The Mining and Lands Commissioner
In the matter of the Conservation Authorities
And in the matter of
An appeal against the refusal to issue permission to construct a single family dwelling on Lot 1 and the south half of Lot 2, on the West Side of Dayfoot Street, Plan 266, in the Village of Beeton in the County of Simcoe.
Debra Hogan and Stephen Hogan
Nottawasaga Valley Conservation Authority
J. J. Feehely for the appellants.
C. L. Wilson Q.C. for the respondent.
Michael Gerus, a proposed purchaser of Lot 1 and the south half of Lot 2 on the West Side of Dayfoot Street, Plan 266 in the Village of Beeton in the County of Simcoe, applied to the respondent for permission under section 4 of Ontario Regulation 275/75 to construct a single family residence. Following an inspection the executive committee of the respondent refused the application and Debra Hogan one of the joint owners of the subject lands appealed the decision to the Minister of Natural Resources under subsection 2c of section 27 of The Conservation Authorities Act. 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 22nd, 1976.
Upon the commencement of the hearing it appeared that there was an error in the style of cause with reference to the identification of the lots on the registered plan and an amendment was made to the style of cause to more appropriately identify the lots as being lots on the west side of Dayfoot Street. In addition, Stephen Hogan, the other joint owner of the property, was added as an appellant.
The relevant provisions of Ontario Regulation 275/75 are as follows:
3. Subject to section 4, no person shall,
- construct any building or structure or permit any building or structure to be constructed in or on a pond or swamp or in any area susceptible to flooding during a regional storm;
4. Subject to The Ontario Water Resources 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 or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of the land.
The reason given by the respondent for refusing the application for permission was as follows:
The land in question is within the flood plain as determined by Triton Engineering Services.
The question arose as to whether this statement of reasons was an adequate statement. Counsel for the appellants attempted to make a preliminary point on the alleged absence of reasons in the notice by the respondent to Gerus. There was no dispute by the appellants that the land was within a flood plain. Were the position of the appellants otherwise they would not have appealed the refusal to grant permission. The jist of the argument was that the statement was a mere repetition of an agreed fact and completely devoid of reasons with the result that the respondent had not complied with its statutory duty of providing reasons as is required by section 2b of section 27 of The Conservation Authorities Act, which reads as follows:
(2b) After holding a hearing under section 2a, the authority or committee, as the case may be, shall give written reasons for its refusal to the applicant.
In my opinion these grounds would not be sufficient grounds to warrant this tribunal allowing an appeal and issuing permission. This type of submission may be relevant in an application for judicial review under The Judicial Review Procedure Act, 1971. In the event such an application were successful, I would expect that the matter would be referred back to the conservation authority to make a decision properly supported by reasons. The appellants did not apply for judicial review but elected to exercise their right of appeal. In my view an approach that may be valid on an application for judicial review is not applicable to finally dispose of an appeal where the legislation providing for the appeal contains the requirements that are applicable in this type of appeal. Clause a of section 145 of The Mining Act, as made applicable by subsection 7 of section 5a of The Ministry of Natural Resources Act, 1972, as enacted by section 3 of The Ministry of Natural Resorces Amendment Act, 1973, requires that the procedure be to hold a hearing de novo. In my opinion a dismissal of an appeal on a technical point applicable to a matter of judicial review would be improper. An appeal de novo was held at which both parties gave evidence on their position and made submissions.
The subject property comprises a parcel of land having approximately 75 feet of frontage on the west side of Dayfoot Street in the Village of Beeton and a depth of approximately 117 feet. Registered Plan 266 was filed in the Registry Office for the County of Simcoe on October 22, 1877. The plan shows the right of way of the Hamilton and Northwestern Railway, now the Canadian National Railways, at the rear of the lots and an unsubdivided tract of land owned by the railways at the south of the subject lands and on the west side of Dayfoot Street. The street known as Young Street runs easterly from Dayfoot Street opposite the subject lands.
The appellants purchased the subject lands in August, 1973 after having made inquiries to the clerk-treasurer of the Village of Beeton, Frederick Earl Brown. At that time Brown indicated to them that he felt that an application for a building permit would be granted. The purchase price was $5,000. Since the land was acquired, a developer who was developing lands to the south of Young Street and in the vicinity of Thomas and McKeown Streets, two streets running easterly from Dayfoot Street and being southerly of and parallel to Young Street, installed sewers and water in front of the subject lands. Potential connections were inserted in the services for the subject lands. The street in front of the subject property has been paved although the part of Dayfoot Street south of the subject property has not been paved and is in very poor condition. Access to the subject lands would be along Young Street.
Mrs. Hogan stated in evidence that two houses had been erected on the two properties lying immediately to the north of the subject lands. A complete subdivision was built in the fall of 1975 on the lots in the vicinity of Thomas and McKeown Streets. These houses were erected by a developer referred to as Hammett. In his development he placed some fill on the lands. Smaller houses have been erected in the past on the north side of Young Street. The witness was not aware of any other vacant and serviced residential lots in the area.
Frederick Earl Brown, the clerk-treasurer of the Village of Beeton, who prior to his appointment had been a reeve and a counsellor for the village and who had lived in Beeton since 1956, gave evidence in support of the application. He indicated that when the Hogans had first approached him he advised them that it would be necessary to place fill on the land for the purposes of the septic tank. However, this is not now necessary as sewers have been installed. The village is prepared to issue a building permit for the site subject to any fill requirements of the respondent.
This witness referred to the Hammett subdivision. He indicated that thirty-eight lots had been filled in this area and that the respondent had permitted buildings to be erected. He referred to this area as being the biggest frog pond in Beeton necessitating two or more feet of fill. He also indicated that the land on which two houses have been built to the north of the subject lands had been filled and he was not aware of any difficulties respecting water or flooding in connection with these two properties.
Brown also referred to the municipal drainage system. There is a municipal drain in the village with the main channel flowing in a northerly direction at a location easterly of the subject lands. Ditches from the subject lands have been dug along Young Street and join with the municipal drain. Brown also confirmed that this was the last vacant building lot in the area with the exception of the lots owned by the Canadian National Railways. He indicated that the village has spent five years in obtaining services in this area and having obtained services the council was of the opinion that the problems respecting water have ended.
On cross-examination Brown indicated that he had lived in the vicinity during Hurricane Hazel. He was not aware of any flooding of the houses on the north side of Young Street and was of the opinion that the drainage system would adequately prevent flooding in the area. He did indicate that parts of the subject lands were lower than the grades of the two houses to the north.
Brown also indicated that the official plan of the Village of Beeton was approved on December 13, 1975 by the Minister and that the subject lands were designated as Hazard Lands. A by-law to implement the principles of the official plan is awaiting approval of the Ontario Municipal Board, and on approval will provide, effective as of May or June 1975, that the lands are zoned as an Environmental Protection EP Zone. Section 11 of the by-law provides 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 witness indicated that in his opinion the land was not subject to periodic flooding and that its inclusion in the by-law was unduly protective.
Doctor S. R. McKelvey, a retired veterinary surgeon and a member of the local planning board who has lived in Beeton since 1945, indicated that the planning board had no objection to the use of the subject property as a building lot. Doctor McKelvey was aware of severe flooding 1954 but was of the opinion that there was a good drainage system with water rising quickly and receding quickly. On cross-examination Doctor McKelvey admitted that all hazard lands are subject to the control of the conservation authority and that the planning board has not devised any method of removing lands from the category of hazard lands in order that such lands can be available for building sites notwithstanding that the objective of the planning board is to obtain as many housing sites as possible. Notwithstanding this policy, the planning board had done nothing regarding the recommendation of Triton Engineering Services Limited that the municipal drain be investigated.
The final witness for the appellants was Dewitt Kitson Harvey, the secretary of the Planning Board for the Township of Tecumseth and the representative of the Village of Beeton on the respondent. Until last year the witness had been a member of the executive committee of the respondent. Like the two previous witnesses he had devoted a lifetime of public service at the local government level. This witness's evidence was that he was opposed to the decision of the respondent. He had encouraged the executive committee to examine the municipal drain but they had not done so. In his opinion there was nothing hazardous in building on the subject land. Although the witness had been in Beeton during Hurricane Hazel he was not able to give specific evidence on the state of the subject lands at the time the flood peaked. His evidence only related to driving down Centre Street the following morning. Centre Street runs in a northerly direction and is the first street easterly of Dayfoot Street. It is approximatey three hundred and fifty feet easterly of the subject lands. He also suggested that at all times the water in the drainage ditch flowed toward the outlet and did not back up the municipal drain. He was a member of the commission that was set up following Hurricane Hazel and was not aware of any flooding or complaints from the area of the subject lands.
On cross-examination the witness referred to damaged bridges on the Beeton Creek necessitating rebuilding of bridges and roads as a result of Hurricane Hazel.
The respondent called Ronald James Hicks, a professional engineer with Triton Engineering Services Limited of Orangeville. Hicks was the project manager of a flood line mapping project done in 1973 respecting the Village of Beeton. The witness indicated that the study had been done to meet a requirement of the official plan. A copy of the study was filed as Exhibit 1. Without discussing in detail the technology used in the study it may be noted that the report indicates that Hurricane Hazel which occurred in October, 1954, was not centred over the watershed in question and the Timmins storm base was used in computing flood elevations. The regional storm flow calculated on the Timmins storm base for the area was 6,390 c.f.s. contrasted with this figure, the Ministry of Transportation and Communications had estimated the flow of the Beeton Creek in the area during Hurricane Hazel at 6,100 c.f.s.
The flood plain mapping illustrates that there are two flooding problems in connection with the subject property. The first problem is the possibility of flooding of Beeton Creek and its flood plain. The second problem is flooding in the municipal drain that is situate in the Village of Beeton.
Beeton Creek flows in a northeasterly direction and is situate to the west of the railway right of way at the area in question. However, the railroad crosses the creek directly north of the subject property at approximately twelve hundred feet therefrom. There are three bridges crossing Beeton Creek. The railroad bridge was damaged during Hurricane Hazel and portions of the embankment to the north of the bridge were washed out. There is a bridge at Lilly Street. Lilly Street runs in an easterly and westerly direction approximately six hundred feet north of the subject lands and crosses the creek at a location northwesterly of the subject lands. Patterson Street runs in a northerly direction in the easterly part of the Village and crosses Beeton Creek downstream from the railway bridge at a location that is northeasterly of the subject lands. This bridge was damaged during Hurricane Hazel.
The municipal drain begins at the south limit of the village and has been constructed in a northerly direction with a number of changes in direction. In the vicinity of the subject lands it flows north and is situate approximately six hundred and fifty feet easterly of the subject lands. The regional flood elevation at the intersection of the flood plain of the river and the watershed of the municipal drain was determined by Triton Engineering Services Limited to be at 726 feet. Generally speaking the flood plain of the municipal drain lies easterly of Centre Street. By reason of ditches along Young Street leading to the municipal drain, an area lying north of Young Street and an area of which the subject lands form the northerly part and including part of the unsubdivided railway lands and the Hammett subdivision are shown as part of this flood plain.
While the elevations of the subject lands were not specifically determined for the purpose of the hearing, the flood line mapping has some information on the subject lands. An elevation is shown at the south of the subject lands of 725.8 feet. The elevation of the lands to the north is 727.3 feet. With regard to the elevations of the municipal drain the engineering report states at page 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 formation of additional guidelines for the development of vacant lands according to standards acceptable to the Nottawasaga Valley Conservation Authority'.
In the part of Beeton Creek lying immediately to the west of the subject lands the regional flood line was established at 730 feet. In the vicinity of McKeown Street, which is two streets south of Young Street, the flood plain comes within 200 feet of the railway embankment and the elevations in this area are in the vicinity of 730 or 731 feet. In regards to this area the report provided at page 18:
The estimated floodline elevation West of Dayfoot Street and North of Stewart Street is 730 feet. The provision of a 1 foot freeboard allowance in this area would give a maximum building grade of 731 feet. This elevation is higher than a portion of Dayfoot Street and the CNR embankment between Stewart and Lilly Street.
'That future development plans for the area adjacent to the CNR embankment South of Lilly Street include an increase in the Dayfoot Street road embankment to elevation 731 feet to prevent flooding East of Dayfoot in the event that freeboard levels are realized'.
The witness indicated that during a regional storm there would be two peaks in the flows. The municipal drain would probably peak prior to the peak flow in the corresponding area in Beeton Creek. The drainage from the municipal drain watershed should peak and be cleared before the peak from the creek is developed in this area.
The witness indicated that the concerns arising from building in the flood plain were, firstly, the reduction of storage capacity and secondly, the impeding of the flow causing upstream flooding. With reference to the municipal drain watershed the witness felt the second issue was not a matter of concern. With reference to the first concern, he indicated on cross-examination that the quantum of storage that would be lost would not be significant.
However, the witness indicated that in his opinion a serious problem could result if flooding occurred in the flood plain of the creek above the regional flood line of 730 feet. Such flooding could occur in the event of a debris or other blockage of the bridge at Lilly Street. In such an event the flood waters would flow across the railway embankment causing a possibility of five feet of flooding. It may also be observed that in such an event there would be a very steep slope on the lands to the east which would permit a very quick runoff.
Counsel for the appellant pointed out that the issue of a permit is a matter of discretion and suggested that in the exercise of the discretion either by the conservation authority or this tribunal, each application should be considered on its merits and such issues as the lack of overall planning by the local bodies that are responsible for planning and the desire to prevent spot development should not form the basis of the decision. He pointed out that the subject property was the last potential building lot in the area and it is serviced with drainage culverts and sanitary sewers. There would be a negligible loss of storage capacity of the flood plain of the municipal drain if a permit were issued.
Counsel for the respondent argued that the proposed building was contrary to the official plan and to the zoning by-law of the Village of Beeton in that the land was zoned as hazard lands and the use of the land as a private residence would be in contravention of the by-law upon the approval of the Ontario Municipal Board being granted to the by-law that comes into effect as of May or June in the year 1975. Counsel also argued that the Village of Beeton had not complied with recommendation 5 of the report of Triton Engineering Services Limited and as the conservation authority had no jurisdiction over municipal drains it was not in a position to act in the absence of the municipality taking the appropriate action that in the opinion of his client should be taken by the municipality. He also pointed out the problem of the over-topping of the railway embankment. He also relied on the precedent that would be set by the granting of a permit in this case and the difficulty of applying its policies in respect of all of the lands in the flood plain of the municipal drain in the event permission were granted.
As this tribunal views the application there are three hurdles to be overcome by the appellants. The first hurdle is the question of the land being situate in the flood plain of the municipal drain. On one hand it is said by the engineer for the respondent that the regional flood lines prepared in his survey are estimated lines and may not reflect the flood lines in the event of a regional storm. Apparently what was done in the study was to adopt the highest level that was believed to have been reached during Hurricane Hazel, namely 726 feet at the intersection of Centre and Young Streets. In this regard I refer to page 7 of the report of the consultants where it is said,
Historical accounts of flooding indicate that water levels rose to elevation 726' at Centre and Young Streets
The report did not indicate the basis of the assumption of the regional flood lines of 726 feet and it may well be that the assumption was based on the elevation of a regional flood at the outlet of the municipal drain which is the same figure. It is also interesting to note in this regard that there is a significant drainage potential toward the east in the area immediately north of Lilly Street where a large flood plain at elevation 724 feet is indicated on the topographic mapping.
In the absence of some evidence to indicate that the regional flood line should be higher than 726 feet I have no alternative but to accept the evidence of the engineer of the respondent as the best evidence of the regional flood line according to the information available.
Having assumed that the maximum elevation in a regional flood would be 726 feet, I now consider the elevation of the subject lands. It is noted that the only evidence of the elevation of the subject lands is the elevation of 725.3 feet at a point southerly of the subject lands. It is noted that the land to the north is approximately two feet higher, namely, 727.3 feet. The point at the south being .2 feet below the regional flood line and assuming that the elevation was constant across the subject property there would be a loss of storage of 35 cubic yards and it may well be that, if the subject lands slope toward the elevation of the land to the north, there would be no actual loss. In my opinion, and this was agreed to by Hicks, the expert witness for the respondent, this loss of storage capacity, which would be the sole consideration in this matter, is insignificant.
Counsel for the respondent emphasized the precedential implications of issuing permission to construct a house. However, there are a number of factors that reduce such concern. The subject lands, are fully serviced. The subject lands are the last lots in the area that are on a plan of subdivision and are available for building. They are situate at the extreme edge of the flood plain. It may also be said in this regard that the appellants, who do not appear to be developers, acquired the lands prior to the passing of the by-law and prior to the making of the regulation by the respondent. It should further be kept in mind in this regard that a great part of this portion of the flood plain has already been rendered useless for the purpose of storage by the Hammett subdivision although the evidence was that the respondent approved this subdivision prior to the time that it had fixed the regional flood line in the area. In the light of these several points there is no reason to be concerned on the issue of precedent.
Turning to the second hurdle of the possibility of the flood plain to the west of the railway embankment not retaining the flood waters of the Beeton Creek it may be said that this is the first occasion that this tribunal has experienced a situation where a conservation authority is attempting to extend controls above the regional flood line as established by its consultants. It is noted that the consultants adopted the Timmins storm base and adopted as a base for its calculations a higher flow for the part of the creek than the flow that was established during Hurricane Hazel. Accordingly there is a measure of additional protection in the regional flood line that has been established and I do not consider it necessary or advisable to increase the standard of protection in respect of the flood plain of the Beeton Creek above the standard set by the consultants in their report and adopted in all the planning instruments such as the official plan and implementing zoning by-law.
With reference to the third hurdle, this tribunal is most reluctant to grant permission that would be contrary to a municipal by-law or to an official plan. In giving his evidence the clerk-treasurer of the village indicated that the municipality continues to be prepared to issue a building permit. Counsel did not address this tribunal on the legal issues or the authorities respecting the issue of a building permit in the circumstances of this case. Counsel for the respondent raised the official plan and the unapproved by-law as grounds against the granting of permission. On the other hand counsel for the appellants merely referred to the apparent willingness of the village to issue a building permit. They did not address the tribunal on the legal effect of a building permit that might be issued.
It must be remembered that the administration and enforcement of the by-laws of the village are the responsibility of that municipality. It is the responsibility of the municipality to decide, in the first instance, whether the issuance of a building permit is proper or legal in the circumstances, and it is not the responsibility of this tribunal to administer or enforce the by-law. The responsibility of this tribunal is related to the administration of the regulation of the respondent and any action taken by this tribunal in such administration cannot in any way affect the responsibility of the municipality. The question for consideration by this tribunal is whether in a case that otherwise would warrant the granting of permission, permission ought to be refused on a ground that falls within the jurisdiction of the village. In the opinion of this tribunal, consideration of such an issue might constitute a supporting or supplemental reason for refusing permission in a case having other reasons related to flooding, pollution or conservation of land but an unapproved bylaw should not form the sole basis for refusing to grant permission. Considerations in this area are the responsibility of the municipality and should be dealt with on an application for a building permit.
It is ordered that the appeal of the appellants be and is hereby allowed and that the appellants be and are hereby granted permission under section 4 of Ontario Regulation 275/75 to erect a single family residence on Lot 1 and the south half of Lot 2 on the West Side of Dayfoot Street, Plan 266 in the Village of Beeton in the County of Simcoe subject to the conditions that the foundation of the residence shall be constructed to an elevation of not less than 727.5 feet and no opening or part of an opening therein shall be below such elevation, such elevation being related to the elevations used in the regional flood mapping by Triton Engineering Services Limited, a copy of which was filed as Exhibit 3.
It is further ordered that there shall be no costs payable by either of the parties to this matter.
Dated this 24th day of December, 1976.
Original signed by
G.H. Ferguson, Q.C.
Mining and Lands Commissioner.