The Mining and Lands Commissioner
File No. CA 005-96
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Monday, the 29th day of March, 1999.
In the matter of
An appeal to the Minister under subsection 28 (5) of the Conservation Authorities Act against the refusal to grant permission for the construction of a single family dwelling and the placement of fill for septic system and grading on Part Lot 35, Concession 7, Township of Uxbridge (formerly Scott).
Lake Simcoe Region Conservation Authority
Whereas an appeal to the Minister of Natural Resources was received by this tribunal on the 16th day of September, 1996, having been assigned to the Mining and Lands Commissioner (the "tribunal") by virtue of Ontario Regulation 795/90;
And wheras a hearing was held in this matter on Tuesday, the 1st day of December, 1998, in the Courtroom of this tribunal, 700 Bay Street, 24th Floor, in the City of Toronto, in the Province of Ontario;
Upon hearing from the parties and reading the documentation filed;
- This tribunal orders that the appeal from a refusal of the Lake Simcoe Region Conservation Authority to grant permission for the construction of a single family dwelling and the placement of fill for septic system and grading on Part Lot 35, Concession 7, Township of Uxbridge (formerly Scott) be and is hereby dismissed.
- This tribunal further orders that no costs shall be payable by either party in respect of this appeal.
Dated this 29th day of March, 1999
Original signed by
H. Dianne Sutter
Deputy Mining and Lands Commissioner
The Mining and Lands Commissioner in the matter of the Conservation Authorities Act
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Monday, the 29th day of March, 1999
In the matter of
An appeal to the Minister under subsection 28 (5) of the Conservation Authorities Act against the refusal to grant permission for the construction of a single family dwelling and the placement of fill for septic system and grading on Part Lot 35, Concession 7, Township of Uxbridge (formerly Scott).
Lake Simcoe Region Conservation Authority
The matter was heard in the Court Room of this tribunal, 24th Floor, 700 Bay Street, Toronto, Ontario, on Tuesday, December 1, 1998.
Mr. Marvin S.N. Geist:
Counsel for the Appellant
Mr. Kenneth C. Hill:
Counsel for the Respondent
It was noted by the Deputy Mining and Lands Commissioner, at the outset of the hearing, that by virtue of subsection 6 (7) of the Ministry of Natural Resources Act, that the proceedings were governed by Part VI of the Mining Act, with necessary modifications. It was further noted that an appeal from a refusal by a conservation authority or its executive is a hearing de novo. It is not a true appeal in that the question to be determined is not whether the conservation authority or its executive made the correct decision, but rather the decision of the Deputy Commissioner, hereinafter referred to as the "tribunal", is to be reached after consideration of all relevant facts and law.
It also was noted that:
- A Pre-Hearing Conference had been held on the subject property on July 8,1997 with Mr. Daniel Pascoe, Registrar of the Office of the Mining and Lands Commission, Mr. Marvin S.N. Geist, Mr. Shawn Avery, the Appellant, Mr. Kenneth C. Hill and Mr. Thomas Hogenbirk, Engineer on the staff of the Lake Simcoe Region Conservation Authority.
- The tribunal attended upon the site on November 17, 1998 accompanied by Mr. Daniel Pascoe, and Mr. Shawn Avery, the appellant.
Shawn Avery (the "appellant") applied to the Lake Simcoe Region Conservation Authority (the "LSRCA") on July 25,1996 for permission to construct a new two (2) storey home and install a septic system on part Lot 35, Concession 7, Township of Uxbridge (formerly Scott). (Ex. 2)
A hearing was held by the full Authority on September 13, 1996 at which time the application for permission to construct was refused. The appellant was notified of the Authority's decision by letter, dated September 13, 1996 and signed by Ms. Nancy Beal, Regulations Officer. Written reasons for the refusal were included. (Ex.2)
The appellant indicated his wish to appeal the decision of the LSRCA (the "respondent") by a letter, dated September 16, 1996 and addressed to Mr. Daniel E. Pascoe, Registrar of the Office of the Mining and Lands Commissioner, pursuant to subsection 28 (5) of the Conservation Authorities Act, R.S.O. 1990, c.C.27.
The powers and duties of the Minister under subsection 28 (5) have been assigned by the Revised Regulation of Ontario 795 /90 to the Mining and Lands Commissioner (the "tribunal"), pursuant to clause 6 (6) (b) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M.31. Part VI of the Mining Act, R.S.O. 1990, c. M.14 applies to the proceedings before the tribunal with necessary modifications, as set out in subsection 6 (7) of the Ministry of Natural Resources Act.
On or about January 1980, the Avery family purchased approximately 1.214 hectares (3 acres) of land in the east part of Lot 7, Concession 35 in the Township of Uxbridge, easterly from the community of Udora. The property has approximately 500 feet of frontage on the south side of Ravenshoe Road. The westerly limit of the land is the Black River or Uxbridge Brook, as it is locally known. Uxbridge Brook is a tributary of the Pefferlaw Brook which flows northward to drain into Lake Simcoe.
A log cottage and its addition, approximately 472 square feet in size, and a shed, approximately 228 square feet in size, were located on the easterly portion of the lands at the time of purchase, along with an operating septic system (Ex. 2).The log cottage was destroyed by fire on December 28, 1991. The recreational use of the land has continued since the fire. At this time, the remains of the cottage are still situate on the lands. Photographs showing the current situation were submitted as Ex. - Tab 10.
On July 25, 1996 , the appellant submitted the application to the LSRCA in order to build a new home of approximately 1200 square feet (Ex. 10) to 1500 square feet (Ex. 2 and Ex. 4 -Tab 1), the installation of a new septic system and the placing of fill to accomplish same. (note: the exact size and location of the structure and the amount of fill required is not known at this time.)
The property and its access road (Ravenshoe) are located totally within the floodplain of the Uxbridge Brook. As such, the property is within the jurisdiction of the LSRCA, pursuant to Ontario Regulation 534/91 ("O. Reg. 534/91"- Schedule 10, which amends Regulation 179 of the Revised Regulations of Ontario, 1980, made under the Conservation Authorities Act).
The entire Avery property is located below the Regulatory Storm level (Hazel) of 242.2 metres above sea level and the Fill Regulation line as delineated on Map H10 South Lake Simcoe Conservation Authority entitled Flood Plain and Fill Avery versus Regulation Line Mapping for the Beaverton River, Pefferlaw, Brook and Zephyr Creek, dated December 1979 and prepared by Marshall Macklin Monaghan Limited. (Ex. 1) The Uxbridge Brook is a tributary of the Pefferlaw Brook joining it some distance downstream (north) of the appellants land.
- Does the LSRCA have the jurisdiction to deal with the application?
- Does the application meet the Watershed Policies of the LSRCA and the Floodplain Planning Policy of the Province of Ontario?
- What is the significance of the words reconstruct, construct and replace to the decision and which activity applies?
- Is the site suitable for the development of a human habitation and can safe access and egress be provided?
- Will the placement of fill have a cumulative effect on the watercourse floodplain area?
- Should concerns regarding the value of the land be material in determining this appeal?
Two witnesses appeared before the tribunal providing evidence as to the content of the prehearing submissions on behalf of both parties to the hearing. Further evidence was given during the hearing. The following summarizes their evidence.
Examination in chief of appellant by Mr. Marvin S.N. Geist
Mr. Shawn A very, the appellant, gave evidence on behalf of his appeal and was questioned by his counsel, Mr. Marvin Geist with reference to the Summary of Facts and the Document Books provided, particularly Exhibits 3, 4 and 12.
Mr. Avery confirmed the location of the three acre property and discussed the services that had been provided to the site in the form of hydro, a water well and a septic system. He indicated that he had purchased the land from his parents in July of 1994, two and a half years after fire had destroyed the log cabin which had existed on the lands. He verified its use in the past as a recreation property.
Mr. Avery described the lands, with the assistance of a 1997 survey and photographs, as composed of two sections - the flats and the creek to the west and the plateau, composed of about 1.2 acres, to the east. The log cabin had been located on the plateau with access to Ravenshoe Road by a southward sloping driveway. In addition, letters to the LSRCA were referenced in which the plateau was described as being approximately three metres higher than the waters edge and approximately 400 feet from the River. (Ex. 12 - Tab 12) It was confirmed that the "plateau" lands are at an elevation of approximately 239.27 to 240.1 metres at the edge of the clearing to 240.54 at the Avery driveway (Ex.9 - Topographic map).
Photographs from Ex. 4 - Tab 10 illustrated that the grass in the flats had been cut. Mr. Avery stated that he had cut the flats on a regular basis in order to provide level space for recreational activities by his family.
Mr. Avery stated that he had applied for a tax rebate for 1999 through the Ontario Conservation Land Tax Incentive Program in July of 1998 in order to have 1.8 acres of the total 3 acre parcel classified "C1W" - Provincially Significant Wetlands. In addition, the 1998 Property Assessment Notice classified the property as "Residential/Farm" with an assessed value of $17,700.00. (Ex. 12- Tab 15)
Exhibit 14 provided photographs of a straight road, known as Ravenshoe Road. This road had a gravel roadbed until it was paved in September 1998 and new guard rails installed along the road side slopes, both to the east and west of the existing concrete bridge structure and including the walls adjacent to the old bridge itself. The roadway presents a gentle slope in either direction away from the bridge. It was noted that the elevation of Ravenshoe Road at the bridge deck is 241.47 metres and at the entrance driveway to the Avery lands, it is 240.56 metres.
Exhibit 14 provided photographs of a house that had recently been placed on a foundation on the north side of Ravenshoe Road, east of the floodplain and a new flood proofed house that had been built in 1989 partially within the limits of the designated flood plain. This house was identified as the "Jacques" house. It was noted that the Jacques house was built under permit from the LSRCA. The basement was flood proofed and evidence was submitted that the window sill in the basement was at an elevation of 241.59 metres and the finished floor at 242.95 metres. (Ex. 9)
A photograph in Ex.4 - Tab 10 indicates a driveway area on the site which had been rutted by excess water draining from the Jacques lands. A ditch was dug along the mutual boundary of the two properties to help correct the drainage issue and the appellant was allowed to place fill on the driveway area under a permit issued by the LSRCA in September 1996 to alleviate the rutting problem. The amount of fill approved consisted of approximately four truck loads and covered an area 10 by 150 feet to a depth of two inches. (Ex.12 -Tab 19)
Mr. Avery agreed that the total property was zoned Environmental Protection (EP) Zone Exhibit 4 -Tab 7 provided the relevant Section 4 of Zoning By-Law 81-19, approved on March 3,1981. The By-Law prohibits residential uses in the floodplain except under certain circumstances. A single family dwelling and associated accessory buildings are allowed if "prior written approval" is obtained from the Ministry of Natural Resources and/or the appropriate Conservation Authority "indicating that the lands under consideration are suitable for construction or erection of buildings or structures". Section 4.1.2. iii further states that "all conditions required by the Ministry of Natural Resources and/or appropriate Conservation Authority, and/or the local Health Unit must be satisfied".
Mr. Avery outlined the contents of a letter received from the Township of Uxbridge Chief Building Official, Mr. Blain Lalonde, which indicated that a building permit would be available "upon meeting the requirements of all currently applicable law. This would include approval of the local Conservation Authority having jurisdiction". (Ex. 4 - Tab 8)
Mr. Avery verified that he had subsequently applied to the LSRCA on July 25, 1996 for approval to "build a new 2 storey home and septic tank". (Ex. 4 -Tab 1). The floor plan drawing attached to the application proposed a 1500 square foot home with an above grade basement and garage and with the habitable living quarters on the second floor. The application indicated that this building would replace structures with the combined area of the former 400 square foot cabin and a 72 square foot cabin addition, plus the remaining 228 square foot shed. The shed was to be removed along with the remains of the burnt out cabin.
Mr. Avery stated that the application was refused by the LSRCA for the following reasons:
Our mapping indicates that the entire lot is subject to flooding during a regional storm. At the building site, this flooding consists of between 1.8 metres and 2.7 metres below the flood elevation of 242.2 metres above sea level. Due to this depth of flooding, there is a risk to life associated with the construction of a new dwelling in addition to a lack of safe access or egress from the house site. Further, there would be damage to the house since it is difficult to flood proof a house from this depth of flooding. The construction of the house and fill for a septic system will cause a loss of storage capacity from the floodplain which affect surrounding properties by increasing the flood elevation from the septic system, once flooded to this depth, could then become a source of pollution. (Ex. 2)
Mr. Avery gave further evidence that he wished to reconstruct the dwelling, and would do so to meet the present minimum standards of the municipality of 1187-1200 square feet. Mr. Avery emphasized that he had requested a reconstruction, whereas the Authority's refusal appears to refer to "the construction of a single family dwelling" and further to "the construction of a new dwelling".
Following the Pre-Hearing Conference of July 8,1997, Mr. Geist, by letter to the LSRCA, dated July 9,1997 (Ex. 12 - Tab 10), indicated that Mr. Avery had no intention of "raising the property to conform with the elevations of his neighbours" (Jacques property). "Existing fill within the property" will be used" to provide flood proofing".
Exhibit 12 - Tab 11 provided the LSRCA's response, dated July 10,1997, which indicated the information that would be required in order for the" full Authority to determine whether the Authority is prepared to grant a permit upon appropriate conditions". The tribunal notes that further comments were made in this letter as follows:
Because of the rather extreme flooding characteristics at the site, the proposal will have to be looked at closely." And further" You expressed a reluctance to have your client incur costs, however, I would respectfully submit that the kind of information referred to above would be required for the purpose of a hearing.
By letter to the respondent dated October 17, 1997, Mr. Geist indicated that the appellant "is prepared to reconstruct its building to the Municipality's minimum requirements". Mr. Geist requested a response within 14 days as to the Authority's position regarding the dispute to allow the reconstruction of the dwelling destroyed by fire. (Ex. 12 - Tab 12)
The tribunal has secured a copy of the response to Mr. Geist from the LSRCA (Mr. Ken Hill), dated October 30, 1997 which was referred to in the Geist letter to the LSRCA, dated November 13, 1997 (Ex. 12 - Tab 24). The tribunal notes that since this letter was not submitted as an Exhibit, the text is reproduced as follows, for the record:
My client has now had an opportunity to review the materials you recently provided to us.
I should start by saying that my client is very concerned about the nature of the anticipated flooding on your client's property. The survey indicates that none of t he property is outside of the flood plain and there appears to be about one metre of flooding over the road across the entire frontage of your client's property. This creates a very serious concern regarding safety. Even if this proposal is treated as a replacement of an existing structure and if the Authority is therefore prepared to waive the requirement of safe access/egress, we would have to go on record as strongly advising against residential construction on this property.
It appears that the depth of flooding at the proposed building site is between 2.3. and 2.7 metres (equivalent 7.545 and 8.85 feet). Can you advise as to how your client proposes to flood proof the dwelling to this depth? The materials also raise a question concerning the waste disposal system. Can you advise as to whether the proposed waste disposal system will necessitate the placement of any significant quantities of fill? Please also advise as to how the proposed waste disposal system will be designed to minimise the threat of pollution from this source during a storm event?
We will have to have some answers to the above noted questions before Mr. Hogenbirk could consider recommending approval of this application to the Authority.
Mr. Geist referred to his letter dated November 13, 1997 (Ex. 12 - Tab 24), Mr. Avery acknowledged that he was prepared to acknowledge "difficulty with respect to access and egress in the event of a regional storm" and that he would "consent to the registration of a document on title which would relieve the Conservation Authority from any liability whatsoever and give future owners the appropriate notice of such problem" as was done in the Allerton appeal (tribunal file CA-001-95). This letter also referred to the Health Units apparent lack of concern with regard to the placement of a waste disposal system on the property and requested" reasonable input" from the Authority regarding floodproofing and the placement of further fill.
Through Exhibit 10, Mr. Avery gave evidence that on August 5, 1997, he had received a permit from the Durham Region Health Department, signed by H. Greggory Law, Public Health Inspector, for the installation of a septic tank and tile field, to be located in the area of the remains of the log cabin. It was noted by the tribunal that the sketch attached to this application proposed a different shape for the new building, one which would be long and narrow. The permit outlined the amount of fill that would be required in order to install the septic system. The tribunal determined that the appellant had not yet gone to the expense of securing new plans for the project. It was noted that apparently some discussions had taken place with a Mr. Brian Pagozza of the Uxbridge Building Department by Mr. Geist that any basement walls that are tarred and parged become floodproofed. (The tribunal notes that there were no written statements from Mr. Pagozza nor any information with regard to his qualifications and knowledge concerning the floodproofing of buildings.)
By letter dated November 24, 1998, Mr. Avery was informed, again by Mr. Law, that the original permit for the septic system was now void due to the changes in the Building Code Act. and that he must reapply and pay the increased fee of $500.00. This letter was a follow up to a meeting apparently held with Mr. Law. The letter indicated that "it was anticipated that such an application would be approved with similar conditions as were imposed on the original Certificate of Approval". (Exhibit 10)
Mr. Geist made reference to the new Building Code Act regarding Section 22.214.171.124. which stated that a "A leaching bed shall not be located" in "(c) in or on an area that is subject to flooding that may be expected to cause damage to the leaching bed or impair the operation of the leaching bed". (Exhibit 12 - Tab 17) Mr. Geist submitted that Mr. Law had reviewed this issue and had determined that a permit could safely be issued.
A further letter from Mr. Law to Mr. Avery, and submitted as Exhibit 12- Tab 18, made the point that the Health Department has the sole mandate to enforce septic system requirements. With regard to the LSRCA reason for refusal that "In addition, the septic system, once flooded to this depth, could then become a source of pollution", Mr. Law stated that" the flooding of a sewage system will not enhance its ability to pollute. The sewage system will not function if the soil matrix and pipes are filled with water. The external pressure of the flood inundated soil will be greater than the internal pressure of the sewage in the tank, thereby not allowing sewage to flow from the tank to surrounding soil." Mr. Law indicated that, in his opinion, "the quoted statement [of the LSRCA] above is in error and beyond the expertise and mandate of the Conservation Authority".
Mr. Avery stated that he had nineteen years of experience with the property. In this period of time, he had never seen more than two thirds of the flats flooded and had never seen the plateau flooded. During a flood in 1990, there was only about one inch of water in the flats, whereas there normally could be one to two inches during spring floods. He had never seen water over Ravenshoe Road and had never had any problem with access to the cabin. Mr. Avery outlined the existence of dams on the Uxbridge Brook, indicating there were no dams to the south and several to the north towards Lake Simcoe. He stated that the brook actually dried up one summer in the 1980's when water was let out of the dams.
Cross examination of appellant
Under cross examination by the respondent's counsel, Mr. Kenneth C. Hill, Mr. Avery stated that the cabin was built around 1954, before his parents owned the property. He had no knowledge of how the "lot" came to exist. The cabin was burnt before he purchased the land from his parents but the land was used as an all-year round recreation property without any camping. Since the fire, he had stored real estate signs on the property as part of his business.
Mr. Avery's response to a question concerning the facts about the potential depth of flooding and whether this would cause him concern was negative, on the basis that he had never seen the property flood beyond the flats.
Based on the photographs of the site, Mr. Hill asked if he would agree that there is a significant slope leading to the Jacques property. Mr. Avery was non committal indicating that it could look that way because of the camera angle.
Mr. Avery indicated that he had talked to an Uxbridge Township by-law official, Mr. Brian Pagozza, regarding floodproofing a structure. Mr. Pagozza apparently stated that any basement that is "tarred and parged" is waterproofed. Mr. Avery acknowledged they had not discussed the issue of pressure from the weight of 2.3 to 2.7 metres of water, nor had he talked to an engineer about this issue.
With regard to the qualifications of Greggory Law, Durham Region Public Heath Inspector, Mr. Avery acknowledged that Mr. Law's letter of November 26,1998 (Ex. 12 - Tab 18) was sent to Mr. Avery, not the LSRCA and that no one from the LSRCA was present at the meeting with Mr. Law. He did not know what information Mr. Law had regarding the potential depth of flood water when he approved the installation of the septic system. He understood that Mr. Law had been an Inspector for nine years but he was not aware of his qualifications.
Mr. Avery indicated that the driveway to the property originally had provided access to several cottages located further upstream in the valley floodplain. This access was changed in recent years to a location east of the Jacques property and above the flood level.
Mr. Avery acknowledged that the application to the LSRCA requested a floor plan of 1500 square feet. He indicated that the plans had changed to a longer, narrow raised bungalow plan with a possible second floor but he did not have any new sketches.
Re-examination of appellant
Mr. Geist sought information regarding Ravenshoe Road ending about one mile to the west (Udora) and extending to Cooks Bay in the east and confirmed that the exit route from the property would be to the east, up the hill away from the bridge itself.
Mr. Avery indicated that he planned to construct the house with decks tiered to the entrance to the house.
Examination in chief of the respondent's witness by Mr. Kenneth C. Hill
Thomas George Hogenbirk, a professional (civil) engineer, was recognized by the tribunal and the appellant's counsel as being qualified to give expert evidence in matters of hydrology and floodplain management. Mr. Hogenbirk has been employed by the respondent, the LSRCA, as the Conservation Engineer for five years and gave evidence on its behalf.
Mr. Hogenbirk introduced Map Sheet No. H10. entitled South Lake Simcoe Conservation Authority. Flood Plain and Fill Regulation Line Mapping. Beaverton River. Pefferlaw Brook and Zephyr Creek, prepared by Marshall Macklin Monaghan Limited, dated December, 1979. (Ex.1) He indicated that this map was developed using a model known as HEC-2, a floodline determination model. This model uses flows that are generated by a computer model to simulate what would happen in a specific area under a 1954 Hurricane Hazel event. The Hurricane Hazel design storm is included in the LSRCA Regulation 179 - Fill. Construction and Alteration to Waterways -Lake Simcoe Region Regulations as the regulatory storm event applicable to this area.
Using Map Sheet No. 10, Mr. Hogenbirk provided an overview of the flood characteristics that would be anticipated in a regional storm in the vicinity of the Avery property. In this location, there is fairly significant floodplain with the Uxbridge Brook flowing south from its headwaters area in the Oakridges Moraine, northward to Lake Simcoe. There is approximately 20 kilometres of creek distance to this point in the stream with a drainage area of approximately 177 square kilometres. The flows are approximately 250 cubic metres per second which is considered to be extremely high, since the creek is nearing the confluence with the Pefferlaw Brook. During a major storm event, the roadway crossing of Ravenshoe Road causes a backup that generates a ponding area south of the bridge, but further to the north, downstream, the waterway returns to a riverine type system. During such an event, at the bridge itself, there will be about 1.22 metres (4 feet) of flood water over top of the road, tapering off to nothing at the valley edge.
Using the topographic plan in Exhibit 9, Mr. Hogenbirk gave evidence that flooding in the vicinity of the "plateau" on the Avery property, would be between 2 metres (6.5 feet) and 2.7 metres (8.86 feet) during the major storm event. The plateau is at a lower elevation than Ravenshoe Road. The roadbed, at an elevation of 241.03 metres at the Avery driveway entrance would be flooded to a depth of nearly 1.22 metres (4 feet). The distance from the entrance to the driveway eastward to the limit of the floodplain, was estimated to be approximately 30 metres (98.43 feet). so that, in summary, the flood water depth would go from 1.22 metres (4 feet) to 0 over a distance of 30 metres (98.43 feet).
With regard to the potential for flooding during lesser storm events, Mr. Hogenbirk indicated that he had investigated the impact of the 100 Year Storm event on the Avery lands. Such an event would flood lands located below the 239.6 elevation. compared with the Regional storm level of 242.2 metres. The back part of the "plateau" where the remains of the cabin are located would be flooded during a One Hundred Year event while the tile field, at 240.2 metres, would not be flooded. This type of storm has a one percent chance of occurring in any particular year.
With regard to the issue of safety for a residential dwelling under this proposal. Mr. Hogenbirk indicated that any residence that had sleeping and living areas that were subject to flooding would be of a deep concern to the Authority from a safety point of view. The number one concern would be the provision of safe access even if the building was totally floodproofed. During a storm duration of 12 to 24 hours, the need for emergency services could arise and without safe access/egress, such services would be unavailable.
Mr. Hogenbirk stated that he had seen several sketches showing different locations for a new building, but based on the one he described as the "Health Unit one" (Ex. 10), he estimated that flooding at this proposed building site would beat least 2.7 metres (8.86 feet) while at the proposed location of the tile field closer to the road, flooding would be approximately 2 metres (6.56 feet).
With regard to the Jacques property, Mr. Hogenbirk indicated that this property is located on the fringe of the floodplain. There is a significant rise between the two properties in the order of approximately two metres while the window sill in the basement is 1.5 metres (4.9 feet) higher than the ground at the Avery property. The Jacques home received a construction permit from the LSRCA in or about 1989 with conditions attached. They were required to build their home with a minimum floor elevation set above the 242.2 metre flood level and to carry out a balanced cut and fill.
It was noted that the basement window was installed without permission, as flood proofing would not allow for any openings in the basement area.
As noted, the Jacques' were asked to carry out a balanced cut and fill procedure. Mr. Hogenbirk explained that any floodplain has a certain storage capacity which is extremely important to the overall ability of the floodplain to contain its floodwaters. Every time a load of fill is placed in the floodplain, the potential flood waters are displaced from occupying that space. As a result, the flood waters will go in another direction. As more and more fill is placed, more and more flood water is displaced having an impact upon other properties. Therefore, it is important to maintain balance in the system. When a proposal is made for fill in the floodplain, the Authority will look at the amount of fill required (such as for a tile field and/or the construction of a dwelling), establish whether a compensating cut can be made in another location, preferably on the same property, in order to maintain the balance within the floodplain. This is not to provide more volume for the water, but merely to maintain the existing volume. This was possible on the Jacques property as land existed outside the floodplain in order to carry out the procedure. However, in Mr. Hogenbirk's opinion, this is not possible on the Avery property since all of the property is located in the floodplain itself, so there is no place to do a cut. This proposal is limited to the placing of fill.
With regard to the recently installed dwelling on the north side of Ravenshoe Road, Mr. Hogenbirk did not have any specific information but commented that, based on the photographs, the dwelling appeared to be outside the floodplain, and therefore not subject to flooding, but probably inside the regulated fill line of the LSRCA Regulations. Consequently, there would be no cut and fill procedure required, only a permit to place fill.
As an engineer, Mr. Hogenbirk indicated that the general concern regarding the location of a building of any kind on the Avery property deals with the depth of flooding. A depth of flooding upwards of two metres does not allow for many options. One option is to fill the entire building area of the property, including the tile field, to a level above the flood elevation. In order to do this, a compensating cut would be required to eliminate the loss of flood storage in the floodplain. Since a compensating cut is not possible on the Avery property, any fill would decrease the storage capacity of the floodplain. The structure would have to be floodproofed. Mr. Hogenbirk indicated that he had never seen residential flood proofing carried out in order to keep out two metres of water. If it could be accomplished, then basically the result would be an island during a storm event, where the building might be safe, but there would be no way of getting out or in. Mr. Hogenbirk indicated that, in his opinion, the Avery lands are not a suitable area for a residential property.
Mr. Hogenbirk further discussed the issue of floodplain storage and the negative impact fill has on this storage and thus to the river system itself. The flood waters must be displaced somewhere else. He presented an analogy of a bathtub full of water being filled with dirt. Eventually there would be no more storage area in the bath tub and the water would overflow. In the case of a river system, such an overflow, due to the loss of storage, would have an impact on downstream flooding as well as on the immediate area. Lands which were not previously flooded could become subject to flooding as a result. Velocities could increase as well.
In response to a question of what his estimate of the volume of required would be, he indicated a difficulty in doing this, since he had not seen detailed plans for any of the residential proposals except the survey which showed a tile field and a building envelope. (Ex.10) Based on this drawing, he estimated that 250 cubic metres of fill would be required to floodproof both the building and the tile field. This equates to about 25 truck loads of fill. The estimate was calculated by taking the 1200 square foot proposed building area and multiplying by the two metre flooding depth, plus the amount of fill required for the tile field and subtracting the amount for the over the excavation of the tile field.
However, he indicated that without knowing the exact location of the house, there is concern about the driveway. The location and size of the driveway is unknown. He noted that the driveway would also have to be flood proofed to at least the Regional Storm Event in order to avoid an "island" situation during a storm. Assuming there is access to a decent road that is not flooded, the existing driveway, at an approximate elevation of 240.3 metres, would have to be filled to a depth of approximately two metres as well.
Another aspect of concern centres around the flow that would occur on a stream such as the the Uxbridge Brook during a major storm event. Due to the violence of such storm events and the significant amount of flow, incredible amounts of debris, such a logs, grasses and garbage, get caught and create blockages of culverts and bridges. There are cases where utility poles are displaced and ram into buildings knocking them right off their foundations. A video image exists of a building circling around a telephone pole tethered by its hydro cord.
Mr. Hogenbirk made reference to the Health Unit's position regarding the potential for pollution from the septic system during a flood event and acknowledged that no one from his office had had any communication with the Health Department regarding the Avery proposal. He explained the Authority's concerns that were stated in their letter of refusal. (Ex. 2) Any kind of structure in the floodplain may be subject to being washed away, such as the slopes of the tile bed, allowing the potential for pollution to occur. Then, all that is left is the actual tank and in the event of a major storm, the tank may actually become buoyant because it is partially filled with air. Once this happens, the tank could shift enough to break the connecting pipes. In addition, there is a concern about possible back-flow into the house if there is any kind of connection to the outlet pipe below the regional storm level. This could result in sewage coming through any toilets that are below the flood level.
Discussion continued dealing with the LSRCA policies with respect to construction applications. Excerpts from these policies could be found in Ex. 5. These policies were in effect when the application came before the Authority. Mr. Hogenbirk indicated that the relevant policies were found in Section 8 – Development Policies - Structure and Fill. The general policy of the Authority and the Province is to discourage all development in the floodplain. In some cases, development proposals may be considered when the proposal has no other opportunity to locate outside the floodplain, provided that at minimum, certain criteria or requirements are adhered to. Each individual application is looked at on its own merits, based on these requirements, in order to determine if the criteria can be met.
Mr. Hogenbirk proceeded to outline each of the criteria and comment on its applicability to the Avery application:
8.1. (a) states: "That the building site be subject t 0 less than one metre of flooding under regulatory storm conditions."
It is quite clear, based on the Topographic map provided (Ex. 9), that the Avery lands would sustain flooding of two metres and up.
8.1. (b) states: "That the building site be subject to less than one metre per second of flood flow under regulatory storm conditions."
A review of the design model indicated that the site would be subject to approximately .3 of a metre per second and as a result, this criteria would not have been a big issue as far as the building site itself was concerned, but it actually does come into play from a safe access point of view.
8.1. (c) states: "That the building site have dry access to lands located above the Regulatory flood elevation."
The words "dry access" have been changed to "safe access" in order to ensure that the Authority is being as reasonable as possible in dealing with proposals. If it can be shown to be safe, even though it's a bit wet, it is not something the Authority uses to deny an application. Even though the words were "dry access" in the policy when the application was reviewed, the "dry" was interpreted as "safe" access.
With reference to the Avery applications, the building site itself indicates .3 of a metre per second velocity. However, if you take the depth at 2 metres, you are looking at a significant force of water and therefore, a major concern. The Provincial Flood Plain Planning Policy Statement - Implementation Guidelines - October 1988 (Ex. 15) actually consider that depth well beyond accessibility by either a person or an emergency vehicle. With respect to the actual road access, there would be 1.22 metres (4 feet) of flood waters over it. Again, the velocity is stated as .3 of a metre, but in reality once you get into a weir situation, which the roadway becomes under flood conditions, then the velocities would be substantially greater and both the depth and the velocity become major safety concerns to the Authority.
8.1. (d) states: "That habitable areas of new dwellings and additions be flood proofed to the s satisfaction of the Authority."
Generally, floodproofing can occur up to a flood depth of one metre, but beyond that level, it is not considered feasible. That is the reason that the one metre is allowed in 8.1.(a). Above this depth, you start to get into the realm of major structural and filling requirements which are really not something the Authority wants to see.
8.1. (e) states: 'That there be no significant increase in either upstream or downstream flooding."
Although requested, no modelling has been submitted by the applicant to show whether it would increase or decrease flood levels upstream of the property, so Mr.Hogenbirk could not comment on the applicability of this criteria.
8.1. (f) states: "That the existing stage - storage of the regulatory floodplain be maintained. Balancing cut and fill techniques will be given consideration in this regard."
With regard to downstream flooding, when you keep placing fill on the floodplain, you are displacing flood waters and since they must go somewhere, it is generally downstream on somebody else's property. Mr. Hogenbirk indicated that Mr. Avery may have explored the possibility of the cut balance being taken from someone else's property and suggested that this might have been a feasible approach, albeit a difficult one since it involves another property owner, but that nothing was submitted with the application.
8.1. (g) states: "A 0.15 metre depth of fill may be permitted in the Regulatory floodplain without a c compensating cut, for landscaping purposes only."
8.1. (h) states: " Cutting and filling will not be permitted in sensitive areas, such as ESA's, wetlands, forested areas, valley land or watercourse buffers on steep slopes."
Mr. Hogenbirk indicated that there was not sufficient information provided by the applicant to deal with these issues. In this case, the flooding depth was the main issue.
Policy 8.3. (Ex.5) deals with replacements of and additions to residential structures the floodplain. These are permitted, provided that the requirements of criteria 8.1.1. (a), (b), (d). (e) and (f) are met to the Authority's satisfaction. Mr. Hogenbirk reviewed these criteria and commented on the applicability of the criteria to the application.
- The application did not meet the "less than one metre of flooding" criteria (a) being affected by upwards of two metres of flooding.
- The velocities (b), being low, were not a direct issue except from a safety point of view.
- The floodproofing (d) would be looked at to ensure that the home would be properly flood proofed, despite the fact that he had never seen any residential flood proofing where flooding had exceed one metre.
- With respect to the "no significant increase in either upstream or downstream flooding" criteria (e), the placement of the required fill would probably cause a problem downstream but no data was submitted to show there wouldn't be an impact on flood levels in the area.
- Without a compensating cut, the Authority looks at the placement of fill as a real problem because it displaces floodplain storage. (f)
Mr. Hogenbirk stated that, in his opinion as an engineer, if all the policies were applied regarding replacement, permission would not be granted for the construction on the Avery lands. He further indicated that he was not aware of the Conservation Authority ever having granted such permission under similar flooding circumstances.
In summarizing his evidence, Mr. Hogenbirk reiterated that he could not recommend permitting construction of a residence on the Avery site. He indicated that the Authority, in the past, had granted approval to applications close to the fringe of the floodplain that had less than one metre of flooding (i.e. Jacques), but because of the extreme flooding depth under a regional storm event on the Avery lands, it was inappropriate. The flooding represents the number one concern of the Authority. The second major concern dealt with the placement of an excess amount of fill that would be required to raise the property to a depth where floodproofing was possible. The control of pollution if a tile field is placed into an area where there is a significant amount of flooding is the third concern to the Authority.
Cross examination of respondent's witness
Under cross examination by the appellants counsel, Mr. Marvin S. N. Geist, Mr. Hogenbirk gave evidence of his one attendance at the subject site. This visit took place subsequent to the fire. Mr. Geist called attention to certain facts relating to the existence of a well for water, hydro service which provided heat, insulation in the cabin walls, and that Mr. Avery and his family had used the property since it was purchased. He requested Mr. Hogenbirk to read from Exhibit 5 - paragraph 5 - part of the Respondent's Summary of Facts - as follows:
The Respondent admits that there was a structure on the site, but denies that it was a habitable dwelling which justifies replacement with a habitable structure.
Based on the photographs submitted as part of Ex. 4 - Tab 10 and his visit to the site, Mr. Hogenbirk agreed that that the cabin actually had been a habitable dwelling.
Mr. Geist requested the witness to examine Exhibits 13A and 13B - Maps for the Upper and Lower Sections of Pefferlaw and Uxbridge Brook - Flood Risk Maps. Mr. Hogenbirk agreed that the entire Pefferlaw and Uxbridge Brook system was approximately 60 kilometres in length and the Uxbridge Brook system itself is in the order of 20 kilometres in length. The witness agreed that he had not measured the floodplain area despite the issue of the storage capacity of the floodplain being part of the respondent's Summary of Evidence. (Ex. 5) and having provided oral testimony in this regard.
He was questioned further about the velocity of the water in Brook Creek with references made to Exhibit 12 - Tab 27. This exhibit dealt with the velocities at two cross sections in the Uxbridge Brook in the vicinity of the subject land. Cross Section 10404 at the site, indicated a velocity of 0.18 m/sec., while Cross Section 10410, further upstream, indicates a velocity of 0.09 m/sec. Mr. Hogenbirk stated that these figures are the HEC-2 design data for the five year storm and reiterated that the velocities through the site during a Regional storm are 0.3 of a metre per second. He confirmed that the Regional storm has no return period attached to it as major storms, such as hurricanes, can happen just as easily in the next hurricane season.
The witness was referred to Exhibit 15 - Flood Plain Planning Policy Statement in particular to page 133, Section C - Combination of Depth and Velocity. He verified that the velocity and the depth should be looked at together. The first paragraph of the section was read aloud, as follows:
As a guide for personnel involved in stream flow / depth monitoring, the "3 X 3 rule" was developed in the U.S. The rule suggests that field staff would be at risk if the product (multiple) of the velocity and the depth exceeded 0.8 m2/S (9 ft.2/s).
Cross examination focused on whether the velocity figures in Ex. 12-Tab 27 have an impact on the site in other than the five year storm. The witness indicated that there would be no flooding at the building site in the five year storm, and the velocity figures in Tab 27 do not apply to the Regulatory storm. Mr. Hogenbirk indicated that he agreed that both the velocity and the depth of flooding must be considered in any storm, especially the Regional storm.
Mr. Hogenbirk reiterated that the Regional storm level at the site on the south side of Ravenshoe Road is 242.2 metres, while on the north side of Ravenshoe Road, the level is 240.4 metres. The velocity is lower on the south side than on the north side. This situation occurs because the roadway and bridge act as a weir or in effect, a dam, resulting in a back up in the flood plain on the south side. If the road did not exist, the flood level would be in the neighbourhood of 240.4 metres.
Mr. Geist directed the witness' attention to the issue of septic systems in the flood plain. Mr. Hogenbirk indicated that the velocities indicated for the area during a five year event most likely would not rip up any grass from the top of the bank and/or tile field. He did indicate that a tank itself could move if it became buoyant. Mr. Hogenbirk acknowledged that the Health Unit had not indicated any concerns about the installation of a septic system on the site and had provided a certificate of approval, apparently on the basis of the contents of the Building Code Act.
Mr. Hogenbirk acknowledged that the word "reconstruction" was not used in the LSRCA Development Policies - Structures and Fill. ( Ex. 5) but stated that the policy does use the word replacement. The tribunal notes that Mr. Geist submitted an extract from Laws Legal Dictionary concerning "contra preferentum" with a meaning "Against the party who offers or puts forward a thing." (Ex. 12 -Tab 23) but he did not pursue the matter.
Mr. Hogenbirk acknowledged that the Authority cannot do anything about the continued existence of the accessory building in the flats of the Avery lands. He went on to state that its removal could potentially assist in removing any flood flow blockage and would have some impact on the flood flow velocity. In addition, Mr. Hogenbirk acknowledged that the Authority could not have the remains of the existing septic system removed despite their concern about possible pollution. He stated that the Authority did have involvement with regard to the installation of septic systems since they do have control of the placement of fill and pollution under the Conservation Authorities Act. He stated that the Health Unit is requesting a removal of three feet of soil and a build up of five feet for a gain of two feet of fill above the existing ground level.
Mr. Geist asked about possibly using existing fill on the property, to which Mr. Hogenbirk responded that it was possible if a permit to do the work was secured.
Mr. Hogenbirk indicated that the Authority had a Flood Warning Program (an emergency response program), but that this program alerts people to pending floods in the middle of the day through radio and television communications.
Mr. Hogenbirk indicated that he did not think that there was a steep incline to get out of the valley on Ravenshoe Road. He stated that egress from the Avery property during a regional storm event would be to the right and up the hill. The Jacques would exit this way as well but he indicated that the Avery exit point could be under 1.22 metres of water, while the Jacques exit would be dry.
Mr. Geist asked Mr. Hogenbirk to discuss the decision in the Piccirilli appeal (tribunal file CA 003-96 - September 6, 1996) included as a document in Ex.4 - Tab 12. There were several vacant lots in an old plan of subdivision in the Town of Innisfil which were located in a "floodway". A floodway is defined by an encroachment study which places more stringent restrictions on development in the actual floodway and allows more leniency in the flood fringe area. The floodway is considered the main conveyance area for the flood waters. The Piccirilli lot was subject to approximately one foot to just over a foot of flooding during the Hazel Regional storm event. A foundation for a previous building existed on the site. Mr. Hogenbirk agreed that the Piccirilli appeal to the Mining and Lands Commissioner had been settled with conditions that allowed Mr. Piccirilli to build a house.
Mr. Hogenbirk indicated to Mr. Geist that he was not familiar with the Pope v. Moira River Conservation Authority decision (tribunal file CA 008-94 - June 23,1995 and included in Ex. 4- Tab 14) but he was somewhat familiar with the Allerton v. Lake Simcoe Region Conservation Authority appeal (tribunal file CA 001-95 March 25,1996 and included in Ex. A -Tab 15). Mr. Geist submitted that, in this case, a vacant lot had existed in a flood plain and arrangements were negotiated to allow a building to be built subject to certain conditions. Mr. Geist submitted that that was construction, not reconstruction. Reference was made to Exhibit 4 - Tab 16 being a photograph of a lot in the Town of Innisfil on which Mr. Hogenbirk agreed arrangements had been made by the Authority to reconstruct a house on an existing foundation located in the flood plain I shoreline area. This application was approved without an appeal. Mr. Hogenbirk acknowledged that the Jacques project was new construction as was the building on the north side of Ravenshoe Road.
Mr. Geist referred to Exhibit 16-A: photographs of newly constructed building in Innisfil at 2387 Tall Tree Lane and Exhibit 16-8: a portion of a flood line map where the building is located. The photographs show a building under construction with the creek directly abutting it. The question is how did they secure approval to build on this site? Mr. Hogenbirk was asked to read the letter sent to Mr. Geist by the Chief Administrative Officer of the LSRCA, ( Ex. 12 - Tab 25) as follows:
As requested, I am writing to provide an explanation as to why the Authority issued the above permit.
The applicant/builder of the lot on Tall Tree Lane was issued a permit for the reconstruction of an existing dwelling. At the time of the application, staff informed the applicant that t he Authority would not support the reconstruction of a wider structure However, in n this case, the applicant had already demolished the old dwelling which removed all evidence of the previous width of the house. Consequently, the applicant provided a survey outlining the old building envelope. We issued the applicant a permit on this basis.
The applicant claimed that there were multiple additions that increased the structure's width and an elevated patio. Staff contacted the Town Building Department to verify the structures width; but the Town could only provide the area of the old structure. Since we did not have sufficient evidence to suggest the old structure was narrower in width than the proposed structure, staff issued the permit.
We trust that the above explanation outlines the unique situation the Authority was faced with in issuing this permit.
Mr. Hogenbirk acknowledged that this was a unique situation where reconstruction was allowed right beside a watercourse which subjected the building site to 0.61 metres (2 feet) of flooding.
Mr. Hogenbirk was asked to read the part of the last paragraph of the letter from Ms. Nancy Beal, LSRCA Regulations Officer, indicating refusal of the Avery application (Ex. 4 - Tab 2), as follows:
Our mapping indicates that the entire lot is subject to flooding during a regional storm. At the building site, this flooding consists of between 1.8 and 2.7 metres below the flood elevation of 242.2 metres above sea level. Due to this depth of flooding, there is a risk to life associated with the construction of a new dwelling in addition to a lack of safe access or egress from the house site.
Mr. Hogenbirk stated that if the house existed to-day, there would be a risk to the A very family if they were using the property for weekends, or for whatever period of time. He responded that brand new construction would not be allowed on the site if no one had ever been in that flood plain before. The tribunal notes that Mr. Geist did not seek an answer to his question as to whether Mr. Hogenbirk was prepared to allow the situation to be improved through floodproofing.
Mr. Hogenbirk acknowledged that a permit had been granted for fill on the site (for the purposes of driveway repair), but despite the request to rebuild due to the fire, the Authority could not agree to allow reconstruction on the site. Reference was made to the Warner v. Rideau Valley Conservation Authority appeal (tribunal file CA 001-96 - August 15, 1996 and included in Ex.12-Tab 26).
Re-examination of the respondent's witness
Mr. Hill requested further information with respect to the Piccirilli appeal. Mr. Hogenbirk clarified that municipal services were available to the Piccirilli lot. Following the release of the Mining and Lands Commissioner's order, a conditional letter was forwarded, but to the best of his knowledge, no further application has been made to the LSRCA. If a further application had been made, the Authority would ensure that the Commissioner's conditions would be followed which would provide compliance with Authority policy. The new home built in Innisfil also complied with Authority policies concerning replacement structures. The site was subject to 0.61 metres (2 feet) of flooding and was to be built on what was thought to be the previous foundation.
With reference to the "3 X 3 rule" referred in the Provincial Flood Plain Planning Policy statement, Mr. Hogenbirk indicated that this rule could not be applied to the subject property during regional storm conditions, but the Authority does apply the "2 X 2 rule" which is considered the most conservative method for calculating stability under water. This rule takes the flood depth and multiplies it by the velocity. The maximum allowable criteria used by conservation authorities throughout the province has a value of 0.36 of a metre for stability in standing water for any kind of vehicle or person. With respect to the Avery lands, there are two metres of flooding and a velocity of 0.3 of a metre per second resulting in a value of 0.6 of a metre. This value is not quite twice as much as what is normally considered a maximum stability value.
Mr. Hogenbirk confirmed that:
- the Authority has consistently applied the provisions of Section 8.3 of their Development Policies to cases of reconstruction. (Ex.5)
- in his opinion, the remains of the septic system on the Avery property would not currently be a concern from a pollution point of view since it had not been used for many years and the soil has probably absorbed any leakage that would have occurred, and.
- approximately four loads of fill were allowed on the Avery property under permit for the driveway repair. This would equate to about 40 cubic metres with a standard truck load holding between nine and ten cubic metres.
With regard to the impact that the wooded area might have on flood levels, Mr. Hogenbirk indicated that it would have an affect on the roughness co-efficient of the floodline model. This co-efficient (UN" value) determines how the channel behaves under flow. The wooded area will consume some of the flood storage area, while fallen wood debris and the trees themselves cause obstructions to water flow and roughens the water. Conversely, with a smooth flow, the velocities pick up since the water can move faster, with less obstructions.
The newly installed guard rails along Ravenshoe Road definitely have the ability to collect debris, but they are the lesser of two evils in that they do help to protect the public. The guard rails that were installed are actually the type that allow water to flow through and are acceptable to Conservation Authorities, unlike the solid concrete barriers which completely obstruct the flow.
Final submission - appellant
In his final submission, Mr. Geist summarized the evidence presented on behalf of the appellant.
The property had been in use prior to the Avery family's purchase of it in 1980. The use was legal. The cabin was habitable with all necessary services available on site. Although it was located in the floodplain, the dwelling was not actually in the flats but on a plateau of 1.2 acres in size.
The proposal was to reconstruct a dwelling to meet the current minimum municipal standards of approximately 1200 square feet. Revisions to the plan proposed a long narrow, two storey building with the length parallel to the valley edge. The accessory structure currently existing on the property was to be removed. It was submitted and strongly emphasized that this proposal should be considered a reconstruction of a dwelling and not the construction of a new dwelling. The Jacques property is new construction where the cut and fill balance and floodproofing was utilized. Other examples of new construction versus reconstruction were submitted including the Piccirilli Appeal. It was further submitted that as a preexisting use, the Authority should allow the reconstruction.
The municipality had indicated that a building, built to applicable standards, would be allowed if the By-Law conditions were met. It was submitted that a minor variance from the Committee of Adjustment could be sought with regard to the building size.
The Durham Region Health Unit had provided a Certificate of Approval for a new septic system. The old tile field and tank would be removed from the property reducing the potential for pollution. The Public Health Inspector indicated that the approval for the installation of septic systems was the sole mandate of the Health Department.
It was submitted that the LSRCA does not use the word "reconstruction" in their policies. Their interpretation is that the word "replacement' in their policies covers this as it is just another word with a similar meaning. It was submitted that the policies should say what they mean.
The access road, Ravenshoe Road, was recently upgraded and guard rails were installed which delineate the sides of the road across the frontage of the Avery property. The grade is minimal which will allow egress during a storm event. In addition, there is an Emergency Response System in place.
It was submitted that the reconstructed dwelling would not create a new intrusion into the floodplain. The loss of storage due to construction and fill would be negligible. The flooding on the Avery property is partially a backwater behind the road crossing. The velocity is not high on the Avery lands as on the north side of the roadway.
It was submitted that the appellant was always willing to discuss the issues with the Authority. Certainly, the appellant was prepared to improve the site and was willing to floodproof the dwelling with no basement windows and with the habitable space, including the hydro panel, above the flood level. Fill could be provided for the driveway as well.
Mr. Geist submitted that the Authority policies discourage development, not deny it, but if denied, the LSRCA would render the land worthless. Reference was made to the Ontario District Court Judgment - Stacey v. Oxford-On-Rideau - July 19, 1989 (Ex. 12 - Tab 20) regarding the issue of "expropriation without compensation". It was submitted that their would be substantial loss to the appellant including the cost for the removal of the cabin remains, as well as the cost for the Pre-Hearing and the Hearing.
Finally, it was submitted that the appellant had followed the process, but the LSRCA had been immovable and the appellant had waited far too long for the deserved permission. In this regard, Mr. Geist referenced page 28 of the Dick v. Ausable Bayfield Conservation Authority appeal (tribunal file CA 003-94 - June 8, 1995 and Ex.4 - Tab 13). It was indicated that the process had proved to be a bureaucratic nightmare for Mr. Avery who was frustrated over the many dollars that had been spent. With these facts in mind, the appellant was requesting costs on a solicitor/client basis.
Final submission - respondent
In his final submission, Mr. Ken Hill summarized the evidence and concerns on behalf of the respondent:
There was no doubt that the Averys are faced with a difficult situation, but the Conservation Authorities Act sets out a specific responsibility to prevent development in flood prone areas and places restrictions on any development that can be allowed. Other cases exist where "hardship" has occurred, but the standard has been maintained.
Some land is just not suitable for development. This is one of those cases. Due to the severity of the flooding, it is both impractical and unwise for development and especially residential development to occur. The main concerns deal with the depth of flooding and the loss of storage. In addition, it is known that there is a minimum of 250 cubic metres of fill required which is viewed as causing a significant loss of storage from the floodplain. There would be significant danger to the occupants of any new dwelling built on the Avery lands as well as danger to those, such as fire, police and ambulance personnel, who may attempt to rescue those occupants during a regional storm. The exit point onto Ravenshoe Road would be covered by 1.22 metres (4 feet) of moving water. Even if they turned right, there would still be 30 metres (98 feet) to go to get out of the flood area through water that was basically overtopping a "dam".
The onus is not on the Conservation Authority to provide a site plan, an impact analysis of fill on flood storage, an estimate of the potential for pollution or any other information required for the Conservation Authority to make an informed decision. This onus is on the applicant. An option was suggested to either fill the plateau to the flood level and/or fill and floodproof to a depth of 2 to 3 metres. However, no evidence in the form of any plans were submitted, either to the Authority or the tribunal, as to whether this could be done or whether a building could withstand such water pressure.
The Conservation Authorities Act came into being as a reaction to "human nature". Many people do not remember the damage caused and the lives lost during the storm event now used as the standard. In making a decision, it has been the practice of the tribunal to consider the principles of flood plain management and the policies of local Conservation Authorities as well the actual Regulations. These policies may not be binding but they are important to review and consider.
The Authority policies do allow for flexibility. They do discourage floodplain development and the Regulations are quite clear, but the policies do allow exceptions based on certain criteria. In this case, the biggest hurdle to development is the depth of flooding. The flooding is more than double what is allowed in the exceptions. The Jacques property was further up the hill and only partially in the floodplain allowing for a cut and fill procedure to occur.
Regarding the issue of potential pollution, it was submitted that the LSRCA is entitled and in fact, required to take into consideration such issues as the control of pollution under Section 4 of the Authority's Regulation 153 (Ex.11) and Section 28 (f) of the Conservation Authorities Act. The Authority does not have any jurisdiction over the issuance of permits for septic systems, but they are required to be concerned about the possible impact of such systems with regard to flooding, fill and pollution issues. It was submitted that the letter that was filed from the Durham Region Public Health Inspector should be considered as "heresay" evidence and the appropriate weight given to it. No evidence was submitted indicating Mr. Law's expertise or his knowledge of the flood conditions. It was noted that new occupancy actually increases the potential for pollution as opposed to a system not used in eight years.
It was submitted that the arguments put forth by the appellant with regard to the Stacey judgment (Ex. 12 - Tab 20) regarding "reconstruction" did not allude to the fact that the applicants were going to build a dwelling on the same footprint. Mr. Avery cannot do this as the house must be bigger under current municipal standards. The cases relating to "reconstruction" that were submitted should be accepted at face value. It was submitted that either the appellant is seeking permission to build a dwelling in the floodplain, which clearly implies a need for approval, or he is not and no matter what the words are in the policies, the principles of floodplain management must still apply. It was suggested that there was little difference between a house in a floodplain being destroyed by fire to one that was destroyed by floods. The question is still whether permission would be granted to rebuild.
With regard to the Dick appeal (tribunal file CA 003-94 and Ex. 4 - Tab 13), it was submitted that this case actually dealt with the issue of whether the Conservation Authority was unreasonable because it required the applicants to show that their property was within a "Registered Development Plan". The Commissioner found that it was unreasonable.
The respondent acknowledged that hardship was involved to a degree, but it also was pointed out that this was not the appellant's principal residence.
Mr. Hill submitted three decisions for review by the tribunal, as follows:
- Walley v. South Lake Simcoe Conservation Authority - 1983 with reference to page 6 and the issue of errors of the past.
- Rennie v. South Lake Simcoe Conservation Authority - 1984 with reference to page 4 and the issue of a specific proposal being required.
- Bauer v. Lake Simcoe Region Conservation Authority - 1989 with reference to page 2 and the issues of policy application, regard to floodplain management principles and the matter of overriding municipal, provincial or federal concern, and further with reference to page 5 and the issue of fill and the risk of pollution related to septic systems.
Follow up submission - appellant
In follow up summary, Mr. Geist commented on the three decisions submitted by Mr. Hill as follows:
- Walley - this decision discusses risk regarding the construction of a new home. It was submitted that Mr. Avery knows there is a risk and is prepared to register that risk on title. It is not a new risk. It was stated that the dwelling could be built on the same site, but it was thought prudent to move it to higher ground.
- Rennie - this decision again deals with a new structure. The Avery site is unique with both a flat area and a plateau.
- Bauer - this project had sewers in the area. It was submitted that just because there were sewers does not mean there is no pollution.
He reiterated that the house existed previously and the new one can be built on the same footprint. He questioned where Mr. Hill had come up with the need for a minimum of 250 cubic metres of fill, but indicated that in the context of the total floodplain, this is minimal.
Mr. Geist indicated that he agreed with Mr. Hill that the Authority policies are not binding but that they are important. Mr. Avery is aware of the risks of a regional storm and since there is no dam above (upstream) him that could potentially break, the risk from this kind of flood situation does not exist. Mr. Avery will know when to vacate his floodproofed home, whose first floor would be at the same level as the Jacques home.
Mr. Geist stressed the fact that the Authority did not have policies to prevent reconstruction, but just policies for construction. He summarized by stating that the situation was unique, would not cause a precedent, and that Mr. Avery is entitled to rebuild, knowing the risks involved.
1. Does the LSRCA have the jurisdiction to deal with the Application?
Submissions were made throughout the hearing implying that Mr. Avery has the right to the reconstruction I replacement of a dwelling on his property, since
- the Town of Uxbridge has a Zoning By-Law that allows residential development in the flood plain,
- the Region of Durham Health Unit has indicated that the installation of a Septic System will receive approval
- a dwelling existed on the lands when they were purchased.
As a result, an examination of the issue of jurisdiction seems appropriate. The discussion of issue (c) will be dealt with later in these Findings.
First, the LSRCA has the right to make regulations under Section 28 (1) (e) and (f) of the Conservation Authorities Act for the purposes of:
- prohibiting or regulating or requiring the permission of the authority or the construction of any building or structure in or on a pond or swamp, or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of regulations;
- prohibiting or regulating or requiring permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill.
Secondly, the Minister of Municipal Affairs. together with the Minister of Natural Resources, issued a Provincial Policy Statement on Flood Plain Planning under the Planning Act, 1983. This statement was approved by Cabinet in 1988. In addition to describing the policies themselves, sections of the Policy Statement outlined the purpose, background and policy basis, and implementation. The policies contained general provisions, set out the regulatory flood standard used to define floodplain limits, the one zone I two zone and Special Policy Area concepts for floodplains and indicated the government policy relating to Official Plans. In addition, certain sections deal with floodproofing and public safety.
Based on its jurisdiction and on Provincial Policy, the LSRCA adopted Watershed Policies in September 1984 and updated in December 1994 and April 1998. Section 8 of these policies deals with Development Policies - Structures and Fill. In addition, the Authority's Regulation 179 was approved in May 1979 and amended through Regulation 153/90, 534/91 and 623/94. Schedule 10 provides a list of the geographic areas governed by the Regulations. This Schedule applies to the Avery lands and was added to Regulation 179 through Amendment 534/91 which was approved on September 18, 1991, prior to the loss of the dwelling by fire.
The Regulations provide the basis for the enforcement of the Authority policies.
"The areas described in the Schedules are areas in which, in the opinion of the Authority, the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill O. Reg. 782/74, s. 2. "
The Regulations are reflected in the existing LSRCA Watershed Policies and prohibit. the construction of any building or structure, as well as the placing or dumping of fill. The Policies and the Regulations designate the Regional Storm (Hazel) as the Regulatory Storm. (Ex. 5 and Ex.11)
Although not within the jurisdiction of the LSRCA or the tribunal, and therefore not relevant to the determination, the Town of Uxbridge's approved Zoning By-Law 81 -1 9 is of interest to the Avery proposal. This By-law was approved on March 3, 1981. Schedule "A5" to the By-law zones the Avery lands EP (Environmental Protection) (Ex 4- Tab 6). This EP Zone prohibits residential uses, except under certain conditions. ( Ex. 4 - Tab 7)
The relevant sections of the By-law. Section 4.1.2 entitled Building and Structures in EP Zone allows building and structures:
"provided that all of the requirements set forth in Clauses a., b and c. immediately following are satisfied:
- The buildings and structures permitted shall be restricted to:
- A single-family dwelling house with associated accessory buildings and structures;
- All of the following conditions and approvals set forth in paragraphs, to IV must be met before a permitted building or structure can be erected or an existing permitted building or structure can be enlarged or structurally altered:
- The lot under consideration must have been legally in existence as of the date of the passing of the By-Law and must continue to exist at the relevant time;
- Natural Resources, and/or appropriate Conservation Authority indicating that the lands under consideration are suitable for construction or erection of buildings or structures
- All conditions required by the Ministry of Natural Resources and/or the appropriate Conservation Authority, and/or the local Health Unit must be satisfied; and
- The lot under consideration must comply with the provisions of Section 5.7 hereof. "
If all of these provisions can be met, a building permit may be issued for a single family dwelling house under the Shoreline Residential (SR) Zone provisions. Ex.12- Tab 10 outlines the regulations for such a dwelling. The By-Law requires a minimum gross floor area of 110 square metres (1184 square feet) and a maximum height of 10 metres (32.8 feet).
It is clear that the cabin, located on the Avery lands, existed before this By-law was passed by the local Council and maintained its legal status to exist under the By-law. However, once the cabin was destroyed, the tribunal is convinced that the Zoning Bylaw prevents the construction of a new building or the alteration or enlargement of a building within the EP Zone without the approval of the LSRCA, being the appropriate Conservation Authority. Unless this can be secured, the municipality cannot issue a Building Permit.
Under the Planning Act 1983, a municipality must have regard for provincially approved policies and regulations. This fact is verified in a letter from Blain Lalonde, Chief Building Official for the Township of Uxbridge, dated October 31, 1996 and submitted as Ex 4 - Tab 8. Mr. Lalonde indicated that a building permit could be issued based on current requirements and standards if "the requirements of all currently applicable law" are met, including the approval of the local Conservation Authority having jurisdiction.
It is clear to the tribunal, from the evidence submitted, that the Lake Simcoe Region Conservation Authority has the right and the responsibility to deal with the question of whether a dwelling should be built or rebuilt on the Avery property. The decision of The Canadian Pacific Railway Company v. Department of Public Works of Ontario (1919), 19 SCR reminds judges that they must deal with the legislation at hand, that is, the legislation in effect at the time that the matter became an issue. The tribunal finds that the Conservation Authorities Act and the LSRCA Regulations are "applicable law" with regard to the Avery lands, being in effect prior to the destruction of the cabin and to the transfer of ownership to Mr. Shawn Avery.
With reference to the submissions regarding the right of the LSRCA to be concerned with septic tank installations in the floodplain (Ex. 12- Tab 18), the tribunal finds that such jurisdiction does exist through the Authority's responsibility for the regulation of any fill required for such an installation in a floodplain area and through their concern over the potential pollution from a septic system to the valley system under storm conditions. The legislation clearly identifies their responsibility and jurisdiction to be involved. In addition, the Building Code Act provides assistance in this issue in that it states a concern about potential damage to a leaching bed should flooding occur and goes so far as to suggest that leaching beds should not be located in an area that is subject to flooding. (Ex. 12 - Tab 17).
2. Does the application meet the Watershed Policies of the LSRCA and the Floodplain Planning Policy of the Province of Ontario?
The policies adopted by the LSRCA are in keeping with the Provincial Floodplain Planning Policy Statement. Both the provincial statement and the LSRCA policies generally discourage all development within the floodplain. However, the Authority has provided flexibility within their Policies and Regulations in order to allow them to consider development proposals in the floodplain under certain conditions, chiefly:
- when the proposal has no other opportunity to locate outside the floodplain, and
- provided that at a minimum, certain requirements are followed.
In order for this flexibility to be exercised, the LSRCA requires certain information to be submitted to them for review. Section 6 (1) and (2) of Regulation 179 (Ex. 11) states:
- A signed application for permission to construct a building or structure shall be filed with the Authority and shall include:
- four copies of a plan of the property showing the proposed location of the building or structure, its elevation and the proposed final grade plan;
- four copies of a complete description of the type of building or structure to be constructed, including drainage details;
- four copies of a statement of the dates between which the construction will be carried out; and
- four copies of a statement of the proposed use of the building or structure following completion of the construction; and......
- A signed application for permission to place or dump fill shall be filed with the Authority and shall include:
- four copies of a plan of the property on which the fill is to be placed, showing the proposed location of filling, the depth to which it is proposed to fill and the proposed final grade of the land when filling is complete;
- four copies of a complete description of the type of fill proposed to be placed or dumped;
- four copies of a statement of the dates between which the placing or dumping will be carried out; and
- four copies of a statement of the proposed use of the land following completion of placing or dumping."
The actual application form as shown in Ex. 4 - Tab 1 relaxes some of these requirements in terms of numbers of documents required but outlines quite clearly all the items of information that must be included on the site plan. There also is a note on the form which reads "Insufficient information may delay the processing of your application".
The tribunal has had great difficulty deciding which plan Mr. Avery wished the Authority and the tribunal to deal with. Three plans were submitted.
- The application form (Ex. 4 - Tab 1), dated July 25.1996 indicates that the property was to be used for residential purposes and the proposal was for "a new two storey home" and the installation of a septic system. A sketch was attached showing the general layout of the proposal, but it is not clear where the property line is and the curved line (assumed to be the edge of plateau) was not identified. A second drawing stated that the dwelling was to be approximately 1500 square feet in size with the above grade basement area containing a garage, storage and a furnace room and the habitable area on the second floor. There was no information submitted about the amount of fill proposed, the existing or proposed grades nor details about the septic system. This was the plan that was refused by the LSRCA and appealed to the Office of the Mining and Lands Commissioner.
- A second sketch plan appeared in Exhibit 10 as an attachment to the Durham Health Departments Certificate of Approval for the installation of a sewage system. This plan outlines a long narrow building showing no dimensions and a sewage system, both in a different location than the initial application sketch. No evidence was submitted regarding this sketch other than the building was long and narrow and parallel to the edge of the plateau and the Uxbridge Brook.
- Mr. Avery gave evidence during the hearing that he wished to reconstruct the dwelling to meet the minimum standards of the municipal zoning by-law of 1187-1200 square feet.) but he had not spent any money to prepare a new plan. By letter to the Authority dated July 8, 1997, Mr. Geist indicated that there was no intention of raising the property to conform with the neighbours property, but only to use fill from within the property to provide flood proofing. (Ex.12 - Tab 10). Again by letter dated October 17, 1997, Mr. Geist stated that the intention was to reconstruct to the minimum municipal standards. In his summary to the tribunal, Mr. Geist stated that the dwelling and the driveway would be floodproofed and the site would be improved.
Exhibit 9 presented a partial plan including some topographic information, having been prepared by a survey firm in October, 1997. A proposed location for tile bed and septic tank was shown on this plan as well the remains of the burnt out cabin. Although the topographic information proved very useful during the hearing, this cannot be considered a site plan.
The tribunal accepts that the proposal outlined as the third plan is the one Mr. Avery now submits as the project he wishes to develop, that is a floodproofed dwelling of approximately 2000 square feet. The details surround the amount and placement of fill are not known, nor is the exact location of the dwelling itself.
It is significant that throughout the process, the LSRCA continued to indicate to the appellant what was required by way of information in order for the Authority to determine the suitably of any floodproofing and filling on the site. No evidence was submitted that would indicate that any discussions/negotiations took place with staff in an attempt to deal with the issues prior to the appeal being submitted and as noted, no further information apparently was provided about possible methods of floodproofing and the impact of any required fill. Nor was the safe access or egress issue addressed.
Once the appeal had been made, a letter from Mr. Hill dated July 10, 1997, again indicated the information required in order for the Authority to determine whether a conditional permit would be granted. The tribunal views the following statement made by Mr. Hill in that letter as very telling:
Because of the rather extreme flooding characteristics at the site, the proposal will have to be looked at closely.
You expressed a reluctance to have your client incur costs, however, I would respectfully submit that the kind of information referred to above would be required for the purpose of a hearing. (Ex. 12 -Tab 11)
Again by a letter dated October 30,1997, ( which was not submitted as evidence but is recorded in paragraph 33 of this report) Mr. Hill again expressed that the Authority had deep concerns about permitting residential construction on the property as well as access concerns and again requested floodproofing and fill information. No evidence was submitted that suggests this information was provided, except for a request that the Authority provide "reasonable input' on these matters. Mr. Avery also was prepared to provide a "consent to the registration of a document on title which would relieve the Conservation Authority from any liability whatsoever and give future owners the appropriate notice of such problem". (Ex. 12 - Tab 24)
It is unfortunate that the appropriate information was not submitted as Mr. Hill suggested in the October 30, 1997 letter. As a result, the tribunal does not place much weight on Mr. Geist's submission that the Authority was "immovable" and that the appellant had waited far too long for the deserved permission. Whether the permission is deserved will be dealt with later, but it is very clear to the tribunal that the Authority was unable to be "movable" and make any rational judgment on Mr. Avery's proposal with the information they had and thus they had no choice in refusing the application. In addition, the "wait" was of Mr. Avery's making, since the required information was never provided.
The tribunal found the Rennie v. South Lake Simcoe Conservation Authority appeal (unreported - 1984) of particular interest to this matter. Commissioner Ferguson discussed the issue of the lack of any significant plans on page 4 of the decision:
In all fairness to the appellant, but without comment on the particular application, it may well be that the subject lands could provide a site for a structure other than a residential building
However, an application on the broad basis of the present application is completely impossible for a conservation authority to deal with..." "'It is apparent from the section quoted above that an application to a conservation authority requires the material mentioned in the section in order that the considerations relevant to flood plain management may be made. Any application can only be related to the relevant considerations if the nature and the detail of the proposed structure is available. It is not possible, let alone reasonable, for a conservation authority to be expected to award the type of permission that was requested by the application. One might say that on purely technical legal grounds as contrasted with matters of flood plain management, the respondent was justified in rejecting the application.
With regard, therefore, to the issue of whether the Avery application met the procedural guidelines of the LSRCA, the tribunal finds that it did not. The tribunal is not convinced that the appellant provided enough basic detail about the proposal as to the amount of fill to be used, the method of floodproofing of both the dwelling and the access area, as well as a final plan showing the actual layout of the site. The tribunal finds that the Authority's procedures were quite clear and provided flexibility and that the LSRCA acted within its jurisdiction and were never able to make a proper review of the project without the required information being provided.
3. What is the significance of the words reconstruct, construct, replace to the Decision and which activity applies?
Evidence was submitted surrounding the issue of whether the proposal was "new construction" or "reconstruction". A number of past court decisions and decisions of the Mining and Lands Commissioner, as well as applications that were allowed by the LSRCA, were submitted in support of the premise that the Avery proposal was a "reconstruction" and since a house had been on the property previously, then a "reconstruction" should be allowed.
In order to determine whether this issue is relevant to the decision at hand, it is necessary to briefly review the information that was submitted. Mr. Avery maintained that he wished to reconstruct a dwelling on the plateau portion of the property. Two apparent locations were illustrated (Ex. 4 -Tab 1 and Ex.10) neither of which appeared to be on the footprint area of the former burnt-out cabin. The tribunal has used the words" apparent" and "appeared" because no evidence was submitted that actually showed the proposed dwelling and tile field on a plan which actually illustrated the locational relationship of the new dwelling to the dwelling remains. In his summation, Mr. Geist made a one time reference to a point that "a new one can be built on the same footprint". Other than this comment, there was no evidence that the new building was or could be located on the same site area as the former cabin. From the evidence available, the tribunal has concluded that the new site location is different than the original location.
In addition, the size of the proposed dwelling is a factor. The original application was to "build new 2 storey home" with a 1500 square foot dwelling on two floors. (Ex. 4 - Tab 1) The rationale suggested to allow this square footage was based on the size of the former cabin and its addition (472 square feet) and an existing shed (228 square feet) which, combined, had totalled 700 square feet of building space on the property. The rationale for the fact that the application more than doubled what had existed was not explained. Exhibit 10 provided the Certificate of Approval for the installation of a septic system on the Avery lands. A sketch was attached showing a proposed dwelling of a different size, and shape and in a different location. In addition, through oral evidence, Mr. Avery stated that he proposed a dwelling that would meet the minimum municipal By-law standard of 1187-1200 square feet. (paragraph 28) Mr. Geist had notified the Authority of this fact in a letter dated October 17, 1997 (Ex. 12 -Tab 12). However, as the tribunal noted earlier, no information was submitted by the appellant indicating the exact location of this dwelling. Therefore, based on the evidence available, the tribunal has concluded that the proposal is for a 1187-1200 square foot dwelling in a location different than the footprint of the original cabin.
Throughout the correspondence on behalf of the appellant and through the submissions made at the hearing, Mr. Avery's position clearly was that since a dwelling had previously existed on the site. the proposal, therefore. was a reconstruction and not new construction and as such, deserved a permit Mr. Geist challenged the LSRCA's witness, Mr. Hogenbirk, as to whether the LSRCA's Policies (Ex. 5) dealt with "reconstruction". Mr. Geist contended that the Policies deal with "construction" and "replacement" and there were no policies to prevent "reconstruction".
The tribunal has reviewed the definitions for these words in the Oxford Dictionary. The word construct is a verb meaning to "make by fitting parts together" or "build". The other verbs are reconstruct meaning "build again" and replace meaning "put back in place" or "be substituted for". Construction is the noun meaning "constructing" or "thing constructed". The other nouns are reconstruction meaning "building again" and replacement meaning "replacing or being replaced". The tribunal finds the definition of construction to be quite clear but also finds that an assumption of difference could exist between the words reconstruction and replacement. albeit very insignificant, since it seems clear to the tribunal that to "build again" and "put back in place" are virtually the same.
The LSRCA Policies state that "Replacements of and additions to residential structures within the floodplain may be permitted provided" that certain criteria are met. Under the above definitions, this could easily read "Residential structures or additions to residential structures could be put back in place or built again" if certain criteria were met. This would mean that if these structures are not placed on the foundations of a preexisting building, then the structure would be considered construction and therefore would be new construction or development under the existing Policies. However, it should be noted that the LSRCA Policies discourage all development in a floodplain, but in some cases a development proposal (which implies construction) would be considered "when the proposal has no other opportunity to locate outside of the floodplain" and provided the same criteria relating to replacement is followed.
In clarifying this issue, the tribunal firstly, examined the Ontario District Court decision by Judge Cosgrove in Stacey v. Oxford-On-Rideau (Township), (1989 46 MPLR) (Ex. 12 -T 20). In Stacey, the issue dealt with the refusal to issue a building permit by the Township of Oxford-an-Rideau based on the denial by the Conservation Authority to permit the reconstruction of a home destroyed by fire, located in a floodplain. It was stated that the applicants, in this case, intended to demolish the existing fire damaged dwelling "down to the existing basement walls or block foundation" and to replace the structure that had been there. It was held in this case that the conservation authority's mandate allowed them only to reject applications for construction and did not extend to applications for reconstruction. The words construction and reconstruction were held to be separate and distinct. However, the tribunal notes that the two words reconstruction and replacement were not dealt with in this manner, but were used interchangeably in the decision.
It is apparent to the tribunal that, in the Avery appeal, the Stacey case has more relevance to the respondent's argument that replacement as used in the L S R C A's Policies also can mean reconstruction. In Stacey reconstruction was taken to mean replacement of a structure on the existing foundation and not construction of a new building elsewhere on the site.
While not relevant to the exercise of the tribunal's jurisdiction, it is noted that a building permit could be issued under the Zoning By-law for a single family dwelling if the conservation authority provided written approval to the Town "that the lands under consideration are suitable for construction". A building permit may be issued under three categories:
- for new construction
- for an addition to a building
- for alteration to a building (internally as well as externally)
It would appear from the facts that the municipality may well regard Avery's case as a new application for a new structure, as Mr. Avery is not seeking to rebuild the small log cabin.
The tribunal finds that the words reconstruction and replacement are interchangeable. Moreover, the tribunal finds that the Avery proposal is to locate the dwelling elsewhere on the site and not on the existing remains. It follows, therefore, that the proposal can be considered new construction under the Policies of the LSRCA. However, whether it is construction or reconstruction/replacement, in effect the applicable policies and/or regulations are the same.
It is clear that Mr. Avery cannot build a new dwelling of the same size as the former cabin (with addition) due to size restrictions found within existing municipal By-law standards, requiring much larger structures than the former log cabin. It will be virtually impossible to use any existing foundation as the base for a new building. In fact, it is not clear, from the photographs that were submitted (Ex. 4 - Tab 10), whether any foundation actually existed or whether the cabin was built basically as "slab on grade" construction. This aside, a 20 X 20 foundation base will be inadequate for the proposed new 1200 square foot dwelling. This appears to be acknowledged by Mr. Avery since the drawings submitted seem to indicate that the new dwelling would be located in a different location on the plateau than that of the remains.
A number of previous appeals to the Mining and Lands Commissioner and the LSRCA's previously approved applications were 'submitted as evidence in order to illustrate approval of construction in floodplain areas. The Piccirilli appeal with the LSRCA (tribunal file CA 003-96) was settled by consent and allowed the Piccirilli family to build a home in a floodway which would be under at least a foot of flood waters during a Regional Storm. It was noted that, for whatever reasons, the Piccirilli's have not followed through on this approval despite conforming with Authority policies.
In the Dick v. Ausable Bayfield Conservation Authority appeal (tribunal file CA 003-94) the issues centred around residential infilling on a lot located in a Special Policy Area and whether the vacant lot was within a Registered Development Plan. The decision allowed the appeal. It appears that the Authority would have approved of the construction if there had been the belief the lot was so registered, as their policy allowed construction (with conditions). The examples submitted of approved LSRCA applications for construction on floodplains located in the Town of Innisfil were reviewed by the tribunal, but as in the case of Piccirilli and Dick, these have been found to conform to the conservation authority policies regarding construction or reconstruction/replacement in floodplain areas, in particular the criteria dealing with the depth of flooding. These cases serve to reinforce the tribunal's belief that conservation authority policies do provide flexibility with regard to residential development within flood prone areas, where they consider it appropriate.
The tribunal wishes to point out the actual status of the property when Mr. Avery purchased it. He may have occupied the cabin with his parents after their initial purchase and he may have assumed he had the right to build another dwelling on the lot, while in actual fact, when Mr. Avery purchased the land himself in July of 1994, the cabin had burnt down. As a result, nothing habitable existed on the lands at the time of the transfer of ownership. The lot was vacant at the time of purchase and vacant at the time of application to the LSRCA. In Stacey, there was an issue of jurisdiction involved surrounding the "continuity of ownership". There, the issue was avoided by adding the parents of the applicants as parties to the proceedings. This principle could be applied to this appeal. Mr. Avery stands alone in this appeal and the issue of the non existence of any habitable structure can be taken as further evidence that the required permit is for a new construction.
After considering the evidence and working through the issue surrounding definition of words, the tribunal finds that the proposal should be considered new construction and reviewed under the appropriate criteria. The tribunal also agrees that, in this case, Mr. Hill was correct in stating that:
either the appellant is seeking permission to build a dwelling in the floodplain, which clearly implies a need for approval, or he is not and no matter what the words are in the policies, the principles of floodplain management still must apply.
The tribunal is cognizant that this matter of definition is a recurring issue in a number of appeals and court cases. It is for this reason, that the tribunal suggests that the LSRCA and other conservation authorities review their policies relating to this issue and initiate amendments to clarify the policies. If it appears that Provincial legislation and policies also might require amendments for clarity purposes, it would seem appropriate for the coordinating body for Ontario's conservation authorities to recommend such action to the province.
4. Is the site suitable for the development of a human habitation and can safe access and egress be provided?
The tribunal is convinced that the most important issue to be decided is whether a floodproofed dwelling can be built on the property and whether safe access/egress can be provided. Mr. Hogenbirk, for the respondent, quite clearly stated the concerns of the LSRCA regarding this proposal and stated that even if a house had never been constructed on the property, the Authority would not permit development to take place on the Avery property. In his opinion, residential development was totally unsuitable for the site.
In Stacey, Judge Cosgrove stated that the "risk of harm to persons in the floodplain lands would not be increased, but would remain the same." Mr. Geist also made this point. However, the depth of flooding that might have occurred on the Stacey property is very different than that involved in this case. The tribunal finds the evidence submitted by the respondent with regard to the appeal between Peter Walley and South Lake Simcoe Conservation Authority appeal (Mining and Lands Commissioner, April 28, 1993) to be compelling. On page 6, Commissioner Ferguson stated:
the significant thrust of the analogy to the townhouse properties is that an error was made by the respondent in issuing permission and where the basis of the appeal is strictly precedent, the role of this tribunal cannot be seen as requiring a conservation authority to perpetuate errors of the past.
Although the basis for the Avery appeal is not "strictly precedent", the point of significance to the tribunal is the issue about errors of the past and not requiring a conservation authority to perpetuate them. The Provincial Guidelines also state, on page 5, that Conservation Authorities administer their Regulations from the perspective of water management and related hazards with the" intent to minimize the creation of new problems".
The former log cabin on this site, was built around 1954 and was on the site when Mr. Avery's parents purchased the land in 1981. It is very clear that the construction of the cabin would not have been allowed by the LSRCA if the rules and regulations that now guide conservation authorities in Ontario had been in place. Although many of these authorities existed prior to 1954, it was the destructive force of tropical storm Hazel which gave birth to many of these present day rules and regulations. Provincial legislation and the regulations (and policies) of the LSRCA currently have jurisdiction over this site, whether for construction or replacement.
The technical evidence indicates that the total Avery property is located in the floodplain and would be flooded during a storm event of Hurricane Hazel's magnitude. Evidence in the form of the Floodplain and Fill Regulation Line Mapping for the Pefferlaw Brook area of the LSRCA (Ex. 1) located the Avery lands below the Regulatory Storm line of 242.2 metres above the sea level contour. The property rises slowly from the brook bed, at an elevation of 237.84 to a shallow "plateau" which begins approximately at the 238.8 elevation (designated bottom of berm on the Topographical map in Ex. 9) and rises to about the 240.20 elevation near the Ravenshoe Road portion of the property (designated top of berm on Ex.9). This approximates a rise of 1.4 metres (4.6 feet), the side slope of which is generally tree covered. It should be noted that the plateau tails off to the south to an average elevation of 239.6 (designated edge of clearing on Ex. 9). The plateau continues to rise to an elevation of approximately 240.5 at the easterly property boundary. Based on this information, it is clear that the Avery lands would be flooded to a depth of 4.36 metres (14.3 feet) at the brook bed, to 2 metres (6.56 feet) at the top of berm, to 2.6 metres (8.53 feet) at the edge of clearing and 1.7 metres (6.56 feet) at the property line. The Topographical map (Ex. 9) shows the approximate outline of the dwelling remains to be at elevation 239.51. The cabin, therefore, could have experienced 2.69 metres (8.8 feet) of flooding during a Regulatory Storm event. The tribunal views these figures with great concern and sees a substantial risk to any inhabitants that might live in a dwelling on the property.
Despite this concern, the tribunal has examined the potential safety issue if construction of a dwelling were to be permitted. Without any clear evidence as to its location, the tribunal has taken the position that the dwelling probably was to be placed in the vicinity of the 240.20 contour. Based on this assumption, the dwelling could be flooded to a depth of approximately 2 metres (6.56 feet). This is twice the depth outlined in the LSRCA policies, which state that the authority will consider development in a floodplain that might flood to 1 metre or less, and in those instances floodproofing of the dwelling would be essential.
No definitive evidence was submitted by the appellant to show how the proposed dwelling could be floodproofed to withstand the pressure of approximately 2 metres of water other than stating that it would be done. Mr. Avery testified about a discussion he held with a by-law officer for the Town of Uxbridge, Mr. Brian Pagozza, who had informed him that any foundation that is " tarred and parged" would be floodproofed. However, there was no evidence submitted concerning Mr. Pagozza's qualifications nor was there anything in writing from him, so this evidence must be found to be of limited weight and unpersuasive. As a result and without any other expert opinion, the tribunal must accept the opinion of Mr. Hogenbirk who stated he had never seen any residential building floodproofed to a level of 2 metres. This implies to the tribunal that such floodproofing would be extremely difficult to accomplish successfully and it is assumed by the tribunal that it could be very expensive as well.
The tribunal notes that Mr. Geist suggested the possibility of placing a new structure on the footprint of the former cabin. Exhibit 9 shows the cabin to be at the approximate 239.51 elevation which means that the flooding in this location would be even greater (2.69 metres/8.82 feet) requiring an even greater level of floodproofing.
Despite the fact that pre hearing submissions basically were absent around the issue of direct access and egress to the Avery lands, it was discussed sufficiently through the hearing for the tribunal to understand the risk involved. The obvious route of "escape" from the property during a regulatory storm event would be up the slope of Ravenshoe Road eastward to a level beyond the floodplain, a distance estimated at 30 metres (98 feet). According to the Topo plan (Ex. 9), the elevation of Ravenshoe Road at its mid point opposite the Avery driveway is 241.03 metres above sea level while the driveway entrance itself is approximately 240.66 metres above sea level, or 0.37 metres (1.21 feet) lower than the paved portion of the road. It is obvious that flooding will occur across the whole frontage of the A very property from a depth of 4 metres tailing off to nothing above the flood elevation level, with a depth at the driveway entrance of approximately 1 metre. This does not take into account the elevation of the ditch alongside the paved road bed. At one point the ditch is close to being 1 metre (3.2 feet) lower that the road bed. The Avery driveway crosses this ditch with the aid of a culvert. This area certainly will be flooded during a storm and prove a risk to persons and vehicles seeking to access or exit the property.
As stated, the tribunal has assumed a location for the proposed dwelling at the approximate elevation of 240.20 metres above sea level with no fill involved. This would mean that, like the Jacques house, the finished floor level for the habitable space must be above the regulatory flood level of 242.2 metres. The Jacques were given permission to build a floodproofed basement with no windows and the finished floor was at 242.95 metres. (It was noted that the window that presently exists in the westerly basement wall was installed without permission and is below the flood level.) Therefore, it is apparent that if a dwelling was to be permitted on the Avery property, the basement walls would be approximately 2.75 metres (9 feet) to the finished floor level. The habitable dwelling would then rise above this, either with one storey or two. The entrance door would be approximately 3 metres (10 feet) above the existing ground level. Mr. Avery indicated that access to this door would be via tiered decks. Obviously, if this was done, these decks would be under approximately 2 metres (6.56 feet) of water and, without further action, the house could become an island, surrounded by flood waters. In order to provide "safe" access from the dwelling, it therefore would become necessary to floodproof the driveway, as stated by Mr. Hogenbirk, by placing approximately 2 metres of fill from the roadway to the entrance to the house. It must be remembered, however, that the roadway is not at the floodlevel and also will be under water. The driveway would require a grading down to the level of the roadway. The practicality, as well as the safety surrounding these actions, that is the building of a dwelling and the filling of the driveway area, becomes exceedingly suspect under these conditions.
The tribunal undertook a review of The Provincial Flood Plain Planning Policy Statement - Implementation Guidelines - October 1988 (Ex. 15) especially with reference to Appendix 0 - Floodproofing in Ontario. Many of the facts that follow were derived from this information. Beginning at page 140, there is a discussion about structural integrity of buildings which are surrounded by flood waters. Studies undertaken on various types of structures concluded that 0.8 metres (2.5 feet) would appear to be the upper limit of effective flood depth before the structural integrity of the building is affected by hydrostatic pressures. Other studies on surface coatings to enhance water tightness determined that only a few methods were effective. with "wrapping" being the most effective and the most expensive. These facts taken in the context of the A very proposal indicate that floodproofing of a dwelling to the depth of almost seven feet would not be possible structurally, reinforcing Mr. Hogenbirk's comment that he had never seen any flood proofing where more than one metre of flooding was involved. In fact, a number of the cases that were submitted (Tall Tree Lane, the Allerton appeal, the Dick Appeal and the Stacey court case) all dealt with flood conditions with, at maximum, 0.60 metres (2 feet) of flooding potential.
The tribunal reviewed the evidence submitted concerning the impact of the water velocity on the safety of the site. Mr. Hogenbirk acknowledged that the water velocity of .3 of a metre per second was less than the maximum allowed under the LSRCA Regulations and thus was not an issue regarding the actual building. However, there was a major concern expressed about safety when the velocity is combined with the depth. With the depth at 2 metres and the velocity of .3 of a metre per second, there is a significant force of water. Mr. Hogenbirk stated that the Provincial Guidelines "actually consider that depth well beyond accessibility by either a person or an emergency vehicle". Mr. Hogenbirk further stated that the actual road access would have 1.22 metres (4 feet) of flood waters over it. Again, the velocity is stated as .3 of a metre, but in reality once you get into a weir situation, which the roadway becomes under flood conditions, then the velocities would be substantially greater and both the depth and the velocity become major safety concerns to the Authority.
The tribunal shares this concern. A further review was made of the Implementation Guidelines, again in Appendix "0". There is no doubt that floods are a threat to life and property and fast flowing deep water can be a very powerful force for destruction. The Guidelines state "Depth increases buoyancy and velocity increases instability" (page 132) The information indicates that average adults and teenage children remain stable when standing in flood depths up to 1.37 metres (4.5 feet, while the average school child 6-10 years old would float at about 1.1 metre (3.5 feet), although smaller and younger children would float at a depth of about 0.98 metres (3.2 feet). When floating, the person becomes unstable in the water. Once a person begins to move, the degree of instability also increases.
The Guidelines continue with a discussion of the combination of depth and velocity. The "3X3 rule" was described as relevant to persons involved professionally in stream flow/depth monitoring working in the field. Mr. Hogenbirk gave evidence that a more conservative or lower limit, described as the "2 X 2 rule", is used by the conservation authorities. The formula provides ranges for adults and children to determine the stability conditions. Based on Mr. Hogenbirk's evidence and a review of the examples illustrated in the Guidelines (p 138-9), the tribunal accepts that the situation on the A very lands would exceed these guidelines and thus produce a high risk situation for any person attempting to vacate the dwelling, especially from "tiered decks" to a roadway, where the velocities would tend to increase. None of this takes into account the air and water temperatures, what is under foot and what debris may be also floating in the water.
The tribunal also notes that the duration and the rise and fall cycle of a flood event will have an impact on the safety of the inhabitants of a flood prone area. There is no magic way of knowing how quickly a river or stream will rise, but if it is sudden, there may not be any time to make sure everything is watertight nor to evacuate a property before the egress is cut off. Although the LSRCA has a Flood Warning System, the onus is on the public to pay attention to radio/TV announcements as this is the only communication carried out to alert the public. Individual property owners are not alerted, and frequently, flooding seems to intensify or peak in the night when no one may be listening to a radio.
The appellant has indicated that he is prepared to acknowledge the risk with respect the development of the site and would consent to the registration of the document on title, relieving the LSRCA of any liability and to give future owners notice of the potential problem. The Allerton appeal was referenced in this regard. The tribunal, however, is concerned about the actual implications of such an action in this case. The information reviewed shows that:
- there would be an extreme depth of flooding under a major storm event;
- no safe access/egress would be possible without substantial filling of the lands;
- the depth versus velocity risk is very high for the site;
- the ability to build a dwelling which would be structurally sound is doubtful;
- the Flood Warning System does not provide any real alert to individual properties;
- that the evacuation route also would be under flood waters at the point of entry;
These are quite substantial issues to overcome in attempting to develop the Avery land.
As a result of all these factors, a waver of liability to the Authority does not seem appropriate either for the Authority and especially not for Mr. Avery. What would be assumed by Mr. Avery is an enormous responsibility, one, that if someone ever drowned or became ill and could not get to emergency treatment, he would live with the rest of his life. The fact that he has never seen any flooding of any significance in the years he has been associated with the property, does not mean it could not happen to-morrow. As a result, the tribunal cannot accept that this type of agreement is any solution to the problem of development on this property.
5. Will the placement of fill have a cumulative effect on the watercourse floodplain area?
There was a significant lack of evidence provided by the appellant with regard to the amount of fill that was proposed to be placed on the site. This resulted, primarily, from the fact that a site plan was not submitted which would have shown the actual proposed location of the driveway in relationship to a dwelling. The Topographic survey (Ex. 9) located the proposed septic tank and tile field, and the only evidence of any fill to be used was shown on the septic system's Certificate of Approval. What was proposed for the rest of the development was not stated. Mr. Hogenbirk's quick calculations also were based on the information attached to this Certificate. He estimated that a minimum of 250 cubic metres of fill would be required to floodproof a 1200 square foot dwelling and the tile field. This did not take into consideration any fill required to floodproof the driveway in order to provide safe access. In his evidence, he stated that there were very few options available for the development of the site. Since the whole property was below the flood level, the "cut and fill" option was not available and therefore, any development on the site would result in a net loss of flood storage up to and exceeding a minimum of 250 cubic metres.
The Jacques project was able to use the "cut and fill" system since part of the property was outside the floodplain. This is not available to the Avery project. In addition, since the Jacques, whose home is located at the fringe of the floodplain, were required to flood proof their dwelling to the regulatory storm level, a compromise for the Avery project might not be appropriate.
It should be noted that the tribunal's findings do not stand on the issue of fill since the information available made it extremely difficult to assess any definite impact. The tribunal does, however, acknowledge that the estimate provided would have an impact on the ability of the valley system to maintain the existing floodlevel and any greater amount of fill without any compensating cut would increase this impact, resulting in the raising of the flood levels in the area and in the river system itself.
6. Should concerns regarding the value of the land be material in determining this Appeal?
The issue of loss of value was raised by the appellant's Counsel. Evidence was submitted regarding the land's assessed value and the appellant's application for the Ontario Conservation Land Tax Incentive Program for 1999, submitted, presumably to assist in establishing a land value. Mr. Geist submitted that Mr. Avery would suffer substantial loss if the appeal was denied.
The tribunal acknowledges these submissions, but finds that there is no jurisdiction for the tribunal to determine this issue of land value. In addition, the tribunal does not accept that this issue has any bearing on the basic question before it, that being whether or not the land is suitable for residential development from a flood prone perspective.
The Provincial Policy Statement on Floodplain Policy provides some insight into what might be expected of the Mining and Lands Commissioner with regard to the hearing of appeals in these matters. While not legally bound by the Provincial Policy statement,
By the same token, 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 that 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 takes this statement very seriously and after a thorough consideration of the issues involved in this hearing, in particular the suitability of the site for human habitation, is convinced that any residential development on this site would place the inhabitants and any other person required to attend upon the site during a regulatory storm event, in a position of a potential risk of significant magnitude. It is not acceptable to have a dwelling potentially isolated by floodwaters. Conservation authorities have spent many millions of dollars since the 1954 event purchasing homes and other structures susceptible to flooding, some at less risk than this application. Therefore, despite the fact that a dwelling existed on the site in the past, the tribunal does not believe that this automatically should allow a new dwelling to be built in a location where it clearly should not exist.
The tribunal does not find that the perpetuation of a past error is acceptable in this case and as a result, it will order that the appeal in this matter be dismissed.
The tribunal further denies the request for the awarding of costs to the appellant. The LSRCA did nothing improper in the handling of this case which would warrant an order for costs. Moreover, the appellant did not provide the proper documentation to the LSRCA (or the tribunal) regarding a specific proposal, despite being requested to do so.