The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
In the matter of
An appeal against the refusal to issue permission to construct three houses on part of lots 1 to 3, Plan 51R3641, in the Village of Beeton in the County of Simcoe.
Ralph M. Stephens and Roy Stephens
Nottawasaga Valley Conservation Authority
M. E. Reed for the appellants.
C. L. Wilson Q.C. for the respondent.
The appellants applied to the respondent on October 19, 1975 for permission under Ontario Regulation 275/75 to erect houses on three parcels of land defined as parts 1, 2 and 3 on Reference Plan 51R3641 and situate on the east side of Centre Street in the Village of Beeton in the County of Simcoe. The refusal of the respondent to issue permission was appealed to the Minister of Natural Resources and by Ontario Regulation 783/76 the power and duty of hearing the appeal was assigned to the Mining and Lands Commissioner. The appeal was heard in Barrie on November 22, 1976.
At the outset of the hearing counsel for the appellants pointed out that the original applicants were "R. Stephens and Son." The son's name was Roy Stephens and to have all the property owners made parties to the appeal the style of cause was amended to include Roy Stephens as one of the appellants.
This appeal involves three parcels of land that are situate in the flood plain of the municipal drain in the Village of Beeton. For the purpose of preparing its official plan the Village of Beeton caused an engineering study to be made by Triton Engineering Services Limited, hereinafter referred to as "Triton", of the flood plains within the village with a view towards designating such flood plains as hazard lands. Flood mapping and an engineering study were done in 1973. In the official plan that was approved by the Minister in December, 1973, an area along the municipal drain including the subject lands was designated as hazard lands.
Under section 5.6.1. of the official plan of the Village of Beeton the following definition of hazard lands was adopted:
The Hazard Lands designation includes all lands having inherent environment hazards, such as poor drainage, organic soils, flood susceptibility, erosion, steep slopes or any other physical condition which leads to the deterioration or degradation of the environment. Lands so designated are intended primarily for preservation and conservation of the natural land and/or environment. Such uses as agriculture, outdoor recreation, nursery gardening, forestry and the conservation of soil or wildlife, shall be permitted. In addition, public or private parks or other outdoor recreation functions such as golf courses, shall also be permitted. No buildings nor the placing nor removal of fill of any kind, whether originating on the site or elsewhere, shall be permitted in areas subject to periodic flooding or physical limitations of any kind without the written consent of the Conservation Authority having jurisdiction in the area. It is recognized that the lands so designated by their nature are to be managed in such a fashion as to complement adjacent land uses and protect them from any physical hazards or their effects.
The policies adopted by the official plan in respect of hazard lands are set out in section 5.6.2. as follows:
- The boundaries of the Hazard Lands as shown on Schedule 'A' will be used as guides for the preparation of zoning by-law provisions, which will implement the policies of this section. Building setbacks will be imposed from the margins of the Hazard Land related to the extent or severity of the hazard.
- Where land designated Hazard Lands is under private ownership, this Plan does not indicate that this land will necessarily remain as such indefinitely, nor shall it be construed as implying that such areas are free and open to the general public or will be purchased by the municipality or other public agency. An application for the redesignation of Hazard Lands for other purposes may be given due consideration by the municipality after taking into account:
- the existing environmental and/or physical hazards;
- the potential impacts of these hazards; and
the proposed methods by which these impacts may be overcome in a manner consistent with accepted engineering techniques and resource management practices;
In the case of flood susceptible lands, these methods will be designed to retain both the stage storage and the hydraulic characteristics of the watercourses involved on an overall basis.
There is no public obligation, however, either to redesignate or to purchase any land if there is an existing or potential hazard that would be difficult or costly to overcome.
- Where new development is proposed on a site, part of which has physical or environmental hazards, then such hazard lands shall not necessarily be acceptable as part of the 5% dedication for Open Space under The Planning Act. All lands dedicated to the Municipality shall be conveyed in a physical condition satisfactory to the Municipality. Where an open watercourse is involved, adequate space shall be provided for maintenance and operations.
- In the implementing zoning by-law existing uses, together with an amount of land sufficient for the siting of such uses at their present extent, shall be recognized as conforming uses despite the subsequent designation as Hazard Lands. The municipality shall discourage the expansion of any existing use beyond the limits recognized in the zoning by-law."
With reference to the boundaries of the flood plain of the municipal drain the report of Triton made the following recommendation at p.18:
Floodline estimates within the northerly undeveloped portion of the Village are caused by backwater from Beeton Creek in the Municipal Drainage Works. The area tributary to these Drainage Works is expected to be in the order of 600 acres.
It is noted that the limited hydraulic capacity of the Municipal Drain and existing culverts may raise flood levels beyond those indicated. However, the Terms of Reference for this Study do not include an examination of the capacity of the Municipal Drainage Works.
'That the Village of Beeton undertake a study of the Municipal Drainage Works to assist in the formulation of additional guidelines for the development of vacant lands according to standards acceptable to the Nottawasaga Valley Conservation Authority'.
It is noted in the report on p.7 in connection with the historical data that during Hurricane Hazel flood waters rose to the elevation of 726 feet at Centre and Young Streets. The report also adopts a regional flood line of 726 feet for the part of Beeton Creek at the outlet of the drain. There was concern that in the event of a regional flood the drain would receive flood waters from the Beeton Creek into which it drained. With the back up of such waters the levels of water would rise in the drain and in its surrounding flood plain.
The regional flood line for the part of the flood plain in which the subject lands are situate was assumed to be 726 feet. It was also noted that the times of peaking would be different for the watersheds of the drain and of the river. The drain would peak in approximately seven hours and the creek would peak in approximately sixteen hours. It may also be observed from the plans that there is a lower area to the east to which flood waters can escape and back up waters might flow and, while the elevation of 726 feet is an estimated elevation and may be subject to some doubts, these doubts are offset by the historical information and in the absence of any other evidence the elevation of 726 feet must be accepted as the regional flood line of the flood plain of the municipal drain.
The easterly boundary of the subject lands is only one hundred and fifty feet from the municipal drain. There is flood plain to the south of the subject lands for a distance of four or five hundred feet. There is flood plain to the north and west of the subject lands but unfortunately a portion of this flood plain has been exhausted by reason of decisions made prior to the establishment of the regional flood lines. Accordingly, the subject lands are situate in the heart of the flood plain and warrant a serious consideration.
It may also be noted that the flood plain of the municipal drain is approximately 660 acres in area and by reason of this small acreage interferences with the storage capacity of the flood plain are more significant than they would be in the flood plain of a large watershed.
Following the approval of the official plan the Village of Beeton enacted a zoning by-law to implement the provisions of the official plan. This by-law received third reading in May or June, 1975 and on approval by the Ontario Municipal Board will be effective as of the date of passing. Under the by-law the subject lands, with perhaps a small exception of one corner of one of the parcels are zoned as an environmental protection zone. The relevant provisions of the by-law are as follows:
11.1 Permitted Uses
- A park
- An orchard or a pasture
11.2 Special provisions
- No building of any kind shall be erected in any part of any EP zone, and no part of an EP zone shall be used to calculate any of the zone provisions as required by the By-law for a use located outside the EP zone.
- No removal or addition of land fill of any kind, whether originating onsite or elsewhere, shall be permitted in areas subject to periodic flooding or physical limitation of any kind.
- The provisions of this zone shall not apply to prevent the strengthening or restoration to a safe condition of any building or structure or alteration or repair of an existing building or structure provided such alteration or repair will not increase the height, size, or volume or change the use of such building or structure."
The appellants are home builders. Early in 1974 they offered to purchase five lots on the east side of Centre Street numbered 115 to 119 on Registered Plan 266 for the County of Simcoe which plan was filed in 1877. Lot 115 is situate on the north side of Stuart Street and the other lots are numbered in a northerly direction therefrom. At the time of purchase a brick house was erected on Lot 115 and part of Lot 116. The offer was subject to building permits being available and approval of the severance of the site of the house being obtained. The vendor applied to the land division committee for approval of a severance and on approval the transaction was closed in November, 1974.
In the interval a reference plan was prepared by R. C. Kirkpatrick, O.L.S. dividing the five lots into four parts leaving each parcel with approximately sixty feet of frontage on Centre Street and a depth of one hundred and fifteen feet. Part 4 on which the house was situate was registered in the name of Ralph M. Stephens and has since been sold. Part 2 was registered in the name of Ralph M. Stephens and parts 1 and 3 were registered in the name of Roy Stephens. It was admitted on cross-examination that the decision of the land division committee was subject to conditions. Exhibit 15 is a copy of the decision of the committee and the conditions thereof and reasons therefore read as follows:
Conditions (g) : The low N. East corner be brought up so that the total property be to a minimum elevation of 728'0. The lot be graded to slope so that it drains from east to west into the Centre St. ditch. The Culvert sizes to be in accordance with Village requirements and to be complete with concrete wing walls.
Reasons (h): The property is fully services (sic) with water, sanitary sewers, and hydro, and it fronts on a main thoroughfare of the village.
It may be noted in passing that an examination of Exhibit 15 indicates that it refers only to part of lots 117 and 118 which would appear to form Part 2 of the reference plan. However, the evidence indicated that the same conditions were applicable to all of the parts.
Following the acquisition of the subject lands the appellants, because they were engaged at other locations, did not apply for building permits until October 1975. At that time they were referred to the building inspector who advised them that it would be necessary to obtain the permission of the respondent. An application was made to the respondent on October 19, 1975.
In November, 1975 the enforcement officer of the respondent recommended as follows in respect of the application:
R. Stephens & Sons - No construction permit be issued at this time for the following reasons:
- no overall plan exists for the entire area within the flood plain, which makes it difficult to recommend a proper cut and fill procedure for retention of flood storage;
- spot development without retention of original flood storage capacity will result in an aggravated flood problem elsewhere in the flood plain areas.
This report was adopted and following a meeting in December, 1975 the respondent agreed to issue a permit subject to the following two conditions as are set out in the resolution of the respondent dated December 3, 1975:
- the owner of the property providing an engineering plan outlining the maintenance of flood storage; and
- the Village of Beeton providing a letter absolving the Authority of any responsibility for any future flooding problems in this said area.
Following this decision the appellants engaged the firm of Reid and Associates Limited, professional engineers, to prepare a plan to implement the first condition contained in the resolution of December 3, 1975. This firm prepared plans of proposed elevations for the parcels. Hendrik Borgdorff, a professional engineer and a member of the firm, stated in evidence that he sent his initial report to the Ministry of Natural Resources at Richmond Hill but this report appeared to have been lost and on May 20, 1976 he submitted a further report to the respondent enclosing copies of the plans outlining proposed elevations. A copy of this proposal and related correspondence was filed as Exhibit 16. Following the second submission the matter was reviewed by the respondent and, on July 8, 1976 the respondent refused to grant permission on the grounds "The request of the Authority for stage storage cannot be met."
In reviewing Borgdorff's submission it may be noted at the outset that his proposal involved an application of the principle that is referred to as the cut and fill principle. This principle involves in effect the redistribution of the existing storage volume in a flood plain by removing fill from the flood plain or an area that would become flood plain and placing a similar quantity of fill on the area to be filled within the flood plain with the result that there is no decrease in the total storage volume. However, this principle is not currently accepted and the engineering principle that is applied in such cases is known as the "stage storage principle." In this latter principle the substituted storage must be made at the same elevation as the elevation of the reduction in the storage capacity created by filling.
In Borgdorff's proposal the westerly sixty feet of the three parts would be raised from their existing elevation in the vicinity of 723 feet to 726 feet. The fill required to raise these areas would be taken from the rear of the parts where the elevation is presently in the vicinity of 724.6 feet with the result that the elevation of the areas from which the fill would be removed would become 723.2 feet. The result of this change in elevation was calculated by Borgdorff who concluded that there would be an increase in the storage capacity of 8,400 cubic feet in the parts where the elevations are reduced to 723.2 feet from 724.6 feet, and a similar reduction in storage volume where the fill was placed raising the elevations from 724.6 feet to 726 feet. In addition, it was proposed to dig a swale from the rear of the parts to the municipal drain to drain normal rainfall that would involve the obtaining of title to the adjacent lots or some other category of permission.
It appeared on Borgdorff's cross-examination that he was unaware of the condition that was imposed by the land division committee. It is also interesting to note that on his cross-examination he agreed that the stage storage principle could not be applied to the subject lands.
Ronald James Hicks, a professional engineer, gave evidence on behalf of the respondent. He was the project engineer with Triton who was responsible for the flood plain mapping and the engineering study in connection therewith. He outlined the difference between the stage storage doctrine and the principle proposed by the appellants. The difficulty with the latter occurs in periods of regional storms. In storms of lesser magnitude an application of the cut and fill principle is beneficial. A larger storage capacity is created at the lower elevation and there is a temporary reduction of the area of flooding. However, if the storm develops into a regional storm very serious problems occur when the higher elevations are reached and the storage that otherwise would have been available is no longer available to receive the peak flows. The lower elevations fill sooner. A larger volume of water is retained than would normally be present and when peak flows are added with a reduced flood plain to retain them there is additional flooding. This increased flooding occurs above the line calculated as the regional storm line.
Hicks gave evidence on the potential difficulties in connection with flooding in the flood plain of the municipal drain during a regional storm and although he had not made a complete study, he gave some views on methods by which controls could be implemented with the result that some of the land now considered as flood plain could be utilized for other purposes. He indicated that an enlarged channel of twenty-two feet would be adequate to control storms of lesser intensity than a regional storm. However, he estimated that a flood way of eighty feet in width would be necessary to provide an adequate control in the event of a regional storm. A study to establish the levels and to design remedial works or adjustments in the drain to achieve this type of control was recommended in his 1973 report.
The witness was of the opinion that with such a study and the implementation thereof, some of the lands now considered to be within the flood plain could be removed therefrom and used for building purposes. Inherent in such an approach is the need to establish a flood way and in so doing some lands would have to be used for such purpose and would not be available for future building sites. Until the study is done and the works are designed, one cannot determine the lands that would be required to carry out a scheme that might remove some of the lands from the hazard lands category.
Hicks stated the concern of the respondent that as the waterway was a municipal drain, it was not under its jurisdiction and that it was the responsibility of the village to make the necessary study and arrange for the implementation of remedial works or changes, whether the public or private developers were responsible for the cost of such studies and works.
During cross-examination of this witness, Mr. Reed referred to Recommendation 2 of the report by Triton which is found at page 17 of the report and reads as follows:
Some reduction of urban development opportunity is anticipated in areas subject to flooding. Site plans for development of these areas should be designed to maintain existing flood plain characteristics. These characteristics will include channel and flood plain cross-sectional area and floodwater storage volume.
'That plans for development within areas currently subject to flooding should be designed to ensure maintenance of flood plain characteristics as determined by the Conservation Authorities Branch of the Ministry of Natural Resources'.
The witness was asked if the respondent had ever defined the flood plain characteristics in this area. The witness stated that he thought the respondent had issued a policy statement on maintenance of flood storage and flood plain characteristics and that these were the two items of not impeding flow and maintaining storage capacity.
With reference to the second condition of the resolution of December 3, 1975, W. Earl Brown, the clerk-treasurer of the village, indicated that the council had reviewed the matter and instructed him that in the event the plans of the appellants were in order he should write the letter. However, upon examination of the plans it appeared that the conditions of the land division committee respecting elevations were not being complied with and as he could not, for this reason, construe the plans as being in order, he had not forwarded the letter.
In his summation on behalf of the appellants, Mr. Reed based his case on two matters, namely the resolution of the respondent of December 3, 1975 and the fact that no criteria had been established by the authority as was recommended in recommendation 2 of the report by Triton.
With reference to the resolution his position was that the appellants, in an endeavour to comply with the resolution have obtained an engineering report by Reed and Associates and this firm prepared on behalf of the appellants plans which met the terms of the resolution. It was submitted that in this resolution the respondent had failed to define the criteria that would be required to meet the terms of the resolution. However, on listening to the evidence of the witness Borgdorff, I am of the impression that he sent a preliminary proposal to the Ministry of Natural Resources at Richmond Hill to determine whether his preliminary submissions were following a proper approach and that he received no reply from the Ministry with the result that after several months he submitted a second submission directly to the respondent. I am not aware of any other evidence that might indicate that the respondent had failed to reply to the witness in relation to requests respecting clarification of the first requirement of the resolution.
Mr. Reed pointed out that the second requirement of the resolution was that a letter of indemnification of the respondent by the village should be obtained and submitted. On this point there was disagreement of counsel as to the facts established by the evidence. Mr. Reed's interpretation of the evidence was that the clerk-treasurer indicated that the council was still prepared to issue such a letter. Mr. Wilson adopted the approach that the letter had not been written and that the instructions to the clerk-treasurer were such that, keeping in mind the conditions of the consent of the land division committee, it was not likely that the clerk-treasurer could write such a letter on behalf of the council. In my view the evidence of the clerk-treasurer was that his authority to write such a letter is qualified and until the proposed plans conform with the requirements of the consent of the land division committee he cannot write such letter.
Mr. Reed also emphasized that the respondent had not established the criteria required by recommendation 2 of the Triton report and submitted that the respondent, a public body, was exercising its jurisdiction in a manner that deprived landowners of their legal and personal rights without establishing any criteria by which the denial of the exercise of such existing rights is to be implemented.
He further submitted that the engineering proposal, while it did not provide for the maintenance of existing storage at all levels, did maintain the total storage capacity and that under the circumstances the respondent had done everything possible to comply with the requirements of the resolution.
The argument of counsel for the respondent was that the subject lands are clearly in a hazard area and that the proposal of the appellants was not in accordance with the resolution or adequate engineering standards, in particular the acceptable standard of the stage storage principle. Mr. Wilson also pointed out that there was a conflict of jurisdiction between the respondent and the village. The village is responsible for the municipal drain under The Drainage Act and has the responsibility, including the powers, for administering the drain. While the respondent has its jurisdiction in respect of the regulation it does not have the jurisdiction held by the village to cause the necessary adjustments to be made in the drain. He inferred that there is a conflict in the administration of these two local bodies and one might suspect that the cost of changes is the reason for the attempts of each body to pressure the other to take action to remedy the problem. His submission was that the municipal drain being under the control and management of the village it was the responsibility of the village to redesign the municipal drain in a manner that would handle floodwaters and leave as much land available for development as possible. At the time that this action is taken, and presumably would be taken in conjunction with the respondent in establishing the adequacy of the changes in the drain, the authority would be in a position to grant permits.
Regarding the merits of the application, the flood plain is small, containing approximately 660 acres. Because of its size it has only 24 acre feet of storage capacity in the part lying south of Lilly Street and west of Patterson Street. It has a short peaking period of approximately six to seven hours. The risks of flooding are not unproven. The report of Triton indicates that within a block of the subject lands, i.e. at Young and Centre Street, a level of 726 feet was reached during Hurricane Hazel and this level has been adopted as the regional flood line. Interferences with the storage capacity of the flood plain are significant by reason of the comparatively small flood plain. The levels of the subject lands are in the range of 723 to 724 feet. This indicates that without filling there is a potential risk of two to three feet of flooding. With the placing of fill the risk affecting the subject lands may be reduced but that risk is added to other lands in and bordering the flood plain. Assuming a two foot elevation and an acreage of .477 acres there would be a loss of .954 acre feet of storage capacity. This is one twenty-fifth of the total capacity of the flood plain.
In this case the precedential implications become important, particularly when considered in the light of a proposal to fill to the elevation of 728 feet as required by the land division committee. It is apparent that the granting of approval in this case would clearly open the door to other applications that would involve other land in the heart of the flood plain and with filling, the storage capacity of the flood plain would be reduced and the level of the regional flood line correspondingly increased.
Turning to the issue of whether an application of the cut and fill principle would be sufficient in itself to warrant the issue of permission, the evidence of the professional engineer called by the respondent was that this approach, while it did not interfere with the total storage capacity, creates problems in the event of severe storms. It has been the experience of this tribunal that while this principle was applied in some of the earlier applications to other conservation authorities, the problems associated with the theory prevent its acceptance today except where there is a very large flood plain and the effect of the loss at the higher elevations is diluted and a miniscule percentage of the total storage capacity at the higher levels is lost. In small flood plains the problems are more accentuated and the principle is not accepted in current practice. In this regard precedential implications are obvious as this approach could be used along the entire drainage ditch, if permitted to be allowed, with the result that nothing would be done to reduce the existing risks of two to three feet of flooding. This is particularly a problem, keeping in mind that the affected capacity is at the higher elevations in respect of these properties.
It must be kept in mind that the permission is contrary to the official plan and in this regard the land was acquired after the official plan was approved in 1973. Also the use of the land for residential building is contrary to the 1975 by-law which on approval of the by-law by the Ontario Municipal Board will be effective as of the date of passing. I indicated in the case of Hogan v. Nottawasaga Valley Conservation Authority, heard on the same day as this case, that the validity of building permits issued in contravention of and prior to the approval of a by-law by the Ontario Municipal Board, is a matter for consideration by the municipality, and that the conflict could perhaps form a supporting reason where there are other grounds for refusing the permission. However, in this case, the other grounds can stand by themselves.
In similar vein the appellants would be faced with a conflict in the event permission were granted on the cut and fill principle. Filling on such a basis would not comply with the conditions of the consent of the land division committee to sever the parts on the reference plan. Those conditions required filling to a level of 726 feet and sloping the whole surface drainage toward Centre Street. On one hand compliance with the consent reduces the storage capacity but on the other hand, the application of the cut and fill principle would not comply with the consent. It is apparent that the appellants will have to resolve these conflicting issues and obviously the best approach to the problem of building in the floodplain of the municipal drain is the carrying out of the study recommended by Triton and, if anticipated proposals emerge from the study, the making of changes in the municipal drain. Following such action the zoning by-law and the official plan, if necessary, can be amended to exclude the portions of the existing flood plain that are above the revised regional flood line with the result that the need to acquire the permission of the respondent to construct buildings in the excluded areas would no longer be necessary. However, it may be that the study would reveal a greater hazard than anticipated with the result that permitting building in the flood plain at this time without a proper hydraulic study of the flood plain would be proven to not be warranted and that engineering proposals now contemplated may not be adequate.
On the merits I cannot conclude that the decision of the respondent was wrong at this time. The application, at best, is premature. Its thrust conflicts with the conditions of the consent to the severance and the problems of the application of the cut and fill principle have been demonstrated. The precedential implications of granting permission are real and significant if permission to build in the heart of the flood plain were allowed and accordingly the appeal will be dismissed. In so doing I am not unmindful of the emphasis by Mr. Reed on the resolution of December 3, 1975. It was open to the appellants to submit a plan showing the application of the stage storage principle by provision of additional or compensating storage on lands other than the subject lands that they might own or acquire. This approach has not been adopted. In lieu they adopted an application of the cut and fill principle and the problems associated with this principle have been considered.
It is ordered that the appeal of the appellants in this matter be and is hereby dismissed.
And it is further ordered that no costs shall be payable by any of the parties to this matter.
Dated this 10th day of January, 1977.
Original signed by G.H. Ferguson,
Mining and Lands Commissioner.