THE MINING AND LANDS COMMISSIONER
File No. CA 008-01
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Monday, the 3rd day of February, 2003
IN THE MATTER OF
An appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the removal of fill from Lots 258 to 263, Plan 759 and for the placement of fill on Lots 269 to 272, Plan 759, Town of Innisfil.
B E T W E E N:
- and -
LAKE SIMCOE REGION CONSERVATION AUTHORITY
WHEREAS this appeal to the Minister of Natural Resources was received by this tribunal on 15th day of August, 2001, having been assigned to the Mining and Lands Commissioner (the "tribunal") by virtue of Ontario Regulation 795/90;
AND WHEREAS a hearing was held in this matter on the 24th day of September, 2002, in the Courtroom of this tribunal, 700 Bay Street, 24th floor, in the City of Toronto, in the Province of Ontario;
UPON visiting the site, hearing from the parties and reading the documentation that was filed and submitted at the hearing;
1. THIS TRIBUNAL ORDERS that the appeal from the refusal of the Lake Simcoe Region Conservation Authority to grant permission for development through the removal of fill from Lots 258 to 263, Plan 759 and for the placement of fill on Lots 269 to 272, Plan 759, Town of Innisfil, be and is hereby dismissed.
2. THIS TRIBUNAL FURTHER ORDERS that no costs shall be payable to either party to this appeal.
DATED this 3rd day of February, 2003.
Original signed by
H. Dianne Sutter
DEPUTY MINING AND LANDS COMMISSIONER
THE MINING AND LANDS COMMISSIONER
File No. CA 008-01
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Monday, the 3rd day of February, 2003
THE CONSERVATION AUTHORITIES ACT
IN THE MATTER OF
An appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the removal of fill from Lots 258 to 263, Plan 759 and for the placement of fill on Lots 269 to 272, Plan 759, Town of Innisfil.
B E T W E E N:
- and -
LAKE SIMCOE REGION CONSERVATION AUTHORITY
The matter was heard in the Courtroom of this tribunal, 24th Floor, 700 Bay Street, Toronto, Ontario on the 24th day of September, 2002.
The tribunal undertook a site visit on Monday, August 26, 2002. Mr. Daniel Pascoe, Registrar, Office of the Mining and Lands Commissioner, also attended. Mr. Rinaldi's son met the attendees at the site.
Mr. Richard Rinaldi
appeared on his own behalf
Mr. Kenneth C. Hill
Counsel for the Respondent
This appeal came before the Mining and Lands Commissioner pursuant to subsection 28 (15) of the Conservation Authorities Act, R.S.O. 1990, as amended, whereby:
"A person who has been refused permission or who objects to conditions imposed on permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Minister who may (a) refuse the appeal or (b) grant the permission, with or without conditions."
The appellant followed the proper procedure with regard to this appeal.
The Mining and Lands Commissioner and/or the Deputy Mining and Lands Commissioners have been assigned the authoritative powers and duties to hear the appeal pursuant to subsection 6 (1) and clause 6 (6) (b) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M. 31, as amended, and Ontario Regulation 571/00. By virtue of subsection 6 (7) of the Act, the proceedings are governed by Part VI of the Mining Act with necessary modifications. Pursuant to clause 113 (a) of the Mining Act, these proceedings are considered to be a hearing de novo.
In addition, the principles outlined in the Statutory Powers Procedure Act apply to the hearing.
Mr. Richard Rinaldi is a general contractor residing in Barrie, Ontario. He purchased the subject property in 1987 through a tax sale from the Town of Innisfil in the County of Simcoe. The land consists often lots (258-263 and 269-272) on Plan 759, a plan registered in 1930. The property is assessed as residential and fronts on Ewart Street, a road that is maintained on a year round basis, and backs onto the unopened Alder Avenue. (Ex. 14) Lots 269-272, fronting on Ewart Street, have been provided with lateral connections to the sanitary sewer. (Ex. 14)
The engineering firm of Skelton Brumwell & Associates Inc. of Barrie, Ontario, submitted an application to the Lake Simcoe Region Conservation Authority (LSRCA) on January 25, 2001 on behalf of Mr. Rinaldi for the:
"Placement of fill to accommodate future buildings on Lots 260 to 272 and removing fill from Lots 258 to 263" (Ex. 1-c)
According to the covering letter, the proposal called for fill to be placed on Lots 269 to 272 and for fill to be removed from Lots 258 to 263 to offset the loss of floodplain storage. (Ex. I-c) This description is slightly at odds with the actual application but the tribunal does not take issue with this fact. Mr. Rinaldi proposed to construct residential units on Lots 269 to 272 with the finished floors and the driveway access above the floodline elevation. (Cross-section Ex. I-c) Flood proofing would be carried out on any of the structure below grade. As a result of these proposals, Mr. Rinaldi believed that the potential loss of life would be minimized and that the dwellings could be easily accessed during a flood event.
A hearing on this matter before the Lake Simcoe Region Conservation Authority was held on July 27, 2001. Mr. Rinaldi made representation to the Authority seeking approval. (Ex. I-b) The Authority, however, accepted its staffs recommendation and refused the application. Mr. Rinaldi was officially notified of this decision by letter, dated July 31, 2001. (Ex. 1-a)
By Fax Memo, dated August 14, 2001, from Reinie Vos, Director of Watershed Management for the LSRCA, Mr. Rinaldi was notified of the appeal process to the Minister. Mr. Rinaldi filed an appeal of the LSRCA decision by letter, dated August 15, 2001, thus meeting the requirements of the Conservation Authorities Act for filing an appeal within thirty days of receiving the reasons for refusal. An Order to File was issued by the Mining and Lands Commissioner on December 2, 2001 and the Appointment for Hearing was issued on July 3, 2002.
1. Does the land meet the criteria and policy of the LSRCA for a wetland designation?
2. Does the land meet the criteria and policy of the LSRCA for floodplain designation?
3. Does the application for the removal of and filling of the lots for the purpose of residential development meet the goals, objectives and policies of the Provincial Policy Statements and the Lake Simcoe Region Conservation Authority?
4. Does the fact that the lots are registered and could and do receive municipal services have any bearing on the decision of the tribunal?
5. Do the planning issues under the Planning Act have any relevance to the decision of the tribunal?
Mr. Kenneth Hill provided a preliminary statement on behalf of the LSRCA outlining the reasons for the refusal of the application by the Authority. Exhibit I-b states the reasons as follows:
"1. The application is contrary to the Policy 3.1.1 a) and 3.1.2 c) of
the Provincial Policy Statement;
2. The application will result in the partial loss of a Locally Significant Wetland;
3. The application will adversely affect the conservation of land."
Mr. Hill indicated that the issues that must be dealt with by the tribunal were:
1. the matter of the floodplain and wetland designation;
2. the distance along the road ways before safe access/egress can be achieved;
3. the matter of storage capacity within the floodplain area; and
4. the issue of cumulative effect upon the floodplain due to possible development.
Evidence for the Appellant
Mr. Richard Rinaldi was sworn to give evidence to the tribunal. Since he was representing himself, the tribunal recognized the difficulties that are faced by both the appellant and the respondent in such cases and indicated that Mr. Rinaldi would be given as much latitude as possible in the interests of "natural justice". Mr. Hill agreed with the tribunal's position.
Much of Mr. Rinaldi's evidence was actually presented through his cross examination of the Respondent's witnesses. He did, however, review his present and earlier submissions to the tribunal as outlined specifically in Exhibits 2 and 13.
Exhibit 2- b) was a letter from Skelton Bromwell & Associates Inc., engineers, dated February 2, 2001, directed to Mr. David Whyte, Environmental Planner for the LSRCA. This letter set out certain facts, as developed by the firm, related to the application.
1. The LSRCA Shoreline Mapping, prepared by Marshall Macklin Monaghan in March 1978, indicates that the subject site is within the registered floodline, established at an elevation of 720.55 feet or 219.62 metres. (Ex. 2-b)
2. Based on a detailed topographical survey of the lots by Skelton Brumwell, it appears that the existing elevations of the lots are about 218.8 to 218.9 metres, averaging 0.75 metres (2.46 feet) below the floodline. The velocity of the flood waters is subject to less than the 1 metre per second which is the minimum standard in the provincial guidelines. The source of flooding is the lake and not from a stream or river. In addition, the elevation of the surrounding streets basically is at or only slightly below flood elevation. These facts indicate that the proposal for residential development within a floodplain meets the criteria of Section 7.1 of the LSRCA Watershed Development Policies. (Ex. 2-b)
3. To further meet the criteria of the Policies, the building is proposed to be 130 square metres (1,400 square feet) in area, with a two car garage and is to be flood proofed. (Ex. 2-b)
4. The application proposed development of only four lots (269-272) using a cut and fill exercise to be carried out. Fill would be removed from lots 258-263 to compensate for the loss of floodplain storage within the building lots.
Skelton Brumwell provided an analysis of the fill required for the building lots. Since approximately 215 square metres of the lot would be above the floodplain (house/garage/driveway) and based on the existing grades being approximately 0.75 metres below the floodline. The volume lost would be 215 sq. m. X 0.75 m or 161 cubic feet per lot. Parts of the remaining lot area (366 sq. m.) will not need any fill except that required next to the house itself. Assuming an average depth of fill to be 0.25 metres, the total fill to be placed within the landscaped part of the lot would be 91 cubic metres. The total fill for each lot would therefore be 252 cu. m., for a total of 1,008 cubic metres for the four lots.
The total area of the six lots "fronting" on Alder Avenue is 3,484 sq.m. If 1008 cu.m. of fill is removed from these lots, the average depth of fill removed would be about 0.30 metres or 1 foot. By placing this fill on the four Ewart lots, the loss in flood storage is estimated to be about 1008 cu.m. compensated for by the removal from the rear lots of the same amount. (Ex. 2-b)
Mr. Rinaldi provided a statement of the issues that he felt were relevant to the application through Exhibit 2.
1. Since the lots were part of an old registered plan of subdivision for residential use, it is the appellant's belief that the Planning Act protects him in that it states that no by-law can prevent the use of the land as long as it continues to be used in that manner. In addition, Mr. Rinaldi questions the effect of rigid environmental restrictions on the supply and price of new housing (affordability and homelessness) if the restrictions are applied to lots that are already part of a registered plan.
2. The Skelton Bromwell and Associates Inc. cut and fill proposal indicates that floodplain storage will not be lost. (Ex. 2-b) In fact, Mr. Bromwell's opinion is that it will be enhanced. The tribunal notes that there was no elaboration of this point in the engineering report.
3. Sanitary sewers can be provided to the lands as the sewer line parallels Ewart Street with connection points provided by the Wastewater Department of the Town of Innisfil. (Ex. 2- c) In addition, municipal water may soon be added. (Ex. 2-d) Natural gas, hydro, school bus and garbage collection services already exist along Ewart Street. Since these services exist or will do so in the future, Mr. Rinaldi stated that there was an obvious intent by the municipality for the lots to be developed.
In addition, because the lots can be serviced with sanitary sewers, no septic system will be required, thus eliminating the potential pollution problem from this kind of servicing.
4. Raising the adjacent lands would have a beneficial effect on the ability of the municipality to maintain Ewart Street in a proper manner and reduce the erosion of the road into the adjoining ditches. Mr. Rinaldi's engineers believe that since the driveway will be above flood elevation, there would be easy ingress/egress during flood conditions. (Ex. 2-b)
5. The Wetland is significant only on a local basis and is rated as "Class 6". The lands do not "host the habitat of any significant species of plants or animals" associated with a wetland environment. They also are not suitable for farming. Mr. Rinaldi indicated that "everyone" agreed that the lands were not in a Provincially Significant Wetland and he maintained that the lands barely meet the criteria for a locally significant wetland designation.
The Natural Resources Wetland Data Report, prepared by biologist, Mr. Graham Findlay, on the Little Cedar Point Swamp (Ex. 5) indicates a low score (402) for the area. Mr. Rinaldi contended that Mr. Findlay stated that in "My opinion, the Wetland Policy would not apply". (Memo to File, dated August 16, 1995 from Findlay and included in evaluation report. Ex. 5).
Mr. Rinaldi continued his analysis of the report by stating that:
"A closer examination of the data reveals that a considerable portion of the score is attributed to activities which include hunting, logging, commercial fishing and canoeing. It would be illegal to even attempt, to hunt on the subject lots and not very advisable to try the others. Furthermore, since there is no Identifiable depression in the ground in which a flow of water regularly or continuously occurs these lots cannot even be defined as Wetland The preceding is further proof of the very different nature of these lots, in relation to the surrounding ones." (Rinaldi -Ex. 13)
Mr. Rinaldi believes that an artificial, man-made wetland has been created in this area due partly to the blockage of the Ewart Street ditch in the area close to Lake Simcoe. Only one ditch is open, forcing the water to spill over into areas where it should not be, such as the lots in question.
A final point on this issue dealt with the acquisition of the lands. Since the lots were purchased from the municipality, Mr. Rinaldi assumed that the municipality would favour development and had decided to not safeguard them against such development. In fact, he indicated that "the current Town policy is not to protect the locally significant wetland areas in this area ". (Excerpt from page 4 of a report prepared by Kathy Brislin, Principal Planner, Technical Services for the T own of Innisfil as a result of a Public Meeting with developers in November of 200 1. (Part Ex. 13)
6. With regard to the LSRCA statement that the application is contrary to sections of the Provincial Policy Statement (3.1.1 a) and 3.1.1c), it is Mr. Rinaldi's contention that these policies do not apply. The tribunal notes that the LSRCA spoke about Policies 3.1.1 a) and 3.1.2 c), not 3.1.1 c) but it is apparent, from the evidence, that Mr. Rinaldi is in fact speaking about 3.1.2 c).
Policy 3.1 is titled Natural Hazards under the Public Health and Safety Section of the Policy.
"Development will generally be directed to areas outside of:
a) hazardous land" adjacent to the shorelines of the Great Lakes-St Lawrence River System and large inland lakes which are impacted by flooding. erosion, and/or dynamic beach hazards;
b) hazardous; lands adjacent to river and stream systems which are impacted by flooding and/or erosion hazards, and
c) hazardous sites."
"Development and site alteration will not be permitted within:
a) defined portions of the dynamic beach;
b) defined portions of the one hundred year flood level along connecting channels; and
c) a floodway (except in those exceptional situations where a Special Policy Area has been approved).
Mr. Rinaldi's interpretation of Policy 3.1.1a) is that it deals with hazardous lands adjacent to large inland lakes and further that the Policy defines adjacent lands as "lands contiguous to a specific natural heritage feature or area". His dictionary research showed that the word "contiguous" is defined as "to touch or to be in actual contact". As a result of this interpretation, Mr. Rinaldi believes that since the "subject lots are not in contact with Lake Simcoe and they are buffered by shoreline residences and Maple Road" (Ex. 13), the Authority should not apply this policy to his lots.
With regard to Policy 3.1.2 c), Mr. Rinaldi cites that the definition of "floodway" refers to rivers and stream systems, not a lake. He states that "Again, the presence of a watercourse is clearly missing from this area". (Ex. 13)
Mr. Rinaldi goes on to state:
"Notwithstanding, in the event of a storm, since the floodline is from the lake, not a stream, the velocity of flow would be negligible. The average depth is below the maximum of.8 M. Thus, according to the respondent's Watershed Development Policies (APPENDIX D), the subject lots would be well within the LOW FLOOD RISK CONDITIONS. "(Ex. 13)
Mr. Rinaldi reiterated that the Brumwell report outlines the cut and fill proposal for the lots which they believe would eliminate any impact on the capacity for flood storage capacity, since the cut and fill exercise would be self contained. There would be no impact on any of the surrounding properties. (Ex. 2-b)
Since the Authority's Shoreline Mapping (Ex. 4-d) was prepared in 1978, prior to the installation of the sanitary sewer line, Mr. Rinaldi contended that "a large portion of the Hazard, could be attributed to the flooding of septic $systems". This is significant, in Mr. Rinaldi's opinion, "because it changed the ecosystem function of the lands serviced. To maintain otherwise, is akin to believing that the sanitary sewers, were installed for the sole benefit of the mosquito population". (Ex. 13)
Mr. Rinaldi went on to state that "the respondent's Watershed Development Policies defines Ecosystem Approach as "A holistic method of planning and/or managing human activities that considers environmental, social and economic issues, while acknowledging that these issues are inter-related" . This further reinforces the idea that the introduction of sanitary sewers and other services, changed the very nature of these lots from raw land to an evolved resources, designed for human habitation. Thus the approval of this application is not an encroachment, but an enhancement of the current ecosystem function of this land"
Mr. Rinaldi further stated that he believed that the Authority's narrow interpretation of the Provincial Policy Statement was contrary to their ecosystem approach in that the Policy was intended to be read in its entirety and he believed that the Authority cannot selectively ignore sections of the policy. In this case, Mr. Rinaldi referenced Section l-Efficient Cost-effective Development and Land Use Patterns of the Policy, specifically referencing parts of Section 1.1.2 b) and d) which state as follows:
"Land requirements and land use patterns will be based on:
b) densities which:
1. efficiently use land. resources, infrastructure and public service facilities;
2. avoid the need for unnecessary and/or uneconomical expansion of infrastructure; .................and
4. are appropriate to the type of sewage and water systems which are planned or available; and
d) development standards which are cost effective and which will minimize land consumption and reduce servicing costs;
7. Mr. Rinaldi referenced the final issue raised by the LSRCA in its decision to refuse his application, being that the application will adversely affect the conservation of land. In his view, both the Provincial Policy Statement and the LSRCA ecosystem approach indicate that the application, in fact, enhances this aspect of the Authority's responsibilities. He acknowledged that the ecosystem function of rivers and streams is integral to the conservation of land, but since there are no rivers and streams involved, there can therefore be no adverse affects on the conservation of land.
8. As far as precedents and cumulative effect is concerned, Mr. Rinaldi maintained that many precedents exist in the area already and cited the 3 storey / 3 unit apartment across Ewart Street, as well as the Allerton Appeal (tribunal file CA 001-95) among others. The Allerton property is located on Lot 192 of the same registered plan, fronting on Bellaire Beach Road to the north west of the subject property. An agreement was reached between the Allertons and the LSRCA and an Order, with conditions, allowing the application, was issued by the Commissioner in March of 1996.
Mr. Rinaldi indicated that the surrounding lots "are landlocked and devoid of any infrastructure". (Ex. 13) It was his opinion that these streets, including Alder Street, will remain unopened and would not provide the opportunity for other landowners to bring forth similar applications. Cumulative impact on flood storage will not, as a result, be an issue.
Cross examination by Mr. Kenneth Hill
During cross examination, Mr. Rinaldi acknowledged that he was not an expert in floodplain management but indicated "I can read them and, if the word "eco" is used, then raw land and services are to be held together." His background is in landscaping and construction, not biology or engineering. His knowledge is from observation. He hired Skelton Brumwell to carry out the engineering analysis.
When he bought the property in 1987, the Authority was not involved. He thought it was zoned residential, not Open Space and to his knowledge, the Town had not provided any notice nor attempted to alter the Official Plan designation nor the zoning status since he purchased the land.
Mr. Hill directed the discussion towards the issue of access and egress during a flood event. According to Exhibit 4-d - Township of Innisfil Shoreline Mapping - Lake Simcoe Region Conservation Authority, prepared by the firm of Marshall Macklin Monaghan in March of 1978, the lots in question are all located within the Little Cedar Creek swamp and are shown on this map as " Hazard Land". In addition, the lots are all located within the established Lake Simcoe floodline elevation of720.55 feet or 219.62 metres.
Mr. Rinaldi disputed the flood depth along Ewart Rd. maintaining that safe ingress/egress was possible along either Ewart Street to the south or north west along Maple Rd. to Claver Avenue.
Mr. Hill, however, using the appellant's submission by Skelton Bromwell,
(Ex. 14) pointed out the various surveyed spot elevations located along Ewart
1. Edge of Ewart St. opposite Lot 272 - 219.60 - flooding 0.02 m/.06 feet
2. Centre line of Ewart St. opposite Lot 272 - 219.63 m. - above floodline - .03 feet
3. Intersection of Ewart St. and Maple Rd. - 219.54 m. - flooding 0.08 m/.26 feet
4. Edge of Road Allowance and Lot 272 - 218.87 m.± - flooding 0.75 m /2.46 feet
5. End of floodplain along Ewart St. - 219.62m - flooding ends
Only the centre line of Ewart in front of Lot 272 was above the floodline but by .03 feet and both Maple Rd. and Claver Avenue are located within the floodplain as well as Ewart Street. Mr. Rinaldi insisted that the depth of water was not enough to impede safe access for people, cars and emergency vehicles, citing the Floodplain Policy Statement.
Mr. Hill suggested that the ditches along side the traveled road area (which Mr. Rinaldi agreed existed) would fill with water and people, walking or driving, would not be able to see where the actual pavement was located during Regional Storm conditions. Mr. Rinaldi felt the existence of telephone poles, hydro meters, and buildings would provide the necessary guide for ingress/egress. This was countered by Mr. Hill pointing out that none of these examples would be located at the edge of the paved road and therefore could not provide clear guidance to both vehicles and people.
Mr. Hill continued with a discussion on precedence and cumulative effect. Three hundred (300) lots were registered in Plan 759, many of which have not been developed. In addition, most of the roads have not been opened. The Authority is concerned that the municipality could open these roads if it chose, in which case, there could be many applications like Mr. Rinaldi's for the Authority to deal with. In this regard, Mr. Rinaldi again mentioned the Allerton application (tribunal file CA 001-95). Mr. Hill suggested that the conditions were different with regard to this file in that the property is on the very edge of the wetland designation, unlike the lots in question. In addition, the flood depth had a lesser impact.
Mr. Rinaldi agreed that the area has been identified as the Little Cedar Swamp wetland by the Ministry of Natural Resources since 1985, but in his view, the roadway should not be included in the designation, nor should his lots, since they "are different" and do not meet the criteria for a wetland. There can be no hunting or fishing and the water is never deep enough for recreational activities. Mr. Rinaldi referenced the Finlay comments in the Natural Resources Wetland Data Report again but Mr. Hill pointed out that Mr. Finlay's comments deal with one particular lot of record, located on Gilmore Drive which is a totally different area from the Ewart Street lots. Mr. Rinaldi was not aware of this. In addition, Mr. Hill indicated that the Provincial Policy Statement made exception for "lots of record" in 1995 when the Finlay comments were made. This is no longer part of the Policy statement.
With regard to Mr. Rinaldi's contention that it would be a waste of resources if these lots, which can be serviced, were not allowed to develop. Mr. Hill asked if Mr. Rinaldi was aware of the Official Plan for the Town of Innisfil and the amount of land that the Town had designated for future residential uses. He indicated he was not familiar with the Plan and was only aware of the Secondary Plan process that the Town has undertaken with the developers in the area. Obviously, they are looking for more lots, but he is not aware of any municipal plans for rezoning in this area. In his case, despite the fact that no new houses are being built in wetlands in the area, he proposes to flood proof his units which will be on a sort of "peninsula" within the lot, whereas Mr. Hill believed they would be like islands in the floodplain.
Mr. Kenneth C. Hill called the following witnesses on behalf of the respondent, both of whom were sworn as experts and qualified in their respective fields to provide opinion Rinaldi versus evidence. Both witnesses were familiar with the Rinaldi application and the area in question:
Mr. Thomas G. Hogenbirk dealt with the various issues of the application through his own witness statement as well as through the cross examination by Mr. Rinaldi. The tribunal has chosen to deal with the issue evidence in a combined form since Mr. Rinaldi took advantage of his cross examination to present some of his own evidence.
1. Lake Levels
Exhibit 15 entitled Lake Simcoe Yearly Water Level Range shows that the Lake level varies from a mid winter average level of 218.60 metres at surface level to 219.20 metres throughout the rest of the year. This is a rough range used to maintain the lake levels, providing a fairly even curve. The control gates are located at Waubaushene where the lake is drawn down in September in order for the fall/winter levels to be ready for the spring freshets.
The water level of the lake can affect the proposed lots in that the lake water backs up through the ditches into the wetland, creating a ponding effect. At the same time, the ground water levels rise to the level of the lake base.
An overview of the drainage conditions indicates that there are three causes for the flooding in the area of the application.
1. The Lake effect - with flooding from Lake Simcoe;
2. The Creek to the north of the lands - flooded during the "Hazel" storm event;
3. Extreme rainfall can create its own flood due to the very flat nature of the topography of the area;
The wetland is used as a basin or bathtub to store both normal rainfall as well as water from a major storm event. This water then either seeps into the ground or drains through the existing culverts to the lake. If the basin is not present, the drainage would need to flow totally through the creek / river system. Under flood conditions, the lake edge would rise in level at the shoreline and back up into the culverts. The wind velocities increase, intensifying the wave action which then dumps the flood waters over land and into the wetland basins.
This overview illustrated the issues affecting the Rinaldi application. The proposal would reduce the storage area available for the water to pond. There would be .7 to .8 metres of flood water depth on the four proposed lots. This information was corroborated by the Skelton Bromwell survey plan (Ex. 14) which provided actual SURVEYED spot elevations for review.
Mr. Hogenbirk indicated that the Town of Innisfil Shoreline Mapping was produced from aerial photographs using ground controls which provides rough estimates. The Regional Storm event was marked on the ground and the Authority mapping uses these control points. Whenever the LSRCA is able to secure actual ground survey data, however, that data becomes the accepted reliable data. In this case, the Skelton Brumwell plan indicates that the elevation of Ewart Street at the intersection with Maple Road is 219.54 m, which equates to the .836 metres below the floodplain boundary at 219.62 m.
Mr. Rinaldi indicated that he had not submitted nor does he accept the Skelton Brumwell plan as it was marked as "PRELIMINARY ONLY". Mr. Hogenbirk responded that the plan was submitted by Mr. Rinaldi's engineers and had not been disputed earlier.
Mr. Rinaldi questioned Mr. Hogenbirk about the permission given for the five unit apartment located across Ewart Street at the intersection of Maple/Claver and Ewart Streets and wondered where these residents would go in the event of a flood. Mr. Hogenbirk indicated that the Authority had approved additions to a single family dwelling at this location and had never even been asked for approval for a five unit apartment. The Authority was not in agreement with this density and would never have approved of the density increase.
3. The Wetland
The wetland area that exists on the Rinaldi property is part of the Little Cedar Creek Swamp and has been designated as a Locally Significant Wetland. The general functions of a wetland, which Mr. Rinaldi agrees with, are for the storage of both surface and ground water, a pollution control mechanism (cleansing percolating water) and as a natural habitat for wildlife and plant life. The soil is normally organic and distinctive vegetation is found in these areas and in any case, these people will have difficulty moving through flooded roads.
There was also agreement that the Little Cedar Creek Swamp covers approximately 129.7 hectares and that the area of the four lots (about .23 hectares) represents a small percentage of the total area and in itself, is not a significant amount. Mr. Rinaldi, however, disagreed that the soil is organic (muck). From his construction work, he knew that the soil would be dry. He maintained that the four lots were different from the rest of the wetland, but Mr. Hogenbirk indicated that he was not an expert in this matter and was not qualified to give an opinion regarding soil conditions. Mr. Hogenbirk agreed that the road itself was not wetland, but cuts through it. The edge of the road/ditches, however, certainly were part of the wetland. This is often an area where turtles nest. Certain types of animals would not like the area, while others would. The impact on the edge would not be the same as it would be in the interior.
Although there is no surveyed topographic data available to the south west along Ewart Street to provide information about flood depths, vehicles and people would have quite a distance to travel through floodwaters to reach the edge of the floodplain. (The tribunal estimates the distance to be approximately 213 m. (700 feet) based on the Township of Innisfil Shoreline Mapping.)
In addition, since the flooding is lake based, the resultant wave action would result in the deposition of mud over the land, including the roadway. This would get worse as one traveled along Ewart Street towards Lake Simcoe and the Maple Road/Claver Ave./Bellaire Beach Rd. street access/exit routes. In all cases, vehicles and people trying to leave the area would have to get around this comer, all of which leads towards the source of the flooding, being the lake.
In Mr. Rinaldi's view, the risk is manageable and he reiterated that the Flood Plain Stability Chart for Humans (Ex. 13) shows that the subject lots are in the Low Risk category. Mr. Hogenbirk agreed that the velocity was negligible and its affect on adults would not be great. Emergency vehicles could get through the streets. However, with the depth of flooding at the lots being .75 m (2.46 feet), a hazard exists and should be recognized. The Authority's role is to prevent further risks from being created which could have an impact on people's lives as well increasing public costs as a result of property damage.
Mr. Rinaldi suggested that since the lots in question were there before the mapping and the Regulations were in place and the lots probably could have been developed at that time, he should have the development rights. Mr. Hogenbirk referred Mr. Rinaldi back to Mr. Hill's comments about the lots of record no longer being recognized if hazards exist.
5. Cut and Fill Proposal-Impact on the Wetland
The intent of the proposal is to excavate soil from lots 258 to 263, which are located in the wetland (cut) in order to use this soil to raise the elevation of the lots to be developed (fill). Mr. Rinaldi proposes to dig down approximately .3 of a metre (almost one foot) across the six lots and raise the four Ewart Street lots by .23 of a metre to an elevation of 219.1 m. This elevation is still below the Regulatory Storm level. The basements were to be floodproofed with no openings and the finished floor to the "living" part of the houses was to be at elevation 220.8 m., which would be above the flood limit.
Mr. Hogenbirk indicated that beyond the fact that the fill from the wetland would be mostly organic soil and therefore far from suitable as fill material, the cut and fill process is valid only if the cut is taken from "outside" or off of the property to be filled and from a higher area. Positive drainage must result from a cut/fill exercise and this would not be the case for the Rinaldi proposal. If the wetland is excavated, that area will automatically fill up with ground water since the base of the cut would be at the same level as the Lake Simcoe lake base. As the lake rises, so will the ground water. There would be no storage gain, only storage loss. The Skelton Bromwell report did not deal with the lake level or the ground water issue. As a result, there is no equivalency factor involved in the proposal.
It has been noted that Mr. Rinaldi did not agree that the soil on his lots was wetland organic/muck soil, and he also did not agree with the methodology applied by the Authority for the cut and fill process. In particular, he referred to the off site requirement for the cut, but Mr. Hogenbirk had clearly outlined the policy of the LSRCA in this regard.
Mr. Hogenbirk admitted, that on a local basis, the cumulative effect does not seem significant since there is a small amount of fill involved. However, the LSRCA must look at the overall picture. When this is done, any fill area does contribute to "cumulative effect" and can have significant impact on the floodplain and the depth of flooding in the area.
Mr. Hogenbirk did not agree with Mr. Rinaldi's assumption that the lots fronting on the unopened Alder Avenue were landlocked. They certainly are at the moment, but the Town could open the road at their pleasure which could lead to further applications similar to Mr. Rinaldi's. The Authority would then face the issue of precedence as well.
Mr. Hogenbirk commented on Mr. Rinaldi's assertion that the installation of sanitary sewers has a beneficial effect in that it reduces the possible pollution from septic systems during a flood event. He agreed with this but the only thing this does is remove the possible environmental impact. The sewers do not reduce the effect or the amount of the flooding. In addition, the fact that the sewer line was installed after the 1987 mapping has no bearing on the validity of the flood line mapping nor on the fact that the area could flood during a major storm event.
Mr. Rennie Vos in his capacity as a land use planner, experienced in watershed management, provided the tribunal with evidence regarding both the Provincial and Authority Policies as they related to the Rinaldi application as well as the designations on the property by the municipality. He noted that the LSRCA is not just based on a "riverine" watershed, but on the total area, including the rivers and streams, that drain into Lake Simcoe. This fact does not detract from its mandate and jurisdiction under the Conservation Authorities Act and the Provincial policies regarding floodplains, natural heritage, hazard and wetlands that it must have "regard to".
The current Official Plan for the Town of Innisfil designates the Rinaldi lots as "Natural Environment" with a zoning classification of Open Space Conservation (OSC-2), which does not allow for residential development. The boundary is at the rear of the homes along Bellaire Beach Road and the Maple Road fronting residences. The existing residential development is captured in a "Shoreline Designation" zone. Mr. Vos indicated that the designations were appropriate for the wetland area. Photographs taken by the Authority of the site (Ex. 16-a and 16-b) and by Mr. Rinaldi (Ex. 2-e, f & g) were reviewed by the tribunal. These photographs indicated typical wetland vegetation although it had been cut. Mr. Rinaldi indicated that he had had the vegetation cut a few years ago.
Mr. Vos commented on the Natural Resources Wetland Data report for the Little Cedar Point Swamp (Ex. 5) noting that the report included two evaluations. The major one was carried out in 1984-85, at which time the Locally Significant Wetland classification was placed on the lands. The Rinaldi area or the eastern tip of the swamp was part of the much larger wetland.
In 1995, Graham Findlay, the Ministry's Area Biologist, did a "very quick paper re-evaluation of Little Cedar Swamp re development (single lot) issue in Alcona". (Ex. 5- insert) as a result of a request from the LSRCA for comments on the particular application for development on one lot on Alcona Rd. The request did not deal with any lands in proximity to the Rinaldi lands.
Dealing with the last paragraph of Mr. Findlay's Memo to File, it is obvious that Mr. Findlay did not hold a strong opinion about the maintenance of the Alcona Rd. lot as a wetland. He noted that it was not provincially significant. The paragraph states:
"My opinion, the wetland policy would not apply. The lot is of record with development surrounding it, with the municipal services being extended to it -If the owner wished to work with our office about building a house and protecting the wetland as much as possible we'll work with the owner. If the municipality wished to designate the entire wetland remaining in protective zoning we would certainly support the effort. If the LSRCA wished to block the proposal, arguing the fill regs., it is up to them. We would support that as well to the point it protects the wetland However, given the circumstances around the lot, I indicated we would not likely be objecting to the board on the issues arguing wetland policy."
The tribunal notes that it was not stated whether the particular lot development was approved or whether it still remains within the wetland classification. Mr. Vos did indicate that the circumstances had some similarities from a planning point of view but not from an environmental point of view.
Mr. Vos dealt with the Lake Simcoe Region Conservation Authority Watershed Development Policies which were prepared and approved in September in 1984, and updated by Authority resolutions in 1994, 1998 and 2000 respectively. Section 7 of the Policy is entitled "Development Policies - Structures and Fill". The general premise of this section states:
"It is the general policy of the Authority to discourage all development within the floodplain. However in some cases, the Authority may consider a development proposal in the floodplain when the proposal has no other opportunity to locate outside the floodplain, provided that all of the following requirements are adhered to:"
Mr. Vos emphasized the fact that the policy demands that all ten of the requirements be met if development was to be allowed. Five of the major requirements for the Rinaldi proposal marginally meet the criteria:
1. The building site must be subject to less than one metre (3.28 feet) of flooding under regulatory storm conditions. The Authority determined that the site was subject to an average of 0.812 metres (2.66 feet) of flooding and therefore could meet the depth criteria. The LSRCA, however, sees even this level as creating a hazard condition for humans and vehicles during flood conditions. (7.1 (a))
2. The building site must be subject to less than one metre per second of flood flow velocity under the regulatory storm conditions. Mr. Rinaldi had provided the Flood Plain Stability Chart (Ex. 13) which again indicated that the lots were subject to less than the one metre velocity. Again, however, Mr. Vos pointed out that this also was at the high end of the minimum allowed, but it had been acknowledged that the impact was not great. (7.1 (b))
3. The application had proposed floodproofing, which probably could be accomplished along with the requirement for proper electrical system installation. (7.1(d) and 7.1(j))
4. Since the regulatory floodplain had been calculated in this area, section (7.1 (h) could be met.
As a result, the application could meet five of the requirements of Section 7.1 of the Policy, but could not meet the remaining five, in the opinion of the LSRCA. These five were:
7.1 c) That the building site have safe access to lands located above the regulatory flood elevation;
7.1 (e) That there be no significant increase in either the upstream or downstream flooding, taking into consideration cumulative effect;
7.1 (f) That the existing stage-storage of the regulatory floodplain be
Balanced cut and fill techniques will be given consideration in this regard.
7.1. (g) Cutting and filling will not generally be permitted in the following:
7.1. (i) That the proposal not cause an obstruction to flow;"
It has been stated that the Authority did not believe that the application could meet the aforementioned five criteria of Section 7. In addition, Section 12 of the Policy speaks to Wetland Protection. Section 12.3. states:
"The Authority shall encourage its member municipalities to protect both provincially and locally significant wetlands by:
(a) including policies in their Official Plans and Comprehensive Zoning By-Laws which prohibit development in wetlands. "
In the Rinaldi case, the Town of Innisfil has taken the action recommended by designating and zoning the lands for non residential uses in an open space category. This section is not directly significant for the tribunal but does relate to the Policy of the Authority. Mr. Vos also acknowledged that "locally significant wetlands" are not referenced in the Provincial Policy Statement, but Section 12 of the Authority policy shows that the LSRCA basic aim is to reduce the loss of any wetland in its area of jurisdiction.
With regard to the Gilmore lot referred to in the Findlay report (Ex.5). Mr. Vos noted that the 1984 Provincial Policy for Wetlands recognized existing lots of record. However, in the 1997 Provincial Policy Statement, they no longer were referenced.
With regard to the issue of cumulative effect. Mr. Vos noted that there are 303 lots in Reference Plan 759. Approximately one half are affected by the Floodplain designation and almost all of them are affected by the wetland boundary. Since the municipality has not "deregistered" the plan nor the road allowances, the possibility still exists for new roads and new development. The LSRCA is not comfortable with the fact that the municipality owns the lands along Ewart Street since it was the municipality that sold some lots to Mr. Rinaldi. Mr. Rinaldi queried Mr. Vos on whether the Authority should purchase these lots. Mr. Vos, however, indicated that the Authority has identified priority wetland areas for purchase. With limited availability of funds, only the highest priority lands can be secured at this time and the Rinaldi lands do not fall into the priority listing.
During Cross Examination of Mr. Vos by Mr. Rinaldi, the issue of the servicing of the lots was discussed. Mr. Rinaldi maintained that because the lots were serviced, there was an "intent" to allow development. Mr. Vos countered with the fact that the lots had been serviced because of the need to service a much larger development area beyond that of the Rinaldi lots. The sewers had to pass the Rinaldi lots in order to get to the rest of the development area. This does not mean that development of Mr. Rinaldi's lots can occur, nor that the connections would be allowed. In fact, Mr. Vos later stated that the Authority has asked to have the lots removed from the municipal plans in order to eliminate the "impression" that development rights exist. (The tribunal notes that no evidence was submitted that indicated an official request to the municipality for this to occur.)
Mr. Vos responded to Mr. Rinaldi's queries about the Allerton property (tribunal file CA 00195) Initially, the Allerton application was refused by the LSRCA resulting in an appeal to the Minister. There was a settlement negotiated, but no final permit has been issued by the Authority since all the conditions of the settlement have not yet been met.
Mr. Rinaldi implied that the conditions for his lots could be the same since the properties were so similar. Mr. Vos, however, disagreed that the applications are similar noting that:
At the conclusion of the presentation of Direct Evidence for the respondent, Mr. Hill queried Mr. Vos about the issue of risk to the residents of the area. Mr. Vos indicated that there certainly is a safety risk to all the residents who live in the area that would flood during a Regulatory Storm, but the Authority is not able to do anything about the development that existed before the Authority was in a position to regulate floodplain development. It can and does do something about development proposals in the present day.
Final Argument: Appellant - Richard Rinaldi
Mr. Rinaldi's summary of his evidence forms part of Exhibit 13. He clearly sees the introduction of sanitary sewers to the area as the most important issue, but does deal with the issues of the ecosystem and the need for development without waste. He states:
"In short, the term eco, in ecosystem, is derived from the Greek word oikos, meaning household. If the Little Cedar Point Swamp Wetland was a family, then the subject lots would have to be the adopted child, because they share none of the inherent traits which characterize the other members of the household. In other words, the approval of this application will not create a precedent or cumulative impact on the flood storage capacity of this area.
One of the objectives of the respondent's Watershed Development Policies is "To clearly undertake an ecosystem approach when evaluating development proposals". Clearly, this means that the Provincial Policy Statement must be read in its entirety. Furthermore, it also entails an expanded view of natural resources to include not only land but also the infrastructure and intrinsic elements such as proximity to developed areas and suitability for future public transit. This would eliminate waste and enhance the conservation of scarce resources." (Ex. 13)
Mr. Rinaldi understands that the Authority encourages the protection of all wetlands, but they should acknowledge the low category the wetland has been given in this area and continued to dispute the fact that the lands are really wetlands. In hindsight, if he had known that the LSRCA was involved with the lands, he may not have purchased them, but he has been working since 1997 to get approval to build on the lots and believes the risk is manageable and that the proposal falls within safe limits for development.
Mr. Rinaldi referenced certain statements in the Appeal being tribunal file CA 007-92 - 611428 Ontario Limited v. Metropolitan Toronto and Region Conservation Authority in which another tribunal decision is quoted - (Donald Bye v. Otonobee Region Conservation Authority - being tribunal file CC 1357) concerning the need of decision makers to always consider social and economic issues in coming to a decision.
Final Arguments: Respondent - Kenneth C. Hill
Mr. Hill noted a comment made by Mr. Rinaldi which indicated his understanding that the two parties had been close to a settlement prior to the commencement of the present hearing. Mr. Hill stated that this was not the case. He went on to note that the Authority has always placed the application in the context of the Regulations. The appellant, therefore, must satisfy the tribunal regarding the issues of flooding, pollution and the conservation of land.
The principles of floodplain management are well established. Although the risk factor for the proposal is minor, the fact that the area floods because of three factors (the lake, the spill over from the creek and the rainfall itself) creates a different set of circumstances. There are ingress and egress problems from all directions. Despite the lack of information regarding the road elevations, the Authority has adopted a cautious approach in the interests of public safety.
The cut and fill exercise must be balanced to be effective. New storage must be created, unlike the proposal which would create a further ponding area within the wetland itself. This wetland is an important storage area for the lake and the creeks in the area. The area to be cut is below the flood elevation and below the lake level. The Skelton Brumwell report did not consider this aspect, dismissing the impact of the lake as not being relevant to the analysis. As a result, the tribunal must consider the weight that should be placed on the appellant's engineering submission.
In addition, despite the fact that a small amount of fill is involved, the Authority has to consider the resulting cumulative effect. The town's ownership of the wetland lots is not looked at as a benefit to prevent further cumulative effects because so many registered lots exist. If Mr. Rinaldi's lots are approved, others will follow.
Despite this, the municipality has protected the locally significant wetland by placing it in a environmentally protective category in both the Official Plan and the Zoning By-Law. This is primarily a planning tool to which the LSRCA has provided positive input. Mr. Rinaldi says that his lots are different, but the lots are clearly within the wetland category area. The photographs show a wetland type of vegetation and Mr. Rinaldi has not provided any evidence to back up his assertion that lands are not wetland.
Although there could be sympathy for Mr. Rinaldi's dilemma, he should have made the proper enquiries in the first place before he bought the lands. "Caveat Emptor" is a valid slogan.
Mr. Hill also referred the tribunal to certain statements in the same appeal as referenced by Mr. Rinaldi, being tribunal file number CA 007-92 - 611428 Ontario Limited v. Metropolitan Toronto and Region Conservation Authority with regard to the relevance of planning matters in a Conservation Authority appeal. In this decision, Commissioner Kamerman referenced the decision in Donald Bye v. Otonobee Region Conservation Authority (tribunal file CC.1357, November 19, 1993). Mr. Hill requested the tribunal to review these decisions with regard to the issue of relevance (pages 73-74) and the issue regarding the conservation of land. (page 63)
At the outset, the tribunal would like to note the difficulties that arise when one party is represented by experienced Counsel while the other party has no such assistance in preparing either their written or verbal submissions. As a result of this type of situation, the tribunal must be as fair as possible to the appellant in providing the opportunity for them to present their case. Natural justice requires this, but it must be borne in mind that "natural justice" must also apply to the respondent.
The appellant also may not have a full understanding that the onus of proving their case lies with them and not with the Conservation Authority. The Conservation Authority can provide the technical evidence which the appellant obviously disputes since the matter is under appeal, but the appellant must show valid reasons for their dispute, reasons that can be supported with expert evidence as opposed to assumptions. When this situation occurs, the tribunal must make decisions regarding the weight that it will attach to the evidence provided.
The tribunal believes that Mr. Rinaldi was given as much latitude as was possible during the hearing in order to provide the evidence necessary to prove his case. This was done with the cooperation of the Conservation Authority. The tribunal notes, however, that other than a report submitted by an engineering firm, no other expert evidence was provided by the appellant. It was unfortunate that the engineer was not present at the hearing in order to allow the respondent to examine him on this evidence. As a result, the amount of weight put on this evidence has been modified since this was the only technical evidence provided by the appellant.
The remainder of the Findings will deal with the five issues that the tribunal has determined were of the greatest significance to the hearing.
ISSUE 1: Does the land meet the criteria for a wetland designation?
One of the reason's that the LSRCA denied the Rinaldi application was that it would result in the partial loss of a Locally Significant Wetland.
The Authority outlined the function of wetlands as three fold:
It is these functions that the LSRCA is seeking to protect by refusing the Rinaldi application.
From the evidence submitted, it is clear to the tribunal that the Little Cedar Point Swamp exists in the area of Mr. Rinaldi's lots. This swamp has been designated as a Locally Significant Wetland as an outcome of the study carried out by the Ministry of Natural Resources in June 1985. Although little emphasis was placed on this document by the respondent, it did provide the technical data to indicate the reasons that the lands were designated Locally Significant by the Ministry, a designation which is recognized by the LSRCA's mapping, as well as the Town of Innisfil's Official Plan and Zoning documents.
The tribunal notes that the report's evaluation results scored highly in the biological component, in the mid range for the social component and in the low range for the hydrologic and special feature components (P. 122 Ex. 5), scores that led to it's evaluation as a Class 6-7 wetland of only local significance. The report indicates that 97% of the total 129.7 hectare area was seen as swamp with some marsh and with organic soils occupying less than 50% of the area. Permanent or intermittent flows characterize the wetland (p. 10 1 Ex. 5) and there is a connection to open water within a distance of 1.5 km. In fact, the report notes that Lake Simcoe is within 0.5 km. of the wetland in this area.
The report further indicates that some fish can be harvested and there is a distinct presence of bull frogs and fur bearing animals with good winter cover for winter birds and the small mammals. The landscape exhibits a distinct wetland appearance but with a fair amount of disturbance from roads, buildings, drainage, filling and water pollution. Very little recreational value is attached to the wetland in the report.
Mr. Rinaldi, although recognizing the existence of the aforementioned report and quoting from it, maintained that the lots he wishes to build on are not natural wetlands but were man made as a result of the blockage of the ditches adjacent to Lake Simcoe at the end of Ewart Street and do not exhibit any of the characteristics of a wetland as described in the report. He maintained that he knows soils and these lands do not have organic soil conditions. He knows this because of his experience in the construction business. However, he did not provide the tribunal with any technical evidence from a biologist or a botanist to dispute the findings of the Ministry's 1985 report other than pointing to the addendum to the report, prepared in 1995 by Mr. Graham Findlay, the same biologist who prepared the original report.
Mr. Rinaldi quoted some of Mr. Finlay's statements from this addendum, such as:
He did not, however, make reference to Mr. Findlay's statement that:
"If the municipality wished to designate the entire wetland remaining in protective zoning we would certainly support the effort. If the LSRCA wished to block the proposal, arguing the fill regs., it is up to them. We would support that as well to the point it protects the wetlands. " (Ex. 5)
The tribunal believes that this statement indicates Mr. Findlay's support for the protection of all wetlands whenever possible, not as a statement that the wetland was unimportant and therefore it did not matter if it was protected. Mr. Findlay just was not in a position to provide any substantive support due to the local designation.
It also is clear from the Authority's evidence that the Findlay addendum was a reference to some specific lots on another street and did not even apply to Mr. Rinaldi's lots. There is no further data that would apply specifically to the Rinaldi lots.
The tribunal's site visit and the photographs submitted as exhibits by both the appellant and the respondent (Ex. 2 and Ex. 16) appear to indicate to the tribunal that plant life typical of wetland environments had existed on the property within the last year or so, but had been cut down giving the property the appearance of cleared land.
The tribunal accepts that it is the Authority's view that all levels of wetland classifications are important in order to provide the accepted environmental functions, be they provincially, regionally or locally significant. Although agreement existed that the lots themselves represent a small percentage of the overall wetland, nevertheless, the Authority has adopted a policy to protect all such wetland areas whenever and wherever possible.
No technical information was presented to dispute the Authority's contention that the Rinaldi lots are wetlands. Based on the evidence provided, the tribunal finds that the classification of the lands as locally significant wetlands as outlined in the 1985 Findlay evaluation report is a valid designation.
ISSUE 2: Does the land meet the criteria for floodplain designation?
Mr. Rinaldi suggested that the lands in question do not meet the definition of "floodplain" and has used the Provincial Policy Statement definitions and a dictionary to back his arguments. He stated that the Policy applies to "hazardous lands adjacent to large inland lakes" which are "contiguous to a specific natural heritage". A dictionary definition of "contiguous" provided by Mr. Rinaldi shows the word to mean "to touch or to be in actual contact". The tribunal agrees that this is the definition, but the Seventh Edition -The Pocket Oxford Dictionary also adds the word "next" and provides one definition of "next" as "being or lying or living nearest (to)". In addition, Mr. Rinaldi maintains that the definition of "floodway" only relates to its relevance to a river or stream and since the flooding is from Lake Simcoe, the floodplain term is not applicable.
The tribunal accepts the fact that the lots are not in direct contact with Lake Simcoe but are separated from it by a road and shoreline residences as Mr. Rinaldi stated. The tribunal also accepts the fact that there is no stream in immediate contact with the lots. It does not accept that the land is not "next" or "contiguous" to the lake and creek. These lands are drained both through the ditches and the creek into Lake Simcoe.
The Authority has the responsibility for natural resources and most environmental issues affecting the Lake Simcoe watershed. In the case of the floodplain issue, the LSRCA, through Regulation 179 - Fill. Construction and Alteration to Waterways - Lake Simcoe Region Regulations and its amendments, has adopted the Hurricane Hazel design storm as the criteria for designating the limits of the regulated floodplain. Mr. Hogenbirk outlined for the tribunal how this flood line was established using aerial photography and established ground controls. Topographic contours, as well as tree cover and land uses were established. The storm profile was applied over the whole watershed enabling the Authority to model the extent and depth of flooding and the velocities of the flood waters, measured in feet or metres of flow per second. Whenever ground surveyed topographic data, such as that produced by Skelton Brumwell, are submitted to the Authority, the mapping can be reviewed and modified if necessary. In this case, the data provided augmented the existing information.
The design storm for this area is shown on Exhibit 4-d - South Lake Simcoe Conservation Authority - Township of Innisfil Shoreline Mapping~ prepared by Marshall Macklin Monaghan Limited and dated 1978. This map shows that the floodline is at an elevation of 720.55 feet which equates to 219.62 metres. Mr. Hogenbirk told the tribunal that although Lake Simcoe can be regulated, flooding still can occur from the lake itself, as well as from the creek located to the north of the property and from the actual rain falling on very flat topography. These are the three sources of flooding.
It is useful for the tribunal to have been able to reference the Skelton Brumwell survey plan with regard to the elevations on the Rinaldi lots. The tribunal cannot accept Mr. Rinaldi's statement that this survey was not correct just because it was marked as "Preliminary Only". It was sent to the Authority on Mr. Rinaldi's behalf by Skelton Brumwell and as such became part of the record.
When an engineering company produces a survey plan, their reputation for producing accurate work is involved. They are the experts and a "lay person" is really not in a position to question the elevations without at least providing proof of any errors. The tribunal suggests that the "Preliminary Only" words apply to the location of the proposed house and garage and that the plan would have been considered preliminary until such time as the LSRCA either approved the proposal or recommended any other solution. The elevations would be accepted by the Authority at that time and are accepted by the tribunal at this time.
This survey plan in conjunction with the Shoreline Mapping indicates quite clearly that the Rinaldi lands are within the floodplain designation. This plan also establishes the depth of the water that would exist in the area during the regional or design storm. Mr. Hill summarized these levels during his cross examination of Mr. Rinaldi (see p.10-Reasons). Since the tribunal has accepted the survey plan elevations, it further accepts what the data establishes. Most of the elevations show that the lots to be developed and the lots from which the proposed fill would be taken are below the flood level by varying amounts. This depth would increase on the rear lots subsequent to the removal of the fill. It was pointed out to the tribunal that these wetland and floodplain lots would fill up with water either from the ground water or from any of the three potential sources of flooding.
The tribunal finds that the evidence clearly shows that the Rinaldi lots are within the legitimate lake-based floodplain of Lake Simcoe and as a result are subject to a review within the policies of the province and the LSRCA.
ISSUE 3: Does the application for the removal of and filling of the lots for the purpose of residential development meet the goals, objectives and policies of the Provincial Policy Statements and the Lake Simcoe Region Conservation Authority?
The major question facing the tribunal deals 'with whether and how to apply the Provincial and Authority policies in making its decision with regard to the Rinaldi request for a permit to cut and fill and subsequently develop residential uses on the lots which are classified as wetlands and floodplain. The tribunal has a responsibility to have regard to the provincial documents that provide the guidelines and jurisdiction under which conservation authorities act and as a result, a thorough review of these documents has been undertaken.
Mr. Rinaldi maintains that the Authority is too strict in their approach to policy implementation and that they have exhibited a narrow interpretation of their adopted "ecosystem approach". As a consequence, he believes that the tribunal must read the Provincial Policy Statement in its entirety and deal with environmental, social and economic issues as interrelated and in a "holistic" manner. During his submissions, Mr. Rinaldi referred to the definition of "ecosystem approach" in the Watershed Development Policies as:
"A holistic method of planning and/or managing human activities that considers environmental, social and economic issues, while acknowledging that these issues are inter-related."
It is this definition which Mr. Rinaldi has used to put forward his position that the Authority interprets its policies narrowly. Mr. Rinaldi believes the tribunal now must consider such matters as the efficient use of lands that have been serviced, the avoidance of uneconomical expansion of infrastructure, the need for affordable housing. He also referenced the fact that the municipal planners are currently conducting discussions with local landowners with regard to a secondary plan in the area.
In a general sense, the holistic definition is valid. However, when the tribunal views subsection 20(1) of the Conservation Authorities Act, it is apparent that a conservation authority, and on appeal. the Minister of Natural Resources and therefore, the Mining and Lands Commissioner, works within certain parameters of the Policy Statement and cannot deal with all the issues involved in Mr. Rinaldi's definition of ecosystem.
The Act states:
"The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals."
It is clear to the tribunal that an authority's responsibility, and on appeal its own responsibility, is to deal with natural resources, not the construction of municipal infrastructure and urban development, other than to protect its interest regarding the influence of such development on the natural environment and its resources. There are certain policies that are pertinent to the conservation authorities while others are relevant to the planning and development of communities. (Provincial Policy Statement - Page 11 - section IV .2.)
The Policy intends that planning authorities "shall have regard to" to all the Policy Statements that are issued by the Province under Section 3.(1) of The Planning Act. In this regard, it should be noted that The Planning Act provides the required direction through Section 3 (5):
"In exercising any authority that affects any planning matter, the council of every municipality, every local board, every minister of the crown and every ministry board, commission or agency of the government, including the Municipal Board and Ontario Hydro, shall have regard to policy statements issued under subsection (1)."
The Provincial Policy Statement provides the basis for other Policy Statements that follow and the tribunal notes that Section 2.3: Natural Heritage and Section 3.1: Natural Hazards provide the policy guidelines that the LSRCA "shall have regard to".
The Natural Heritage - Section 2.3 (under Resources) does not permit development or site alteration in significant wetlands south and east of the Canadian Shield. In the Rinaldi case, the wetland has not been classified as a significant wetland, nor has the Authority suggested that it is of provincial significance. They have acknowledged, however, that it is of local significance based on a study carried out by a provincial ministry.
The policy goes on to state that development and site alteration "may be permitted" in certain areas including "significant valley lands south and east of the Canadian Shield; if it has been demonstrated that there will be no negative impacts on the natural features or on the ecological functions for which the area is identified." The tribunal finds that it concurs with the view of the Authority and accepts that the Rinaldi proposal does have negative impact on the natural features in the area, namely the wetlands and the floodplain. Evidence has been submitted in the form of mapping information (Ex. 4-d) regarding the flooding effect of a major storm event from three sources - the lake, the creek and rainfall. This information clearly indicates to the tribunal that the lands in question would be flooded in a major storm event with approximately .75 metres (2.46 feet) of water. In addition, the wetlands themselves would be under this depth of water since they actually form part of the floodplain area of the Lake Simcoe drainage basin and basically are at the same level as the lake.
Section 3.1 of the Policy Statement deals with Public Health and Safety -Natural Hazards. It is this section that speaks to the fact that an authority should be concerned with attempting to direct development to areas outside "hazardous lands", adjacent to large inland lakes such as Lake Simcoe, wherein flooding, erosion and/or dynamic beach hazards have an impact.
The policy also specifically states that development "will not be permitted within" a floodway. In this regard, the tribunal notes definitions within the Policy statement with respect to this Issue:
1. Hazardous Lands:
"means property or lands that could be unsafe for development due to naturally occurring processes. Along the shorelines of large inland lakes, this means the land, including that covered by water, between a defined offshore distance or depth and the furthest landward limits of the flooding, erosion or dynamic beach hazard limits. Along river and stream, systems, this means the land, including that covered by water, to the furthest landward limit of the flooding or erosion hazard limits. "
2. Floodway (for river and stream systems):
"means the portion of the floodplain where development .....and site alteration would cause a danger to public health and safety or property damage. "
The tribunal understands that the policy does not directly mention lake-based floodways, as pointed out by Mr. Rinaldi, but the tribunal believes that various other definitions bring the issue to rest. The "floodplain" definition refers to rivers and streams, one of which exists to the north of the Rinaldi property and provides one of the flooding sources in the area. The definition also refers to flooding hazards.
In reviewing the definition for flooding hazards. the tribunal notes that it refers to "inundation, under the conditions specified below, of areas adjacent to a shoreline or a river or stream system and not ordinarily covered by water:" Although not specifically stated, it is the tribunal's opinion that the inundation of a shoreline implies that it is a lake shoreline.
The definition goes on to outline the standards for determining the area to be protected such as:
"a) Along the shorelines of the Great Lakes-St. Lawrence River System and large inland lakes, the flooding hazard limit is based on the 100 year flood level plus an allowance for wave uprush and other water related hazards."
The tribunal believes that the policy statement, although again, not specific to lake "floodways ", does contemplate a great deal of floodwater in the vicinity of the lake which would be directly related to the storm event. As a result, the tribunal finds that it is in agreement with the use of the guidelines in this Policy with regard to lands adjacent to Lake Simcoe classified as hazardous and to the northerly creek floodway. The use of the word "adjacent" has already been dealt with in Issue 2.
This policy continues in Section 3.1.3 indicating that development/site
alteration may be allowed in hazardous lands provided certain conditions can be
achieved, as follows:
"a) the hazards can be safely addressed, and the development and site alteration is carried out in accordance with established standards and procedures"
b) new hazards are not created and existing hazards are not aggravated;
c) no adverse environmental impacts will result;
d) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;
The tribunal acknowledges that agreement exists between the parties that it is possible for dwelling units to be built on the Rinaldi lots and to be provided with adequate flood proofing. The Authority had also accepted that safe access is not a significant problem regarding the site even though there is an acknowledgement that any amount of flooding is a concern. This concern is shared by the tribunal. Flood waters in any area can create a danger for people and vehicles since the actual location of the road is virtually obscured both by water and in this case, by mud from lake flooding. The tribunal shares the Authority's concern for all the existing residents who also would face this hazard, one that has existed for many years. Their Flood Warning System is the only protection there is for the area. The tribunal is fully cognizant of the fact that most of these dwelling units were in existence prior to the Authority having any jurisdictional responsibility in the Lake Simcoe area.
Beyond these points where some agreement existed, the Authority viewed the proposal as creating a new hazard (new development) which would aggravate the existing hazards (existing development). In addition, the Authority stated that it was their belief that the disruption of the wetland and the development of new buildings would have an environmental impact through the loss of storage and an increase in the obstructions in the floodplain.
The tribunal reviewed these beliefs by examining two other provincial policy statements that exist which conservation authorities must be conscious of in dealing with development applications. The Wetlands Policy Statement, approved in 1992, and issued jointly by the Minister of Municipal Affairs and the Minister of Natural Resources, has a goal to ensure the adequate identification and protection of wetlands through the land use planning process. It also encourages "the conservation of other Wetlands (e.g. Classes 4 to 7) throughout Ontario" that are not provincially significant by all planning jurisdictions, including municipalities and planning boards.
Although this policy is geared more specifically to Provincially Significant Wetlands, it does provide guidelines to the conservation authorities, and on appeal to the tribunal, regarding both types of wetlands. In this instance, the tribunal notes that the LSRCA has carried the Statement forward through the adoption of their own policies regarding wetlands. It also has the benefit of other provincial documents and manuals dealing with the implementation of the wetland policy as well as the Natural Heritage section of the Provincial Policy Statement.
The other provincial policy which provides guidance to conservation authorities is the Flood Plain Planning Policy Statement, dated August 11, 1988. The tribunal believes that the preventative component of this policy is relevant to the Rinaldi application. This policy states:
"The orderly planning of land use and the regulation of development represent the preventive approach to flood plain management and provide the focus for this policy statement. This approach is the most cost effective in helping to ensure new buildings and structures are not flood susceptible and that upstream and downstream problems do not occur as a result of new development."
This is the policy that allows some flexibility to conservation authorities in dealing with applications which could be approved if all their requirements are met regarding development in hazardous lands such as flood plains.
The Lake Simcoe Region Conservation Authority applies regulations, pursuant to the Conservation Authorities Act, that provides to the Authority the right to prohibit, regulate and require its permission for development within the regulated area. It provides them with control over the placement or dumping of fill in areas susceptible to flooding during a regional storm if, in their opinion, such placement will affect flooding, or pollution or the conservation of land. The tribunal has applied the regulation in this appeal along with having regard to the Provincial Policy Statements and also finds that it is reasonable in the circumstances, to adopt and apply the LSRCA Watershed Development Policies to the facts of the Rinaldi application. Ex. 11a and Ex.11b - Regulation 153/90 amended by 534/91 and 623/94))
The tribunal's review of the Authority's Watershed Development Policies indicate that they have built upon the provincial policy statements through their policy's sections on Goals, Objectives and Powers. These policies, fully adopted and amended through the years by the LSRCA, indicate that development shall be directed away from, among others, the following: (a) Regulatory Floodplains and (c) Wetlands. Section 12.3 speaks to the Authority's encouragement of its member municipalities to protect both provincially and locally significant wetlands. The fact that Innisfil did this in their Official Plan and Zoning By-laws indicates to the tribunal the commitment the Authority has to implementing their policies. The tribunal finds itself in agreement with this policy and will adopt them.
The most significant part of the Watershed Development Policies is Section 7: Development Policies - Structures and Fill, which states:
It is the general policy of the Authority to discourage all development within the floodplain. However, in some cases, the Authority may consider a development proposal in the floodplain when the proposal has no other opportunity to locate outside of the floodplain, provided that all the following requirements are adhered to:
There are ten requirements which must be met. The Skelton Brumwell report broadly put forward the premise that the application would meet the policy requirements, although it spoke to only six of the requirements, providing no comments on the fact that the lands were listed as wetlands. (Ex. 2-b) and disregarding the flood potential of Lake Simcoe.
The tribunal adopts and accepts that the application can successfully meet
the following five requirements:
(a) The building site is subject to less than one metre of flooding under regulatory storm conditions. As indicated previously, the flood depth would be approximately. 75 metres (2.46 feet);
(b) The building site would be subject to less than one metre per second of flood flow velocity under the regulatory storm conditions, although Exhibit 13 - marked Appendix "D" indicates that the actual figure is on the high side of the scale.
(d) The proposed buildings could be floodproofed to the satisfaction of the Authority;
(h) Since the regulatory flood had been calculated for this area, this requirement could be met;
(j) The proposal could deal with the requirement regarding electrical systems.
The tribunal, however, in reviewing the other policies, is of the opinion that the other five requirements are not met by the Rinaldi application. The tribunal considered the following questions in reaching this conclusion:
(c) Does the building: site have safe access to lands located above the
regulatory flood elevation?
The LSRCA indicated that this was not a major draw back to the development of the lots, but the indicated that they believed that since approximately 2.4 feet of water would cover the roadway, with a greater depth in the ditches in front of the lots, the ability to determine the actual location of the roadway proper would be impaired. As stated earlier, the fact that this would be further exacerbated by the mud that would be deposited on the roads due to the wave action of Lake Simcoe during a storm, reinforces for the tribunal that a risk is involved.
Provincial guidelines for floodplain development discuss the parameters of safety for adults, children and several types of vehicles. From a depth and velocity point of view, safe ingress/egress probably could be accomplished through the use of fill for the driveways of the proposed dwellings. However, the tribunal finds in favour of the argument regarding inadequate visibility made by the Authority. It seems wise to err on the side of safety as opposed to accepting a doubtful argument that telephone poles and house locations would help determine the actual pavement area of the roadway.
(e) Will there be significant increase in either upstream or downstream flooding, taking into consideration cumulative impacts? In this case, flooding would come from Lake Simcoe as well as the existing creek or stream. Lake Simcoe has a good degree of control over its depth, but a major storm event will increase the runoff due to rainfall while the stormy weather conditions would create a strong wave effect. The tribunal does not believe that these natural occurrences would be greatly affected by the construction of four new homes in the area, but the tribunal shares the Authority's concern with the possible cumulative impact that could be initiated by allowing these four homes to be built. The potential for similar applications on the remaining lots in the old registered plan of subdivision is extensive. Mr. Vos indicated that there are 303 lots remaining in R-Plan 759, half of which are within the floodplain designation and almost all of which are within the wetland category. The roads within the plan have not been closed nor the plan deregistered by the municipality. No evidence was provided that indicated that the Authority had requested the municipality to consider this action, an action they may wish to encourage in the future. However, in the view of the tribunal, there is a potential for further development requests and as a result, the tribunal finds that potential cumulative effect exists which could impact the conservation of land.
(f) and (g) Does the proposal for a balanced cut and fill meet the standards of the Authority? The policy in item (g) states that cutting and filling will not generally be permitted in wetlands. This indicates to the tribunal that, under certain circumstances, the Authority is prepared to look at the potential for the cut/fill process. According to the Authority's submission, however, if the cut is made in the wetland area, the result will be a deepening of the wetland with a potential increase in surface water ponding since the wetland basically is at the same elevation as Lake Simcoe. In addition, the proposed cut is actually on site which does not allow for a balancing of the process since to be valid, the cut must come from elsewhere than the actual property in question. The tribunal is of the opinion that the process proposed by Mr. Rinaldi cannot meet the requirements for a valid cut/fill process.
The other factor connected with cumulative impact deals with the amount of fill that would be placed in the floodplain/wetland area. Approximately 1,008 cubic metres of fill would have to be placed in the area if the cut/fill process was carried out as required. This amounts to about 90100 truck loads of fill. The potential for cumulative impact regarding the loss of floodplain storage is substantial over the rest of the R-Plan and is a very real concern to the tribunal due to the potential development issue.
(j) Does the proposal cause an obstruction to flow? Neither party really touched on this issue during the hearing, but it seems obvious to the tribunal that by placing four new structures, fill around the dwellings and the creation of raised driveways, new obstructions must be created which would affect normal flood flows. It is likely that the floodplain level also would also rise in the immediate area. Neither of these factors are acceptable to the tribunal.
Based on this review of Provincial Policies and the policies of the Lake Simcoe Region Conservation Authority, the tribunal finds that it is appropriate to adopt and apply these policies to the facts of the case. Further, the tribunal concurs with and adopts the LSRCA's mandate to protect the public interest from an increase in hazardous conditions which could lead to possible loss of life and costly repairs. The tribunal finds that it will refuse to grant permission for Mr. Rinaldi's proposal.
Issue 4: Does the fact that the lots are registered and could and do receive municipal services have any bearing on the decision of the tribunal?
First, the tribunal accepts the evidence of the appellant that, although lots of record at one time were protected, this is no longer the case. These lots are now subject to the policies that are in existence today and therefore any proposal for development must be reviewed under these conditions. This also will apply to all the remaining undeveloped lots within the Reference Plan and as a result, the LSRCA should have some comfort in that some control over development plans that were laid out in the past in a floodplain and wetland has been restored.
Mr. Rinaldi's point that he has the right to continue the existing use of the land was rather bazaar since the land is vacant and has never been built upon. The use to be continued would be open space wetland and floodplain. Just because the plan was registered did not guarantee him any development rights.
In addition, the existence of municipal services to the Rinaldi lots has no bearing on the review of the proposal. It is only the Provincial Policies and Legislation as well as the Regulations and Policies of the Conservation Authority which can concern the tribunal. There are numerous examples throughout the province where services go through or past valleys and wetlands as well as other geological land forms where development is not permitted. Just because the services are near by, again, does not give the landowner any particular development rights.
Consequently, the tribunal finds that neither of these issues have any bearing on the tribunal's decision regarding the Rinaldi application.
Issue 5: Do the planning issues under the Planning Act have any relevance to the decision of the tribunal?
This issue was raised by both parties. The appellant submitted that it was relevant to decision makers who must consider social and economic issues in coming to a decision, while the respondent submitted that the Authority was limited within its mandate to that outlined in the Conservation Authorities Act and the policies and regulations of both the province and the Authority. Both parties referenced tribunal file CA 007-92 - 611428 Ontario Limited v. Metropolitan Toronto and Region Conservation Authority. This decision also discussed the decision in tribunal file CC.1357 - Donald Bye v. Otonobee Region Conservation Authority.
In CA 007-92 - 611428 Ontario Limited v. Metropolitan Toronto and Region Conservation Authority. Commissioner Kamerman stated:
"It must be recognized, notwithstanding a designation on an Official Plan which would be favourable to development, a proposal must still obtain the permission of the conservation authority for lands within its jurisdiction.
Commissioner Kamerman made reference to the Donald Bye v. Otonabee Region Conservation Authority decision which deals clearly with this issue:
"Nowhere in the Conservation Authorities Act are conservation authorities given authority to balance competing interests in reaching their determinations. However, in the Principles of the Floodplain Planning Policy...., at paragraph two of page six, those bodies which must have regard to the policy are required to consider local conditions in connection with applying the policy. This includes physical, environmental, economic and social conditions."
It appears that this last sentence is the one that Mr. Rinaldi felt was supportive of his position. However, when one reads further, it becomes clear where the Authority's responsibilities lie.
"While a planning body may weigh competing uses in order to arrive at the highest and best use of a tract of land, conservation authorities do not consider, nor do they have the power to consider the relative merits of competing interests. Their mandate is to determine the impact of a proposal on the very limited capacity of land within their jurisdiction and based upon the degree of severity to allow or refuse permission. There is no power in conservation authorities to weigh or consider the relative merits of economic and social implications with those of susceptibility to flooding, risk to loss of property or life, pollution of surface waters or soils, and general ecosystem concerns within the watershed. The conservation authorities are specifically charged with determining the merits of a proposed encroachment based on risk not only to the applicant, but to affected persons both upstream and downstream of the proposal. In other words, in considering the right of a property owner to use his or her land, a conservation authority will weigh the individual '.'I rights against the public interest, in so far as it concerns flooding, pollution or conservation of land.
Conservation authorities are not resource planning bodies for the purposes of section 28 applications, nor is the Mining and Lands Commissioner a resource planning body for purposes of considering appeals from decisions of authorities."
The tribunal finds that the planning issues raised by Mr. Rinaldi have no significance for the determination of a decision. The Conservation Authority must remain within its mandate and deal with the conservation of land as it relates to their policies and regulations.
The tribunal has found that the Rinaldi lands merit the classification of wetlands and floodplain. No other evidence was submitted by the appellant to dispute this other than his view that since the flooding comes basically from Lake Simcoe, then the policies do not apply. Through the review of the Provincial Policy Statement definitions, the tribunal finds that the Policies do apply to the Lake Simcoe shoreline hazard area and the resultant storm based floodplain.
In the decision of the Deputy Mining and Lands Commissioner in tribunal file CA003-99 Construction Ltd v Grand River Conservation Authority, the Deputy Mining and Lands Commissioner discussed the importance of the Provincial Policy Statements in making decisions in conservation authority appeals.
"......the Mining and Lands Commissioner, in hearing appeals and Ontario Municipal Board appeals affecting floodplains, should also "have regard" to the Policy Statement in their deliberations. Obviously, it is anticipated tho1 tribunals such as the Mining and Lands Commissioner, would give major significance to an approved Policy Statement and any deviations would therefore have to be very well substantiated and justified"
The tribunal finds that the proposed development in both floodplain and wetlands by Mr. Rinaldi cannot meet the test of this statement. The proposal has not been justified or substantiated. It is unfortunate that Mr. Rinaldi purchased the lands without adequate investigation as to their development potential, but the fact remains that this development could produce a new hazard and it is quite clear that both the Provincial and the Authority policies do not support such development.
In view of all of the evidence, the tribunal finds in favour of the respondent and it will order that the appeal in this matter be dismissed.
The tribunal further finds that no costs shall be payable by either party to this matter.