The Conservation Authorities Act
An appeal against the refusal to issue permission to construct a pond and driveway in part of Lot 13 in Concession IX in the Township of Flamborough, formerly in the Township of East Flamborough.
THE HALTON REGION CONSERVATION AUTHORITY
This matter coming on for hearing on the 9th day of March, 1977 at Hamilton in the presence of counsel for all parties, upon hearing the evidence adduced and what was alleged by counsel aforesaid and the appellant appearing to have compiled with the requirements of the reasons for judgement dated the 25th day of April, 1977 and the 9th day of June, 1977, respectively:
1. IT IS ORDERED that the appeal of the appellant be and is hereby allowed and that the appellant be and is hereby granted permission under section 4 of Ontario Regulation 271/72 to construct a pond and driveway in the part of Lot 13 in Concession IX in the Township of Flamborough, formerly in the Township of East Flamborough, describe as follows:
ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Township of Flamborough, in the Regional Municipality of Hamilton- Wentworth, formerly in the Township of East Flamborough, and being composed of Part of Lot Number Thirteen (13) in the Ninth Concession of the said parcel or the tract of land may be more particularly described as follows, that is to say:
PREMISING the north-easterly limit of the King’s Highway #6 as widened and shown on a plan of survey prepared by the Department of Highways of Ontario and deposited in the Land Registry Office Division of Wentworth (No. 62) as number 681 Miscellaneous has an astronomic course of North forty-four degrees and nine minutes west and relating all other bearings used herein thereto.
COMMENCING at an iron bar planted in the northeasterly limit of the King’s Highway #6 as widened and shown on a plan of survey prepared by the Department of highways of Ontario and deposited in the Land Registry Office for the Land Registry Division of Wentworth (No. 62) as Number 681 Miscellaneous, the said point being distant one thousand five hundred and twenty-six feet (1526’) measured in a course of North forty-four degrees and nine minutes west along the said northeasterly limit of the King’s highway #6 as widened from a point in the southeasterly limit of the said Lot Number Thirteen (13);
THENCETHENCE North forty-five degrees and fifty-one minutes East one thousand three hundred and fifty-seven feet and eight and three-quarter inches (1357’ 8 3 / 4”) more or less to an iron bar planted in the northeasterly limit of Lot Number Thirteen (13);
THENCETHENCE North forty-six degrees and one minute west along the northeasterly limit of Lot Number Thirteen (13) four hundred and twenty-two feet (422’) more or less to an iron bar planted; THENCE South forty-five degrees and fifty-one minutes west one thousand three hundred and forty-three and ninety-eight one-hundredths feet (1343.98’) to an iron bar planted in the northeasterly limit of the King’s highway #6 as widened;
THENCETHENCE South forty-four degrees and nine minutes East four hundred and twenty-two feet (422’) to the place of beginning. The above- described parcel of land contains by a measurement thirteen acres (13) be the same more or less.
SUBJECTto an easement in favor of the Hydro Electric Power Commission of Ontario as more particularly set forth and described in Instrument #14664,
Subject to the following conditions:
(1) Subject to the following conditions, the pond and driveway shall be constructed at the locations shown on the sketch accompanying the application of the appellant dated the 22nd day of September, 1976 and filed as Exhibit 4 in this matter;
(2) The base of the driveway shall have a width of not less than 49 feet;
(3) The northerly slope of the driveway shall be covered with riprap;
(4) The top two feet of the driveway shall be constructed of crushed stone;
(5) The pond shall not exceed one acre in area;
(6) No part of the pond shall be excavated closer than fifty feet to the northerly edge of the base of the driveway or to the sourtherly edge of the waters of Bronte Creek flowing through the above described lands during summer periods;
(7) The sides of the pond shall be sloped to a ratio of:
a. Three to one (width to height) and the sides shall be sodded to the waters edge;
b. One and one-half or two to one (width to height) and the sides shall be covered with riprap to a distance of one and one-half feet above the normal water level and one and one-half feet below the minimum water level and the slopes shall be sodded to the riprap; and
(8) All spoil excavated in the creation of the pond shall be used in the construction of the driveway or removed from the floodplain of Bronte Creek.
2. AND IT IS FURTHER ORDERED that there shall be no costs payable by either of the parties to this matter.
DATED this 4th day of July, 1977.
Original signed by G.H. Ferguson
MINING AND LANDS COMMISSIONER
The Conservation Authorities Act
An appeal against the refusal to issue permission to construct a pond and driveway in part of Lot 13 in Concession IX in the Township of Flamborough, formerly in the Township of East Flamborough.
THE HALTON REGION CONSERVATION AUTHORITY
C.G. Lazier, for the appellant.
M. Haesler, for the respondent.
The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission to construct a pond and a driveway in part of Lot 14 in Concession IX in the Township of Flamborough, formerly in the Township of East Flamborough. By Ontario Regulation 20/77 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner. The appeal was heard in Hamilton on the 9th day of March 1977.
Under the regulation making power contained in the Conservation Authorities Act the respondent made Ontario Regulation 272/72. Section 3 of that regulation reads in part
“ 3. Subject to section 4, no person shall,
(c) straighten, change, divert or interfere in any way with the existing channel of a river, creek, stream or watercourse.”
Section 4 reads as follows:
"4. Subject to The Ontario Water Resources Commission Act or to any private interest, the Authority may permit in wr1ting the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering w1th the existing channel of a river, creek, stream or watercourse to which section 3 applies 1f, in the op1nion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land.''
The subject land 15 a thirteen acre part of Lot 13 in Concession IX in the former Township of East Flamborough. The subject land lies on the east side of Highway No. 6 and has a frontage of approximately 400 feet on that highway. The entire frontage is contained within the flood plain of the upper reaches of Bronte Creek which enters the subject land at a point approximately at the centre of the frontage on Highway No. 6 and flows easterly through the subject land. Unfortunately the evidence was unclear as to the location at which the creek left the subject land or the length of the part of the creek within the subject land. Exhibit 7, which was said to have been drawn to a more precise scale than the sketch that was attached to the application, fails to show the north boundary of the subject land but if the north boundary is parallel with the south boundary it would appear from examining this exhibit that the creek leaves the subject land at a location approximately 700 feet easterly of Highway No. 6
Exhibit 7 and the sketch attached to the application show a hashed line said to represent the top of a bank that intersects the west limit of the lot some distance to the south of the south boundary of the subject land and circles toward the north crossing the south limit of the subject land at a location approximately 500 feet east of the west limit of the lot. A photograph of the subject land, filed as
Exhibit 9, indicates that this is a very shallow bank and bounds the land adjoining the creek that is normally flooded by the spring floods. This exhibit shows water covering the entire frontage of the subject land and also covering some of the land to the south of the subject land. The area to the west of the bank is wet and marshy and according to the appellant's evidence there are only two months of the summer during which machinery can be used on the wet area.
The appellant hopes to use the subject land as a site for a residence during his retirement years. In order to gain access to the slightly higher land to the rear of the wet area the applicant proposes to build a driveway along the south boundary of the subject land. He proposes to obtain fill for the base of the driveway by excavating a pond to the north of the proposed driveway at a location commenc1ng approximately forty feet, determined by scal1ng on his application, northerly of the driveway and extend1ng northerly to a point that is midway between the proposed driveway and the creek. The evidence of the respondent was that the sketch attached to the applicat1on was not accurately drawn to scale and one would have to admit that the sketch attached to the applicant on was most general.
It appeared that the proposed pond would commence approximately 200 feet westerly from the west limit of the lot and would extend almost to the bank which was said to be about 400 or 500 feet from the west limit of the lot. The appellant indicated at the close of his evidence that he intended to excavate the pond to dimensions of approximately 150 feet 10 a north-south direction and approximately 200 feet in an east-west direction. The evidence of the engineer of the appellant, William L. Sears, was that the pond would be approximately nine feet deep.
The purpose of the proposal of the appellant was two fold. He had obtained from Tibbits Bulldozing Limited an estimate of the cost of fill, excluding gravel that would be necessary to construct a driveway to a height of four feet. This company estimated the quantity of fill to be approximately 1,500 cubic yards or approximately 140 truckloads which would cost 3,375 at a cost of $24.11 a truck load. The estimate of the appellant's engineer was that this quantity would not be sufficient and that the cost of the fill, excluding gravel, would be in the vic1nity of five to six thousand dollars. Accordingly, the first purpose of the proposal was to provide fill for the base of the driveway and to reduce the cost of providing access to the building site on the subject land by this amount.
Secondly, the appellant was of the opinion that the construction of a pond at this location would beautify the lawn in front of his proposed retirement home. Presently the site is quite low and from the photographs appears to support a growth of willows or similar shrubs and marsh vegetation. The appellant believes that a pond would be a useful device in transforming the state of nature into an attractive lawn.
On cross-examination of the appellant he indicated that an alternative site for a pond proposed by the respondent was too small. This proposal was illustrated by Exhibit 7 and proposed that the driveway be relocated to a more northerly location leaving a small area between the driveway and the southerly boundary of the appellant's property as a site for the pond. The appellant indicated that he did not intend to stock the pond with fish and he had no intention or saw no need of using herbicides to control the growth of vegetation in the pond.
With reference to other quotations respecting the cost of the proposal the witness indicated that the Department of Transportation and Communications had obtained an estimate from a contractor in Ancaster who indicated that the cost of constructing the portion of the driveway between the travel led portion of the highway and the westerly limit of the appellant’s property would be in the vicinity of $11,000. When questioned as to the possibility of using fill from the higher land behind the flood plain on the appellant's property the appellant pointed out that the property was not of a significantly higher elevation and was, in fact, only approximately five feet above the area that was being filled. Accordingly, he indicated that there was no significant possibility of using fill from this area as it would only create a further low area.
The appellant's position was supported by William L. Sears, a professional engineer who has been authorized by the Association of Professional Engineers of Ontario to use a designation of a specialist in environmental matters. Sears has had experience in connection with programs of conservation authorit1es and has been engaged in the past by three authorities. He supported the proposal 1ndicating that he was of the opinion that it was a very useful proposal and would make an aesthetic as well as a safe use of an unsightly area. He referred to a similar proposal where a low area had been developed into a very beautiful site and he was satisfied that the present site could be similarly developed.
Sears pointed out that the proposal was not connected in anyway with the creek. It was not a by- pass pond and would be fed by water from the aquifer. He admit ted that in flooding conditions the whole flood plain including the proposed pond would be inundated but the flooding would not extend beyond the driveway . In this regard the driveway would be protected with riprap along the northerly bank of the driveway. On the issue of silting his opinion was that the proposed pond would not contribute to silting and it would be more likely that the pond would be damaged by silting from silt brought down from higher parts of the flood plain.
With reference to the use of chemicals that might be put in the pond by persons other than the owners, these chemicals would only escape during the flood period in the spring and because of the high volumes of water at this time there would only be a negligible effect on the stream. With reference to the proposal of the respondent he pointed out that it would not obviate the problems raised by the respondent with respect to the proposed pond. There would be a culvert under the driveway and the proposed pond. There would be a culvert under the driveway and the pond would be connected with the stream permitting the possibilities of the same type of connected with the stream permitting the possibilities of the same type of concerns as the respondent had raised occurring at flood times. In his opinion the problems contemplated by the respondent, not admitting them to be valid, were equally applicable to the proposal of the respondent as to the proposal of the appellant.
With reference to the use of the soil as fill the witness was satisfied, notwithstanding that the fill was of a sandy, silty material, it would provide an adequate base for a driveway. In his opinion 250 loads of material would be required as a base for the driveway and if such fill were brought on to the property from another location the cost would be between five and six thousand dollars. In his opinion the soil form the pond was the logical source of material and the least expensive. The roadway would be covered with two feet of stone. Although he had originally hoped that stone would not be necessary, the application of the appellant showed that stone would be used and this stone coupled with the riprap on the northerly side of the driveway would have created an adequate driveway to a private residence.
The witness admitted that there would be a need for future dredging resulting from the deposition of silt in the pond. He indicated that the intention was that this could be trucked away in the summer and would not have any effect on the quality of the water in the stream.
With reference to the reasons given by the respondent in the refusal to issue permission the witness indicated that in his opinion the proposal would not constitute an alteration of an existing watercourse. In his opinion the channel of a stream was a part other than a flood plain and the proposal would not constitute an alteration of the existing channel of a watercourse. Secondly, he was also of the opinion that the proposal would not create future disruptions with the flood plain and that with maintenance there would be no future problems from the pond. Thirdly, he could not foresee any deleterious effect on the Bronte Creek system from the construction of the pond.
On cross-examination of the witness Sears he maintained his position that there was not a problem in respect of silting of the pond itself. He felt that there was a far more serious problem of the pond being silted by the flood waters in the spring which would result in the need for maintenance programs. He was referred to a definition of the word “channel” that is contained in a booklet entitled A Nomenclature for Hydraulics and produced by the American Society of Civil Engineers, that defines a channel as a “natural or artificial waterway of perceptible extent which forms a connecting link between the two bodies of water. It has a definite bed and banks which serve to confine the water”. In his opinion this broad meaning of the word “channel” was not the accepted meaning of the phrase among professional engineers of Ontario.
With reference to maintenance programs his opinion was that these would not be necessary except on a periodic basis of at least five years and that an annual maintenance program would not be necessary. Upon the tribunal inquiring as to whether the proposed pond, not having any inlet or outlet, would become stagnant the witness was satisfied that such was not the case.
Two witnesses were called on behalf of the respondent. Paul Attack, the environment planner with the respondent who has a degree of Bachelor of Environmental Studies from Waterloo University and has been employed by the Grand River Conservation Authority as well as the respondent in planning matters, gave evidence. His concern was that the Bronte Creek, particularly in this portion close to the head waters, was an untouched, undisturbed stream having fresh cold waters and provides on of the few remaining good habitats for fish. He was concerned that this habitat would be effected by silting, pollution from chemicals, introduction of undesirable species of fish and changes in the temperature in the water.
In the view of this witness the channel of the creek was the area subject to flooding in a designed storm, i.e. a regional storm, and included the proposed site of the pond and the driveway. With reference to the alternate proposal he felt that this would create a smaller intrusion into the flood plain and would reduce the loss of storage area involved in providing access to the appellant’s property In passing it may be noted that this position is difficult to follow as the site of the driveway proposed by the respondent reduces the area of the flood plain at this particular location by moving the driveway closer to the creek. The witness indicated that the respondent was concerned in respect of the precedential implications of the proposal and felt that if this pond were allowed there would be a proliferation of applications for the construction of the ponds within flood plains. He was not aware of any similar applications having been granted or having been made as it was his view that the construction of pond in flood plains was so unacceptable that a landowner would not even apply for permission to construct a pond.
On cross-examination the witness admitted that, assuming there was a creation of erosion, it would not be as significant as the erosion that occurs from an unsodded field during the spring run-off. With reference to reduction of storage capacity, the witness admitted that this was not a germane concern in this situation and that the respondent was prepared to allow a driveway. He disagreed with the witness Sears that there was little risk of silting by reason of the fact that the soils in the area were highly erodible. He also agreed that there would be a certain amount of dilution of chemicals in the event of an escape during periods of flooding.
The respondent called Anthony F. Smith who is associated with the company of professional engineers known as M.M. Dillon Limited. Smith has an impressive academic record and experience in practical applications of hydrology. In addition to a degree in mechanical engineering from the University of Toronto he has a degree from Delft University in Holland and has almost finished obtaining his doctorate from the University of Ottawa. Between 1961 and 1964 he had been employed by the Conservation Authorities Branch of the Province of Ontario in work related to hydrology and from 1964 he has been engaged in related projects in Ontario and in other jurisdictions.
It was Smith’s opinion that the site in question would be subject to annual flooding in the spring. This conclusion was made from data from flows taken at Zimmerman, which is downstream, which were prorated upstream to the location. There were also records of a fall flooding with a flood having occurred in December of a few years ago. In addition, the area would be subject to flooding in twenty-five, fifty and one hundred year storms and regional storms.
This witness adopted the definition of “channel” mentioned above and stated in his opinion this was the meaning of the term adopted by professional engineers engaged in hydrology in Ontario. With reference to the particular project this witness indicated that in his opinion the sole problem would be the erosion of the sides of the pond and the entrainment of material that would be carried into the main channel and downstream during periods of flooding. In his view this concern was both local and minor. There would be slumping of the sides of the pond would be subject to maintenance on at least a five year basis requiring further dredging and removal of soil.
The witness also indicated that it was the practice to avoid the construction of ponds in flood plains. He referred to a previous experience where a ponds in flood plains. He referred to a previous experience where a pond had been created in the flood plain of a creek during the project with which he had been associated. Here the pond was created for the purpose of catching sediment and was constructed at a fairly high level where the risk of the sediment being carried into the river was reduced by the placing of the pond above the twenty-five year flood line. He was not aware of similar ponds being permitted in this type of situation.
On cross-examination Smith confirmed that the siltation problem would be localized and that the siltation that would result would be no more significant than the erosion from a twenty-acre field that was under cultivation. He also admitted that the pond would also act as a trap for sediment but he had made no calculations to determine whether the entrapment of sediment would be greater or less than the addition of sediment to the main stream during flood periods. In his opinion there would be a net addiction to the sediment problem in the creek.
With reference to the alternative proposal of the respondent Smith pointed out that while there was a connection to the main stream through the culvert in the driveway, the effect would be a backwater effect requiring water to back up along the driveway through the culvert and into the stream before any effects of the water in the pond could be transmitted to the main channel of the stream. He indicated in addition that this effect could be prevented by the installation of a barrier or a berm to prevent such a flow of water.
Upon cross- examination as to the extent of the siltation problem he suggested that the effect of siltation would be within a three to four hundred yard area and would have the effect of silting up the bed of the stream below the sire and in this manner interfering with the habitat for fish. He was not aware as to whether there was any fish habitat within that geographical area or whether there were spawning grounds for fish within such area.
With reference to the last point, it is not clear whether a distance of three to four hundred yards would extend beyond the lands of the appellant. The appellant did not provide me with a sketch of the subject land and he has not provided me with any indication of the subject land and he has not provided me with any indication of the location at which the stream leaves his land and enters the land of his adjoining owner. However, in this regard I might point out that section 4 of the regulation commences with the qualification of the Ontario Water Resources Commission Act or any private right. In my opinion this provision was added to the section to prevent the application of the legal doctrine that a subsequently enacted provision takes priority over a precious provision with the result that nothing in the regulation of the conservation authority precludes the compliance by an applicant with the requirements of any other statute, regulation, by-law or provision or further permits him to interfere with any private right. Accordingly, where permission is granted under The Conservation Authorities Act the appellant must satisfy himself that he has compiled with these other provisions and does not create any infringement on the rights of other property owners.
The tribunal asked Smith whether the matters that had been raised earlier in the hearing such as stagnation of the pond were serious concerns and the witness indicated that in his opinion these were not serious in this case.
Before dealing with the two basic issues that appear to me to be involved in this case I wish to dispose of a preliminary matter raised by counsel for the appellant. Mr. Lazier argued that the appellant’s proposal was not situate within the channel of a stream and accordingly could not be considered as an interference with the existing channel of the stream and accordingly I see no point in making a judicial determination of this issue in dealing with this appeal and I assume such to be the case.
There are only two basic issues involved in this case. As a result of the evidence of the witness Smith, the first issue has been narrowed to the question of whether the potential silting problem exists and, if it exists, should it prevent the creation of the proposed pond. The second issue is whether the allowance of the appeal and the granting of permission in this particular case would create an unacceptable and uncontrollable precedent.
With reference to the first issue one must determine, in the light of clause C of section 3 of the regulation, the area of concern. It is apparent to me that the area of concern is not flooding in respect of the pond and that the issues can only be related to the matter of pollution or conservation of land. In my opinion of there is a serious matter of siltation it could be considered within the concepts of pollution or conservation of land particularly where the habitat for fish in the upper reaches of a stream are interfered with. The question then arises as to whether in this case the proposal comes within the permissive provisions of section 4.
There was a conflict of evidence by the specialists on the question of whether siltation would result from the pond. Sears was satisfied that there would be no siltation. Smith’s view was that there would be minor and localized siltation. In my opinion it appears that the question of siltation can be adequately put to rest by requiring the compliance with certain conditions in connection with the construction of the pond. Obviously if the walls of the pond were sloped to a degree at which they would not be inclined to further slumping the risk of siltation would be reduced. Accordingly, I am of the opinion that if the sides of the pond were sloped to a ratio of three to one (width to height) and the slopes were sodded to the water’s edge there would be no significant problem of siltation. On the other hand if the appellant wishes to have steeper slopes and is prepared to line the sides of the pond the slopes may be reduced to a slope of one and one-half or two to one (width to height) provided the slopes are sodded to the riprap.
I am also concerned that there is insufficient room on the appellant’s property to construct a pond of a width of 150 feet and have a feasible distance between the pond and creek on one side and the pond and the driveway on the other side. It should be a condition that the pond when constructed should be no closer than 50 feet to either the water in the creek during summer periods or the driveway.
Although it was indicated in the evidence as being the intent of the applicant, it will be a condition that all spoil form the excavation of the pond shall be rather used in the construction of the driveway or removed from the flood plain of Bronte Creek. Similarly any spoil removed from the maintenance of the pond should be removed from the flood plain.
In this regard it has become a practice that where facilities have been permitted to be constructed in flood plains for the applicant to enter into an agreement with the conservation authority agreeing to indemnify the authorities including the conservation authority, the municipal and the Province of Ontario against all claims resulting from the installation of the facility and releasing the authorities from any claim for damages to the subject land and the buildings or structures thereon in respect of flooding or in respect of claims for compensation respecting flooding.
The second basic issue was the question of precedent. If, as I have found, there is no problem in connection with the proposal I fail to see how it can be unacceptable precedent. On the other hand, if we are incorrect determining that there is no serious problem it must be kept in mind that there are at least two unusual aspects of this application. Firstly, the applicant’s property, although I was not provided with the history of the property, appears to be exceptional in that it is a parcel of land that is accessible only through a flood plain. Further the flood plain is subject to flooding not only in regional and less serious floods but also as a result of spring and fall thaws. While one could speculate upon the advisability of permitting the severance of such a parcel of land it appears more reasonable at this time to review steps that can be taken to make the best possible use of the parcel that has been created. Needless to say the owner is being faced with substantial and unexpected costs in providing access to the building site and I fail to see any harm in reducing these costs by utilization of the spoil from the proposed pond where such can be done with a reasonable expectation of no substantial pollution or effect on the control of the pollution or conservation of land. With the recent amendments to The Planning Act these ten acre parcels should receive more consideration, if permitted at all, and from the point of view of precedent any precedent that may be set in this case should relate only in the future.
It is also apparent from the photographs that there is plenty of opportunity to beautify the area in front of the proposed building site. It is obvious that the owner will have a considerable outlay in respect of labour and funds in transforming this low lying area into suitable grounds for a residence. It is not the role of this tribunal to advise him on how to spend his time or his money. In my opinion a special access problem and the recent legislative control over this category of parcel create adequate grounds for dealing with this property without concern over issues of precedent.
With reference to the matter of stocking of fish, the addition of chemicals and similarly related matters I have indicated before that nothing in a grant of permission relieves the applicant from complying with any other law or obtaining any other consent necessary. Without being exhaustive the Ontario Fishery Regulations require a permit from the Minister of Natural Resources before stocking. Also, permits are required from the Ministry of Environment before herbicides may be added to water. The only area which may be of concern is the matter of disposal of soil from future maintenance programs and I would suggest that this matter be incorporated into the indemnity agreement.
Upon receipt of an executive copy of the aforementioned indemnity agreement an order will issue granting permission for the construction of the driveway and the pond subject to the conditions that have been mentioned herein.
No costs shall be payable by either of the parties.
DATED this 5th day of April, 1977
Original signed by G.H. Ferguson
MINING AND LANDS COMMISSIONER