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

And in the matter of

An appeal against the refusal to issue permission 'to erect a maintenance building on the premises municipally known as 349 Erie Avenue in the City of Brantford in the County of Brant.

Between:

The Brant County Board of Education
Appellant

and

Grand River Conservation Authority
Respondent

S.E. Wyatt, Q.C. for the appellant.
J. M. Harris for the respondent.

Reasons for judgment

The appellant appealed to the Minister of Natural Resources from a decision of the respondent refusing to grant permission under O. Reg. 356/74 to place fill and erect a maintenance building on part of the flood plain of the Grand River in the City of Brantford. The power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner by O. Reg. 878/75. The appeal was heard in Brantford on December 19, 1975 and January 29, 1976.

On December 27, 1961 The Corporation of the City of Brantford conveyed to The Board of Education of the City of Brantford a parcel of land containing approximately 16 acres. The parcel has 768 feet of frontage along the west limit of Erie Avenue. The depth of the parcel is 900 feet at the widest portion narrowing to approximately 700 feet at the northerly side. The property is situate at least 3,000 feet from the Grand River in a westerly and southerly direction. The river flows in a southerly direction to the west of the property and changes its course to an easterly direction approximately 3,000 feet to the south of the property. The deed contained restrictive covenants limiting the use of the property for a period of thirty years to "school, municipal, or park purposes" subject to remnants created from road construction being used for residential purposes. The consideration for the conveyance was nominal. In 1969 pursuant to the policies of the provincial government a county board was created assuming the property of the city board.

Subsequent to the acquisition of the land the Joseph Brant Senior Public School was erected on the northerly part of the property. In 1969 an administrative building to house administrative personnel of the appellant which prior thereto had been housed in the city hall was erected. This building was erected without permission of the respondent. It appeared that the City of Brantford took the initiative in connection with flooding hazards and refused a building permit. However, on a mandamus application the issue of the building permit was directed. At that time the regulation of the respondent referred to the "high-water mark" rather than the regional storm concept and it may well have been that the site in question was not within the jurisdiction of the respondent at the time of this construction.

In 1973 an addition to the administrative building was proposed and following the issue of permission by the respondent an addition was added to the administrative building. The appellant wishes to complete its building requirements in respect of educational services for the County of Brant by erecting a maintenance building at the rear of the administrative building which will provide housing for services such as a general office, a drafting area, a filing office, a work shop, a wood storage area, a finishing room, a paint storage area, and a repair shop. In addition, part of the building will be a garage for the housing of tractors and other vehicles of the board which are now kept in the open.

The proposed office area and workshop area are laid out in one block that is parallel with Erie Avenue. It is proposed to construct this part of the maintenance building of masonry with deep fluted metal siding around the top to match the existing administrative building. The garage portion will be situated at the rear and at a right angle to the office and workshop areas. It will be constructed of steel framing and have sheet metal siding. It is proposed that the heating in the building be suspended from the ceiling to prevent exposure to flooding. After consultation with officials of the respondent, the plans were amended to provide for filling to raise the ground level of the office - workshop portion to the level of the regional flood. Fill is also planned for the garage portion to raise it to the same level as the administrative building. The concrete floors are being omitted from the garage portion. The area of the office - workshop portion of the proposed building is 34 feet by 145 feet. The garage portion is 50 feet by 104 feet.

The appellant has spent approximately one and a half million dollars on the property and the addition of the maintenance building would provide a consolidation of education administration for the county and for the schools of the county, many of which are situate within the City of Brantford. Economies in time, travel and supervision will result from the proposed erection of the maintenance building. Currently the service is being provided from a school known as Moyle School situate on Highway No.2 between Brantford and Paris.

The appellant has considered the acquisition of other locations. It assumes that three acres will be required for an appropriate site. In the industrial area a three-acre site would cost approximately $45,000 and would not be centrally located. It would be considerably removed from the existing administrative building. Other locations are more convenient than a location in the industrial area but these locations are valued at prices of up to $120,000 per acre.

The local fire department is alleged to have objected to the storage of supplies in the administrative building. These supplies could be housed in the proposed building.

According to the contour plans filed by the respondent the elevation of the regional flood line for the relevant part of the Grand watershed is 657 feet above sea level. The elevation of the observed flood line for the May 1974 flood, hereinafter referred to as the observed floodline, was 651.4 feet above sea level. Although the proposed site is some 3,000 feet from the Grand River, it is located below the observed flood line by approximately 700 feet. The regional flood line is a further 2,000 feet approximately above the observed flood line. The photographic evidence was that the relevant part of the site was flooded during the May flood of 1974 which was consistent with the elevation being at 651 feet above sea level in its natural state.

The significance of these measurements is that there is a very wide flood plain at this particular location. Michael Chan, a civil engineer and the assistant business administrator of the appellant calculated the area of the flood plain and the volume of the displacement of the storage capacity of the flood plain by the proposed building and the fill proposed to be dumped to raise the building and concluded that the significance of the interference with the storage capacity would be in the vicinity of .00016 of a foot or approximately one-ten thousandths of one foot for each foot of flooding. His evidence was not questioned and it is apparent that the effect on the storage capacity of the flood plain at this location of the proposed building and fill is minimal if not insignificant.

The concerns of the respondent and the officials of the City of Brantford related to the risks of life and property that would result from the five or six feet of flooding during a regional storm with the additional public expense involved in rescue operations and subsequent repair of property where public schemes to provide relief against flood damage are established.

William Eric Lemp, the Director of Resource Planning of the respondent, gave evidence that the site was not acceptable as an exception under the cut and fill principle or the stage storage principle. This approach is understandable as these theories in their current development require replacement of the storage capacity at an equivalent elevation. However, Maurice Ashton MacKrell, a professional engineer called by the respondent, indicated that in his opinion in this case a more desirable result would be obtained if an excavation were done at a lower level than the level of the site in question. In MacKrell's opinion such an excavation would provide for additional storage capacity at a lower level which would be available sooner during regional floods and floods of lesser degree. I accept his evidence in this regard on the basis of the unusual flood plain characteristics of this particular case and the minimal effect on the storage capacity of the proposed project. However, MacKrell was concerned regarding the cumulative effect of adopting a practice of permitting construction and filling in this portion of the flood plain. He stressed the false sense of security that is created by the granting of permission in such circumstances.

Another interesting aspect of MacKrell's evidence was that in computing the regional flood line, the maximum flows of the river were not used and the regional flood line adopted may not reflect the amount of flooding that might occur during a regional flood.

A number of officials of the City of Brantford gave evidence. These witnesses were Eric Aldersey, the deputy engineer, Percival John Beavis, the Director of Planning and the secretary treasurer of the city planning board and Roy Douglas McNicol, the building inspector and zoning inspector. The city has supported the respondent in its program of controlling development in the flood plain and actively adopts policies similar to those of the respondent. The city has been over the years greatly concerned with the programs of the appellant and in particular, refused to issue a building permit for the construction of the administrative building. However, the regulation of the respondent adopted the high-water mark principle and the city assumed the responsibility of refusing a building permit for the purpose of implementing the common policy of the respondent and the city. However, a mandamus application was granted directing the issue of a building permit.

With regard to the present application, the city passed the following resolution on January 26, 1976:

That Council oppose the revised application dated December 11, 1975, of the Brant County Board of Education to construct a maintenance building on flood plain land at Erie Avenue. Council is extremely concerned that the encroachment into the flood plain would be regarded as a precedent by other owners of flood plain lands contrary to the public interest.

Mr. Beavis dealt at length with problems in the zoning and planning field and .felt that the legal problem affecting the administrative building still exists with regard to the compliance of the present project with the planning laws of the municipality.

His concern was that By-law No. 3649 of the City of Brantford, which is the zoning by-law and which was in effect at the time of the application for the building permit in respect of the administrative building and has not been amended, provides that the easterly 500 feet of the appellant's property is zoned for use as "local business." Under section 9 of this by-law the following uses are permitted:

(e) Garage used only for the storage of motor vehicles in connection with a business other than garage business carried on upon the same or adjoining premises:

. . .

(f) Office for or in connection with a business or profession:

(g) Retail store or shop including barber shop, beauty parlour, shoe shine shop, shoe repair shop, clothing repair shop, but excluding second-hand shops, motorcycle repair shops, automobile repair shops, 'curb service', 'drive-in' service or similar activity, and any business engaged in the sale of new and used cars.

While Mr. Beavis indicated that in his view the by-law did not prohibit the erection of the administrative building it would also seem that the by-law would not prohibit the maintenance building.

However, the official plan of the area creates a conflict in the opinion of Mr. Beavis. In his view the map illustrating the official plan which was filed as Exhibit 28 indicates that the easterly 200 feet of the appellant's property are designated for residential use and the rear of the property is designated for conservation use. By amendment No.9 to the official plan, a copy of which was filed as Exhibit 29, the conservation classification was designated as follows:

(4) The Conservation classification of land shall mean protection of such lands from development, or the effects of further development, because of their flood plain nature. In the event that any such lands are removed from flood danger, by satisfactory protective works, it is the intent to permit acceptable development by means of an implementing by-law.

Amendment No.9 also contains the following provision respecting boundaries:

The boundaries between classifications of land use designated on the Plan are declared to be general only and are not intended to define exact limits of each classification. It is intended, therefore, that sufficient flexibility of boundaries as defined will be utilized for the purpose of any by-law implementing features of the Plan to minimize necessity of minor amendment to the plan so long as the obvious intent of the plan is carried out.

The witness felt that the paragraph on boundaries gave the by-law precedence over the official plan as far as boundaries are concerned but he was concerned that there was a discrepancy between the "local business" use permitted by the zoning by-law and the "residential" use designated by the official plan. He indicated that his concern might be alleviated by a provision of a provincial statute which he was unable to identify. He may have been considering subsection 3 of section 19 of The Planning Act but this subsection requires an express application by the council and the deeming by the Ontario Municipal Board. The definition of "Residential" in amendment No.9 is as follows:

(1) The Residential classification of land shall mean that the predominant use of such land shall be for dwellings. Both single and multiple type dwellings are included under this classification and the mixing or segregation of types shall be regulated by the Zoning By-law now in effect in the Municipality.

The Residential classification of an area is not intended to prevent the use of some of the land in that area from being used for such local business purposes as are deemed by the by-law to be of a local service to and compatible with residential use. Compatibility in this instance is intended to mean that such non-residential uses will in no way contribute to the depreciation or deterioration of the amenity of the area for dwellings. It is intended that the regulations governing such local business uses within the residential area mayor may not permit the combining or intermingling of permitted business uses with residential use as is deemed desirable.

It is noted that this definition includes a limited type of "local business" use. Although I was given no references to the case, the Judge of the Supreme Court who heard the mandamus application in respect of the administrative building must have satisfied himself on this point and concluded that the zoning by-law was effective.

As I understand the evidence of the appellant, it has attempted to bring its project within the zoning by-law as it understands the by-law and had I been satisfied that the project was clearly in breach of the planning requirements I would have no hesitation in dismissing the appeal. However, I am satisfied that there can only be doubt and not certainty on this issue and nothing in this judgment will have an effect on the obligation of the applicant to comply with the zoning and planning laws of the City of Brantford.

It was also argued that the project of the appellant fell within subsection 1 of section 19 of The Planning Act 'as the project constituted a public work by a local board within the definition on these two terms as contained in The Planning Act. Needless to say, nothing done by this judgment under The Conservation Authorities Act can effect a responsibility of the applicant to comply with this provision if the provision is applicable.

All of the officials of the City of Brantford strongly emphasized the issue of precedent in granting permission to the appellant which issue is the sole reason quoted in the January resolution. They all admitted that the proposal would have a minimal effect on the storage capacity of the flood plain but the precedential aspect with its resulting pressure from private owners caused extreme concern to these officials. It was said that such an approach of policy by a public body should not have been made by the appellant as it would only encourage private owners to apply for similar permission and it was suggested or inferred at least that there was a certain irresponsibility on the part of the applicant in making its application. This latter issue removes the matter from the area of principle into the area of principles and I prefer not to comment on the latter and deal solely with the former. The principles of the appellant are a matter for the electorate and the question of whether permission should be granted is in my opinion a matter of principle being decided in accordance with accepted or acceptable exceptions to the prohibition contained in the law.

The evidence contained references to a number of buildings that had been erected with the permission of the respondent. Without reviewing these properties in detail, I find that in general they fell within a recognized exception of policy followed by the respondent such as the application of the "infilling principle" and the principle that where reasonable protection can be afforded, vacant lots lying within a utilized area may be adopted to the particular use. It also appeared that some of the permits may have been based on the strength of the previous regulation or, more appropriately, the lack of strength of the previous regulation.

In my view this matter should be dealt with on the basis of whether a project by a public authority in the pursuance of its public duties can constitute an exception to the general prohibition. There can be no question but that certain risks of life and of property would be created. These risks can be reduced by the placing of fill and the raising of the level of the buildings and access thereto to the elevation of the regional flood line. However, the risks cannot be completely extinguished. The question of cumulative effect is always significant and in discussing this principle, the element of precedent is a factor resulting in subsequent applications. In my opinion if this case is decided solely on the grounds of the exception of a public project there can be no precedential implications from the granting of permission and the issue of cumulative effect, in my opinion, is not relevant to this case. The respondent argued that the appellant in its view of the public interest was placing matters of convenience and economics over the matters of safety, public welfare and public benefit. It pointed out that His Honour Judge Leach in his report on the Royal Commission on Grand River Flood 1974 recommended against the construction of any further buildings in the flood plain and specifically singled out the administrative building as an example of the type of building that should not be permitted. As was pointed out by counsel for the appellant these remarks must be taken in the context of the whole report which also recommended that save harmless agreements be required from persons granted permission to build in the flood plain. In my opinion one cannot construe the report of the Royal Commission as a finding that the erection of the administrative building was in breach of the regulation of the respondent as it was then worded or that His Honour had fully considered the implications of the exception to the general policy presently under consideration.

The appellant has expended approximately one and a half million dollars on a project designed to consolidate the educational administrative services for the County of Brant and the proposed structure which appears to have insignificant risks if adequate protective steps are taken will complete its program. In so doing a proposed $150,000 of public funds will be spent. It appears that an adequate cost of an alternative site would be twice or three times the amount proposed to be expended and that the results of the change of location of the maintenance building to an alternate site would reduce the efficiency of the staff of the respondent. There will be no residential or sleeping accommodation in the proposed building of the appellant. Provision will be made to keep night staff within telephone reach of authorities. The equipment of the appellant at the proposed site should be useful in evacuation procedures.

The exception of a public project is well established in the administration of regulations under The Conservation Authorities Act. The leading example of such projects are public roads which are based on the necessity of crossing the waterway. Following roads, essential utilities such as water mains, sewage and gas lines are acceptable. Related to water and sewage are pumping houses. Buildings such as firehalls which are a matter of utility, if not necessity, fall within the exception. The question in this case, is whether the exception should be extended to include schools, and then school administrative buildings and now maintenance buildings. In my view, apart from three aspects, the exception should not be extended to this degree. Even in this case, the extension smacks of convenience rather than necessity. But there are the elements of minimal effect on the storage capacity by reason of the unusual topographical features, the ability to reduce the risk by filling and the special applicability of the cut and fill principle which should reduce the risk to a bare minimum even in the regional flood situation. These factors coupled with the fact that the building will complete a project of centralization of services with its resultant benefit to the public, particularly in times of restricted budgets of public authorities, have satisfied me that it is proper to extend the principle to this particular case, notwithstanding that the type of buildings per se would not warrant the extension.

However, there are a number of precautions that ought to be observed. The recommendation of His Honour Judge Leach should be implemented and any order I make will not issue until there has been submitted to this tribunal a copy of an executed agreement under which the applicant, under seal, agrees with the respondent that,

  1. the respondent, the Corporation of the City of Brantford, and the Crown will be indemnified and saved harmless from any claim or cause of action arising by reason of or resulting from the issue of permission;
  2. no claim will be made against the respondent, the Corporation of the City of Brantford, the Crown or any body administering flood relief in respect of any damage to any land, building, or chattel of the appellant on the lands held under the conveyance from the City of Brantford to the Board of Education of the City of Brantford dated December 27, 1961:
  3. the appellant, without charge, will convey to the respondent, or will grant an easement to the respondent over, any lands of the appellant that are not occupied with buildings and are reasonably required by the respondent for the installation of flood protection works:
  4. the cut and fill principle will be observed by the excavation at a defined site between the proposed building and the Grand River of a volume of soil equal to the volume of the displaced storage volume created by the proposed fill and the building of the proposed maintenance building: and
  5. any available equipment and staff of the appellant will in times of flooding emergency be available to the respondent without charge for rescue and related work.

There shall be no costs payable by either of the parties to this matter.

Dated at Toronto this 1st day of March, 1976.

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