Jan Gawrylik.

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 construct a single family dwelling plus septic system on Lot 30 in Concession IV in the Township of East Luther in the County of Dufferin.

Between:

Jan Gawrylik
Appellant

and

Grand River Conservation Authority
Respondent

G. Alexandrowicz for the appellant.
C. S. Glithero for the respondent.

The appellant appealed to the Minister of Natural Resources from a decision of the respondent dated the 24th day of February, 1978 refusing permission under Ontario Regulation 356/74 to construct a single family dwelling and septic system on part of Lot 30 in Concession IV in the Township of East Luther in the County of Dufferin. The power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner by Ontario Regulation 378/78 and the appeal was heard in Toronto, on July 24, 1978.

The appellant, or his divorced wife or both of them, own a parcel of land composed of part of Lot 30 in Concession IV in the Township of East Luther. The parcel is somewhat triangular in shape being that part of the north part of the lot lying easterly of that part of the King's Highway known as No. 25. The Grand River flows in a southerly direction through the southerly part of the parcel entering at the east side and leaving the parcel at the southwest corner. As part of the division of the marital assets the husband and wife agreed that the wife should become the owner of the northerly two acres of the parcel and an additional three-quarter acre parcel on which an existing brick bungalow is situate. The southerly part of the parcel containing approximately seven and three-quarter acres is to be the property of the husband under the settlement. On an application for a severance the Land Division Committee required the appellant to establish that he would be able to construct a residence on the southerly part and accordingly he applied to the respondent for permission, which was refused. Five reasons were given.

The position of counsel for the appellant was that the matter should be dealt with on grounds other than the strictly technical issues in respect of the property and that the appeal should be allowed on the basis of the social and economic difficulties of the appellant. The appellant is sixty-three years of age and has conducted subsistance farming operations on a larger part of the township lot for a period of twenty-one years. He now has approximately five or six thousand dollars and hopes to build a house on the southerly part of the parcel of which he will become the sole owner upon severance, if authorized. He considers that this site would be much cheaper than any other site which he would be able to buy. He has no employment and would ultimately be dependant on public pensions for sustinance.

The proposed location of the house is a point approximately one hundred feet distant from Highway 25 and from the river. The evidence of the respondent indicated that the relevant flows and elevations in the vicinity of the proposed residence are as follows:

Storm Discharges (cfs) Flood Elevation
10 Year Storm 9,000 1,500.9 feet
1975 flood (12 Year Storm) 9,630 1,501.2 feet
1972 flood (19 Year Storm) 10,625 1,501.7 feet
36 Year Storm 12,000 1,502.3 feet
----------- 18,000 1,504.5 feet
Regional Storm 26,650 1,507.1 feet

The site is on the old roadbed of the provincial highway and has a maximum elevation of approximately 1,501.5 feet. However there are lower elevations on either side of the roadway. The elevation of the regional storm would be approximately five and one-half feet above this elevation at the highest point of the roadway. At the river side of the house the ground elevation would be approximately 1,499 feet or over eight feet below the regional storm elevation.

The technical evidence for the respondent was given by R. J. Hicks of Triton Engineering Services Limited. This witness indicated that the amount of fill necessary to raise the basement openings and the access to the proposed residence to the regional storm elevation would block approximately two-thirds of the flow of the left bank of the river and in comparison with the entire channel would block eleven per cent of the flow capacity during a regional storm. He calculated that the effect of such a constriction in the flood channel would result in approximately one-half a foot of flooding over an area extending upstream from 500 to 1,000 feet. With reference to loss of storage capacity the witness indicated that this loss of storage capacity is not significant contrasted with the entire basin but that it has cumulative implications. The witness also indicated that proposed fill would be in an area where there would be a flow with a velocity of approximately eight feet per second and that with such a velocity even in the event of a storm equivalent to the 1972 or the 1975 storm there is a significant danger of erosion which could only be met by the protection of the fill with rip rap. In this witness's opinion it would cost approximately $7,000 to place the necessary amount of fill and a further $6,000 to provide the necessary rip rap for the protection of the fill.

In contrast with this evidence the appellant produced evidence of two long time residents of the area in addition to his own evidence. The evidence of these persons indicated that the flooding in the 1975 storm came approximately to the base of the old roadway and there is little significant difference in the evidence of the witnesses. The times of observation varied and the peak occurred at a time other than the time at which any of the witnesses observed the actual conditions. It also occurred at a time when there was a considerable amount of snow on the ground and opportunities of examining the depth of water by laymen were restricted. Accordingly it must be concluded that the proposed site was clearly below the regional flood elevation and was, in part, below the floodway or the maximum observed floodline, particularly when it is kept in mind that part of the house was to be built on the riverside of the old highway. Highway 25 had been straightened sometime in the past. There was some disagreement as to the site of prior flooding that led to the realignment of the highway but the elevations in the area make it apparent that it was necessary to place the highway on a higher location in view of the flood potential of the location of the old highway, whether in fact there had been flooding at the proposed site or at adjacent sites.

Mrs. Jane De Vito outlined the policy of the respondent in respect of the floodplain pointing out that while the respondent divides the area under its jurisdiction into the flood fringe area and the floodway, and while it had assumed for the purposes of this application that the proposed site was within the more serious area, namely, the floodway, the policy of the respondent was not to permit new residential building in the floodway or in the flood fringe in rural areas. The distinction with reference to residential buildings is applicable only in built-up or urban areas where the price of land and the value of the buildings warrant the expenditures involved with flood control devices. In such cases there already is a significant hazard which has to be dealt with and the application of the infilling principle becomes relevant. However such is not the case in rural areas where the high price of land and the existing residential development are not present.

The technical implications of the case might be further illustrated but counsel for the appellant indicated in his submissions and in his opening remarks that he was limiting his presentation to the position that the economic and social implications of this case warrant the creation of an exception. There are a number of factors of this nature. The appellant is 63 years of age. His resources are very limited. He is nearing the age of retirement and has no professional or technical method of providing a livelihood for himself other than through publicly operated pensions. He has a limited understanding of the English language and there would be an obvious lack of incentive of residing in public institutions as contrasted with continuing to reside in the area where he has made his friends who according to his counsel would assist him in obtaining fill and constructing his residence. It would seem that as far as the appellant is concerned the best method of dealing with his remaining years would be to live on part of the farm on which he had spent the last twenty-one years in a modest house. It may be noted however that the plans of the house do not appear modest in respect of a home for one person.

Counsel for the appellant pointed to the minimum effect on the storage capacity of the flood plain and the limited area which would be flooded from the constriction of the flow and suggested that the nature of the area flooded would not be significant. In this regard there is no evidence to assist me on the nature of the use of the land contained in the area that would be subject to additional flooding in the event of such a constriction.

Counsel also raised a rather interesting argument in that he submitted that the responsibility associated with a discretionary power to create-exceptions was in effect inconsistent with the adoption of the approach that any exception was unacceptable by reason of its cumulative effect. He suggested rather that the approach and responsibility of an administrative body should be to create exceptions until such time as the accumulation of interferences actually constitutes a significant potential for the creation of injury or damage, and at that stage only should the applications be refused.

With reference to notification of future purchasers counsel for the appellant suggested that he would consent to registration of an order on the title which would estop, in effect, future purchasers from applying to the conservation authority or any other tribunal on appeal for approval of extensions or for compensation in the event of flooding. He also suggested that with the imposition of conditions respecting safety and security an acceptable exception could be created.

Counsel for the respondent concurred that one of the issues in this matter is the apparent conflict between the public and the private interest. He pointed out that the public interest has the recognition of legislation which recognizes flooding as a concern of and danger to all the inhabitants of the province. Section 27 of The Conservation Authorities Act authorizes the making of regulations which prohibit the construction of buildings in areas susceptible to flooding during a regional storm and the Lieutenant Governor in Council has recognized the problem in this area by making a regulation pursuant to the legislation. He admitted that exceptions are authorized but such exceptions have to fall within the test of not affecting the control of flooding. He submitted that such test should be applied not only by the conservation authority but also by an appellate tribunal.

Counsel for the respondent submitted, that in applying the test of the control of flooding the evidence clearly indicates that there would be a significant and substantial constriction of the channel created by the construction in a safe manner of the type of residence at the location requested by the appellant. He referred to the evidence of the expert witness Hicks whose evidence was uncontradicted indicating that the site in its natural state would be under approximately five and one-half feet of water during a regional storm, that it was probably inundated in part if not in whole during the 1972 storm and that there would be a substantial constriction of the flood channel of the river in the event of a regional flood amounting to sixty-six per cent of the west bank and eleven per cent of the overall channel. It was pointed out that such a constriction would have the result of a rise in elevation of one-half a foot with the additional flooding above what is now considered to be the regional floodline of an area extending upstream for a distance of 500 to 1,000 feet. Accordingly it was submitted that such represented a public interest and required consideration.

With reference to the argument respecting cumulative effects, counsel for the respondent pointed out that the approach suggested by counsel for the appellant was not a fair approach and that it does not create a policy of uniform application to all landowners. It would create a policy of treating a portion of the landowners in a specialized or privileged manner depending on priority of application rather than on the merits of the application as viewed with existing and subsequent applications of other landowners. He in effect submitted that the proper policy to be followed under the Act was to lay down a policy that would be applicable to all landowners equally regardless of time of application and not create a special group of landowners who might apply in the beginning.

Counsel for the respondent suggested that at least four of the reasons given by the respondent in its refusal relate to public interests i.e. public expenditure for emergency operations, evacuation and restoration, the need for the erection of future protective measures, the interference with the channel capacity and the resulting subjection of lands not otherwise subject to flooding in the event of a regional storm and the possibility of future purchasers acquiring the property without realizing the hazardous nature of the property, and that these four reasons outweigh the first reason, which the appellant for himself might choose to waive, of loss of life and property damage in respect of the subject lands.

At the outset it may be said that it has never been the policy of this tribunal to authorize new residential construction clearly within the floodplain of a regional storm, particularly where there is a significant depth of flooding in natural conditions at the proposed site. Secondly, it is clear from the policy of the respondent that whether or not the proposed site was flooded during the 1972 flood, the construction of new residential buildings is not permitted. Assuming that the proposed site is above the maximum observed floodline or totally within the flood fringe, the policy of the respondent does not permit new residential buildings by reason of the fact that the area is not an urban area or a recognized community in a rural area and secondly because the doctrine of infilling, which would be a second requirement, cannot be complied with.

This is not the first occasion on which this tribunal has been faced with an appeal based on the impecuniosity or the hardship or the limited financial resources of an appellant. In dealing with such matters it is, in the opinion of this tribunal essential that the inherent hazards and inappropriateness of the land in question should be kept foremost in mind particularly as the investment or the change of use will effect not only the appellant but also his successors in title. The controls imposed by The Conservation Authorities Act and the regulations made thereunder, are considerably different than zoning by-laws which regulate the use of privately owned land. Zoning by-laws regulate use with reference to a politically determined acceptable approach for the future and accordingly, without significant hazards to life and property, may be subject to minor variances and amendments. On the other hand the purpose of the conservation authorities legislation is directed at the inherent weaknesses of the land itself, particularly as it is subject to the ravages of floods which occur, particularly in the central and southwestern parts of southern Ontario, with forces and consequences completely unforeseen by the average resident of the area. Because of the lack of understanding of such floods in the past, communities have grown up along streams and rivers, and it has been and it may again be, not until the future generations that the significance of a particular development is proven. However the potential is clearly established and the purpose of The Conservation Authorities Act is to prevent the continuation of the practices of the past which have been proven to be wrong. In such proof the economic and the social attributes of the landowners affected has been immaterial. The rich and the poor are equally affected. However there are more serious problems for the young and for the old, who, as in this case, may not be able to escape through five feet of flood waters flowing at a rate of eight feet per second. Accordingly, it is not reasonable to base an exception on economic or social considerations. The creation of an exception should be dependent on something more significant than sympathy.

As has been pointed out on numerous occasions the test is the control of flooding. The evidence clearly indicates that if a project of the nature requested were permitted and if adequate protective devices were installed there would be a very significant interference with the flow of the channel during a regional flood condition and it would seem that there can be no conclusion other than that the permitting of the proposal would be to create rather than to control flooding.

While the appellant may be prepared to assume the risks of injury to life and damage to property that would result from a regional storm this tribunal has never accepted such an assumption as being grounds for creating an exception to the regulation. This leads to the suggestion of counsel for the appellant that an indemnity agreement might be prepared and registered against title. I am not satisfied, apart from some legislative provision that might be enacted, that such agreements either run with the land or form a valid basis of a requisition on title. Few purchasers search the title prior to signing offers to purchase and I have considerable doubt as to the effectiveness of the registration of an indemnity agreement on the prevention of future purchasers acquiring the land without notice of its hazardous qualities. A further issue in respect of the usual indemnity agreement is that the impecunious circumstances of the appellant would indicate that the indemnification of the respondent in respect of damages arising from flooding of additional lands which may reasonably be expected to occur in the event of a regional storm could not be met by the appellant.

With reference to the invitation of counsel for the appellant to meet the social needs of his client by creating an exception and coupling it with adequate conditions for safety and security, I may say that this tribunal has no scientific personnel who could fulfill such a role and it would be necessary for an appellant to produce his proposal which would be subject to criticism by the scientific personnel of the respondent. From the evidence before me the only conclusion that can be drawn is that any plan involving adequate protection would be beyond the economic means of the respondent and would have too serious flooding implications to consider.

With reference to the arguments related to the basis on which exceptions may be created, the argument of counsel for the appellant must presuppose that the standards of the regulation have a built-in safety factor which may be utilized by the granting of exceptions. It was not established in this case or in any other case before this tribunal that there is such a safety factor in the regional storm definition and the only basis on which exceptions can be justified is the establishment of flood control systems which control or reduce the risks in respect of the exceptions. Also I prefer the argument of counsel for the respondent to the concept that priority of application creates some right to exhaust any safety factors, assuming such exist.

I have not overlooked the question of the sanctity of the agreement and the possibility that the position taken by this tribunal would tend to frustrate the implementation of the agreement. However it is apparent to this tribunal that the parties to the agreement probably negotiated it without any realization of the implications of the division of their lands or the effect on other landowners of their proposal. Accordingly it would seem that in such circumstances the more logical course would be to renegotiate the agreement rather than to use the agreement as a device for placing one of the parties in a position where his expenditures would be subject to the risks of flooding and would have a serious effect on neighbouring lands.

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

And it is further ordered that no costs shall be payable by either of the parties to this matter.

Dated this 28th day of July, 1978.

Original signed by

G.H. Ferguson
Mining and Lands Commissioner.