The Mining and Lands Comissioners in the matter of the Conservation Authorities Act

And in the matter of

An appeal against the refusal to issue permission to erect an addition to a building on the premises municipally known as 240 Main Street East in the Town of Dunnville in the Regional Municipality of Haldimand-Norfolk.

Between:

Brewers' Warehousing Company, Limited
Appellant

and

Grand River Conservation Authority
Respondent

Order

This matter corning on for hearing on the 19th day of January, 1978 (and continuing periodically thereafter) at the City of Toronto in the presence of counsel for all parties, upon hearing the evidence adduced and what was alleged by counsel aforesaid and the appellant appearing to have complied with the requirements of the reasons for judgment dated the 21st day of February, 1978 by filing with this tribunal an executed copy of an agreement between the parties dated the 9th day of June, 1978, and hereinafter referred to as "the agreement":

  1. It is ordered that the appeal of the appellant be and is hereby allowed and that the appellant be and is hereby granted permission under section 4 of Ontario Regulation 356/74 to construct an addition to the existing building located on Lots 34 and 37 as shown on the Welland Canal Lands Plan registered in the Registry Office for the Registry Division of Haldimand as Plan 13558, which parcel is more particularly described as follows:

All and singular that certain parcel or tract of land and premises, situate, lying and being in the Town of Dunnville, in the Regional Municipality of Haldimand-Norfolk (formerly the County of Haldimand) and Province of Ontario and being composed of Lots 34 and 37 as shown on the Welland Canal Lands Plan registered in the Registry Office for the Registry Division of the County of Haldimand as Plan No. 13558, which parcel may be more particularly described as follows:

Commencing at the northeast angle of said Lot 37;

Thence south 2 degrees 15 minutes west in the westerly boundary of Maple Street, 202.1 feet to the northerly boundary of Market Street;

Thence north 56 degrees 47 minutes west in the northerly boundary of Market Street, 212.4 feet to an angle therein;

Thence north 83 degrees 18 minutes east in the southerly boundary of Lot 35 as shown on said Plan 13558, 55.0 feet;

Thence north 7 degrees 23 minutes west in the easterly boundary of said Lot 35 and Lot 36 as shown on said Plan, 76.64 feet to the southerly boundary of Mill Street;

Thence north 88 degrees 41 minutes east in the southerly boundary of Mill Street 140.9 feet more or less to the place of beginning,

in accordance with the plans attached as Schedule "B" to the agreement and subject to the provisions of the agreement.

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

Dated this 14th day of June, 1978.

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

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 an addition to a building on the premises municipally known as 240 Main Street East in the Town of Dunnville in the Regional Municipality of Haldimand-Norfolk.

Between:

Brewers' Warehousing Company, Limited
Appellant

and

Grand River Conservation Authority
Respondent

Reasons for judgment

D. H. Wood for the appellant.
J. M. Harris and C. S. Glithero for the respondent.

In July, 1977 the appellant applied to the respondent for permission under Ontario Regulation 356/74 for permission to erect an addition to the Brewers Retail Store in the Town of Dunnville. Permission was refused and the appellant appealed to the Minister of Natural Resources under section 27(2c) of The Conservation Authorities Act. Under Ontario Regulations 797/77 the duty of hearing and determining the appeal was assigned to the Mining and Lands Commissioner.

The built-up part of the Town of Dunnville lies on the easterly side of the Grand River approximately four miles from the mouth of the river. With the exception of a small parcel of land on which a variety store known as Uncle Bob's Variety is situate, the appellant owns the block of land bounded by Main Street, or Mill Street as it is sometimes referred to, on the north, Maple Street on the east, Market Street on the south and Bridge Street on the west. The parcel of land is quadrilateral in shape as contrasted with rectangular as Main Street and Maple Street appear to intersect at right angles but Market Street and Bridge Street intersect at angles other than 90 degrees. The area of the land owned by the appellant is approximately 22,000 square feet. The existing warehouse is situate on this parcel. It is an L-shaped building which is laid out in a general northwesterly-southeasterly direction somewhat parallel to Market Street. It measures approximately 58 feet along Market Street and is situate approximately six feet therefrom. The wide portion of the warehouse measures approximately 55 feet and is at the northwesterly end of the warehouse. This northwesterly end of the building is approximately 27 feet in width. The southeasterly part of the warehouse measures approximately 30 feet by 40 feet with the easterly wall being approximately 15 feet westerly of the extension southeasterly of the easterly wall of the northwesterly part of the warehouse.

The proposal of the appellant was to add an addition measuring 20 feet, 8 inches by 37 feet, 8 inches at the southeasterly end of the existing warehouse. The addition would be in line with the northeasterly wall of the narrow portion of the existing warehouse. The southwesterly wall would be located approximately 20 feet southeasterly therefrom and along a truck pad leading to the southeasterly wall of the existing warehouse. The direction of the building and its extension is, in addition to being parallel to Market Street, relatively parallel to the direction of the channel of the Grand River at this location.

The reasons for refusal by the executive committee were as follows:

Part of the objectives of the regulation as it would apply to the Grand River watershed within the jurisdiction of the Grand River Conservation Authority and as it would apply to Application No. 113/77, 240 Main Street, East, Town of Dunnville are threefold:

  1. To prevent loss of life, property damage, : and create a safer and better environment for the people in the Watershed.
  2. To reduce public and private expenditure for emergency operation, evacuation and restoration.
  3. To protect unwary land and property buyers against victimization brought about by purchase of property in flood or erosion hazard areas.

It is the opinion of the Authority that through the proposed expansion of the subject commercial land use, that further property damage could be incurred thereby increasing public and private emergency operations, evacuation and restoration.

In addition, permitted expansion of the facility could bring about victimization of future purchasers of the property since they may not be aware or may not assume that the property lies in a flood hazard area.

The existing warehouse is constructed of concrete block faced with brick. It is proposed to construct the addition of the same materials, to construct the floor at grade level and not to construct any exterior windows or doors in the addition. All services in the addition would be above any possible flood elevation. The appellant indicated that it was prepared to sign the usual save-harmless agreement. It further gave evidence that the cost of the building would be in the vicinity of thirty to forty thousand dollars and that the purpose of the addition was to store empty bottles making more room for storage of stock under refrigerated conditions in the existing warehouse. Assuming that stock were placed in the extension and it was fully destroyed there would be a loss of stock, apart from bottles, of twenty-eight thousand dollars. This is a maximum figure and does not show any consideration of the probability of such loss or take into consideration the fact that even if flooded there would be little chance of damage to the contents of the bottles. The appellant also gave evidence that only three personnel would be employed during peak periods with one person during non-peak periods. Further the evidence given was that the stock could be removed in four or five hours including travel time by trucks from Wetland. They further agreed that they would, as was suggested by their expert witness, provide sufficient number of pallets to raise the stock above any flood level. Reference was made to an extension in Cambridge where an extension was permitted on the strength of a save-harmless agreement.

Edward A. McBean, P.Eng, Ph.D. an associate professor with the University of Waterloo, who obtained his undergraduate degree at the University of British Columbia and his postgraduate degrees from the Massachusetts Institute of Technology and who has been employed by Acres Consulting Service, Niagara Falls and Meta Systems, Inc. Cambridge, Massachusetts and who has recently established his own firm, was called on behalf of the appellant. In addition to having conducted studies and written articles in respect of flooding, the witness was employed by James F. MacLaren and M. M. Dillon in the recent study performed for the Ministry of Housing and the Ministry of Natural Resources on flood plain criteria.

It was this witness's opinion that the permission requested should be granted as there is a minimum risk of financial loss in respect of the building by reason of its floodproof condition, and that the concerns of the respondent respecting cost of evacuation, damage to property and the adequate warning of future purchasers of the property could be met by the execution and registration of a save-harmless agreement.

With reference to the likelihood of a regional flood the witness pointed out that the regional flood elevation adopted by the conservation authority would occur in rare instances by reason of the elevations shown on the flood mapping being a combination of the maximum level of Lake Erie and the occurrence of a regional storm, the combined effect of which would be the equivalent of a one in five hundred year storm.

In the preliminary submissions, counsel for the respondent filed the usual floodplain mapping which indicated that the maximum observed floodline was at elevation 584 feet above sea level and the regional storm floodline was at 585 feet. It was submitted that the elevation of the location of the subject proposal was 581.6 feet. Following consultation by counsel it appeared that the elevation of the grade of the proposed site was 581.88 feet according to the evidence of the respondent and 582.25 feet according to the information of the appellant, there being a difference of only four inches in these two elevations.

A further implication in connection with this application is that during the 19th century in conjunction with an early location of the Welland Canal a dam had been built across the Grand River at Main Street. This dam is a weir type dam of ancient construction probably having a wooden core with a concrete facing. At one time Main Street was continued over the dam to the west side of the river. A few years ago the dam and the street were separated and a bridge was constructed slightly north of the dam. The dam contains no control devices. Water is spilled over the top of the dam and also over "waste weirs" along the westerly side of the headpond. Water spilled over the "waste weirs" returns to the Grand River below the dam.

There was evidence that serious floods had affected the Town of Dunnville in 1912 and in 1930. The maximum observed flood line was related to these floods and photographs were presented by a long-time resident of the town, Frank Scholfield who is the clerk and tax assessor for the town. He identified locations in the town on the photographs that indicated an amount of flooding perhaps in the vicinity of one foot in depth and gave evidence that he recalled as a child on a tricycle observing the later flood in the lower part of the town which is some distance east of the riverbank and which flood was caused by ice jamming in the river upstream of the dam and along the easterly shore of the headpond.

In addition evidence of the proposed planning changes by the Regional Municipality of Haldimand-Norfolk were put in evidence by the regional planner, Gordon Miles. This evidence indicated, generally speaking, that while the area southerly of Main Street was zoned for industry, heavy industry and central commercial, the area southerly of the south boundary of the subject lands was about to be changed to a hazard land designation. Gary M. Grant, the building inspector for the town, was also called and gave evidence of a practice of referring all applications for building permits to the conservation authority where the floor elevation was less than 585 feet and refusing the issue of building permits unless the consent of the conservation authority were obtained. On cross-examination of this witness a number of applications for permission to construct were reviewed but I do not consider it essential to go into these applications in detail. The reason for this approach will be more apparent when the evidence of the employees of and engineer for the respondent is considered.

Jane DeVito, a planner with the respondent, was called and stated that while the conservation authority had not yet made its representations in respect of the proposed zoning changes she was of the opinion that the conservation authority was going to request that the hazard land designation be extended in a northerly direction to include the subject lands. The witness also dealt with the reasons for refusal of the application.

With reference to the policy of the respondent she outlined the division of the floodplain usually made by the respondent in its administration of the regulation with building being permitted in some instances above the maximum observed floodline provided floodproofing of the buildings is done but with a stringent policy of preventing buildings being applied below the maximum observed floodline. She pointed out that in addition to this policy there is a further policy applicable in the Town of Dunnville which will be referred to herein as the Dunnville policy. The policy of permitting buildings above the maximum observed floodline will be referred to as the special policy. The Dunnville policy is a political decision, according to this witness, that provides that in the area below the elevation of the maximum observed floodline and north of the north boundary of Main Street any building will be permitted provided the first floor of the building is above the regional flood elevation of 585 feet. She referred to two buildings situate south of Main Street, in respect of which permits had been issued, namely a boat club and the arena to which small additions of limited value had been added. Both of these properties are owned by the local municipality. The addition to the arena was 18 feet by 13 feet and would be used for storage purposes. The addition to the boat club was 8 feet by 24 feet and provided for expansion of kitchen and storage areas and the provision of a shower. In the view I take in this matter, I make no comment on the appropriateness of the issue of these two permits.

On cross-examination the witness attempted to justify the refusal to issue the permission on the three grounds outlined in the reasons plus a fourth ground of precedent. The witness admitted that there was no flooding problem in connection with the proposed extension but it is apparent to me that these reasons can only have some significance if there is in fact a flood problem or in the event the flood problem cannot be adequately protected against by floodproofing measures.

The second employee of the respondent was William Eric Lemp, the Director of Resources Planning who is also a planner. His evidence indicated that there may be a flooding problem in connection with the subject lands and he expressed the concern that by reason of the existence of the dam the area south of Main Street in which the subject lands are located is subject to an additional risk as with rising flood waters the waters will tend to curve around the end of the dam and flow into this area which was not included in the Dunnville policy. Also it is the area through which flood waters in the town would recede.

The witness also attempted to justify the nonapplication of the Dunnville policy to the land south of Main Street on the grounds that the area was less built up than the area north of Main Street and accordingly had a lesser private investment against which the policies of the respondent could be applied. He indicated that many of the buildings in the area are old, run. down and, with the exception of the arena, the auto dealership and one new house that had been built following destruction, it is an area in which there would not be a significant hardship if the principles of the regulation were applied. This witness pointed out that the property of the appellant in Cambridge fell within the special policy of the respondent.

On cross-examination the witness was examined fairly extensively on the procedure that had been followed in establishing the Dunnville policy. He indicated that the decision had been made on his advice to the executive committee following a meeting with the council of the town and following a field examination by the executive committee. No reference was made to any engineering input into the decision and according to his evidence he based his recommendation on the openness of the area and the increased flooding risk resulting from the dam.

A further significant fact that was brought out in evidence by the employees of the respondent was that in its administration of the regulation in the Town of Dunnville the regional storm floodline has been averaged. In the northerly part of the town the elevation of the regional storm floodline is 587 feet and at the south end the elevation is 583 feet. For ease of administration an averaging of these elevations was arrived at and in applying the Dunnville policy the average elevation was adopted to provide for a uniform floor elevation. I do not recall any evidence stating precisely that a similar averaging had been made in respect of the maximum observed floodline but as will be evident from what will be said hereinafter such must have occurred.

Maurice Ashton MacKrell, a professional engineer with the company of Philips Planning and Engineering Ltd. and who has spent a significant time in hydraulics, hydrology and water management schemes, was called on behalf of the respondent. Contrasted with the evidence of the two previously mentioned witnesses, this witness took the view that there is a hazard related to flooding in connection with the proposed construction of an addition.

This witness's company has been involved in a study of the special flooding problems in the Town of Dunnville and has made certain recommendations in connection with remedial works for the alleviation of flooding problems. These recommendations are not yet accepted or implemented. However, in the course of this project he has reviewed the regional flood information and he has updated the 1966 information which formed the basis of the existing flood mapping. In his opinion in the area in question the regional storm floodline should be increased from 583 feet to 584 feet by reason of additional development and construction of drains. He also was of the opinion that the proposed development constituted a potential constriction to the flow of the river and in this sense would effect the control of flooding. He had not calculated this interference but his opinion was that it would be very minimal.

The witness prepared a number of exhibits illustrating the flow during a regional storm and illustrating his projected result of a series of constructions south of Main Street that implemented the entire curtilage provisions of the zoning laws which permits 80 per cent coverage. In cross-examination it was brought out that these illustrations were not particularly helpful by reason of the use in their preparation of a roughness co-efficient (Manning's n) of .043 rather than .018 which appeared to be the more likely value and as the shape of the parcels of land would not likely permit full utilization of the permitted curtilage.

In the witness's computation of the changing circumstances he concluded that the regional flood flows have increased from 102,000 cfs to 143,000 cfs with the end result that with these higher flows there would be greater velocities causing a greater potential of hazard.

With reference to the other aspect of flooding, namely the reduction of the storage capacity of the relevant section of the watershed, the witness indicated that there was no problem of this nature and that there would be no downstream concerns from the project. The witness indicated that the elevation of the river as shown on the existing flooding is the same as the minimum elevation for Lake Erie and in his view there was no problem in respect of the storage aspect of flooding concerns. On questioning from the bench he agreed that by reason of the absence of this problem there would be no point in considering the application of the stage storage doctrine to the application.

My preliminary approach to this case was that the conservation authority has been abundantly lenient in the application of the provisions of its regulation in the Town of Dunnville. Firstly, it has adopted the special policy which as yet has not had general provincial approval. This policy is currently under review as was brought out in evidence and mayor may not in the future have some provincial recognition. In addition the application of the principle of the regulation has been further narrowed by the application of the Dunnville policy in the greater part of the town leaving only the small portion south of Main Street for the application of the general principle of the regulation, namely, that buildings should not be permitted in floodplains. While counsel for the appellant had clearly established that there are many inconsistencies in the policy being followed north of Main Street and the policy followed in the particular case it appeared on preliminary consideration that in view of the exceptions already created by the conservation authority to the principle of the regulation there should be no further extension of the exceptions particularly when neither the special policy nor the Dunnville policy had been approved by the province and as the Dunnville policy had not been approved by the conservation authority as a whole but only by the executive committee.

However, an appearance of inconsistency prevails throughout the entire evidence in this case, which may result from the administration of the regulation of a flooding hazard that is not as significant as the flooding in other parts of the watershed or from the fact that some significant relevant fact was being overlooked in the approach to the particular application. Part of this inconsistency arises from the fact that the maximum observed floodline outlined by counsel for the respondent at the beginnihg of the hearing is higher than the regional storm floodline as established at the time the flood mapping was done in 1966 and equates with a revised regional storm flood elevation established by the witness MacKrell. I have concluded that some of this appearance of inconsistency arises from the averaging of the regional storm floodline. I have considerable difficulty in accepting the advisability of the principle of averaging the regional floodline. It has the effect in the upper reaches where the elevations are in excess of 585 feet of waiving the application of the regulation entirely and permitting uncontrolled buildings in areas where there is two feet of flooding during a regional flood. On the other hand in the southerly area of the town it has the effect of subjecting to the regulation lands which are beyond the statutory authority of the conservation authority and which are above the regional storm flood elevation. There was no evidence led to establish that the purpose of averaging the regional flood elevation and establishing the exception to the Dunnville policy in the area south of Main Street was to visit upon the landowners south of Main Street the responsibility and the hazards of the application of the Dunnville policy above Main Street. The reasons given were indicated above and while it might have been shown that this last mentioned reason was relevant, evidence was not led along these lines.

I have come to the conclusion that the respondent has averaged the maximum observed floodline. This is the only explanation of the maximum observed floodline in the particular area being higher than the actual regional storm floodline. This inconsistency can only be resolved by assuming that the maximum observed floodline has been averaged. In fairness the subject lands should only be dealt with in light of the regional storm floodline and the maximum observed floodline applicable to the subject lands. It is apparent from Exhibit No. 22, a plan of the respondent illustrating the 1930 flood extent, that the floodline elevation at the southerly end of the town was 581.5 feet. The floodline shown on this exhibit is somewhat similar to the maximum observed floodline and the elevations along the north side of Broad Street prior to the northerly turning of the line are in the vicinity of 581 feet. This exhibit also indicates that the ice threat is into the central part of the town and there is an area of elevations through which the flood would appear to have flowed once the ice had forced the water over the banks in the area northerly of Cedar Street.

Accordingly, I can only conclude that the regional storm elevation for the subject lands should be 583 feet. Admittedly the evidence of the witness MacKrell indicated that this should be increased to 584 feet but it seems unfair to the appellant to apply a standard against its application that is not applied against other applications. Similarly I find, as a question of fact, that the maximum observed floodline in respect of the subject lands is 581.5 feet. In view of these findings it is apparent that the application of the appellant should fall within the special policy of the respondent and the approval to construct the extension should be given. However I have considered the matter further. Great emphasis was placed on the precedent setting aspects of granting permission in the area south of Main Street. In this regard I have examined the elevations shown on the flood mapping and there are very few properties in the area south of Main Street that have elevations in excess of 581.5 feet. Accordingly, I fail to see any significant issue of precedent in granting the permission. I have also considered whether by reason of the location of the subject lands it may become an island in the event of a regional flood. An interesting example of such an island would be the high point southeasterly of the subject lands where the elevation is 590 feet. The difficulties in developing these lands with the lower areas surrounding it are apparent. However, with reference to the subject lands the elevations to the north of the subject lands increase gradually to the north seemingly in line with the general topography. The elevation of Main Street is 584 feet near the river and decreases somewhat to the east but is still above the elevation of the maximum observed floodline of 581.5 feet. While I appreciate the problems of flooding arising during storms which would create floods of the elevation of the maximum observed line, or greater, to the land situate to the east of the subject lands I do not foresee any significant concerns by way of isolation of the subject lands.

Accordingly I am of the opinion that the permission requested should be granted and upon receipt of evidence that the appellant has entered into an agreement with the respondent that,

  1. the appellant will indemnify and save harmless the respondent, the Town of Dunnville and the Crown from any claim or cause of action arising by reason of or resulting from the issue of permission;
  2. no claim will be made against the respondent, the Town of Dunnville, the Crown or any body administering flood relief in respect of any damage to the subject lands or any building or chattel thereon caused by or resulting from flooding or arising by reason of or resulting from the issue of permission;
  3. any agreement of sale of the subject lands shall require the purchaser to enter into a similar agreement with the respondent, including a covenant to obtain a similar covenant in any agreement of sale the purchaser may make; and
  4. the agreement may be registered in the land registry office and will be deemed to run with the land,

an order will issue granting the permission sought subject to the conditions respecting floodproofing requirements recommended by Professor McBean. The order will provide that no costs shall be payble by either of the parties.

Dated this 21st day of February, 1978.

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