The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to issue permission to place or dump fill on Lot 12 in Concession IX in the Township of Hungerford in the County of Hastings and on Lots 245, 246, 247, 257, 258, 259 and 260 in the Village of Tweed in the County of Hastings for the purpose of a tent and trailer park.
Donald J. Rashotte
Moira River Conservation Authority
R.W. Cass, Q.C.., for the appellant.
R.R. Ketcheson, for the respondent.
The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission to place fill on Lots 245, 246, 247, 257, 258, 259 and 260 in the Village of Tweed and part of Lot 12 in Concession IX of the Township of Hungerford. The power and duty of hearing and determining the appeal were assigned by Ontario Regulation 662/81 to the Mining and Lands Commissioner. The appeal was heard in Belleville on December 2, 1981.
Although the appellant was represented on the appeal by counsel his application and an amended application for permission were somewhat inconsistent with his position on the appeal. It appeared on the appeal that the purpose of filling the building lots was in order that the lots could be made available for sale as prestige, residential building lots. However, the applications indicated that the purpose of the filling was for the use of the property as a tent and trailer park. It was also apparent that the zoning for the village lots was inconsistent with the use thereof as residential lots and accordingly, there was little point in pursuing the appeal in respect of the village lots as the appellant would have to arrange for an amendment to the zoning by-law if the proposed use were to be permitted.
The subject lands lie on the westerly bank of the Moira River at its mouth and the westerly shore of Stoco Lake. It appears that the Lots 257 to 260 front on the river and that the portion of the township lot to the south thereof fronts on the lake. Lots 257 to 259 are approximately 80 feet in width and measure between 350 and 450 feet in length. Lot 260 is an irregular shaped lot with a much greater frontage but a similar area. At the west or rear of these lots there is situate John Street which is not opened. Lots 245 to 247 lie on the west side of John Street. The south limit of Lots 245 and 260 and the north limit of the part of the township lot abut the road allowance between Concessions IX and X in the Township of Hungerford, sometimes known as River Street. This road allowance is open only along the northwesterly one-third of the length of the north boundary of the part of the township lot. The village lots are vacant and unused. The part of the township lot has been used as a tent and trailer park but as it has been known to flood during spring thaws it cannot be used as a year-round site for trailers. The appellant wishes to fill the part so that it may be used on a permanent basis and requested, if permission were not granted for the entire portion, that permission be granted for the northwesterly corner of the property measuring 300 feet by 300 feet.
The subject lands and other lots in the village were acquired by the appellant in 1961 at a price of $5,200. There has been some disposition of lots in the village but no information was given as to whether the appellant had recovered part or all of his capital outlay.
In addition to the purposes of the appellant the filling of the subject lands has a related public purpose. To the north of the village lots owned by the appellant there is a tract of railway land on which a steel plant and a veneer plant are situate. The roads that lead to the rear or southerly area of this tract are not opened and the private road that crosses this tract of land is low and impassable much of the year by reason of moisture both from the river and from the wetting of logs. Municipal and fire officials of the village are interested in the raising of John Street., James Street which is the street to the west of John Street and part of the road allowance as far easterly as John street to a height that would be above any expected flooding in order to provide fire services to the rear of the industrial property.
Also the officials of the township are interested in establishing a boat ramp at the easterly end of the road allowance. This may or may not require some placing of fill.
Dealing with the part of the appellant's lands in the township the only permanent building erected thereon is a washroom situate approximately half-way along the northerly boundary of the parcel. Pursuant to permission given by the respondent in 1963, a quantity of fill has been placed on the lands. Some of the fill has been placed thereon by the municipal bodies as it provided an inexpensive site for disposing of fill. Other fill was placed by individuals on a similar basis. The appellant estimated that it would take 186,000 cubic feet of fill to fill the part of the township lot and approximately 3,000 cubic yards to fill the 300 by 300 foot portion at the northwest corner of the property.
The appellant was under an impression which was not established by the evidence that the respondent was planning to remove an island in the Moira River and that the fill from the island could be placed on his property with the result that there could be said to be an application of a cut and fill principle. However, the evidence is not clear as to the identity of the island under consideration or whether the respondent has any such plans. In the event such a scheme were proposed it would not constitute an application of the modern stage storage doctrine or incremental balance doctrine as the principle is currently known.
The appellant frankly admitted that the part of the township lot had been completely inundated by spring floods in the past and partially flooded at frequent irregular intervals.
John David Clemens, the Reeve of the village who has been elected to various positions on the municipal councils over a number of years and who has lived on the river, indicated that there had been periodic floods numbering as many as six in the last 15 years. He admitted that the flood in February, 1981 was the most serious flood in recent memory. He outlined the village's concern respecting the provision of fire fighting services to the industrial lands. He stated that preliminary planning had been performed in respect of the raising of River Street , John Street and James Street and the provision of water and other services in the area. He indicated that the council supported the application and were in favour of the development of the village lots as prestige, residential building sites.
On cross-examination this witness was asked if it was usual to place prestige, residential building sites next to a trailer park. He was not able to give any evidence of this planning approach in any other areas. On questioning from the Bench the witness indicated that he had been a member of the respondent for a period of one year but was not on the executive committee. On questioning as to whether he felt a flooding problem would be created upstream by the placing of fill the witness indicated that there is a dam measuring 12 feet in height approximately 1,000 feet upstream from the property and that the amount of flooding would be negligible. The witness also indicated that in addition to ice jams at the island in the river such as occurred in 1981 there have been ice jams further up the river, particularly between two bridges.
John Francis Genore, the Reeve of the Township of Hungerford was called on behalf of the appellant. He confirmed that the zoning was "rural" and the present use was consistent with the zoning. He also indicated that the zoning by-law, which has not yet received final approval, had been circulated widely three times and that there had been no objection to the proposal to use the appellant's land in the way that it has been used for some time. He indicated that the township approved the proposed use by the appellant. On questioning from the Bench the witness indicated that no consideration or issue had been raised on the matter of flooding during the circulation of the by-law and with regard to the subject property the approach had been that it was an existing use.
Helen Jane Adams, a Councillor of the township who is a member of the Parks and Recreation Committee, gave evidence in respect of the proposal to erect a boat ramp at the end of the road allowance. She indicated that this is one of the better sites in the village. She referred to an alternative site where children swim and indicated there was a desire to separate the boats from the swimming areas. The committee supports the present application.
Norma Helen Hunt of the Recreation Committee of the Township of Hungerford gave evidence respecting the proposed boat launching site indicating that the proposed site was the best site in the area.
William John Foster, the Fire Chief of the village confirmed the evidence previously given in connection with the need of better access to the rear of the industrial areas. Similar evidence was given by Allan Lewis Allore, the Road Superintendent and Town Foreman for the village.
In addition Robert Gilbert, Ph.D., of the Department of Geography of Queen's University was called on behalf of the appellant. The witness's curriculum vitae was filed as Exhibit 6 and it indicates that his specialities are in the fields of geomorphology including lymnology, oceanography and geography. The witness appeared to have very little, if any, experience in hydrology or hydraulics and his practical experience relates to arctic waters particularly in the area of Baffin Island. It was the evidence of this witness that the filling of the subject lands which, in his view, formed part of the basin of Stoco Lake would have no effect on the control of flooding. He based his approach on the study of the maximum experienced flow downstream at Foxborough and calculated that the filling of the entire lands of the appellant including the road allowance was 800,000 cubic feet of fill. This flow of 100,000 c.f.s. was related to a time interval by the witness and he concluded that at this discharge it would take one and one-half minutes to pass the amount of water which would measure 800,000 cubic feet. As his figures included the road allowances and his volume of fill was double at least that of the estimate of the appellant he felt that the amount of water that might occupy the lost storage capacity would pass in three-quarters of one minute. In his opinion this was an insignificant amount.
With reference to ice jamming the witness referred to the removal of an island and seemed to suggest that the island to be removed was not the island in the river but an island forming part of the delta in the lake beyond the river. His opinion was that with the removal of the island at the mouth of the river the velocity of the flows in the mouth of the river would be increased with the result that there would be less danger of ice jams being created.
On cross-examination it came out that the witness had misquoted the figure and intended to refer to a flow of 10,300 c.f.s. on the date of April 8, 1951. His figures did not take into account later data such as the floods that occurred in 1976 and in 1981. The witness expressed the view that the ideal method of flood control on the lake was to raise all properties to a height above the flood level in order that none of the properties would be flooded. With reference to ice jams he expressed the opinion, notwithstanding the evidence that in the past there had been flows across the appellant's property which was indicated by the existence of old spill channels, that he doubted if the placing of fill could cause flooding upstream of the appellant's property.
On behalf of the respondent Lucille Marjorie Dorken, a Resource Technician of the respondent who has an Honours degree in geography from Carleton and who has received training in cartography, gave evidence regarding the extent of flooding on February 2, 1981 of the appellant's land. Her examination of the property was from an aircraft flying at approximately 1,000 feet. Her evidence was that during this flood the greater part of the subject lands were flooded and that the only portion that was not flooded was the high bank along the edge of the river. On cross-examination the witness displayed a slide which indicated considerable flooding of the subject lands and some small areas which may not have been flooded or which may have shown the bed through the water.
In addition Leo H. Christl of the Regional Office of the Ministry of Natural Resources, who is the Conservation Authority Project Engineer for that office and who is a Professional Engineer who has specialized in the environmental sciences, gave evidence on behalf of the respondent. It was his evidence that the Moira River was subject to seasonal flooding. He confirmed that the flood mapping of the area was under preparation but has not been completed and that he had checked certain data and found the evidence as shown in the aerial photographs of the February, 1981 flood as being accurate and being the most severe example of flooding on record. This information was based on stream gauges. He also indicated that there had been a flood in 1976 as well.
The witness admitted that if the requested fill were permitted there would be no significant increase in the levels of Stoco Lake. However, he referred to the precedential implications that would arise from permitting the placing of such fill and the ultimate creation of a higher flooding elevation. With reference to ice jams the witness took the position that the placing of the fill would not have any effect on the risk of ice jamming at the mouth. It was his opinion that the filling would have no effect on the creation of the ice jams but that the subject lands would be effected as a result of ice jamming. In his explanation the ice jams are created by the body of ice in the lake and the ice floes that flow down the river dam themselves against the larger more solid body of ice in the lake that does not break up as quickly as the ice in the river. The concern of the witness was that if an ice jam occurred the fill which would be placed on the existing natural escape routes for the flood would back up the flood waters and cause upstream flooding unless, of course, the velocities were increased to the degree that the fill that had been placed was carried away, a result that would be inconsistent with the concept of placing the fill in the first instance.
The witness was cross-examined fairly extensively in respect of the effect on storage capacity of the fill itself and in the opinion of this tribunal his position did not vary from that originally taken, namely that there would be no significant increase in the levels of Stoco Lake by the placing of the specific fill.
The witness was cross-examined also in respect of the benefits, if any, that would result from the removal of the island and the increasing of the velocity of the flows in the mouth of the river. When it was suggested to the witness that this increase in velocity would carry the ice out further into the lake the witness indicated that the science of ice jams is very complicated and not yet modelled. However, when asked if the filling would cause ice jams upstream, the witness expressed the opinion that such would not occur but that the filling itself could cause higher levels upstream. The witness did indicate that problems of wind seiche and ice jamming are more important problems in the present case than the matter of loss of storage capacity. With reference to the removal of the island the witness was of the opinion that the removal of the island would create the potential for the creation of larger ice floes in the stretch of the river from which the fill would be removed with the result that there would be a greater potential for ice floes building up against the edge of the ice in the lake.
John Alexander Johnston, the Resource Manager for the respondent who has held that position for seven and one-half years and who has had no professional training, gave evidence that he had personally investigated the 1976 flood as well as the 1981 flood lines. He confirmed that the subject lands had been flooded in part at least during both floods but that there was less flooding in 1976 flood. He also confirmed the flooding as disclosed by Mrs. Dorken. When asked on cross-examination respecting the policy of the respondent on filling he indicated that there was no written policy but the approach was that they commence with the principle that there would be no filling in flood plains and they then go from that premise.
In reply the appellant gave evidence that there was a 40 to 50 acre parcel of land along the east side of the mouth of the Moira River which, in his opinion, had a lower elevation than his lands or the bank on his lands and that a natural escape route should have been over those lands rather than across the subject lands.
At the outset it was submitted on behalf of the appellant that, based on the evidence of Johnston , the respondent was not acting in accordance with its mandate. It was submitted that the respondent had the duty of considering each application on its merits and that the granting or refusal of permission should be granted on similar principles as are applicable in municipal law, namely, that the authority's jurisdiction is to regulate and is not equivalent to a prohibition. Secondly, it was submitted that the two objections of the authority to the granting of the permission, namely, the effect on storage capacity and the increased effect on ice jamming were not supported by the evidence. It was submitted in this regard that the evidence of Dr. Gilbert was that of a better witness and it was submitted in effect that the witness, Christl, was associated with the respondent and accordingly, his evidence should be rejected in favour of the evidence of Dr. Gilbert. With reference to the second matter it was suggested that the proposal was a beneficial one and should be permitted as it would permit a greater benefit than a detriment. In this regard it was suggested that Christl's evidence was questionable because he had not taken into consideration the elevations on the east side of the river which were said to be lower. It was submitted that the appellant had successfully met and answered both of the objections of the respondent.
It was agreed that there were some technical difficulties in respect of the application relative to the village lots and it was admitted in effect that this application was premature as the zoning would not permit the proposal. It was submitted that there would be no reason in refusing to grant the permission in respect of the northwest corner of the township lot and leaving the remainder of the application to be dealt with at such time as the regional flood elevation is determined.
With reference to the policy of the respondent, it was submitted by counsel for the respondent that judicial notice should be taken of the evidence of exceptions being created in other instances heard by this tribunal. It was further suggested that the evidence of Christl was more appropriate evidence to use in determining this case as he was a Professional Engineer whose professional qualifications were unchallenged. Counsel referred to section 3 of Regulation 155 of Revised Regulations of Ontario, 1980 indicating that the key words in the text are "interfere with the ability of the water lot to safely carry the maximum flood flows" and that there was sufficient evidence to establish that the fill would interfere with such flows.
In reply it was pointed out that it was not a proper subject matter for judicial notice to refer to previous decisions of this tribunal and that it was the duty of the respondent to establish its policy and set out the exceptions thereto for this tribunal. Reference was made to subsections 28 (3) and (4) of the Conservation Authorities Act with the submission that the issue is whether the reasons given by the respondent are valid and accordingly it was submitted that with the landowner being entitled to use his land as he wishes, the onus was on the respondent to establish reasons that validated the refusal to grant permission to use the land in the way the landowner wishes. Reference was made to the common law right to use property and the principles applicable to regulatory bodies that are given statutory authority to control such use.
At the outset it may be said with regard to the matter of onus that this tribunal tries not to resolve an issue before it solely on the matter of onus. The carriage of these matters is given to the appellant who is given the right of reply both in respect of evidence and submissions and in most litigious matters the onus normally follows the person that has the carriage of the matter. However, in these cases the tribunal expects the conservation authorities to present their position as was done in this case and the decision of this tribunal is based, it is trusted, on the evidence produced before it. To date it has not been necessary to make a decision on the sole issue of onus and this tribunal is satisfied that the present case is not an appropriate one for that approach to be used.
Similarly, with regard to the matter of the policy of the respondent in connection with the placing of fill it is the opinion of this tribunal that the significance suggested by counsel for the appellant is not warranted by the statement of the witness Johnston. Unfortunately, perhaps, counsel for the respondent failed to request the witness to enlarge upon what he meant by the words relied on by counsel for the appellant. In this particular case the evidence indicates that the appellant himself in the past has obtained permission from the respondent to place fill and it cannot be construed from Johnston's evidence that the policy of the respondent is to completely reject any requests for applications to place fill. This tribunal would have expected that if there had been notable exceptions on Stoco Lake, which established the policy of the tribunal in respect of the creation of exceptions to the general prohibition contained in the regulation that these exceptions would have been brought out as part of the appellant's case and that the respondent would have been in the position of showing that the exceptions made in other situations were not applicable in the present case.
With regard to the issue of whether the common law right of a landowner to use his land in the manner in which he chooses is affected by regulations made under the Conservation Authorities Act this tribunal has on many occasions distinguished between building and zoning by-laws enacted under the Planning Act and regulations made under the Conservation Authorities Act. The former are rules made in the public interest in respect of land that would be suitable for a number of purposes and the law is made in the public interest based on the good of the community generally through the exercise of controls related to orderly planning. Conversely regulations made under the Conservation Authorities Act reflect an inherent incapacity of the land itself for the purposes prohibited by the regulations and in such situations the land itself is of such a character that the widest possible range of uses cannot be justified therefor and in fact in most cases only a limited category of use should be made of the land itself. The former is a restriction on the use of land based on the public good and accordingly, strict rules have been applied in the construction of by-laws. On the other hand the latter reflects the weaknesses and incapacities of the land itself and regulations under the Conservation Authorities Act should not be subject to the same strict rules as are applicable to building and zoning by-laws.
This concept of the nature of the legislative jurisdiction of conservation authorities is founded in subsection 28(1) of the Conservation Authorities Act which reads.
28.-(1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,
- restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, swamps, and natural or artificially constructed depressions in rivers or streams;
- prohibiting or regulating or requiring the permission of the authority for the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse;
- regulating the location of ponds used as a source of water for irrigation;
- providing for the appointment of officers to enforce any regulation made under this section or section 29;
- prohibiting or regulating or requiring the permission of the authority for 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 such regulations; and
- prohibiting or regulating or requiring the 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.
It will be noted that in clauses a and c the legislative jurisdiction, by way of the making of regulations, id related to regulation. However, clauses b, c and f, which relate to the diversion of streams, the construction of buildings in flood plains and the placing of fill, contain three heads of such jurisdiction, namely, prohibition, regulation and requirement of permission. These broader heads differentiate the legislative jurisdiction of conservation authorities from that of municipalities and usually the first and the third heads are adopted in the regulations made under the Act. This coupling creates the result of prohibition with permission, an administrative act, being the exception rather than a situation where the controls are found in the law which may be administered by the judiciary through the old remedy of mandamus. In these situations, there is an administrative decision with an administrative review by the Minister.
With reference to the evidence of the expert witnesses it is admitted that the evidence of the witness Christl is not as independent as such evidence might be. On the other hand the evidence of the witness Gilbert was not the evidence of a proper witness in the circumstances. The expertise of the witness was unrelated to the subject matter under discussion. The approach used by the witness in coming to his conclusions was completely dissimilar to any approach used by the experts that normally give evidence in these matters. The ultimate objective presented by this witness of complete filling of the flood plain adjacent to the lake is novel to this tribunal which has heard a number of appeals to the Minister of Natural Resources.
Notwithstanding the foregoing comments the evidence of the two witnesses was consistent in respect of the effect of the fill in the particular case and the difference only relates to the ultimate positions. Christl's position was that the granting of the fill in one particular case creates a precedent that cannot be extended to every landowner without completely destroying the storage capacity adjacent to the natural bed of the river or lake. This tribunal has never before heard an expert recommend that such storage capacity should be totally utilized and that policies should be directed toward that end.
Apart from precedent, the serious problem in this matter according to the evidence appears to be the risk of ice jamming. The existence of ice jamming in the past has been established and whether or not the removal of the island or an island either in the river itself or at the mouth of the river would assist this problem is a matter of speculation particularly as there is no assurance at this time that the respondent is planning or will undertake a program of the removal of such an island. It would seem if the advice of Christl were to be followed the removal of the island in the river would not be adopted by reason of the greater capacity for the creation of ice jams at the mouth of the river. As far as the subject lands are concerned the issue in respect of ice jams is the source or the route over which the waters held back by an ice jam would escape. From listening to the evidence and regarding the maps filed it is fairly apparent to this tribunal that the placing of fill on the part of the township lot measuring 300 feet by 300 feet would probably not create any constriction which would result in upstream flooding by reason of the fact that this area fronts on the lake rather than on the river.
The real difficulty in dealing with the present application is that in the absence of the establishment of the regional flood elevation this tribunal cannot be satisfied nor can the appellant be satisfied that the proposed depth of fill would be sufficient to keep the trailers stored on a year-round basis above the regional flood elevation. While the application may not be premature in the sense that the appellant has owned his land for a considerable period of time and feels that he should have an opportunity of obtaining revenue from his land, the application must be said to have been untimely, particularly, from his view and particularly in view of the fact that he produced no evidence of elevations or of the regional flood elevation. It is not suggested that the production of such evidence is normally the responsibility of the appellant, but in the circumstances of this case, where the respondent is in the process of having these studies made, it seems reasonable that if a landowner wishes to proceed prior to the determination of these elevations he should bring to the authority and to the appellate tribunal some evidence of the elevations which would likely be established at such time as the regional flood elevations are completed and the regulation of the Authority amended to conform with this data.
The evidence of the township officials was to the effect that the elevations of the streets should be higher than the elevations of the adjacent land of the appellant. There was no evidence of the elevation of the subject lands themselves and until such time as the regional flood elevation can be determined, the elevation for fill, if permitted on the subject lands is unknown and the elevation for the raising of the streets is unknown. Further, when the flood mapping is complete, the relative elevations of the lands on either side of the mouth of the river will be more apparent. The only conclusion can be that there are too many unknowns in the matter to warrant the granting of permission at this time. Also the relationship between the opening and raising of the streets and the placing of fill on the appellant's land is not apparent to this tribunal.
In view of the fact that the application is premature and untimely in respect of the village lots and untimely in respect of the part of the township lot, it is the opinion of this tribunal that the appeal should be dismissed without prejudice to apply again at such time as the regional flood elevations in the area have been established.
- It is ordered that the appeal in this matter be and is hereby dismissed.
- And it is further ordered that no costs shall be payable by either of the parties to this matter.
Dated this 29th day of December, 1981.
Original signed by G.H. Ferguson
Mining and Lands Commissioner.