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 construct an apartment building on lots 10 and 11, Plan 33A, Block 7, in the Village of Grand Valley, in the County of Dufferin.

Between:

Elizabeth G. Vanderzwaag
Appellant

and

Grand River Conservation Authority
Respondent

W. W. Stutz for the appellant.
J. M. Harris for the respondent.

Peter Vanderzwaag of R.R.#2, Grand Valley, Ontario applied to the respondent on July 15, 1976 for permission under clause a of section 3 of Ontario Regulation 356/74 to construct an apartment building on lots 9 and 10, Plan 33A, in Block 7 in the Village of Grand Valley. This provision reads as follows:

3. Subject to section 4, no person shall,

(a) construct any buildings 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 provides for the granting of permission if in the opinion of the respondent the construction does not affect the control of flooding or pollution or the conservation of lands.

Following a hearing before the executive committee of the respondent on August 27, 1976, the application was refused and Mr. Vanderzwaag appealed to the Minister of Natural Resources under the provisions contained in subsection 2c of section 27 of The Conservation Authorities Act, as amended by The Conservation Authorities Amendment Act, 1973, c.98, s.8(4). By Ontario Regulation 872/76 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner and the appeal was heard in Toronto on January 13, 1977.

At the outset of the hearing it was pointed out by the tribunal that the court reporter, who was not an employee of the tribunal, had failed to appear. Both counsel agreed to the evidence being recorded on equipment of the tribunal.

At the beginning of the presentation of the appellant's case counsel for the appellant moved that two amendments be made to the style of cause. He pointed out that the lot numbers mentioned in the style of cause and in the notice of the appeal were incorrect and that the proper lot numbers were 10 and 11. He also moved that the appellant be changed to Elizabeth G. Vanderzwaag as she was the sole owner of the lots. There being no objections to this motion the motion was granted and the amendments to the style of cause were made.

The Vanderzwaags have lived in Grand Valley since 1960. In July, 1973 Mrs. Vanderzwaag obtained title to lots 9, 10 and 11, Block 7, on Plan 33A in the Village of Grand Valley, from The Director, The Veterans' Land Act, having acquired the interest of a veteran under his agreement with The Director. A house was erected on Lot 9 at the time of purchase and this lot was subsequently sold. During her cross-examination Mrs. Vanderzwaag indicated that she was aware that there have on occasion been floods of the area. She pointed out that these were in the nature of spring runoffs and that the water remained on the property for short periods not in excess of twenty-four hours. During her experience there had been no need for evacuation of the residences in the village or in the area of the subject lands. She could recall that a number of years ago there was an ice jam that had caused flooding of the subject lands. She was not aware of the depth of the water on this occasion.

Mr. Vanderzwaag gave evidence. He has been in the real estate business since 1968 and has been licenced since 1971. The subject lands were acquired in 1973 for the purpose of a future investment. It was intended that an apartment building might be erected on the premises. The proposal was that the first floor be the basement but be constructed at ground level and be used for storage and laundry. Above this floor there would be two stories of living quarters with four units on each floor. The plan submitted with the application indicated that the proposed building would measure thirty feet by seventy feet. It also indicated that a depth of fill of five feet would be placed at the sides of the basement for a distance of approximately five feet therefrom. Mr. Vanderzwaag indicated that this amount of fill could be reduced to three feet in his opinion and that the purpose for placing the fill was to have some protection in the event of flooding and to provide insulation for the first floor.

The Vanderzwaags were not ready to start construction at the time of purchase and in 1974 they applied to the building inspector for a building permit. There was no need to obtain permission for a septic tank as a sewer location was in the near vicinity. It was realized that a permit from the Ministry of Transportation and Communications would be necessary as the subject lands fronted on Highway 25. Mr. Vanderzwaag was also aware of rumoured changes in the highway and he corresponded with the Ministry of Transportation and Communications to determine the elevation of the new road in the event it were reconstructed and was advised that the elevation of the new roadway would be 1,488 feet above sea level. He made an inquiry to the engineering firm of Triton Engineering Services Limited of Orangeville, hereinafter referred to as "Triton", who advised him that the elevations of his property were 1,481.5 feet near the highway and 1,484.9 feet at the back. The average elevation was 1,483 feet.

Mr. Vanderzwaag was also aware that there were difficulties regarding the zoning. Although the subject lands were currently zoned residential a by-law had been passed and was awaiting approval of the Ontario Municipal Board which would place the subject lands in the development zone. This was a type of holding zoning and has the result that no building can be erected on the property until the zoning is changed. He made an application to the council of the village and the council indicated that it was prepared to change the zoning on the subject lands to permit the erection of a multiple unit dwelling or an apartment house. Unfortunately, the resolution of the township referred to the incorrect lots. According to Mr. Vanderzwaag the Ontario Municipal Board was holding a hearing on the day of the hearing of this appeal and the proposal was to pass the amending by-law after the by-law obtained the approval of the Ontario Municipal Board.

Mr. Vanderzwaag admitted that there had been flooding of the subject lands in the past. According to his evidence there was flooding of at least two feet. He indicated that there was more flooding in recent years and that part of the flooding had been caused by the construction of a sewer outlet into the Grand River by the Ontario Water Resources Commission. This sewer crosses Lot 12 which was the lot to the south of the subject lands and entered the river creating a sort of dam. Mr. Vanderzwaag is of the opinion that if Highway 25 were raised by an additional 7 feet that there could be no future problems of flooding of his lands.

The witness also gave evidence as a real estate broker of the value of the subject lands. In his opinion if the subject lands could be put to their highest potential use they would be worth $30,000 as a site for an apartment building. If a permit to build were not available the only value of the lots would be the amount that an adjacent owner would pay for the lots as an addition to his dwelling and on this basis would bring only a nominal price.

Although no survey of the subject lands was provided the subject lands appear to be composed of two lots, 66 feet in width, lying between Emma Street and Highway 25. The northern limit of Lot 10 is 184 feet in length. The south limit of Lot 9 is 154 feet in length. Highway 25 lies to the east of the lots and there is a further strip of land of approximately 66 feet in width lying between the highway and the Grand River. Emma Street forms the westerly boundary of each lot and a smaller, triangular lot numbered 12 that is unoccupied, lies to the south of the subject lands. Lot 12 is a v-shaped parcel of land lying between the subject lands, Emma Street and Highway 25, which highways intersect at the southerly end of Lot 12.

Apart from two houses fronting on Highway 25 to the south, the subject lands appear to be south of the most southerly residence in the Village of Grand Valley on the west side of the river.

On cross-examination Mr. Vanderzwaag admitted that at the time he received the assurance that the council would amend the by-law it was also made plain to him that before he could obtain a building permit he would have to obtain the permission of the respondent. With reference to past flooding he admitted that there was a fairly serious flood in 1972 caused by an ice jam that occurred approximately one-quarter of a mile downstream from the subject lands at a bend in the river. He suggested that the river rose in the spring of previous years but it had not crossed the highway or flooded the subject lands in years other than 1972. He did admit however, that there was at least two feet of water on the lots and that there was ice on the front part of the lots and on Highway 25. Although Lot 10 is higher at the back or the northwest corner of the lot, he agreed that it would have been flooded with water during 1972.

He also gave evidence in cross-examination that there was a higher area to the north of the subject lands and to the north of this higher area at a bend in the river the land is low. A number of residential properties are erected in the area to the north and these houses have been in existence for approximately fifty years. Near the bend there is a new building housing a car dealership which was erected approximately three years ago and contains a four bay garage. The witness admitted that the basements of houses in this area were flooded in 1972 and that he saw water surrounding the houses and between the buildings. He indicated that the water rose as high as Emma Street at the rear of the subject lands. He admitted further that the water was moving on the property and was not moving towards the back of the property. The witness was not aware of flooding two days after the ice jam.

He further admitted that there was flooding in 1975 but that traffic drove through the/flooding of the roadway. He felt that this flooding was due to spring runoffs and was not compounded by ice jams.

With reference to the rebuilding of the highway the witness indicated that his understanding was that the reconstruction of the highway had been authorized by the Ministry of Transportation and Communications but that the respondent had objected to the raising of the road by seven feet as was proposed. He further agreed that such an embankment if erected would not protect his lands as there is a low area to the north through which water from the river could flood and reach the subject lands.

On inquiry of the tribunal the witness indicated that while he had consulted with Triton he had not discussed with its engineers any methods of dealing with the flooding problems associated with the subject lands.

As part of the evidence for the respondent counsel proposed to show a short motion film. The production of this film was objected to on the grounds that it was not relevant and was highly prejudicial to the appellant's position. The film was viewed with the understanding that the weight of the film would be carefully assessed. In passing it may be noted that the film established little more than the facts that had been admitted by Mr. Vanderzwaag on his cross-examination. The film revealed the extent of water and the existence of ice flows on the property and these matters had been admitted by Mr. Vanderzwaag.

The evidence for the respondents consisted of evidence of Charles William Stevens, a professional engineer, who is the Operations Engineer for the respondent and who has been experienced in hydrology since his graduation in 1971. This witness had personal knowledge of the flood on April 16, 1972. On that occasion he was required to attend at the Village of Grand Valley and observe flooding conditions. It was during this period of time that the film was taken. At this time the Grand River was choked with ice. It had risen and overflowed its banks. Ice cakes were littering, the village. The main jam was one mile south of the village. Water had backed up completely through the village and in places there were several feet of water over the streets.

The witness indicated that he played a role in respect of observing the dynamiting of the ice jams. He pointed out that dynamiting has two basic dangers. Firstly, there is the danger to the person carrying out the operation. The dynamite must be placed below the ice in order that the ice can be broken up. Secondly, the dynamiting may not be effective and if there is not sufficient water to disperse the ice it may create a further jam downstream causing damage where damage might not have otherwise occurred. Reference was made to an ice jam that occurred in 1948 as reported in a report of the secretary treasurer of the Grand River Conservation Commission, Mr. E. F. Roberts. The production of this report was objected to but it was admitted on the grounds that the provisions of The Statutory Powers and Procedure Act, 1971 permit the admission of heresay. In this regard I might point out that it is not an easy matter to obtain historical data on the past degrees of flooding and it is only where proper gauges have been installed that adequate readings can be taken. However, the significance of these readings is not in the facts that they prove in themselves but in the support that they provide in connection with the calculation of the regional flood line and the flows of a regional flood. They provide in effect supporting evidence for the establishment of the regional flood line.

The witness Stevens gave evidence that in April, 1972 on the second day following the ice jam there was a more serious flood than had resulted from the ice jam. Exhibit 12 was an aerial photograph showing the extent of the flooding of the area and more specifically showing the subject lands. There appeared to be flooding back to Emma street in the area north of the subject lands and the subject lands appeared to be covered with large pieces of ice. In the witness's opinion the aerial photograph indicates that the area has been recently flooded and had been extensively flooded. The witness indicated that it was established that the flow of the river in Grand Valley on April 18, 1972 was 11,400 cfs. The significance of this flow is its support for a study recently being conducted on behalf of the respondent by Triton. Triton was engaged in 1976 to perform a flood line mapping study of the portion of the Grand River in the vicinity of Grand Valley showing contours and elevations at two foot intervals.

Exhibit 5 shows a number of cross-sections taken by Triton in the study and the cross-section identified as No. 98 appears to run in an easterly direction across the flood plain at the northerly edge of the subject lands. The witness indicated that a cross-section numbered 97, not shown on the exhibit, had been also run a short distance south of the subject lands. Illustrated on the exhibit were four coloured lines in distinguishing colours lettered A, B, C and D. The red line which was lettered "A" represents Triton's calculations of the regional flood line determined by applying the principles of the definition of the regional flood contained in Ontario Regulation 356/74 to the various cross-sections. In so doing the flow of the river was determined by an application of the principles contained in the regulation and it was concluded that the flow during a regional storm would be 27,000 cfs.

The other three lines are calculations of the elevations to which a variety of flows have been applied. The blue line, lettered "B", represented a flow of 18,000 cfs. which flow was established by the records of the respondent as the flow during the 1947 flood. The yellow line, lettered "C", was calculated from a flow of 12,000 cfs. which was the recorded flow during the 1948 flood. The green line, lettered "D", was calculated from a flow of 9,000 cfs. which was chosen as a representative flow for floods in some of the high years but not necessarily the highest year.

The following table illustrates the calculated elevations at the two cross-sections in respect of the four flows:

Line Flow (cfs.) Elevation at Cross-section 97 (feet above sea level) Elevation at Cross-section 98 (feet above sea level)
A 27,000 1,492.66 1,493.06
B 18,000 1,490.40 1,490.77
C 12,000 1,488.93 1,489.20
C 9,000 1,487.9 1,488.03

In addition to actual reports of the respondent and its predecessors respecting the elevations the witness had referred to reports of the federal government produced in 1974 by the Inland Waters Directorate of the Water Resources Branch of Environment Canada. This report, entitled "Historical Stream Flow Summary - Ontario to 1973", dealt with three gauges on the Grand River and the witness had prepared a table of the flows of the river in Grand Valley for the period 1914 to 1923 and 1948 to 1975. These figures showed flows in the years 1947, 1948, 1972, 1975, 1950, 1954 and probably 1917 which would cause serious flooding of the subject lands.

By way of illustration of the problems that result from building in the flood plain the witness indicated that there are a number of areas of concern. Firstly, the building to be erected would be subject to future flood damage and the owners would undoubtedly request protection by the public authorities which does not now exist in this area. Secondly, there is danger to the lives of human beings living in the flood plain. Thirdly, there is the cost of relief work that arises during and as a result of floods. The witness also referred to the compounding of flooding problems by the utilization of the storage capacity of the flood plain or by the new structure acting as a barrier to the river flow. Such obstructions tend to reduce the capacity of the channel of the river and to increase the flow upstream.

With reference to the policy of the respondent the witness indicated that it was the policy of the respondent that while it might permit, subject to severe restrictions, development in the area between the maximum observed flood line and the regional flood line it was the policy of the respondent to permit no development below the elevation known as the maximum observed flood line.

With reference to the obstruction of the channel by the building and the fill that was proposed around the building, the witness was of the opinion that the obstruction would create a serious effect on property upstream. In his view it would create a significant obstruction to the flow and would change the channel capacity in such a way as to effect the flows upstream. He did admit, however, that there would be no problem from ice jams between the buildings.

The witness indicated that on September 29, 1975 the respondent had objected to the 1975 by-law of the village of Grand Valley. The objection was that lots in areas that were flooded in the 1972 flood, which areas were proposed to be zoned as OSC (Open Space Conservation), and on which lots residences are erected, are excluded from the OSC zoning and are zoned as residential. It was submitted that such exceptions ought not to be made with the result that the existing use might be dealt with as a non-conforming use but any changes in use should be subject to the zoning of the area in which the lot was situate. The current position of the respondent at the hearing before the Ontario Municipal Board was understood to be that this approach was being enlarged to include all the lands below the regional flood line.

It was suggested to the witness on cross-examination that steps taken since the 1947 flood such as the construction of the Luther Darn in 1952 should have reduced the flood problems. The witness pointed out that the major purpose of the Luther Darn was the retention of water for summer release. With reference to future proposals the witness indicated that the terms of reference of Triton were to study flood protective works. The witness pointed out that, assuming there was a recommendation for protective works, the construction of such works would not take place for many years. With reference to his comments respecting flood relief and similar matters the witness admitted that he was not aware of any such expenses in the past. He did point out that it has been a recent policy to institute programs that provide some relief in such cases. The witness also was not aware of any loss of life that had occurred in the past. However, he was concerned that there was a potential danger to health particularly if the result of the interference with the storage capacity would result in flooding extending into the sewage disposal plant which is situate on the westerly side of Emma Street.

The witness indicated that he had not caused to be done a computation of the effect of the loss of storage capacity that would result as a result of the proposed construction of an apartment building. However, on inquiry of the tribunal he expressed the opinion that there would be a significant reduction of the storage capacity and an increased risk of flooding of upstream properties.

One interesting point raised on the cross-examination was whether there has been any policy to establish compensation for purchasers of land in flood plains who have been victimized by the sellers of such lands. The witness compared the situation to a change in the zoning laws where there is no compensation to landowners.

On re-examination the witness indicated that his concern with respect to expenses, injuries, loss of life and similar matters were related to future situations which would be more serious than they now are in the event the proposed building were permitted to be constructed.

The argument of counsel for the appellant was that his client had acquired the two lots in good faith in 1973 and after having complied with all the laws of which she was aware suddenly in 1975 she was faced with a new regulation of the respondent prohibiting her from carrying out the plans that she had had for a period of two years. The end result was that his client was left with two useless pieces of property.

With reference to the refusal of her application he suggested that the four grounds listed by the respondent in its notice to the appellant were merely speculative anticipations of problems that might arise and that there was no evidence to establish that any of the matters such as victimization of purchasers, public expenditure, property damage, or loss of life had ever occurred in the area. He further suggested that the regional flood line was one third higher than any known flood line and that the requirements of the regulation are excessive. His summation was that the respondent had by its regulations reduced the $30,000 value of the subject lands to a negligible value.

Counsel for the respondent pointed out that the evidence indicates that there has been established a definite history of flooding in the years 1972, 1947, 1948 and lesser flooding in other years. He emphasized the problems resulting from ice jams in the river and the compounding of damage in the event the proposed structure were permitted. He also emphasized that the policy of the respondent has been to not permit development below the maximum observed flood line and that there was adequate admission that the subject lands had been flooded with several feet of water in the past. He also indicated that there were no preventative measures which would tend to alleviate the hazards in conjunction with the proposed construction. With reference to the by-law of the municipality he suggested that there is a strong possibility that the lands could still be rezoned in such a manner as to prevent the construction proposed and if the lands were zoned into the category OSC (Open Space Conservation) as was requested by the respondent before the Ontario Municipal Board, the municipality would be in a different position than if it were merely changing the category of the lands from a development zone as it now appears to be the case.

Before dealing with the merits of the appeal I wish to comment on two points. Firstly, with regard to the suggestion of counsel for the appellant that the respondent had victimized his clients, the evidence did disclose, irrelevant as it may be, that the appellant had recovered in the sale of the house on Lot 9, the capital investment on the three lots. However, more important, it must be remembered that the 1975 regulation of the respondent rep laced the regulation that was contained in the Revised Regulations of Ontario, 1970 as Regulation 121 and that the type of jurisdiction exercised by the respondent had been in effect for several years although the boundaries thereof were not as extensive as they are now. It may well be that the subject lands were controlled by the earlier regulation at the time of purchase.

Secondly it must be kept in mind that lands within the flood plain are not analogous to lands that have been zoned into a less valuable category through the zoning process. Lands in the flood plains have inherent deficiencies and short comings. It is only in recent years that these short comings have been fully investigated and have become a matter of control. I find it difficult to accept the concept that a conservation authority exercising its responsibility within a regional flood plain is victimizing any landowners therein. It is becoming more apparent to this tribunal that an endorsement of a municipal by-law is not necessarily a sound basis for refusing an application under The Conservation Authorities Act or a regulation made thereunder. Ideally as it may be to have consistency between the laws of a municipality and the conservation authority having jurisdiction over the land I n the municipality there undoubtedly are occasions on which an exception should be made to the prohibition contained in a regulation under The Conservation Authorities Act and if a landowner brings himself within such exception, on a consideration of the principles applicable, it would seem most unfair to withhold permission pending an amendment of the by-law. In such cases the landowner might find himself in the proverbial chicken-egg situation where neither the conservation authority or the municipality would take the necessary action until the other acted. However, in this case it is fairly apparent that the municipality should give consideration to the further representations of the respondent as the scientific study of the situation is subsequent to the date of the passing of the by-law.

Turning to the merits of the application it is noted that the elevation of the subject lands varies from 1,481.5 feet to 1,484.9 feet. The average elevation according to the evidence of the applicant was 1,483.5 feet. This elevation is consistent with the evidence of the respondent. The contours shown on Exhibit 5 are 1,482 and 1,484 feet. Comparing this elevation with the elevations of a regional flood there would be approximately 10 feet of flood waters covering the subject lands during the period of a regional flood. I have no alternative but to accept the computations of the engineer for the respondent as to these elevations and as to the calculation of the flows that would result from a regional storm as defined in the regulations.

In a situation analogous to the situation that occurred in the 1974 flood there would be approximately eight to nine feet of water on the subject lands. Similarly in the 1948 flood there would have been approximately seven to eight feet of water on the subject lands and even in a high year as contrasted with an extreme year there would have been from three to seven and one-half feet of water over the subject lands. It is also apparent from the evidence that in 1972 when the waters on the second day following the ice jam reached a flow of 11,000 cfs there must have been a considerable depth of water. The evidence of Mr. Stevens was that the levels were much higher on the second day and by the admission of the appellant the waters were at least two feet on the day of the ice jam. It is also interesting to note that by his own evidence the northwest corner of the subject lands was flooded in 1972 and having regard to the elevations given in his evidence, there would have been at least three and four-tenths feet of water on the lower part of the subject lands. Also the aerial photograph (Exhibit 12) indicates there was or had been water on the west side of Emma Street at that time, which water was or had been very close to the sewage plant.

The present case does not fall within any of the presently accepted exceptions. There is no element of public necessity. There is no application of the stage storage doctrine or any other proposal to deal with the risks of flooding. It is apparent that there is a history of serious flooding and in the event of a regional storm the land would be subject to ten feet of water with the inherent risk of damage to the proposed structure, injury to the occupants of the proposed structures and the increased risks to the upstream properties resulting from the constriction of the channel flow by the inserting of a large building and accompanying fill therein. The reasonably expected results of such a storm would be the matters stated by the respondent in its reasons and I cannot conclude that the decision of the respondent was wrong.

It is order 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 9th day of February, 1977.

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