The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
In the matter of
An application to place fill on a commercial site described as Site Grading Plan HC-MN-T2 within the flood plain of the Mattagami River in the City of Timmins in the District of Cochrane.
Melrose Northern Associates
Mattagami Region Conservation Authority
Gerard C. Evans, Q.C. - for appellant
J. Kenneth Alexander - for respondent
This is an appeal by Melrose Northern Associates against the refusal of the Mattagami Region Conservation Authority to grant permission to place fill on a 31 acre site known as "commercial site described as Site Grading Plan HC-MN-T2" being part of Lot 2 in Concession III of the Township of Mountjoy, now in the City of Timmins and lying within the flood plain of the Mattagami River, which site is hereinafter referred to as "the premises". The appellant is a partnership composed of two corporations, namely Headway Corporation Limited, hereinafter referred to as "Headway", and J. V. Bonhomme Holdings Limited, hereinafter referred to as "Bonhomme".
The respondent is a conservation authority that was originally created by an Order in Council dated November 30, 1961 as The Mattagami Valley Conservation Authority. The Order in Council designated the Township of Mountjoy, the Town of Timmins and the Township of Tisdale as participating municipalities. Under The Conservation Authorities Act, R.S.O. 1960 c.62, participating municipalities were entitled to appoint members in accordance with their populations (section 2 (2)) with the result that the authority had a potential of seven members composed of two from the town, one from each of the townships and three provincially appointed members. By Order in Council dated January 30, 1974,
- the territorial jurisdiction of the authority was enlarged,
- the name of the authority was changed to The Mattagami Region Conservation Authority,
- the City of Timmins was declared to be the participating municipality, and
- the City of Timmins was authorized to appoint five members to the authority, making a total of eight members with three provincial appointees.
As this is the first case to be heard under the appeal procedures contained in The Conservation Authorities Act, the relevant legislation and regulations are set out in some detail. Shortly after its establishment The Mattagami Valley Conservation Authority made a regulation pursuant to clause d of subsection 1 of section 20 of The Conservation Authorities Act, R.S.O. 1960 c.62 which authorized the authority to make regulations applicable to the area under its jurisdiction,
(d) prohibiting or regulating the placing or dumping of fill of any kind in any area below the high water mark of any river, creek or stream.
There were a number of changes in the clause in subsequent years but these changes were not put in issue by either of the parties. The regulation was filed as Ontario Regulation 294/62 and was consolidated as Regulation 112 of the Revised Regulations of Ontario, 1970. The relevant sections of the regulation are as follows:
- In this Regulation,
in the area under the jurisdiction of the Authority. O.Reg. 294/62. s.l.
- "Authority means Mattagami Valley Conservation Authority;
- "fill" means fill of any kind;
- "water lot" means,
- any pond or swamp, and
- any area below the high-water mark of a lake, river, creek or stream,
- Subject to section 3, no person shall,
- construct any building or structure, or permit any building or structure to be constructed; or
- place or dump fill, or permit fill to be placed or dumped,
in a water lot. O.Reg. 294/62. s.2.
- Subject to The Ontario Water Resources Commission Act or to any private interest, the authority may permit in writing the construction of any building or structure or the placing or dumping of fill in any part of a water lot if, in the opinion of the Authority, the construction of the building or structure or the placing or dumping of fill does not interfere with the ability of the water lot to safely carry the maximum flood flows and will not result in pollution of the water on the water lot. O.Reg. 294/62.s.3.
- No construction of any building or structure or no dumping or placing of fill in a water lot shall be commenced before the permission required by section 3 has been obtained. O.Reg. 294/62. s.4."
By The Conservation Authorities Amendment Act, 1973, the authority of conservation authorities to make regulations requiring permission to place fill, inter alia, was clarified and by section 9 of that Act the vires of earlier regulations was established. In addition, the three following subsections were added to section 27 of The Conservation Authorities Act which is the current section setting out the regulation - making authority of the conservation authorities in regard to the placing of fill and other matters:
(2a) Before refusing permission required under a regulation made under clause b, e or f of subsection 1, the authority, or where the power to issue permission has been delegated to its executive committee, the executive committee shall hold a hearing to which the applicant shall be a party.
(2b) After holding a hearing under subsection 2a, the authority or committee, as the case may be, shall give written reasons for its refusal to the applicant.
(2c) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission.
The appellant within the required thirty days appealed to the Minister of Natural Resources from the decision of the authority refusing to grant permission to place 126,000 cubic yards of fill on the premises.
Pursuant to clause b of subsection 6 of section 5a of The Ministry of Natural Resources Act, 1972, as amended by section 3 of The Ministry of Natural Resources Amendment Act, 1973, 22 Elizabeth II, 1973, c.105, which reads as follows:
(6) The Lieutenant Governor in Council may make regulations.........
(b) assigning to the Commissioner authorities, powers and duties of the Minister,
Ontario Regulation 473/74 was made assigning to the Mining and Lands Commissioner the power and duty of the Minister to hear this appeal. The 1973 amendment also created the office of Mining and Lands Commissioner.
Subsection 7 of section 5a of The Ministry of Natural Resources Act, 1972, as amended, reads as follows:
(7) Part VIII of The Mining Act applies, mutatis mutandis, to the exercise of the authorities, powers and duties assigned to the Commissioner under clause b of subsection 6.
Section 145 of The Mining Act, as re-enacted by subsection 13 of section 58 of The Civil Rights Statute Law Amendment Act, 1971, 20 Elizabeth II, 1971, c.50, provides as follows:
145. The Commissioner shall determine,
- an appeal from a recorder, after a hearing by way of a hearing de novo; and
- a dispute referred to in section 65 or a claim, question, dispute or other matter within his jurisdiction after a hearing,
pursuant to an appointment fixing the time and place for the hearing.
Pursuant to this section, a hearing was held in Timmins, on September 5th, 1974, by way of a hearing de novo at which each party presented its case and cross-examined and re-examined witnesses.
Through a misunderstanding an official court reporter was not present for the hearing. Arrangements were made for the use of a tape recorder and a secretary, both parties being aware of and agreeing in the arrangement.
As a preliminary matter Mr. Evans moved that the word "commercial" be removed from the description of the premises. He asked that the matter be considered on the basis of any use of the premises. Although the municipal bylaw at one time permitted a variety of uses, the premises are currently in a development zone which prohibits any use pending revision of the zoning bylaw and the official plan. Mr. Evans was concerned that, if the application were approved by this tribunal and the rezoning authorized residential use or some use other than commercial use, it might be necessary to make a further application if there was any inference that such permission was restricted to commercial use.
Mr. Alexander objected to this change as the matter had been reviewed by the authority on the basis of the application which referred to and dealt with a commercial use. He argued that there might be different considerations for residential use and that such considerations might not have received engineering study by the authority and accordingly the application should be dealt with as an application for commercial use.
The matter was reserved in order that the tribunal might consider the representations with some knowledge of the facts. During the course of the evidence Mr. Evans stated that his client was prepared to restrict the amount of fill to be placed on the premises to 126,000 cubic yards regardless of the type of use to which it may be put.
Turning to the evidence prior to 1966, Bonhomme, which was engaged in developing property became interested in a 152 acre parcel being part of Lot 2 in Concession III in the Township of Mountjoy and lying adjacent to the boundary of the Town of Timmins. On July 25, 1966 a subdivision agreement was entered into between the Town of Timmins and Bonhomme in respect of the property. The reason for entering into an agreement with the Town of Timmins rather than the Township of Mountjoy was that services for the development of the site could better be provided by the town than the township.
The subdivision agreement of July 25, 1966, provided for the subdivision of approximately two-thirds of the parcel, namely, the part lying north-easterly of Highway 629. Highway 629 curves across the parcel from a point south of the north-west angle to the south-east corner of the parcel. The premises lie to the west of Highway 629 and are bounded on the west by a road between lots 2 and 3 known as Craft Creek Road. They are a southerly part only of the lands not included in the plan of subdivision proposed by the agreement. However, the agreement contemplates future plans of subdivision beyond the plan proposed in the agreement. The total parcel was outlined in black and the proposed subdivision was outlined in blue. One of the recitals reads as follows:
And Whereas it is agreed that the terms and conditions hereinafter set forth, shall apply to the future subdivision of any of the lands shown on Schedule "A" as outlined in black.
Paragraph 1 of the agreement provided for the conveyance to the town of the five percent of the lands under The Planning Act. A 7.5 acre parcel was dealt with and the paragraph acknowledged that this tract of land would be accepted by the town as satisfaction in full of the five per cent requirement in respect of all future plans of the entire parcel. Also paragraph 5 which obliged Bonhomme to construct sanitary sewers, water mains, streets, etc., required such services to "apply to serve all lots on the proposed Plan of subdivision which is attached as Schedule "A" and outlined in blue, and all future plans that the Owner proposes to make on the remaining property as outlined in black on the aforementioned Schedule "A".
Paragraph 3 of the agreement provided as follows:
"3. The Owner will not permit any building to be erected on land below contour 898."
By an agreement dated 25 October, 1967, between Bonhomme and the town, the subdivision agreement of 1966 was amended to change the location but not the area of the five per cent of the parcel to be conveyed to the town.
In addition to amendments respecting services and roads, a new paragraph was added to the agreement:
22. The owner undertakes to deliver to the Mattagami Valley Conservation Authority concurrent with the registration of a Plan of Subdivision a properly executed copy of a Deed of those lands which are described as Blocks "B" and "C" as indicated on Schedule "A" to the said agreement.
The Blocks "B" and "C" referred to were strips of land thirty-three feet in width along the north boundary of Lot 2 in Concession III and were to be conveyed to the authority for creek channelization. In passing, it is noted that Mr. J. V. Bonhomme, President of Bonhomme, referred to this obligation twice in his evidence but that Mr. H. Ganza, Senior Vice-President of Headway gave evidence that although there was a thorough investigation of Bonhomme's affairs prior to entering into the partnership agreement, it was only in the last year or two that he became aware of the need to comply with the requirements of the authority.
Bonhomme found that it was unable to finance the complete development and in 1969, after a full review by its consulting engineer, Mr. Kenneth Wayne McLennan, Headway entered into a partnership agreement with Bonhomme for the further development of the 152 acre parcel. By this time Bonhomme had obtained approval of a plan of subdivision of the southerly part of the area outlined in blue of the sketch attached to the 1966 agreement. The plan was registered as M-313-C and at the time of execution of the partnership agreement, the Ontario Housing Corporation had 100 H.O.M.E. lots under development. The partnership immediately undertook the preparation of plans for the northerly part of the area outlined in blue and for the premises.
The appellant was successful in obtaining approval of a plan of subdivision of the northerly part of the lands lying easterly of Highway 629. As a condition of such approval, the Minister required the approval of the Land Use Co-ordination Branch of the Ministry of Natural Resources, The Mattagami Valley Conservation Authority and the Director of Public Works and Engineering for the City. These approvals were obtained and the plan was registered as M-336-C. On September 11, 1973, Bonhomme and Headway entered into an agreement with the City of Timmins (Exhibit 9) amending the subdivision agreement of July 25, 1966 in respect of the lands on this plan.
The plan attached to the agreement was a copy of the plan of subdivision to which had been added finished grade elevations in respect of the residential buildings to be erected and was approved on behalf of the authority. The agreement bound the appellant to obtain additional approvals of the three public authorities if fill in addition to the amount contemplated by the plan was required. The appellant agreed to not oppose a bylaw requiring that no opening of any building should be below a minimum elevation of 898.2 feet and agreed to place fill to such minimum elevation for a horizontal distance of six feet around the buildings on designated lots and blocks. The agreement contained a number of additional requirements in respect of services, reserves and easements.
It was originally contemplated by Bonhomme and the town that the mall or shopping centre would be situate on the higher land lying easterly of Highway 629, but this approach was amended after the partnership agreement of 1969 was entered into. Mr. Ganza gave evidence that in his view the original location for the shopping centre was not the best site and it should have been located at the presently proposed site. No reasons were given for this opinion.
In 1972, the appellant submitted a draft plan of subdivision of the premises for approval by the Minister under The Planning Act and the Minister required that a site grading plan be approved by the authority, the Land Use Co-ordination Branch of the Ministry of Natural Resources and the Director of Public Works for the City of Timmins and, secondly, that the official plan be amended to permit the use of the premises as a commercial site.
On June 25, 1973 a site development agreement respecting the premises was entered into by the appellant and the City of Timmins, whereby the appellant agreed to construct on the premises a shopping centre with 188,220 square feet of building coverage in Stage 1 and 74,300 square feet of building coverage in Stage 2 and containing uses permitted by the restricted area bylaw as it was proposed to be amended. The agreement acknowledged in its recitals a prior servicing agreement and the appellant agreed to provide a wide variety of services such a sidewalks, street lights, sodding of boulevards, underground wiring, sewage and water to standards set by the city and to keep its type and scale of development in substantial conformity with the plan attached to the agreement.
Also on September 11, 1973 Bonhomme and Headway entered into an agreement (Exhibit 10) with the city regarding the premises and providing that if any changes are made in the development of the premises requiring more fill, the written approval of the three authorities mentioned in the Minister's conditions must be obtained and Bonhomme and Headway agreed not to oppose a restricted area bylaw containing provisions which will have the effect of requiring that no opening to any building on the premises be below 898.7 feet. G.S.C.
The draft plan of subdivision has received all approvals except the approval of the respondent. The Land Use Co-ordination Branch of the Ministry of Natural Resources granted its approval on the basis that there were binding agreements with the local municipality that were partially implemented. However, the respondent did not adopt this principle and refused the application on the merits and in the light of current engineering principles.
The respondent does not have an engineering staff and obtains engineering advice from the Conservation Authorities Branch of the Ministry of Natural Resources. On the request for such engineering advice, the Branch indicated that it could not give advice unless a study were made to establish the flood plain in the area. To enable the flood plain to be established, the partnership engaged an engineering firm, M. M. Dillon Limited, Consulting Engineers to establish the flood plain. Mr. Ivan Lorant, a civil engineer who graduated in Budapest in 1956 with a degree in civil engineering and who specialized in water engineering for a two-year period at that university following his graduation and had eleven years' experience in London, England, and two years' experience with the United Nations on water resources problems, made a study of the flood plain. Mr. Lorant developed a theory that contour 897.8 G.S.C. marked the extent of the flood plain in the area. While the normal base in establishing a flood plain is the hundred year storm theory, he developed a theory which he referred to as the hundred year flood- theory. He modified the standard rule because of the ability of the land in the area to absorb rainfall and, accordingly, I am left with the opinion that his theory is more generous to the owners of the flood plain lands than the theory applied in the rest of the province. However, his conclusions were accepted by the Conservation Authorities Branch which advised the respondent in the year 1973 or early in 1974 that, in accordance with the established flood plain and the recently established principle known as the "cut and fill principle", the reduction of the reservoir by filling should not be permitted.
Mr. T. Kurtz, Chief Engineer of the Conservation Authorities Branch of the Ministry of Natural Resources, who is a graduate of the civil engineering course at the University of Windsor in 1964 and who obtained a Masters Degree in hydraulics and hydrology, and who has worked in this field since that time for the Conservation Authorities Branch, explained the cut and fill principle in his evidence.
This principle has been under development since 1966 and for the last three years has been the advocated policy of the Conservation Authorities Branch and the ministries of which this branch formed a part. The jist of the theory is that there is a net storage volume in respect of a water course and, if the volume is reduced by the placing of fill in the flood plain, the loss in the net storage volume should be replaced. The replacement cannot take place below the 100 year storm or flood contour and the additional storage volume must be acquired by the removal of fill from the areas having a higher contour than the 100 year contour. On removal of the fill by "cutting", the "cut" area will form part of the natural storage area and replace the volume lost by the filling.
An example of the application of the theory would have been the removal of fill from the south-east corner of the premises and placing it on the areas that are lower than contour 898 G.S.C. However, this area was, in Mr. Kurtz' opinion, too small to provide any significant replacement of the 126,000 cubic yards of storage area that would be lost by the proposed filling operation and the premises do not afford a feasible application of the cut and fill principle.
In passing it is interesting to note that Mr. Kurtz gave evidence that he was the developer of the 100 year storm theory. It is significant that in his work he arrived at a contour of 898 feet G.S.C. based on experiences and observations and that the contour developed by Mr. Lorant, which was developed on a hydraulic theory was within two-tenths of a foot of the same contour. The evidence of these two engineers, Mr. Lorant being called by the appellant and Mr. Kurtz being called by the respondent, complemented and confirmed the evidence of the other, and clearly is to be accepted in lieu of the contentions of Mr. J. V. Bonhomme who gave evidence that in his opinion the contour was the product of an engineer who was "short of some business". On this particular point the engineer called by the appellant supported the validity of the 100 year principles with reference to the Sault Ste. Marie area where the theoretical storms had occurred in two consecutive years.
The Mattagami River flows northerly through the city. The river has a history of severe flooding with extremely serious floods occurring in 1947, 1960 and 1961. The 1961 flood affected one of the tributaries of the river known as the Town Creek, and resulted in death.
The contours of the greater part of the premises are approximately five feet lower than the 100 year flood contour currently adopted for the area. An aerial photograph of the 1960 flood showed considerable portions of the premises under water. Similarly other areas within the flood plain were inundated by that storm and extensive evidence was given as to the approval under The Planning Act by the predecessors of the Ministry of Housing and by the local municipal officials to development projects in areas that were flooded during this flood. The sewage disposal plant of the Town of Timmins was erected during the sixties at an elevation of 895 feet. Mr. Bonhomme gave evidence that the Township of Mountjoy used elevation 895 as the significant contour.
The property known as the Riverside Acres property, which is situated north of the one hundred and fifty-two acre parcel, was developed under a subdivision control agreement that provided that there would be no openings in any structure below 898 feet and required the placing of fill to this level for a distance of six feet from all buildings. Approval with similar requirements was granted for an area known as the Pine Park Development which lies westerly of the river. None of these subdivision control agreements contained the cut and fill principle.
In the area westerly of the river a housing project was erected on Norman Street. This project was believed to have been located on an area covered by a reference plan as it proceeded without the knowledge or approval of the respondent and accordingly has little bearing on these proceedings. Some Government projects such as offices and highways have been completed in the area west of the river, some of them having been completed several years ago.
Before leaving the evidence regarding approval of other projects, it should be noted that the amount of fill proposed to be placed on the premises is significantly greater that the amount of fill used in other projects. The amount of fill required in Plan M-3l3-C was in the vicinity of five thousand cubic yards and in Plan M-336-C was in the vicinity of 12,600 cubic yards.
The evidence also dealt with the effect of the placing of one hundred and twenty-six thousand cubic yards of fill on the premises. Mr. Kenneth Wayne McLennan, an engineer on the staff of the appellant, gave evidence that the placing of such an amount of fill would, during a hundred year flood, raise the level of the water at the site by two inches and the increase would be dissipated by the time the backwash reached the city dock which was one mile upstream. Mr. Lorant indicated that the two inch figure could be 100 per cent inaccurate as he had not calculated this figure. His opinion was that an increase of from one to three inches was the probable range of increase. He was of the opinion that the majority of the flow would continue within the main channel. This flow would be faster than the flow of which he specified as "overland flow" i.e. the water that would be diverted over the banks onto the adjacent lands. He indicated that the effect of such an obstruction would be an increased elevation upstream and an acceleration of the flow. On cross-examination he admitted that there would be a third effect in that the increased flow would cause erosion downstream but not likely flooding or an increase in magnitude of the flow.
Further he admitted that the effect of a two inch rise could mean the difference between flooding and not flooding, particularly on the west side of the river where there are not the high banks that exist on the east side and, if similar approvals were granted to all land owners along the river, there would be a serious cumulative effect.
Turning to the steps taken to deal with the flood risk following the establishment of the conservation authority in 1961, Mr. Hendrick R. Bielek, who has been a member of the authority since 1966 and its chairman since 1968, gave evidence of the history of the policy of the authority in respect of fill permits and flood preventative schemes. In the early days of the authority the requests for approval to place fill were few in number because the majority of the river side lands had been developed for many years. The applications came from householders and asked for permission to place small quantities of fill. These applications were denied.
In more recent years there were applications from the appellants and others for fill and these requests were granted notwithstanding the policy of refusal to issue such permits. Mr. Bielek gave evidence that in view of the small quantity of fill involved and the need for housing, that the policy was, in his words, "bent".
The appellants were permitted to place fill on the two plans of subdivision in the higher land of the 152 acre parcel in the amounts of 5,000 cubic yards and 12,600 cubic yards. Similar filling had been permitted on the Riverside Acres property which is situated to the north of the appellants lands. The Norman Street property on the west side of the river and situate in the Township of Mountjoy at the relevant time was not referred to the authority and the work was done in an unusually short period of time. The Pine Park Development, sometimes known as the "Martin property" and lying westerly of the river was permitted to be filled because the majority of the area was at an elevation of 898 feet and only a minimal portion of the area required fill to bring the entire level up to the flood line. In addition the area contained existing services such as a church, rink, centennial hall, government buildings, etc.
Upon receiving the application in the present case, which the authority considered to be an application for a substantial amount of fill as the amount involved was ten times the amount of the fill permitted for the larger area of 45 acres in Plan M-336-C and upon receiving technical advice from the Conservation Authorities Branch in Toronto, the authority refused the permit on the following grounds:
- Any buildings placed on the site would be prone to flood waters of the Mattagami River.
- If fill were permitted within the floodplain
- the channel capacity of the Mattagami River would be restricted,
- the water levels in the Mattagami River would be adversely affected, and,
- velocity of water flow would be increased,"
thereby increasing the possibility of damage to other properties.
Three other properties have been refused permits on the cut and fill principle according to the chairman. Also it is noted that in the cases of the subdivisions, the authority did not issue formal permits but signed site grading plans.
In addition to the regulatory programme of fill control and building control, the authority undertook a scheme for the acquisition of lands in the flood plain that were subject to flooding. This scheme is not completed and is proceeding on a phase basis. Some lands and buildings in the flood plain have been acquired. The current total budget for this project is one million and fifty-five thousand dollars of which eight hundred and ninety thousand dollars have been spent. The remainder of the funds are committed as land has been expropriated and the funds will be expended when compensation is determined. In addition the Conservation Authority has a project in the area of the Town Creek involving seven hundred and thirty thousand dollars and there is a third phase of the project involving the purchase of land on the west side of the river lying south of Highway 101. However, there is no scheme that involves the acquisition of the premises.
Counsel for the appellant argued that, because the chairman and one other member of the conservation authority were members of the Town Council, the appellant in dealing with the town officials effectively dealt with the conservation authority, and the authority cannot at this time be permitted to deny the issue of a permit to proceed with a shopping centre that was contemplated by the 1966 agreement with the town.
Secondly, he argued that the shopping centre having been desired and agreed upon by the town officials in 1966, a recent change of policy should not interfere with the carrying out of the agreement and its amendments.
Thirdly, he argued that the amount of damages in the event of a one hundred year flood would be insignificant particularly as the easterly banks should contain the water that would be backed up and the low lying areas on the west side of the river having been acquired by the authority there should be no significant increase in risk.
Fourthly, he argued that it having been recently held that there cannot be retroactive legislation, in some circumstances, the subject matter of a binding agreement with a municipality acted on by the parties after careful investigation and confirmation as to its meaning, should not be affected by a recent change in policy.
Counsel for the respondent argued that the requirement for the approval of the authority has existed since 1962 and that, even though the Minister under The Planning Act required the approval of the authority as a condition of approval of a plan of subdivision, the requirement of the approval of the authority was a matter of law that has existed since 1962. With reference to the damages that would be sustained in the event of a hundred year flood, he pointed out that all of the properties in the flood plain have not been acquired and only certain businesses and homes were purchased in the area west of the river. The flood plain extends beyond subdivisions, including homes and offices, within an elevation of 895 to 897.7 feet.
Thirdly, he emphasized that the present application was for the largest amount of fill that had ever been put in the river and particularly if this application and similar subsequent applications were granted that there would be a serious cumulative effect.
Fourthly, he interpreted the appellant's case as being one based on equity resulting from the investment of money, time and effort and he contended that the matter should not be considered from this point of view but rather from the point of view of public interest where a risk of an additional flood hazard could be created.
Fifthly, he argued that the 1966 agreement did not permit the construction of buildings on the premises as they are below contour 898. He argued that the subsequent amendments of the agreement reduced the more stringent requirements of the 1966 agreement and that the 1966 agreement did not in fact create a right or an undertaking that buildings could be erected on lands filled to that contour.
In reply, counsel for the appellant argued that no precedent would be set. There is no indication of any similar agreements pending with the town. Secondly, he argued that the evidence was inconsistent with there being any significant additional hazard from the placing of one hundred and twenty-six thousand cubic yards of fill.
Dealing with the first point that the 1966 agreement between the town and the appellant committed the authority to issue the permit under the regulations made by the authority, I see some justification for the position of the appellant in the fact that the 1967 amendment of the 1966 agreement provided for rights of the authority. The amendment provided for the transfer of a thirty-three foot strip of land to the authority. The authority was not party to the contract and, while the town might enforce this provision, I would have some doubt as to the ability of the authority to bring an action in court based on the contract to which it is not a party. There has been some modification in recent years of the rule that a third party cannot sue under a contract but I am not aware that these authorities have gone sufficiently far to permit the authority to have a legal cause of action in this case.
Part of the argument on this point was based on the fact that the membership of the authority consisted primarily of members of the town council. There was some overlap but I fail to see that two members out of a potential membership of seven members is sufficient to identify the authority legally with the municipality. The Conservation Authorities Act clearly spells out that the conservation authorities are separate corporations with objects that are different from the objects of the municipalities that appoint members to the authorities. The Act provides for methods of financing in addition to contributions from the participating municipalities.
Subsection 4 of section 3 of the present Act provides that every authority is a body corporate. Subsection 5 of section 3 provides borrowing powers for an authority. Sections 23, 24, 25 and 26 spell out methods of contribution of funds from the participating municipalities, including appeal procedures from levies. Section 39 provides for provincial grants.
Section 19 sets out the objects of an authority as follows:
19.The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals.
Section 20 sets out powers of an authority for the accomplishment of its objects and sections 27, 28 and 29 provide for the making of regulations to enforce the policies adopted. Regulations under sections 27 and 28 require provincial approval in the form of an order in council and as a result, pursuant to The Regulations Act, are published in the Ontario Gazette and become part of the Revised Regulations of Ontario. Regulations made under section 29 deal with internal management and do not receive the same formality.
It is apparent that the objects, the methods of financing and the methods of making laws of an authority are different from those of a municipality. Added to these differences is the express provision of subsection 4 of section 3 making an authority a corporation. Against this background, I cannot conclude that an act of a participating municipality can be considered as an act of the authority.
In my opinion the most that the agreement and its amendments could create is an estoppel and it is trite law that estoppels can not be used to found or create rights but are merely tools of defence.
Before leaving the point of the agreement, counsel for the respondent argued that paragraph 3 of the 1966 agreement effectively prohibited the construction of buildings on the premises as the greater part of the premises has contours of less than 898 feet. He contrasted this section with the 1973 amendments in which Bonhomme and Headway agreed not to oppose bylaws requiring that no opening to any building should be below 898.2 feet on Plan M-336-C and below 898.7 feet on the premises. I have been unable to find any provision in the amending agreements specifically revoking paragraph 3 of the 1966 agreement. The question then arises as to whether the new provisions by implication amend paragraph 3 of the 1966 agreement. The precise wording of the 1973 amendment in respect of the premises is as follows:
3. Bonhomme and Headway agree not to oppose any Restricted Area Bylaw containing provisions which will have the effect of requiring that no opening to any building on the site be below the minimum elevation of 898.7 feet for the 'Commercial Subdivision (file number 56T22814 Schedule "A") '. Elevations referred to are Canadian Geodetic Datum.
The evidence indicates that the elevations on Plan M-313-C, which was registered prior to the partnership agreement in 1969, are above the 900 foot contour and presumably, it was not necessary to make any modifications of paragraph 3 of the 1966 agreement in respect of this area. No evidence of any such modification was produced.
In my opinion the proper meaning to be given to paragraph 3 of the 1966 agreement can only be determined from an examination of the words used. The paragraph prohibits the owner from permitting the erection of any buildings "on land below contour 898". The words "below contour 898" are placed next to and modify the word "land". From the position in the sentence, they do not modify the nouns "erection" or "buildings". Considering this wording in relation to the premises, the greater part of the premises was at the time of execution of the agreement and continues to be "below contour 898".
Had the intent been to permit filling to bring the land to contour 898, such intent could have been clearly exhibited by the addition of the words "or that has not been filled to" after the word "below".
Paragraph 4 of the 1966 agreement deals with the placing of fill on the site and makes such placing subject to the approval of the engineer of the town. I have considered whether this paragraph should influence the interpretation of paragraph 3 on the basis that the parties in paragraph 4 considered filling to be permissible under paragraph 3. As there would undoubtedly be placing of fill on lawns and driveways of property above the 898 contour, I cannot consider that paragraph 4 would indicate that paragraph 3 should be interpreted to permit land to be filled to that elevation to comply with paragraph 3. I conclude that the legal interpretation of the 1966 agreement and amendments is that, until the 1973 amendment, there was no contractual provision permitting the placing of fill to comply with paragraph 3 of the 1966 agreement.
With reference to the second argument of the counsel for the appellant, it is my opinion that this point should not be dealt with without considering the significance of the change in policy. Where a new policy arises it becomes necessary to weigh, as a policy matter, the reasons for the new policy against the current existing proposals. I do not accept the approach that the existing situation should continue regardless of the principles of the new policy and the reasons behind such policy.
On the third point, namely the additional hazard, if any, created by the placing of fill, the evidence does not fully indicate the hazards, if any, resulting from the placement of one hundred and twenty-six thousand cubic yards of fill. The present elevations shown on the plan attached to Exhibit 10 vary from 890 feet to 895 feet. These elevations are from four to nine feet below the flood line with the result that in a one hundred year flood situation there would be depths of water of those measurements. None of the expert evidence fully indicated what the effect would be of adding an additional two or three inches of water to these levels. The real area of concern would be at the flood line where the additional flooding potential would be increased and those areas above the 898 contour would be exposed to the additional quantity of water.
In attempting to assess the hazard, if any, it is necessary to consider the magnitude of the water displaced by one hundred and twenty-six thousand cubic yards of fill. The volume could be illustrated by a quantity of water ten yards or thirty feet in width, one yard or three feet in depth and 12,600 yards (7.1 miles) in length.
I agree with the position taken by the conservation authority that such volume of water is a substantial volume and that, in the 100 year flood situation, would flood areas not otherwise subject to flooding particularly in the area west of the river and cause erosion downstream.
No evidence was provided as to the effect of the proposed fill in floods of lesser significance. The evidence indicated that the site in question was covered by water during the 1960 flood and, of course, such a quantity of fill would undoubtedly have some effect on the water levels. With the low banks on the west side of the river it would seem reasonable to expect an increase in the depth of water during intermediate floods on the west side of the river with resultant increased damages at higher contours but as I have no evidence before me I cannot come to a conclusion that there are no serious consequences during intermediate floods from the placing of such a quantity of fill.
In dealing with this subject, I have kept in mind the second point of counsel for the appellant. The first question is whether there has been a change of policy by the authority or whether it has merely adopted a new tool to be used in framing its policy. The policy of the authority as evidenced by the chairman was that only in limited cases had the authority agreed to filling in the flood plain. His evidence was that over the years the policy had been to refuse requests to place fill and that in recent years there had been exceptions to this policy where the quantity of fill was minimal and the project provided needed housing. The evidence indicated that there are competing developments for one shopping centre in the area. The cut and fill principle is a tool for assessing the applications that are made and in reality is not a statement of policy. The policy issue is whether the permission should be granted or not granted and it is apparent that even without the use of the new tool, the application would have been rejected by the authority if it followed the established policy. The cut and fill principle would create an exception to the policy of not permitting filling and construction in flood plains. It allows a method of such utilization of land where permission would otherwise be refused. Unfortunately for the appellant, it cannot by reason of the topography of its lands take advantage of this recent innovation which will permit the use of lands not otherwise suitable for use. I have great difficulty in understanding how it can be said that the adoption of the cut and fill principle constitutes a reversal of policy of the authority which was to prohibit filling unless the amount of fill was minimal and there was a public need for the project. In reality, the principle would permit projects which, under previous policy, should be refused. The result of the application of the cut and fill principle is that the appellant cannot establish that it is entitled to the new exception to the general policy permitted by the cut and fill principle.
A further consideration is the effect of erecting a building containing over 200,000 square feet on the flood plain on the program of acquisition of flood plain land by the authority. The authority has a program of acquisition of such lands and must of necessity establish priorities among the lands to be acquired. As the urban area expands along the river, the responsibility of the authority increases. It is not reasonable to add to this responsibility by permitting the erection of a structure in the flood plain which in the course of an ongoing program should be acquired. If the program, which has cost over $2 millions to date, is to be continued, as it would appear to be warranted with increasing urbanization, it is in accord with the responsibilities of the authority to prevent the erection of substantial buildings on land which ought to be acquired.
The question of compensation to the owner was raised. I understand that in some instances of zoning, the Ontario Municipal Board requires the municipality to acquire the land before a green belt zoning is approved. However, zoning is a matter of resolving competing uses. The program of flood control is directed to public safety rather than the regulation of competing uses and the issue of compensation is not comparatively significant, if significant at all. The hazards from flood control indicate, in reality, the limited appropriate use of the land and compensation should not be in issue in such matters.
On the issue of whether fill should be permitted for uses other than commercial, the evidence was not helpful. It is my opinion that there would be greater hazards in placing a residential subdivision on filled land in a flood plain than in erecting a commercial shopping centre and I am not prepared to make any distinction between the proposed use and any other use which would require such a significant amount of fill.
In conclusion, I see no reason to interfere with the decision of the respondent. I do not consider that the respondent was bound by the agreements entered into by the town or that the agreements give the appellant any immunity from pre-existing regulations of the authority. There is no evidence of any over-riding policy considerations of a municipal, provincial or national interest which would justify interfering with the decision that the authority made in this matter and I concur in the position taken by the authority.
Accordingly the appeal is dismissed but, as this is the first case of this kind, there shall be no order as to costs.
Dated this 12th day of November, 1974.
Original signed by G.H. Ferguson
Mining and Lands Commissioner.