The Mining and Lands Commissioner

In the matter of the Conservation Authorities Act

In the matter of

An appeal against the refusal to issue permission to erect a subdivision of thirty single dwelling units on lots 2 to 30, Registered Plan 573, in the City of Brantford, in the County of Brant.

Between:

Eyrie Estates
Appellant

and

Grand River Conservation Authority
Respondent

B. T. Pennell for the appellant.
J. M. Harris for the respondent.

Eyrie Estates, a partnership of ten persons owning lots 2 to 30 on Plan 573 in the City of Brantford, appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission under Ontario Regulation 356/74, a regulation made by the respondent under The Conservation Authorities Act, to erect a single family dwelling on each of the lots. The power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner by Ontario Regulation 783/76. The appeal was heard in Toronto.

Clause a of section 3 of Ontario Regulation 356/74 reads as follows:

3. Subject to section 4, no person shall,

(a) construct any building or structure or permit any building or structure to be constructed in or on 'a pond or swamp or in any area susceptible to flooding during a regional storm;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 4 of the regulation provides for the issue of permission by the respondent where it is of the opinion that the filling or construction will not affect the control of flooding or pollution or the conservation of land.

Eyrie Estates was formed for the purpose of acquiring the subject lands, which were acquired in April, 1974. The partners were aware that consideration was being given to the construction of a dyke at a location southerly of the subject lands, or in other words, between them and the Grand River and they withheld proceeding with plans for development of the site. However, the dyke project did not materialize and in June, 1976, Eyrie Estates formally applied for permission to construct the single family dwellings on the subject lands. The appellant, appreciating that the lands lay below the regional flood line of the Grand River, engaged J. H. Cohoon, a professional engineer with considerable experience in drainage and related work, to prepare a proposal for the grading and filling of the subject lands which involved the placing of 19,000 cubic yards of fill on the lands. It appeared from the evidence of Cohoon that this proposal was to place this quantity of fill on the subdivision for the purpose of bringing the elevations of the openings in the basements to a level above the regional flood line and to grade the fill toward the front and the back of each individual lot in order that the principle known as "split grading" could be applied to permit runoff to be gathered in catch basins in the rear of the lots as well as along the streets. In his proposal Cohoon adopted the elevation of approximately 657 feet as the regional flood line which is the elevation adopted by the respondent for the area.

The subdivision lies easterly of Erie Avenue and northerly of Fifth Avenue. The northerly boundary of the subdivision is Seventh Avenue. Although there is a sixth Avenue, it does not appear to cross the subdivision. At the easterly end of the subdivision there are a number of one storey and two storey buildings which contain single and multiple unit residential dwellings. These buildings face on Whitehead Street that runs in a general northerly direction.

By way of general description of the area, on the lands to the west of Erie Avenue opposite the subject lands there is situate the buildings of the Brant County Board of Education including a school and other buildings. To the north of the subdivision there is a church and a school associated with the church. A single storey bungalow is erected on Lot 1 which is at the intersection of Erie Avenue and Fifth Avenue. The land south of Fifth Avenue appears to be farmland with the exception of a row of houses of varying ages erected along the easterly side of Erie Avenue and one or two buildings on the south side of Fifth Avenue situate to the east of the row of houses on Erie Avenue. A substantial portion of the area south of Fifth Avenue appears to be a field. The land to the west of the County Board's property is farmland. Easterly of Whitehead Street there appears to be a residential section extending northerly. However, there is no residence in the north part of the block of which the subdivision forms a part with the exception of one or two houses beside the church which also is situate in the block. The street at the northerly edge of this block appears to be Ninth Avenue.

With the exception of a few older residences on Birkett Lane the area to the south is farmland or flood plain that is not built up. Generally speaking however, the area south of Ninth Avenue and westerly of White head Street is an area of institutional or commercial occupation except for the residences along Erie Avenue and Burkett Lane.

There was some conflict in the evidence as to whether the subdivision was equipped with sewers. The engineer of the appellant understood that there was a 42-inch trunk sanitary sewer constructed along Fifth Avenue and that it would be available for servicing the subdivision. In addition, there was a sanitary sewer in the northeast quadrant of the subdivision.

With reference to the trunk sewer Wayne Douglas Wood, a professional engineer employed by the City of Brantford since 1970, gave evidence that the trunk sewer along Fifth Avenue had been covered with only three to five feet of cover and accordingly, connections could not be made to this sewer for houses in the proposed development. In addition, the sewer was not finally connected to the sewage treatment plant. A new outlet into the sewage treatment plant is required and subject to financing this project may commence shortly. However, the significant problem is that the trunk sewer is not constructed at a level that would permit the connection of houses on the subject lands. The original purpose of the trunk sewer was to service lands to the west of the Grand River and not to service lands east of the Grand River.

With reference to the sewer at the northeasterly area of the subject lands and its suitability for the use of the subject lands, counsel for the appellant asked Wood if this sewer was working. This witness indicated in the affirmative. However, counsel for the appellant did not ask whether the sewer was capable of servicing an additional subdivision and in this regard I am left with some doubt as to the adequacy of the existing sewage system. I can only conclude that the existing sewage system was not designed to service the subject lands.

With reference to the official plan and zoning by-laws of the City of Brantford there is no dispute that the proposal fell within the by-law which has been in effect for some twenty-five years. However, the current policy of the city has been to withhold the issue of building permits in an area south of the line shown on a plan that was filed as Exhibit 13 and which encompasses the subject lands. It was also given in evidence that the city and the planning board for the city have been considering for some years the revision of the official plan and of course the corresponding zoning by-laws but at the moment this legislative function has not been exercised. In this regard it was the evidence of the witness Wood that the city would not support the present application.

Following the 1974 flood the city and the respondent have considered the matter of dyking for the city and the flood plains in the city. The evidence of the witness wood was that the city requested the respondent to prepare and submit a draft proposal. The city regards this proposal as both preliminary and for discussion purposes only. Generally speaking the proposal involves the strengthening of the dykes in the north and central part of the city and the construction of a dyke in the south part of the city. The consulting engineer has proposed two locations for such a dyke, both of which encompass the subject lands. However, there are many decisions to be made, including financing and obtaining of provincial approval and assuming that the project as recommended were proceeded with, the timing of the construction of the dyke in the south part of the city is several years away. It would be necessary to stage such a project and such staging should follow the flow of the river with the northerly areas being dealt with first. Otherwise in the event of a recurrence of a storm of the seriousness of the flood of 1974 or even a more serious flood, the northerly areas might again create hazards to the adjacent and southerly lands. During the 1974 flood the lands lying southerly of the part of the dyke that was breached were flooded by reason of the holding of the dyke south of the part that was breached, with the result that the flood waters were unable to escape and caused additional damage.

The witness Wood indicated that there are three major concerns regarding the construction of dykes. The first concern was the capital cost. The second concern was the continuing maintenance cost and the third is the reliability of dykes. He pointed out that it is necessary to have extensive inspection of dykes. Burrowing types of rodents often cause weaknesses in the dykes which at a time of emergency lead to breaches in the dyke. With reference to the policy associated with the dyke the witness was of the opinion that the policy of the city was not to construct dykes for the purpose of permitting new development behind the dykes. The purpose was to protect existing development and from the planning point of view the proposal was to zone undeveloped areas behind the dykes as hazard lands.

With reference to the susceptability of the subject lands to flooding the area was clearly below the regional flood line of the Grand River for the area. The elevation of the regional flood line was not disputed and was agreed to be 656.6 feet. This line is approximately 2,000 feet northerly of the subject lands. It was also apparent that the subject lands are below the maximum observed flood line either in whole or in part. Part of the dispute regarding this issue may relate to the fact that the appellant, after acquiring the land, permitted some filling to be done on the lands which may reflect a higher elevation at the present time than occurred or existed during the May 1974 flood.

The evidence of the witness Wood indicated that he had been in the vicinity of the subject lands on three occasions during the 1974 flood. Admittedly, his responsibilities were related to the property of the school board but he made a notation of the elevation of the flooding within an hour of the time of peaking. This elevation was subsequently established by an Ontario land surveyor as being 652.49 feet. The witness Iezzi, one of the partners, was out of town during this flooding.

William Eric Lemp, the Director of Planning of the respondent, gave evidence indicating the extent of the maximum observed flood line. This line was illustrated as a green line on Exhibit 6 and this green line was drawn in a southeasterly northwesterly direction cutting across the northeasterly corner of the subject lands. The respondent has adopted the elevation of 651.2 feet as the maximum observed flood line. This has been based on a flow of 61,000 cfs and supported with spot evidence of staff officials and other witnesses in connection with flooding during the 1974 flood.

Exhibit 15 was an enlargement of an aerial photograph that appeared in the report of His Honour Judge Leach. It was taken at 7 a.m. on May 18, 1974 approximately seven hours after the peak was reached. The witness indicated that at 7 a.m. the flow was 40,000 cfs or two-thirds of the peak flow that was established at midnight and it would be expected that the elevation at 7 a.m. would be lower than the elevation at the time of the peak of the flow. On cross-examination the witness admitted that the photograph may not fully illustrate that all of the subject lands were covered and that there may be parts that were not actually covered with water at 7 a.m. The witness however, indicated that their records, photographs, and other reports show that the land was probably flooded in the years 1947, 1948, and 1954. The flow during Hurricane Hazel was between 40,000 and 50,000 cfs.

This discussion of the maximum observed flood line leads to a discussion of the policy of the respondent in respect of lands lying between the maximum observed flood line and the regional flood line. It was established in evidence and was fairly well known locally that it was the policy of the respondent to permit residential building by way of infilling subject to conditions in the area between the maximum observed flood line and the regional flood line. It may be observed that only a small portion of the subject lands falls within this category, mainly the northeasterly tip which may encompass part of one lot on the subdivision, i.e. Lot 19. Cohoon in his evidence indicated that, in his opinion, the construction of residences on a thirty lot subdivision on one lot of which a house has been constructed and bounded on the east by existing residential construction constituted infilling. The view of the witness Wood was that infilling contemplated the use of one or two lots where the balance of the lots on a street were utilized. The witness Lemp did not consider the application to fall within the concept of infilling. His reason related to a small number of lots being involved for an application to be considered as one of infilling. It is interesting to note that on cross-examination he indicated that he might have recommended the approval of the issue of a permit for an application on Lot 19.

With reference to a dyke the evidence of the witness Lemp was that the construction of a dyke was at a very preliminary planning stage. There has been no consultation with landowners respecting the acceptability of dykes. Even if adopted the proposals may be amended with a number of changes in the alignment of the proposed dyke. There are difficulties of funding with indications that the province would only fund a dyke with the shortest possible route. The alignment is not fixed.

The witness indicated that there are two issues related to dykes. Firstly, the areas "protected" or situate behind dykes are considered to be subject to flooding hazards. The dykes can be over-topped or ruptured. If this occurs a worse situation results than if natural flooding had been permitted to occur. With natural flooding there is a gradual raising of the water but in the event of overtopping or rupture there is an instant flood with little warning. The existence of a dyke creates in the landowners behind the dyke an undue feeling of adequate protection and undue reliance is placed on the existence of the dyke.

Secondly, the policy in respect of the dyke is that such dykes are erected for the protection of existing development. This is illustrated by the terms of reference in connection with the study for the dyke. In the witness's opinion the area behind the dykes remains a hazard area and in the event of a future erection of a dyke, the policy would be to permit only development in the nature of infilling. It is not the intention to provide for large scale extensive development.

To illustrate the ratio of claims in respect of residential property and other properties in flooding situations the witness temp gave the following figures respecting claims in respect of land in Brantford as a result of the 1974 flood:

Total Claims: $429,958.77

Total Payments By the Province: $277,733.77

Claims by Small Businesses: $79,206

Claims by Churches and Clubs: $120.

Claims by Residences: $206,340.57

With reference to the question of interference of channel capacity the witness temp stated that, admitting that the 19,000 cubic yards would only affect the depth of water in a regional flood by one-sixteenth of an inch the concern of the respondent is the cumulative affect if a similar amount of fill were placed on all property below the regional flood line. In the reply evidence the witness Cohoon referred to a meeting on July 15, 1976 that he and Iezzi held with John Beavis, the Planning Director for the City of Brantford. Cohoon's memory of this meeting was that he had been told by Beavis that a townhouse development would be acceptable and considered as infilling and not a new development. While I have no reason to doubt the accuracy of Cohoon's evidence or his memory, it is difficult to determine, in the absence of Beavis as a witness, the issues to which he had directed his mind on that occasion.

Counsel for the appellant stated that there were two basic points to his argument. The first point was whether the proposal constituted infilling as distinguished from new development. The second point was whether there is sufficient validity to the green line on Exhibit 6 and the effect that should be given to the maximum observed flood line as established by the respondent. With reference to the first point he submitted that the registered plan of subdivision as such fell within the doctrine of infilling. He supported this view by the evidence that indicated that there is development in the area with residential development on the north and on the east of the subject lands. On the west and on the south he referred to the buildings of the Board of Education, buildings along Fifth Avenue and the building on Lot 1 of the plan of subdivision. He also supported this argument by the evidence that the land was serviced and was zoned in a manner that would permit the erection of single family residences.

Counsel for the respondent admitted that his client has a policy of allowing the erection of new residential buildings on an infilling exception. This exception was limited in two general ways. Firstly, the exception was limited geographically and was applied only between the regional flood line and the maximum observed flood line. In this regard the subject lands with a small exception are below the maximum observed flood line. Secondly, when the exception is applied it is coupled with stringent conditions, such as the raising of openings above the regional flood line, the installation of services above such line and the execution of an indemnity agreement. In his submission the proposal was not infilling but was a new development.

This tribunal is not aware of any art adopting the term "infilling". The respective engineers placed their own interpretation on the word and each interpretation, understandably enough in the absence of any recognized definition of the term, was capable of application to the position that was being supported. It may be observed that in the absence of any scientific specialty, the word should be related to its use. It is used as a concept in the policy of the respondent and the city and by reason of their adoption of the term, considerable weight ought to be given to the understanding of the term by these bodies as evidenced by their professional staff. The matter being one of policy and not law, as would be the case if the term were used in a by-law, statute or regulation, who is better to define the term than the representatives of those two bodies?

Notwithstanding the last comment, an examination of older dictionaries to determine a common and ordinary meaning of the word fails to reveal a listing of the word. However, in Webster's Third New International Dictionary the verb "infill" is defined as "to fill in (fractures.....broadened by ice growth within them ..... and then infilled from above as the ice melted)". That dictionary defines the noun "infilling" as "material used (as in building) to fill in space between structural members (steel skeleton with an infilling of brickwork)."

The meaning as a noun is technical and in its technicality is not applicable to the considerations of this case. However, it might be argued on behalf of the appellant to provide some basis of analogy in that it might be said that all that is required to exist is a skeleton and that the houses along Erie Avenue and Fifth Avenue form an outer skeleton that can be filled in. It must be noted however that Fifth Avenue is not completely built up. From the aerial photograph there appears to be at most four buildings on the south side of this street. One of these appears to be a set of farm buildings set back from the street some distance. A second building appears to be a house that really fronts on Erie Avenue. The evidence of Wood indicated that there is a small factory and perhaps another house. It is apparent from the photograph that this building is not related to a skeleton residential development of the subject lands but is more consistent with farming use, industrial use and strip housing development along Erie Avenue.

The meaning as a verb is more indicative of the meaning argued on behalf of the respondent. The example contemplates a whole with subsequently created fractures. In my opinion the common and ordinary meaning of the term denotes a situation where a substantial portion of the given area has been developed and vacant, isolated lots are considered on a basis that the area has been developed to such a degree that the application of a control program to the area ceases to be meaningful. In this case such a degree of development has not occurred and there is, in respect of the subject lands, a purposeful application of the prohibition of the regulation.

Mr. Pennell's second point was a critical analysis of the green line on Exhibit 6 or in effect the respondent's determination of the maximum observed flood line. Unfortunately for the appellant, a southerly movement of this line to exclude the subject land from the area within the portion of the flood plain below the maximum observed flood line would accomplish little unless a principle of infilling or" some other principle were applicable to lands in the flood plain that are above such line. Counsel emphasized the variations in the elevations of approximately one foot according to the several calculations for the purpose of casting doubt on the question of whether the subject lands were wholly covered with water during the 1974 flood. He suggested that there had been a change in the topography since the photography on which the flood plain was based was taken. He referred to filling on the land after the purchase and filling permitted on other areas. He pointed out that if the estimated elevation of Lemp of 651.2 feet for the 1974 flood were accepted as the maximum observed flood line a number of the lots would be north of the green line.

On the other hand if one were to accept the evidence of Wood that the measured elevation of the 1974 flood was 652.49 feet the entire subdivision would be affected by water as the appellant's engineer fixed the highest elevation of the subject lands at 652.5 feet. The aerial photograph taken on the day following the peak shows water in the general area of the subject lands if not entirely over it. However, these variations are not the significant concern in this case. The real or significant concern is the regional flood line which is at 656.6 feet.

An examination of Exhibit 10 which was a grade elevation of the proposed fill indicates that fill will be placed in the vicinity of the proposed houses and that the openings would be above the elevation of the fill. Two concerns arise from this proposal. Firstly, it is apparent that in a regional flood, the occupants of the houses would be protected if they remained in the houses. However, there would be water to depths of from four to six and one-half feet in the area surrounding the houses beyond the fill as these areas would be left at their natural elevation of from 650 to 652.5 feet. Secondly, it was not shown by the evidence whether the figure of 19,000 cubic yards includes the displacement of flood storage. As I read the evidence this figure represents the fill to be added. In addition, the storage capacity of the flood plain would be reduced by the volume of the basements below the regional storm line.

The prime concern of this tribunal is the fact that each house would be surrounded by four to six and one-half feet of water in a regional storm. As the proposed buildings are residential, it is not difficult to appreciate the risk of life that could occur, particularly to children and particularly when peaks are reached through the night. In addition, there can be no assurance that in such circumstances there would be no damage to property.

The second concern of the tribunal is the amount of displacement of the storage capacity. The flood plain is wide at the point with a substantial capacity. The result is that the engineers for the appellant concluded that the effect of the proposed fill would be negligible and at best estimates would raise the water one-sixteenth of an inch in a regional flood. The significant concern in connection with the fact of the placing of fill is its precedential implications. The argument of counsel for the appellant for a change in the location of the green line is an indication of the result of the placing of fill. As I understand his argument on that point, he submitted that changes in topography warranted a change in the location of this line. The effect of permitting the proposal would be to make it difficult to prevent the development of the field south of Fifth Avenue and subsequently all the farm land to Birkett Lane. If these lands were filled, the regional flood line for the area would increase by reason of reduction of the storage capacity and the standard of protection proposed for the subject lands would become inadequate. There are substantial areas southerly and westerly of the subject lands that would warrant consideration on a precedential basis if this application were approved and I am satisfied that there is a significant concern of this nature.

On the question of the dyke, I am not prepared to find that there is any reasonable expectation that a dyke will be constructed in sufficient time to provide a measure of protection for houses on the subject land. I have not considered whether this tribunal would adopt a policy similar to that of the respondent or the City of Brantford. It would seem however, that the experience with the existing dykes illustrates that dykes are not an assurance that the existing risks are removed and do create additional risks.

In my opinion the decision appealed from was not improper. The proposal does not remove the risks of placing residential buildings in an area that would be subject to a serious depth of flooding in a regional storm and contains real precedential implications. None of recognized exceptions are present in the case. The proposed use of the land is the use that has the greatest risk of personal injury or loss of life. There is no element of public necessity, such as road building, sewers or pipelines. There is no application of the compensating principles of the stage storage doctrine or the cut and fill principle, the latter of which is given limited application. Accordingly, the case does not fall within any recognized exception.

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 10th day of February, 1977.

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