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

In the matter of

An appeal against the refusal to issue permission to construct a single family dwelling and septic system on part of northeast half of lots 2 and 3, Concession II in the Township of Eramosa in the County of Wellington.

Between:

Brian McMullan
Appellant

and

Grand River Conservation Authority
Respondent

C. Hamilton for the appellant.
J. M. Harris for the respondent.

On April 22, 1976 the appellant applied to the respondent for permission under Ontario Regulation 356/74 to make "renovations to existing cottage for a permanent residence, a single family dwelling". Following a hearing before the executive committee of the respondent the application was refused. The appellant appealed to the Minister of Natural Resources and by Ontario Regulation 705/76 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner. The appeal was heard in Toronto on the 4th and 5th days of October, 1976.

It may be said at the outset that a great deal of the evidence that was given before this tribunal, while it was of assistance in understanding the situation in which the appellant now finds himself, was completely irrelevant to the issue before this tribunal with one exception. While another tribunal trying other issues may find such evidence relevant, and I make no comment thereon, the only significant factor arising out of the subsequent acts of the parties was the agreement of counsel for the respondent that this tribunal might consider the application to be amended to apply for permission to erect the building now in the process of erection by the appellant and if this tribunal saw fit to grant the permission on this appeal, the permission could be considered as having reference to this building. On the other hand, the appellant indicated that he would prefer to obtain a permit to enable him to use the lands for residential purposes and enlarge the building under construction to the size of the building contemplated in the original application.

The relevant sections of Ontario Regulation 356/74, a regulation made by the respondent and approved by the Lieutenant Governor in Council, are:

"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:
. . .
4. Subject to The Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land. O. Reg 356/74, s. 4."

The appellant's property is composed of part of lots 2 and in Concession II in the Township of Eramosa in the County of Wellington. It is a parcel of land fronting, according to the copy of a plan of survey filed, on the centre line of the Eramosa River which is a tributary of the Speed River which is a tributary of the Grand River. The property has approximately 210 feet of frontage along the river. The length of the northerly boundary is 253.14 feet. The length of the easterly boundary is 160.68 feet. The length of the southerly boundary is 191.44 feet. It is said to contain an area of 0.915 acres.

Along the north limit of the lot there is a road sometimes known as the Indian Trail Road and sometimes as the York Road. There is a bridge in this road at the northwest corner of the subject lands crossing the Eramosa River. In the area the river appears to curve toward the east both to the north and the south of the bridge.

The appellant is employed by the Ministry of Correctional Services as a Stationary Engineer at Maplehurst. He is married and has two children. Due to his hours of work he has a considerable amount of free time to spend with his family, to build a home and to take advantage of a recreational type of home.

On September 2, 1975, the appellant purchased the subject lands. Prior to that time he lived in a rented house in the vicinity of Milton. Prior thereto he lived in a house that he had acquired from his father. He examined the houses on the parcels of land that were for sale in the area prior to purchase of the subject property. His purpose in buying the property was to provide a home for his family. After rejecting other properties in the area and consulting with the clerk of the township as to the likelihood of obtaining building permits for his purpose he acquired this property. At that time there was situate on the property a building which can best be referred to as a cottage. It was, however, being used as a residence by a girl.

The cottage measured approximately 26 feet by 30 feet. It was believed to have been erected in 1957 or 1958. The building was supported by individual blocks located at the corners of the building. The original part of the building appeared to have been made from logs taken from the property that had been erected in a vertical manner. These logs formed the entire walls of the building. The part fronting on the lake appeared to be in the nature of a veranda and may have been erected subsequently because the siding on the veranda appears from the photographs to be of a different nature.

Following the acquisition of a building permit a garage was erected and subsequently, the appellant applied for a building permit for a residence. At this time he was informed that he required a permit from the respondent and on April 22, 1976 applied to the respondent.

The application indicated that there would be no basement and that the building to be erected would be a single family dwelling. It also indicated that there would be no proposed change in the existing grades and that all openings would be two feet above the final grade level. The sketch attached indicated that a building measuring 34 feet by 28 feet would be superimposed over the rear portion of the existing cottage. It also illustrated that a fairly extensive septic tank system would be added. There was nothing in the application to indicate the number of storeys in the proposed building. The witness's evidence was that he anticipated the construction of a building having 2,300 square feet of living space as a permanent residence.

Again without dealing with the events that led up thereto, the appellant has partially completed at the rear of the site of the cottage a chalet-type house having two' storeys and containing approximately 1,500 square feet of flood space. As indicated above I make this reference solely for the purpose of illustrating the type of building that I would have considered had I adapted the suggestion of counsel for the respondent.

In support of his appeal the respondent produced a copy of a plan of survey that had been prepared by Fred G. Cunningham. This copy showed the boundaries of the subject land. It also showed the outline of the cottage. In addition it shows the approximate location of the cement block foundation for the new house. The significant aspects of this copy of the plan were additions that had been made thereto as a result of the taking of levels. These levels were related to an assumed level of 100 feet in respect of the top of the unfinished block basement. The elevation at the centre of the bridge was 102.9 feet. The elevation of the road at the east end of the bridge and at the northwest corner of the subject property was 100.5 feet. The elevation of the water was 92 feet. The elevation of the bank varied from 92.7 to 93.4 feet. The elevations in the vicinity of the proposed building varied from 97.8 to 98.2 feet.

In addition there had been added to the plan elevations which I can only assume are on a similar basis showing the elevations of downstream properties. In this area the additions show a water elevation of 90.1 feet. The land referred to as the Thatcher property was given an elevation of 93.3 feet. The land referred to as the Blair property was given an elevation of 94.6 feet and the land referred to as the Lefavre property was shown as being at the water's edge.

The witness left me in some doubt as to the identity and hence the qualifications of the person who was responsible for taking the elevations and for endorsing them on the copy of the plan of survey. The additions were not certified by the surveyor.

The witness also referred to property situate on the west side of the river known as the Cloepher's property. This property is quite low-lying and resembles a dutch windmill. It apparently is an older building.

The witness also referred to natural spillways permitting water to flow out of the river in periods of high water, which spillways are situate to the north of his property and which would tend to drain the water to the east of his property. He also referred to a property known as the Lawrence property which was built in approximately 1933 where the house is much lower than his property.

The witness indicated before he left the box that he was prepared to sign an indemnification agreement in the event he were given permission to construct the building. His evidence indicated that he felt that this could be placed on the title and would be binding on future owners. Also this agreement would provide that the land could only be used for the purposes of a summer residence.

In support of the appellant's case Jack W. Sheehy who has lived in the area for forty years and who had walked along the road known as the Indian Trail on his way to school and had travelled the road on visits to Guelph gave evidence. He stated that in 1954 the property was used as a summer place with tents and lean-tos. In 1957 the cottage was erected using cedar trees from the lot. This witness recalled the night of Hurricane Hazel as he was driving in the storm. It was his evidence that although the river was swollen it did not cover the subject lands. He indicated that at a site 200 yards down stream the water flooded the land.

This witness also stated that the road had been rebuilt in 1961 or 1962. In summation his evidence was that he had not seen the McMullan property flooded in the last forty years. Further he was not aware of any problems concerning ice jams in the past. He felt the river was quite shallow, approximately two or three feet in depth, and there should not be a flood problem. He was satisfied that the site was a safe place for a residence for a family.

In cross-examination the witness indicated that he had seen the property on the day following Hurricane Hazel, rather than through the night. The result was that a number of rocks had been moved during the night by the river. He indicated that in his view there was a rise of two feet in the river during the Hurricane Hazel storm. This witness was not aware of any serious flooding conditions in 1950.

Counsel for the appellant produced an affidavit of one Earl Scott which indicates that during a period of seventeen years' knowledge of the area he was not aware of any serious flooding conditions.

The respondent produced the clerk of the Township of Eramosa, Mr. Lloyd Hindley, who indicated that the subject lands were zoned for agricultural use under By-law No. 25/1968 and that the proposed building of the applicant would be within the provisions of the by-law as there is an extended definition of agricultural use. The witness pointed out however, that the lands fall within the definition of hazard lands in the official plan of the Guelph and Suburban Planning Area. Hazard lands are dealt with in paragraph 4.1.4. of the official plan. The definition of hazard lands is as follows:

The Hazard Lands designation includes lands having inherent environmental hazards such as poor drainage, organic soils, flood susceptibility, erosion, steep slopes or other physical condition which leads to the deterioration or degradation of the environment.

Lands so designated are intended primarily for preservation and conservation of the natural land and/or environment. Such uses as agriculture, outdoor recreation, nursery gardening, forestry and the conservation of soil or wildlife, may be permitted. In addition, public or private parks or other outdoor recreation functions such as golf courses may also be permitted. No buildings nor the placing nor removal of fill of any kind, whether originating on the site or elsewhere shall be permitted in areas subject to periodic flooding or physical limitations of any kind except with the approval of and in accordance with the regulations of the Conservation Authority having jurisdiction.

It is recognized that the lands so designated by their nature are to be managed in such a fashion as to complement adjacent land uses and protect them from any physical hazards or their effects.

The policies in respect of hazard lands are as follows:

"(i) In the absence of more detailed floodline, swamp or valley contour mapping, the boundaries of the Hazard Lands as shown on Schedule 'A' will be used as guides for the preparation of zoning by-law provisions, which will implement the policies of this Section. When more detailed mapping become available, the Municipality will amend this Plan and the implementing zoning by-law, as required.

Building setbacks will be imposed from the margins of the Hazard Land related to the extent or severity of the hazard.

(ii) Where land designated Hazard Lands is under private ownership, this Plan does not indicate that this land will necessarily remain as such indefinitely, nor shall it be construed as implying that such areas are free and open to the general public or will be purchased by the Municipality or other public agency. An application for the redesignation of Hazard Lands for other purposes may be given due consideration by the Municipality after taking into account:

  1. the existing environmental and/or physical hazards;
  2. the potential impacts of these hazards;
  3. the proposed methods by which those impacts may be overcome in a manner consistent with accepted engineering techniques and resource management practices.

    There is no public obligation, however, either to redesignate or to purchase any land if there is an existing or potential hazard that would be difficult or costly to overcome.

(iii) Where new development is proposed on a site, part of which has physical or environmental hazards, then such hazard lands shall not necessarily be acceptable as part of the five per cent dedication for public purposes under The Planning Act. All lands dedicated to the Municipality shall be conveyed in a physical condition satisfactory to the Municipality. Where an open watercourse is involved, adequate space shall be provided for maintenance and operations.

(iv) In the implementing zoning by-law, existing uses, together with an amount of land sufficient for the siting of such uses at their present extent, shall be recognized as conforming uses despite the subsequent designation as Hazard Lands. The municipality shall discourage the expansion of any existing use beyond the limits recognized in the zoning by-law."

The witness stated that the official plan was approved on December 31, 1973 by the Minister and that the township council was in the process of amending its by-law to conform with the provisions of the official plan respecting hazard lands. He indicated that the new by-law would require that no building could be erected on hazard lands without the approval of the Grand River Conservation Authority.

Charles William Stevens, the Operations Engineer with the Authority, gave evidence on the establishment of flood elevations and flood mapping in the particular area. This area was flown by aircraft of Spartan Air Services Limited in May and June, 1963 and a print of the topographical map was filed as an exhibit at the hearing. This topographical map shows the features in the area both natural and man-made. Contours were shown on the map at five foot intervals with auxiliary contour intervals of 2.5 feet.

In 1964 Kilborn Engineering Limited made a study of the risks of flooding in the area and their determination of the regional flood line and the maximum observed flood line were added to the topographic map and shown thereon as-a dotted line in respect of the former and a heavy broken line in respect of the latter. In preparing its study Kilborn Engineering Limited did not have available any flow data on the Eramosa River. A stream gauge was erected in the Eramosa River in 1964. The engineering firm used data that was taken from gauges on the Speed River. Information was available in respect of a flood which has been classed as the maximum observed flood on the Speed River that occurred on April 4, 1950. Using engineering principles the consultants pro-rated the flow back up the river and its tributaries and adopting and using the engineering principles related to the facts as they knew them they assumed a flow for the Eramosa River and established elevations.

With reference to the part of the Eramosa River on which the McMullan property fronts the following elevations were established by the consultants:

Maximum observed flood line (calculated on 1950 flow in Speed River) -- 1,070 feet.
The bridge -- 1,073 feet.
Site of building on McMullan property -- 1,072 feet.
Land behind McMullan property -- 1,066.5 feet.
Regional Flood line -- 1,077 feet.

Stevens indicated that there was some doubt as to the adequacy of the elevations respecting the maximum observed line and the regional flood line. The witness indicated that recent calculations made by him based on a survey which will be mentioned hereinafter and revised calculations of the flow of the Speed River at Guelph and the flow of the Eramosa River as determined from a gauge that has since been erected on the Eramosa River, show that the regional flood elevation and the maximum observed flood elevation may be too low. According to his calculation the flow necessary to give a maximum observed elevation of 1,067 feet, which was the conversion of the mapping elevations of this line as verified by the Donaldson survey, would be 1,400 c.f.s. However, according to his best information the flow at the relevant time would have been in the vicinity of 1,900 c.f.s. and accordingly while there may have been some doubt thrown on the accuracy of the elevations shown in the flood mapping, and I use the word "may" advisedly or more properly inadvisedly, Stevens' evidence satisfied me that the hazards shown by the flood mapping were valid if not underestimated.

Prior to the hearing the respondent engaged Allen Bruce Donaldson, Ontario Land Surveyor, to establish the elevations of a series of points in a profile line across the flood plain. This survey did three things. Firstly, it clearly defined the elevations of the property of the appellant. Secondly, it provided a measure of assessment of the accuracy of the mapping that had been done by Spartan Air Services Limited. Thirdly, it provided a base against which certain calculations could be made by the professional staff of the respondent.

After establishing base points that could be related to the aerial photography as illustrated on the topographic map, the following measurements made by the surveyor were inscribed upon an enlargement of the topographic map:

The bridge -- 1,073.94.
Water level -- 1,062.8.
Top of bank -- 1,064.1.
Grade elevation of cottage -- 1,067.4.
Floor elevation of cottage -- 1,068.29.
Grade elevations of new foundation beginning at northwest corner and running clockwise -1,067.8, 1,069.3, 1,068.3, 1,068.5.
First floor elevations of new house -- 1,071.83.
Low area to the east of McMullan property -- 1,060.8.
Intersection with maximum observed line -- 1,066.9.
Intersection with regional flood line -- 1,073.4.

Returning to the evidence of Stevens he pointed out that the accuracy contracted for in the contour mapping was to an accuracy of two and a half feet. In this area there are a number of problems in determining elevations from aerial photography. There are dense cedar stands. The photograph relates to the crowns of these stands of trees and adjustments have to be made to determine the ground level. In addition there are swampy areas covered with water and as the photography only reaches the surface of the water, the result does not clearly portray the ground elevation which is below water.

Stevens indicated that there was a line of tolerance in the topographic mapping of approximately three feet. The question arises as to whether this was an error in the original study or in the mapping. The tolerance of accuracy in the specifications for the study reduces the concern for the issue of the accuracy of the mapping. With reference to the accuracy of the study, this tribunal questioned the witness on the result of the study and he confirmed that the significant result was not the location on the map of the regional flood line or the maximum observed line but was the determination of an elevation, a height to which the waters would be calculated to rise. There is some confirmation that the elevations determined by the original study are valid and if they are suspect it is on the side of being too low.

The reason for this conclusion is that the witness calculated from the available information, which admittedly had some shortcomings for want of data on some hydraulic issues, that to obtain a maximum observed line of 1,067 feet a flow of 1,400 c.f.s. would be required. Contrasted with this, the witness recalculated the flow at the site which was based in the original study on the flow of the Speed River at Guelph during the 1950 storm and prorated upstream. The recalculation was based on data obtained from a gauge subsequently installed on the Eramosa River and from which there is a few year's data. These calculations show a flow of 1,900 c.f.s. for the maximum observed storm. In my opinion this evidence is the most reliable evidence produced before me of the state of the McMullan property during the 1950 storm. While the witness Sheehy felt that there never had been any serious flooding of the McMullan site, the evidence also disclosed that in 1950, which was 27 years ago, the site was still in the state of nature. The cottage was not erected until 1957 or 1958 and logs from the site were used to construct the cottage. There are still a considerable number of trees on the property and it must have been that the site was in a state of nature during this storm. There is also the problem that there was no evidence of the time of peaking of this storm and the witness may not have been near the site at that moment of time. Even if he had crossed the road, it would have been difficult to see the flooding in the wooded area.

The witness Stevens indicated that this was a comparatively small watershed of approximately 56 square miles and the existing dense cedar swamps along the banks playa role in maintaining the character of slow response to flooding. Removal of such swamps would interfere with this character of the flood plain of the river. The witness was also of the opinion that there was a serious problem of ice jams on the river and in fact, a serious ice jam had occurred on the river a short distance downstream from the McMullan site in the winter of 1975-76. Similarly there are problems of backup or damming of water from debris jams in the time of flood particularly as the river flows through cedar swamps and cedars have shallow root systems that uproot easily.

With reference to the seriousness of a regional flood in the area, Stevens pointed out that a new study by Kilborn Engineering Limited has been conducted in the Guelph area. Due to increased data and a higher standard of definition of a regional storm now contained in the regulation, the regional storm flow at the confluence of the Speed and Eramosa Rivers was increased from 12,400 c.f.s. to 24,600 c.f.s. Also the regional storm flow at the Everton Dam upstream from the site has increased to 10,750 c.f.s. The end result of these changes is that there is a more significant flooding factor under regional storm conditions than was understood at the time of study in 1964.

The significant thrust of the appellant's case was that a number of properties downstream from his property and being of a comparably closer elevation to the Eramosa River, had been granted permits by the respondent. The witness Stevens discussed the implications of this apparent difference in treatment. He pointed out that in accordance with the water surface profile, based on the Kilborn study, the regional flood elevation drops by 1.6 feet per thousand feet as one goes downstream. Similarly the maximum observed elevation is decreased by 1.25 feet per thousand feet. He also pointed out that there were other natural and man-made factors that affected the regional flood line, including the constriction of the river at the bridge at the McMullan property, the widening of the stream downstream from the McMullan property and a mill pond down-stream. These factors made it impossible to conclude that the elevation of the regional storm would be at similar or comparable levels at downstream properties. It is also noted that this concept of lower elevations at the downstream properties is confirmed by the elevations shown on the copy of the Cunningham plan of survey which showed the water levels at 90.1 feet in respect of the downstream properties as contrasted with 92 feet at the McMullan site.

The dealings of the respondent with the properties suggested as comparisons were more fully outlined in the evidence of W. E. Lemp, the Director of Resources Planning of the respondent. The Lawrence and Lord properties were old residences erected prior to the establishment of the jurisdiction of the respondent. The Thatcher site for a proposed building, on inspection, was considered to be above the regional flood line and the owner was advised that no permit was necessary if the building were erected within three hundred feet of a street known as Ash Street.

With reference to the Blair property the application showed the proposed buildings to be above the regional flood line. However, the owner encountered problems with a septic tank as there was little cover over the bedrock on the property and a permit was issued to permit the placing of fill for a septic tank, provided adequate precautions were taken to protect the fill by the installation of rip rap.

Apparently the officials of the respondent were unaware of the construction of a building known as the Lefavre property which appears from a photograph submitted by the appellant to be located at the water's edge in a very serious situation. Reference in Lemp's evidence was made to buildings on the west side of the river but these are higher and were erected many years ago prior to the jurisdiction of the respondent.

The witness indicated that the policy of the respondent was to prohibit the erection of buildings for residential purposes below the maximum observed flood line and to only permit such building between that line and the regional flood line in some situations and subject to conditions respecting the installation of services and openings. Even assuming that the appellant's property would be an island in a maximum observed flood and had sufficient elevation not to be flooded, the policy was not to extend the exception to properties of such a nature. To obtain the application of the exception, the property had to be situate at the edge of the flood plain and not in the very heart of it as the McMullan property is situate. In the view of the witness the respondent had applied its policy without discrimination to the application that had been made to it.

In summing up the facts, there was an application to the respondent to change the existing nature of a property that could not be considered other than a summer cottage, although the appellant's family was using it as a permanent residence, to one of a permanent home on an admittedly unusual location. The location is on the downstream side of a roadway that could create a temporary barrier to flood water in the event of storms of lesser severity than a regional storm and in the early stage of a regional storm. However, the intensity of flooding from a regional storm would increase this protection would become a matter of concern and breaches in the roadway would result in more serious damage than might otherwise be incurred.

The property is also somewhat unusual as it has a higher elevation than land lying between it and the edge of the flood plain. It is in effect an island or more properly, would be an island in times of floods. Because of this factor, it is most difficult to consider it in the same light as a property at the edge of the flood plain lying between the maximum observed line and the regional flood line.

Counsel for the appellant argued that the respondent, having a discretionary power to issue a permit in respect of lands in a flood plain arising from section 4 of Ontario Regulation 356/74, was setting too high or too onerous a standard for this property, particularly in the light of permits that have been issued. It is apparent that this argument is based on an analogy to the comparative elevations from the existing water level and as has been noted before, this approach does not take into account the reduction in the elevation of the regional flood line at the properties in respect of which permits have been granted.

Counsel for the appellant also argued that the standard was too high because if circumstances of the magnitude of a regional storm were to arise many other properties presently erected would be similarly affected. This approach, in my opinion, would completely frustrate the purposes for which the regulation was made, namely to prevent, especially in respect of residential property, a continued increase in the risk of life and property in buildings situate in flood plains. The risks associated with existing properties in regional storm situations cannot justify the addition of a further property to the list of existing risks.

Counsel raised other arguments but these related to the subsequent activities which, as indicated at the beginning, are considered irrelevant for the purpose of this appeal.

Counsel for the respondent referred to the risks to the proposed residential building and the occupants thereof, the precedential and accumulative effect of granting a permit, particularly with other low lying areas in the vicinity of the site under consideration, the loss of the ability of the river to retard the flow in a serious situation and of the loss of the flood plain of its ability to hold or retain water by the destruction of trees if buildings were permitted in the treed areas of the flood plain.

As was indicated above, this tribunal cannot adopt the argument that the owners of other properties that are at a lesser height from the water at its present level have been granted permits and accordingly the appellant should receive a permit. I accept the evidence that the respondent considered these cases to be outside the flood plain in so far as the erection of the proposed buildings were concerned and I cannot accept these cases as a precedent for the decision in this case.

Looking at the property in the light of the evidence I find that the proposed site is at an elevation of 1,067.8 to 1,068.8 feet. The property to the east of the site slopes to an elevation of 1,060.8 feet. This is in accordance with the Donaldson's survey. The maximum observed line is in my opinion at least 1,070 feet and may be higher. The regional flood line is 1,077 feet and also may be higher. From these elevations it is apparent that the site has been flooded in the past to the extent of one to two feet and that in a regional storm situation the site would be flooded to the extent of approximately ten feet.

In the light of such potential hazards, to the proposed building and the occupants thereof, and without adding thereto the effects of other risks such as precedent, reduction of storage capacity, and public costs of rescue and restoration I cannot conclude that the respondent was in error in refusing to grant the application under appeal.

It is hereby ordered that the appeal herein be and is hereby dismissed.

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

Dated this 9th day of December, 1976.

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