The Mining and Lands Commissioner

In the matter of the Conservation Authorities Act

In the matter of

An appeal against the refusal to permit the placing of fill and the construction of a building on part of Lot 1 of Richard Beasley's New Survey in the Township of Waterloo in the County of Waterloo now in the City of Kitchener in The Regional Municipality of Waterloo.

Between:

United Croats of Canada
Appellant

and

Grand River Conservation Authority
Respondent

The appellant, United Croats of Canada, appealed to the Minister of Natural Resources the refusal of the respondent, Grand River Conservation Authority, to issue a permit under Ontario Regulation 356/74. By Ontario Regulation 584/76 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner. The appeal was held in the Board Room of the Ministry of Community and Social Service in the City of Waterloo on September 21, 1976. Michael Shebrek, the secretary of the appellant, appeared on behalf of the appellant and was assisted by Mrs. Anna Suljak. J. M. Harris appeared for the respondent. D. M. Tugender appeared on behalf of three adjoining land owners, Margaret Irene Semple, Kenneth Samuel Langford and Bruce Norman McCormick.

The appellant is a corporation without share capital incorporated in 1967 under Part II of the Canada Corporations Act with the following objects:

  1. to preserve, defend and develop among its members a better knowledge and understanding of the Croation national and cultural traditions and customs;
  2. to help assimilate and forward the interests of Croatian immigrants in Canada so that they may become better Canadian citizens;
  3. to publish and distribute educational and instructive literature pertaining to the Croatian national and cultural traditions and customs;
  4. as Canadian citizens to promote knowledge of the Croatian national heritage; to acquaint the Canadian public with the Croatian national heritage and customs; to acquaint the Canadian public with the tragic plight and aspirations to freedom and democracy of our Croatian kinsmen in their native land; to extend to them all aid necessary and possible;
  5. to promote by every means possible the growth and development of the entire Croatian organization;
  6. to co-ordinate cultural, social and athletic activities of youth groups of Croatian extraction by means of dissemination of information and news, issuing suggestions and by the initiation of united regional and natural projects pertaining to the aforementioned fields of activities;
  7. to establish new branches of the Corporation throughout all of Canada and to unite and co-ordinate all branches now existing throughout Canada;
  8. to carryon organizational work without profit or gain for the individual members, and without payment to the individual members for any services which a member may render.

The appellant with a view toward obtaining a site for a club house for its members made an offer on part of Lot I of Richard Beasley's New Survey in the Township of waterloo and now in the City of Kitchener. This offer was said to be subject to conditions respecting the obtaining of necessary permits, but the offer was not produced to, show the specific wording of the conditions. The agreement expired and a further agreement with conditions, which was not produced, was entered into. Although the precise dates were not in evidence, the evidence indicates that there were extensions of the date of closing. Steps were taken by the vendor, Fenwick Investment Company Limited, to obtain a minor variance of the zoning by-law and an application was made to the respondent. However, the vendor received an independent offer without conditions and the appellant, notwithstanding that the permits and change in the zoning had not been confirmed, waived the conditions and completed the transaction after obtaining the advice of its real estate agent and solicitor.

The subject property is a 13.24 acre parcel of land fronting on the New Dundee Road and having a width of 350.22 feet and a depth of approximately 1,600 feet. There is a travelled road along the easterly limit of the subject property and an unopened road allowance along the south limit. A H.E.P.C. easement crosses the subject property in an easterly and westerly direction approximately at the centre of the property and to the south thereof a watercourse crosses the property.

The subject property forms part of the Roseville Swamp and is included in Schedule 1 of Ontario Regulation 356/74. The northerly 300 feet of the property is not as swampy as the remainder of the property and appears to have been cultivated at one time as a row of apple trees crosses the property at a location approximately 250 feet southerly of the northerly limit. While this northerly part is drier than the remainder of the property there was conflicting evidence as to the degree of wetness and the level of the water table at the northerly end. The lands to the north and to the west of the subject property have higher elevations. The evidence indicates that during spring runoffs there has been considerable water on the subject lands and that a three foot culvert under the New Dundee Road at the northeast corner of the subject property is frequently not sufficient to handle the runoff and there is water and ice on the land to the north of the road and on the subject property during the spring and late winter months. There was evidence of test holes containing water at shallow depths during the spring and evidence of wetness during and after periods of rainfall but without the benefit of an appropriate technical assessment, I cannot determine whether this water represented the ground water table in the area or' whether it was merely surface drainage. It was readily apparent, however, that the proposed building site is seriously affected during the spring months.

The appellant merely sketched in a building and a septic tank on the plan accompanying its application to the respondent. The evidence of the appellant was that it had not definitely located the building and septic tank in order that the location might be flexible to meet the requirements of the respondent. It should be noted in passing that the proposed building was 70 feet by 100 feet and would contain approximately 7,000 square feet on one floor without a basement.

Subsequent to the hearing before the executive committee of the respondent and the refusal to issue the permission, the appellant engaged the consulting engineering firm of Swain and Rupnow to prepare a plan of a septic tank system. Richard Denham, a professional engineer associated with this firm, prepared a report and a plan for a septic tank and tile bed system based on banquet facilities with 300 seats. Based on tests that he took in August, 1976 he designed a system which would comply in his opinion with the requirements of the Ministry of the Environment respecting this type of use. His design was based on a test hole which showed the ground water table at 4.3 feet below the existing grade. This location was situate in the northeast corner of the property at a level of 97.4 feet, related to the elevation of the New Dundee Road having an assumed elevation of 100 feet. By placing the tile bed in the northwesterly corner of the property where the relative elevation was 100 feet, he was satisfied that he had designed a tile bed that would be satisfactory.

Denham further gave evidence that subsequent to the submission of his report a representative of the appellant suggested to him that in the ,spring the level of the ground water table might rise to the surface of the existing grade of the lower parts at the northerly end of the property. The witness indicated that if such were the case his design would not be suitable and that the suitability of the design could only be determined by re-examining the property in the spring time. In his letter of August 31st to the appellant he wrote:

During a telephone conversation on August 30, 1976, it was indicated, by one of your members, that the ground water table, on your proposed site, could rise to the surface of the ground in the spring. If this is the case, the tile bed as designed will be subjected to flooding and will not function until such time as the ground water recedes. The tile bed has been located on the highest portion of the site. The design elevation allows for a two foot rise in the level of the water table without contravening the three foot minimum clearance from trench bottom to ground water table, as specified by the Ministry of The Environment.

It is the recommendation of this office that prior to construction of either the septic tank and tile system or the proposed building that the highest spring ground water table be established. Only at such time as this information is available, would it be possible to guarantee the satisfactory operation of the system.

This witness indicated that the soil at the northerly end of the subject property was composed of 12 inches of top soil and, below the topsoil, sand to the water table where it was struck during the drilling of test holes. These tests were taken within 300 feet from the New Dundee Road and the swampy areas commenced between 400 and 500 feet south of this road. He also indicated that there were small amounts of silt in the soil and expressed the opinion that it should be an excellent soil condition for the use of septic tanks. Further he indicated that his proposal was based on an approach of no fill being added to the subject property and he had not considered the placing of fill in the event of a higher ground water table in the spring.

Dealing with the municipal zoning of the subject property, By-law 878 of the former Township of Waterloo zones the subject property as Agricultural Zone A which permits the following uses:

7. 1.4. O.R.A. private club or recreation facility open to members only.

By-law 999 further requires that there be a minimum lot area of 25 acres and a minimum frontage on a public highway of 1,000 feet.

On the application for a minor variance the Committee of Adjustment of the City of Kitchener on the 20th day of January, 1976 decided in favour of the appellant subject to the following conditions:

  1. That all necessary approvals and permits be received from the Grand River Conservation Authority prior to the issuance of any building permits.
  2. That the applicant shall develop the subject lands in strict conformance with site and building appearance plans approved by the Director of Development for the City of Kitchener with all setback requirements as contained in the zoning By-Law being adhered to.

In addition, the committee made the following comments in respect of land use:

It is the opinion of this Committee that:

  1. The variance as stated in the application is considered to be minor.
  2. The approving of this application will not interfere with the enjoyment and use of the adjoining properties.
  3. The approving of this application is considered to be desirable for the appropriate development of the property and is in keeping with the general intent and purpose of the by-law.

As there was no indication that an appeal was taken from this decision of the committee, I must assume that the proper authorities have concluded that from the point of view of land use control the proposal of the appellant is acceptable.

Turning to the jurisdiction of the respondent, it has two areas of jurisdiction in respect of the subject property. Clauses a and b of section 3 of Ontario Regulation 356/74, a regulation made by the respondent under The Conservation Authorities Act and approved by the Lieutenant Governor in Council, provide that without the permission in writing of the respondent no person shall:

  1. 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;
  2. place or dump fill or permit fill to be placed or dumped in the areas described in the Schedules whether such fill is already located in or upon such area, or brought to or on such area from some other place or places; or

As the subject property is considered to be, and unquestionably over seventy-five per cent of it, is composed of part of the Roseville Swamp, the construction of a club house may fall within clause a of section 3. The question of whether or not the actual site of the proposed construction is a swamp is not before this tribunal as the appellant has in effect admitted the jurisdiction of the respondent and has applied for a permit indicating that it admits that clause a is applicable. It would be a tribunal other than the present tribunal that would deal with the issue of whether the provision of the regulation is applicable and I shall deal with this matter on the assumption that clause a is the basis of construction of a building and reviewed the matter in the light of its policy regarding buildings in the swamp.

W. E. Lemp, Director of Resources Planning for the respondent, which position he has occupied since 1966 and who has been employed by the respondent since 1961, gave evidence on the principles respecting the protection of the Roseville Swamp. The Roseville Swamp is a long narrow swamp providing a basin for ground water which flows northerly to the vicinity of Blair and the confluence with the Grand River and southerly toward Ayr and the confluence with the Nith River, a branch of the Grand River. The prime objective is to preserve the quality and quantity of the waters in the swamp as it provides a source of water for the wells in the rural area adjacent to the swamp. Following an expression of concern by the local municipalities the area was brought within the jurisdiction of the respondent in the late sixties and in addition to the jurisdiction in respect of swamps the respondent under the regulation created the area as a "scheduled area" in order that filling would be controlled in the swamp. In establishing the boundaries of the scheduled area consideration was given to the shape of the surface of the land in the area. In the heart of the swamp the water table is quite high and at the edge of the swamp the land rises. Parts of this rising area were included in the Schedule in order that there might be a buffer zone to protect the waters in the swamp by preventing sources of pollution being created in locations where they could drain into the waters within the heart of the swamp.

The witness indicated that the delineation of the boundaries of the scheduled area and related policies were based on the Waterloo County Soils Report of 1944. This report categorized the soil structures in the county and defined the boundaries of the categories on maps. A copy of the map for the area was filed as an exhibit. The witness transposed the information from the report onto the sketch of the appellant's lands and showed that the area on which it was proposed to erect the building and the septic tank with its tile bed was categorized in the report as being in the Heidelberg series. The characteristics of this category of soil were set out in Table 9 of the report which indicated that this category of soil is composed mainly of glacio-lacustrine fine sands in the Waterloo Sandhills and on outwash plains. Such soil is unacceptable for granular material and general fill. With reference to the utility of this soil in highway and road construction the report indicated that this soil is frost-susceptible, difficult to compact and seasonally wet. It should be replaced with fill where it occurs within 30 inches of the final grade. With respect to shallow excavations or trenches the report stated that these soils have a seasonally high water table and a potential "quick" condition. Walls require support and bearing may be a problem. With reference to septic tank installations the main limitation is the seasonal high water table. It was also indicated in the report that this type of soil can contain silt or clay soils and the engineer of the appellant indicated in his evidence that he found silt in the soil which supports the report in its finding that the soil in question falls within this categorization.

The soils of the Heidelberg category are found in the northerly part of the subject land and extend southerly approximately 200 feet on the east and 300 feet on the west limits. Immediately south of this category of soil there is a belt approximately 150 feet in width of soils of the Granby Series category which were indicated as poorly drained sands. South of this belt to the watercourse including the area across which the hydro line is situate there are organic soils with muck and very poor drainage. Further to the south there are soils of the Granby Series category.

The witness concluded that the soils in the northerly area have some serious shortcomings in respect of support for buildings and foundations and in providing drainage for a septic tank system, particularly where there would be high intensity use with peak periods of use. There was concern that the ground water table could be effected and polluted and this was in conflict with the principle for administration of the swamp of protecting the quality of the water therein.

The respondent was not provided with any design for the building or its specifications nor for a septic tank nor a tile system. Without such information the respondent was at a loss to provide any constructive criticism or assessment of the proposal. The approach of the appellant was that it did not wish to go to the expense of designing a building and a system if permission to construct them would be refused. Accordingly, the respondent was left with the obligation of making a decision based solely on its policy for the scheduled area. This policy was to keep development out of the scheduled areas. An exception to this policy had been granted to permit some development in the extreme ends of buffer zones well outside the heart of the swamp. In one instance permission was granted to construct a road to provide access to tennis courts that were outside the scheduled area. This was granted on the condition that equalization culverts be installed. This engineering device is not adaptable to the present proposal according to the witness. Except for cases of adjustments of existing houses and one case on a high wooded area, the respondent's policy has been to prevent any new development. Further, any development that had been permitted was strictly residential and some of the buildings were of a seasonal nature. As the general policy of the respondent did not recognize this large type of recreational building and as specific information was not available the respondent refused the application.

During the cross-examination of this witness it was brought out that although the property in question extended approximately two-third's of the way across the swamp, the portion on which the building was proposed contained soil of the same category as two large fields to the east which protruded southerly a considerable distance past the southern extremity of the area on which it was proposed to build. These fields were not included in the scheduled area and the witness indicated that from examining the aerial photograph that was before the tribunal the area probably consisted of cultivated fields of considerable size. He assumed it was excluded from the swamp by reason of its particular use. Notwithstanding the non-inclusion, the respondent would have some opportunity of making recommendations in respect of any building that might be erected on those fields.

However, the question raised is significant. If the boundaries of this non-included portion were extended westerly along the boundary of the cleared areas the particular site would not have been included in the scheduled area. In view of the approach that I am taking to this matter I do not propose to come to a conclusion on this point. It may well be that the appropriate answer is that the exclusion of the easterly area was an error and while comparisons may be a relevant argument in respect of zoning exceptions, in dealing with matters related to health and purity of water it cannot be said that two wrongs make a right or that one mistake justifies a further mistake.

This may be a convenient place to deal with the concerns of the adjacent landowners. Counsel for these owners raised the issue of the proposed establishment of environmentally sensitive areas as part of the official plan of the Regional Municipality of Waterloo. These matters are primarily matters of zoning and while they are significant issues in a hearing before a committee of adjustment or a public hearing respecting official plans, matters respecting plant life, bird and animal life and restricted uses of land are not principles related to the inquiry at hand.

Kenneth Samuel Langford owns the land to the south of the subject property. His property is in the heart of the swamp and the bulk of his property is under water. Situate on his land is a wooden frame building erected on fill that had been placed in the past. Access to this building, which has no toilet facilities, is across filled strips of land. His concern was two fold. In addition to the concern of pollution he was concerned that the proposed construction would increase the volume of water on his property. In his opinion this would occur by reason of the need to build a ditch or a pipe along the road on the east side of the subject property with the result that the water from the spring freshets and from the rainfall would flow unimpeded into the swamp a greater distance than it does now with the result that the holding ability of the by-passed land at the northerly end of the subject property would be lost. If such would be the case, there would be a greater pressure placed on the reservoir aspects of the swamp. However, it appears that the officer of the respondent had not considered these implications and as I was presented no proper engineering evidence on the subject I cannot conclude that there is other than a possibility of such a concern.

Margaret Irene Semple owns the property to the north of the subject property. Her property is higher than the subject property and she was concerned that the construction of a large building and facilities would interfere with the drainage of her property which is not fully effective at the moment, water and ice lying on her property during the winter and spring and during periods of heavy rainfall.

Bruce Norman McCormick owns the property to the west of the northerly 310 feet of the subject land. He has a house, septic tank, well and a garden. His concern was that his property, which is on a higher elevation than the subject property, is subject to extreme flooding not only in the spring but during times of heavy rainfall and because of the lower elevation of the subject property there is a more serious problem in respect of water on the subject property. His property extends only 310 feet south from the New Dundee Road and his evidence indicated that directly to the east of his property the subject property is very swampy and that this swamp angles toward the north as one crosses the subject property. He admitted that he had never seen the subject property completely flooded in the front part of the property but that the back part of the subject property had been completely under water on occasion. He had seen considerable amounts of water on the northerly end of the subject property during periods of spring run off.

An interesting aspect of McCormick's evidence is that his septic tank system that has been in operation for a period of 20 years does not operate with normal efficiency. He has found it necessary to have his septic tank pumped out twice in the last four years. This indicates that there are problems with small septic tanks on areas that are higher than the subject property. He also expressed concern for his well which was only ten to twelve feet deep and this, of course, is the major concern of the respondent and the purpose for the control exercised by the respondent.

Turning to the second area of the jurisdiction of the respondent which is contained in clause b of section 3 of the regulation, there has been no application to place fill on the land which is clearly within the scheduled area. Even in the plan prepared by Richard Denham in August subsequent to the hearing by the Executive Committee no consideration was given to the placing of fill on the property in connection with the septic tank system. The only fill he considered was the gravel to immediately cover the tile.

It appeared during the evidence that fill would be necessary not only for the purpose of the tile bed in the event the ground water table is seasonally high in the spring but also for an area for parking. We have no information of the quantities of fill that would be required and as was indicated in the evidence of Lemp the respondent and its officials have not considered the implications of the placing of fill on this property. It appears that the question of the placing of fill has first arisen at the hearing before this tribunal and I was provided with no evidence of quantites, locations or elevations that would be of assistance in assessing the principles' respecting the placing of fill.

Mr. Harris, in his presentation, referred to the lack of plans and specifications which are essential toward the respondent exercising its responsibilities in reviewing applications. As indicated before, the position of the appellant was that they did not wish to undertake the expense of obtaining such plans if permission could not be obtained. It is not the responsibility of the respondent to prepare such plans for a landowner and it would be, of course, unwise to do so. It cannot assume the role of a landowner in determining proposed uses for his land and a public body would be assuming a gratuitous and unwise role in creating plans for landowners even if it had the staff and the resources to do so.

There appear to be at least three principles in connection with the placing of fill. The evidence brought out the possibility of the fill interfering with the storage capacity of the swamp and Lemp indicated in his evidence that this may not be significant in this case as the subject property is in the buffer zone. An equally important concern which was not touched on in the evidence in this case is the possibility of creating unstable soil conditions particularly for use for building sites. In this particular case it may well be that excavation and fill would be necessary to counteract the shortcomings of the existing soil conditions of the particular site in the event a building were permitted. Thirdly, there is the question of whether the placing of fill in conjunction with the construction of the septic tank system is creating a pollution hazard.

In summation, the appellant's position was that its proposals did not effect the swamp. The buildings and the septic system would be placed on high ground in the buffer zone where the only problems might be a seasonally high water table. It was suggested that the water from spring run off and rainfall could be dealt with by ditching or an extension of the culvert at the northeast corner of the property. An indication of a willingness to place fill or comply with any other conditions was expressed.

In summation the respondent pointed out that its policy has been to restrict development in the scheduled area and no exceptions have extended to large recreational types of buildings. The exceptions have only been applied in respect of minor adjustments of residential property, some of which were seasonal residences. The lack of a proposal in respect of the type of construction of the building and until presentation at the hearing of a tile bed system prevented the respondent from making any assessment of the proposals. The difficulties with the existing small septic systems in the area create concern. The prime concern of the respondent was the prevention of the draining and filling of wet lands and the prevention of the introduction of wastes and pollutants into the water table of this particular area.

The arguments of the adjacent landowners appear related to matters to be dealt with by a tribunal dealing with land use as contrasted with the matters under the jurisdiction of a conservation authority. They also expressed concern regarding the effect on the water levels, flooding and the possibility of the introduction of pollution to existing wells.

It is my conclusion that there are too many doubts in this case to allow the appeal and to issue permission to construct a building and place fill on the subject property. The major area of doubt relates to the water conditions during the winter months and during the spring run offs and also during periods of heavy rainfall. The consulting engineer for the appellant clearly indicated that if there is flooding in the spring, the septic tank system designed by him would not be operable.

Not only is there doubt as to the quantity of water on the property during the periods mentioned but there is doubt as to the nature of the water at such times. The water may merely be surface drainage and be subject to satisfactory control or it may also represent a seasonally high water table in which case the issues respecting pollution become self evident. It may well be that a septic tank system would be adequate or it may be that assuming a building were permitted that a holding tank or some other method of sewage disposal should be devised.

I have mentioned the need for construction plans and specifications of proposed buildings. It will only be upon their submission that the adequacies of the foundations can be assessed against the weaknesses of the soils in question.

Further, we have no knowledge of the effect of interfering with flow of surface water from the subject property during the aforementioned times nor have I been given any professional evidence on the question of whether the increased flow of surface water at such time would have any detrimental effects.

Accordingly, the appeal is dismissed but without prejudice to the appellant submitting an application for a firm proposal to the respondent that can be assessed. It appears to be desirable that, before any such proposal is submitted, the property should be examined during the times of high water and while the officials of the respondent cannot be expected to prepare plans or make decisions for the landowner in respect of types of buildings and location of buildings and services, there is undoubtedly a need if the appellant wishes to spend further money in respect of this property for its planning and its engineering to be done in close conjunction with and with the knowledge of the professional staff of the respondent. I expressly refrain from commenting on the success that might be expected with such an application.

No costs shall be paid by any of the parties.

Dated at Toronto this 7th day of October, 1976.

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