THE MINING AND LANDS COMMISSIONER
File No. CA 006 -02
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Monday, the 28th day of July, 2003.
IN THE MATTER OF
An appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the construction of an addition measuring 10 feet X 14.92 feet to an existing dwelling, on Lot 13, Concession 9 (Sub Lot 1, R. Plan 15R6078) in the former Municipality of South Gower, now in the Township of North Grenville, municipally known as 1303 Hilly Lane.
B E T W E E N:
- and -
RIDEAU VALLEY CONSERVATION AUTHORITY
WHEREAS this appeal to the Minister of Natural Resources was received by this tribunal on the 2nd day of October, 2002, having been assigned to the Mining and Lands Commissioner (the "tribunal") by virtue of Ontario Regulation 795/90;
AND WHEREAS a hearing was held in this matter on the 25th and 26th days of February, 2003, at the Weston Hotel, in the City of Ottawa, in the Province of Ontario;
UPON visiting the site, hearing from the parties and reading the documentation filed and submitted at the hearing;
1. THIS TRIBUNAL ORDERS that the appeal from the refusal of the Rideau Valley Conservation Authority to grant permission for development through the construction of an addition measuring 10 feet X 14.92 feet to an existing dwelling, on Lot 13, Concession 9 (Sub Lot 1, R. Plan 15R-6078) in the former Municipality of South Gower, now in the Township of North Grenville, municipally known as 1303 Hilly Lane be and is hereby dismissed.
2. THIS TRIBUNAL FURTHER ORDERS that no costs shall be payable to either party to this appeal.
DATED this 28th day of July, 2003.
Original signed by
H. Dianne Sutter
DEPUTY MINING AND LANDS COMMISSIONER
THE MINING AND LANDS COMMISSIONER
File No. CA 006 -02
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Monday, the 28th day of July, 2003.
THE CONSERVATION AUTHORITIES ACT
IN THE MATTER OF
An appeal to the Minister under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the construction of an addition measuring 10 feet X 14.92 feet to an existing dwelling, on Lot 13, Concession 9 (Sub Lot 1, R. Plan 15R6078) in the former Municipality of South Gower, now in the Township of North Grenville, municipally known as 1303 Hilly Lane.
B E T W E E N:
- and -
RIDEAU VALLEY CONSERVATION AUTHORITY
The matter was heard at the Weston Hotel, in the City of Ottawa, Ontario on the 25th and 26th days of February, 2003.
The tribunal undertook a site visit on the afternoon of Monday, the 24th day of February, 2003.
Ms. Katalin Poor - appeared on her own behalf
Mr. Helmut Brodmannn - Counsel for the Respondent
This appeal came before the Mining and Lands Commissioner pursuant to subsection 28 (15) of the Conservation Authorities Act, R.S.O. 1990, as amended, whereby:
"A person who has been refused permission or who objects to conditions
imposed on a permission may, within 30 days of receiving the reasons under
subsection (14), appeal to the Minister who may
(a) refuse the appeal
(b) grant the permission, with or without conditions."
The proper procedure was followed by the appellant with regard to this appeal.
The Mining and Lands Commissioner and/or the Deputy Mining and Lands Commissioners have been assigned the authoritative powers and duties to hear the appeal pursuant to subsection 6 (1) and clause 6 (6) (b) of the Ministry of Natural Resources Act, R.S.O. 1990, c. M. 31, as amended, and Ontario Regulation 571/00. In addition, the principles outlined in the Statutory Powers Procedure Act apply to the hearing.
By virtue of subsection 6(7) of the Act, the proceedings are governed by Part VI of the Mining Act with necessary modifications. Pursuant to section 113 (a) of the Mining Act, these proceedings are considered to be a hearing de novo. The tribunal stressed this point at the commencement of the hearing and noted that the purpose of the proceedings was to hear all of the evidence in order to make a fair judgment regarding the appeal.
Mr. Brodmannn noted at the commencement of the hearing that the property was
actually located in Concession 9, not Concession I, in the former Township of
South Gower. The tribunal accepted this correction as applicable to any of the
documents which were incorrect.
(ie: Ex. 2:b-2)
Katalin Poor and her family purchased the property, which included a cottage, at 1303 Hilly Lane in 1987. It is located on the eastern shore of the Rideau River, north of Kemptville. Hilly Lane is a private road, accessed from County Road 19, also known as River Road. Although the family have a small townhouse in the City of Ottawa, this property has become their permanent residence, as opposed to a seasonal dwelling.
The Rideau Valley Conservation Authority's mapping of the area is quite extensive. The actual floodline mapping was done in 1980 and forms part of Schedule 6 of Regulation 166-90 – Fill, Construction and Alteration to Waterways - Rideau Valley. The regulated fill line is 15 metres behind the floodline. New mapping was undertaken in 1998 but this mapping has not yet been incorporated into the Regulations. All the properties along Hilly Lane are located within the regulated floodline and fill lines of the Rideau River. The appellant did not dispute this fact.
The cottage was totally destroyed by fire in 1998. In June of that year, Ms. Poor received all of the permits required to reconstruct the cottage, securing these only on the basis of installing a holding tank for sanitary service as opposed to a full septic system. The RVCA required the building to be constructed on seven foot pillars in order to provide adequate flood proofing. The RVCA applied certain conditions to the approval but allowed replacement construction to increase by 10% over the original size of the building, as per their policy at the time. This policy has since changed to allow a 20% increase. The Poor replacement increased by 3.58% in size, well within the original allowable 10%. Decks and a covered walkway were later added by the appellant, but apparently were not part of the original replacement application and were constructed without permits.
In 2002, Ms. Poor submitted an application and received approval to extend the deck space and build a "gazebo" or covered shelter on the top of the deck in order to provide a shaded space for her elderly mother. The family had begun to construct these extensions without understanding that a building permit or approval of the RVCA were needed. It was at this time that further conditions were applied by the Authority, requiring that "the roof of the gazebo must be detached from the main roof of the house" and "no enclosure of any portion of the deck is permitted". (Ex. I-b-iii)
Ms. Poor submitted a further application on August 27, 2002, to extend the bedroom space to accommodate her mother. This proposed 10 x 15 foot extension, considered by the applicant as the only alternative, virtually connected the main building with the "gazebo" structure located on the deck. As a result, the Authority indicated that the development could no longer meet the RVCA's policies since the overall livable floor space was being increased beyond the 20% allowance. The Authority staff indicated that the proposed construction, including the gazebo, would create a building 37.34% in size beyond the original burnt-out cottage, 17.34% beyond the present policy. The RVCA's opposition regarding the dwelling's size was in addition to their chief concern with regard to the physical safety of the residents due to the potential flood threat of the property.
Through her discussions with staff, Ms. Poor developed the opinion that the RVCA's policies were being misinterpreted, specifically dealing with the overall size of the building. Ms. Poor requested a hearing before the Rideau Valley Conservation Authority Executive Committee and the matter was heard on Thursday, September 12, 2002 at which time the application was refused. Ms. Poor was notified of the decision by letter, dated September 19th. (Ex. 1 - b (i)) An appeal of this decision was made by Ms. Poor to the Minister of Natural Resources by letter, dated October 2, 2002, well within the thirty day appeal period requirement.
Ms. Poor indicated in this letter that she was objecting to the Authority's decision on the following grounds:
At the commencement of the hearing, the tribunal raised the matter of Ms. Poor's issues relating to the Canadian Charter of Rights and the Universal Declaration of Human Rights. The tribunal indicated that it was Ms. Poor's responsibility to prove that these issues actually applied to the appeal. The tribunal made it clear that the ruling to be made is governed by the Conservation Authorities Act and therefore, it would need to be provided with very clear evidence regarding the relevance of any Charter arguments. In response to the tribunal's concern, Ms. Poor indicated that she would not be pursuing any argument in this regard, having had second thoughts on the matter. However, she would be continuing her appeal with regard to the other objections, including the question of "ultra vires".
1. Are the RVCA's policies "ultra vires" the Conservation Authorities Act?
2. Is the tribunal required to have regard to the provincial policies and through them the policies of the Rideau Valley Conservation Authority?
3. Does a review of the Authority's local policies indicate inappropriate action resulting in inapplicable and unsupportable conditions being imposed on the Poor application?
Mr. Helmut Brodmannn briefly outlined the position of the Rideau Valley Conservation Authority. The application by Ms. Poor was an attachment of an addition to an existing building (the gazebo) within a floodplain. The expansion went beyond the local policies of the Authority and did not meet the policies of the Province of Ontario, especially with regard to safe ingress and egress.
Evidence of the Appellant
Ms. Katalin Poor provided a written summary of her submission which was accepted as Exhibit 13. Initially she indicated that she regretted the time and cost being put to this matter of a dispute over one metre. However, it was evident to her that the appeal process was in place in order to uphold the concept of justice within the Province of Ontario. In this case, it was the policies of the RVCA and how they are interpreted and applied that formed the basis of dispute, a matter which in her opinion, should be reviewed very carefully.
Ms. Poor began construction on the "gazebo", located on top of a deck, not being aware that the construction of the "gazebo" required RVCA approval and municipal building permits, since she did not consider the gazebo a building. Having been apprised of this requirement, the matter was dealt with and construction continued. The need, however, to add a bedroom addition onto the main house became apparent soon after and a further application for a 10 x 15 foot addition was submitted on August 27, 2002. It was her opinion that this extension would take up the remaining 16% of allowable construction over the original cottage size.
Ms. Poor stated that she was told by Authority staff that it would be doubtful the application would be approved since the addition touched the existing gazebo and that "someone down the road, not you, of course, would then enclose the gazebo" making it habitable space.
On September 3, 2003, the RVCA staff indicated, in writing, that the application could not be approved since the new structure virtually was connected to the gazebo, causing the gazebo to become part of the overall floor space of the dwelling with shared walls and roof. This meant that the building became 37.34% over the size of the original cottage - 17.34% above the 20% allowance in the local policies of the Authority. There needed to be at least a one metre gap between the two buildings in order for the gazebo to be considered a detached accessory building by the Authority and to comply with the municipal building by-laws. Ms. Poor was encouraged to amend the application to accommodate the policy requirements.
Ms. Poor, however, believed that the earlier statement regarding a nebulous action that might occur in the future was the major reason for the staff refusal of the application and as a result, she decided to appeal to the Authority's Executive Committee based on her opinion that the Authority had no right to reject an application that "complies with the law and their policies just because, somewhere down the road, I or someone else might do something illegal with it". (Ex. 13 - P 3)
During her appearance before the Executive Committee on September 12, 2002, this opinion was reinforced by her understanding of the response of the Committee Chair regarding her argument. Ms. Poor stated that the Chair commented that "people do" which she interpreted as meaning that "people do - without proper permits, enclose structures attached to the main buildings to become part of the main building". Ms. Poor maintains that the policy documents and the subsequent correspondence did not refer to this "reason" but in her view, that "was clearly the main issue" in the rejection of her application. As a result of this "attitude", Ms. Poor contends that the Authority's policies are "ultra vires" the Conservation Authorities Act.
The evidence provided at the hearing centred around a number of issues relative to Ms. Poor's reasons for lodging the appeal against the RVCA's decision. These were outlined in her letter of appeal to the Minister of Natural Resources, dated October 2, 2002. (See page 4) To deal with these reasons, evidence was submitted and discussions took place around the following:
1. The conditions of approval for the original reconstruction and subsequent gazebo construction and their impact on the decision of the RVCA.
2. Definitions and common practices regarding accessory buildings
3. The RVCA 20% Expansion Policy
4. Safe Access
1. Conditions of Approval for Previous Construction
Ms. Poor submitted a letter from the RVCA regarding the approval of the new construction following the fire, dated June 30, 1998. (Ex.l-b: iv). The approval was granted under the RVCA's "Policies Regarding the Construction of Buildings and Structures, Placing of Fill and Alteration to Waterways" under Section 1.4 - Replacement of Damaged or Destroyed Buildings.
The new home was approved at 3.3 m² (36 square feet) larger than the former dwelling, an enlargement considered minor under the Authority policies (10%). The building was to be supported by piers that would place the underside of the main floor at least 300 mm above the 1: 100 year flood level of 87.89 metres (geodetic). Only a holding tank was to be allowed for the disposal of on-site sewage waste and all township's zoning and building code standards had to be followed. The tribunal notes that the letter also included a statement that "there will not be any decks, verandas or any other type of enclosures". In addition, the Authority assumed no responsibility or liability for any flood, erosion or slope failure damage which might occur in the future.
Ms. Poor indicated that the work was carried out as approved, but that decks had been added indicating that she was not aware that approval was required. In her initial submission to the tribunal, Ms. Poor stated that this was one of the unsupportable conditions imposed, even though it was part of the first approval for reconstruction., expressing the view that:
"How can any prudent or reasonable person expect a cottage that is seven feet above ground not to have a deck.? Moreover, how can any prudent or reasonable person expect riverfront property owners not to have screened-in verandas where they can sit out and enjoy the outdoors protected from mosquitoes and other flying insects?" (Ex I-p.6)
The second approval, dated July 8, 2002, retroactively dealt with the decks that had been built on two sides of the residence, as well as for the "gazebo" that was under construction on the deck. In this case, the application was reviewed under Section 1.3.3. (1) of the Policies, which in part state that:
"an addition that is peripheral in nature such as an open deck may be permitted if:
Approval was granted subject to a number of conditions, namely and in summary:
These conditions apparently were accepted by Ms. Poor since the letter submitted in evidence was countersigned by her on July 10, 2002 under the "Note" section of the letter. (Ex. I-b iii) This section included the following statement:
"This letter of permission does not come into full force and effect until the attached copy of this letter is returned to the Authority offices in Manotick signed and dated which return shall be taken as indicating acceptance of the conditions of the Authority's approval and acknowledgement that the details of the proposal as described in this letter are a fair and accurate representation of the proposed undertaking."
Despite acknowledging the above, Ms. Poor has brought these conditions forward as part of her appeal over the addition of the new room effectively connecting the two structures. It is her opinion that by placing the condition of "no enclosure of any part of the deck is permitted" in the list, the Authority is admitting that the gazebo construction on the deck does not constitute enclosure. She believes this is significant to the present appeal due to the unofficial (alleged) comments made by Authority staff throughout the processing of her application.
Ms. Poor further questioned the Authority's assumption that "this permit was issued based on the understanding that the gazebo was to remain an accessory building". (Ex. 2-2: September 3, 2002 letter- page 2) In her opinion, the statement that "the roof of the gazebo must remain detached from the main roof of the house" does not mean the same thing as saying that the gazebo must remain an accessory building. If this is what they meant, they should have said so.
The other condition that Ms. Poor has raised deals with the vegetative buffer along the shoreline. It makes no sense to her that this was a condition (even though she accepted it at the time) since a metal retaining wall already exists along the shoreline, installed to prevent further erosion.
2. Definitions and common practices regarding accessory buildings
The RVCA claimed that the proposal would turn the gazebo into an enclosed porch which would in turn, increase the gross floor area (GF A) of the building. On the other hand, Ms. Poor submitted that the gazebo is turned into a "veranda" which should not constitute a part of the GF A of the building since the gazebo does not have walls. She maintained that the Authority accepted this when the statement was made about what future owners "might do" regarding enclosing the gazebo.
Ms. Poor called several witnesses from the Township of North Grenville and the City of Ottawa Building and Planning Departments. The tribunal ruled that any information that the Ottawa Officials might provide was relevant only to the City of Ottawa and not to the Township. As a result, the two gentleman subpoenaed were not accepted as witnesses by the tribunal.
Ms. Poor called Ms. Karyn Ostifchuk, Manager of the Planning and Building Department of the Township of North Grenville with regard to the matter of "habitable space". Although Ms. Poor's statement refers to a by-law definition of habitable space, Ms. Ostifchuk stated that there is no such definition in the Township's Zoning By-law. There is a general understanding in the Department that "habitable space" would mean an area lived in and/or an eating area. (Ex. 4-a)
She went on to explain the definitions of " Accessory Building" and "Accessory Dwellings" in the By-law. An accessory dwelling usually refers to a building used for housing farm help or to an apartment in an existing house. An accessory building cannot be part of the main building and cannot be used for human habitation. A one metre separation is required. If the accessory building is attached to the main building through further construction, it would become part of the main building and part of the gross floor area. She used garage construction as examples. A detached garage would be classified as an accessory building while an attached garage with common walls would be considered part of the dwelling unit.
Ms. Ostifichuk did not view the Poor's "gazebo" as being typical of gazebo construction (octagonal) but common practice would see it more as a summer house. By itself, it would be considered an accessory building, located on top of a deck. A veranda would be an area open on all sides but covered by a main dwelling roof overhang. Until the construction of the gazebo was complete, Ms. Ostifichuk indicated that she could not provide an answer as to whether the "gazebo" was a veranda and if it was glassed or screened in, whether it would become habitable space. She noted that unenclosed but roofed porches, balconies and sundecks could encroach into the minimum required side yards on a lot but she also noted that the gazebo structure appeared to have window openings, implying enclosure.
Ms. Ostifichuk did acknowledge that not everything can or is spelled out in complete detail in any Zoning By-law, but as many details that can be dealt with are, in order to avoid confusion and/or "opinion" interpretations. There are some definitions, however, which are dealt with as "common practice" throughout the municipal by-law enforcement community. An example was the absence of a specific definition for "habitable space".
Ms. Ostifichuk acknowledged in cross examination by Mr. Brodmann that the Natural Heritage and Floodplain policies were stricter policies than the municipal restrictions and since the property is in the floodplain, the stricter policies would take precedent. She reiterated that the gazebo was more of a structure thought of as a "summer house". It is an accessory structure and such a structure must have a separation distance from the main structure in order that it not be included in the overall "gross floor area" of the main structure.
In response, Ms. Poor acknowledged that the gazebo is surrounded by a .63 cm high wooden walls but denied the Authority's statement that it had ever been screened in or "enclosed". Based on a definition of "enclose" as "to shut in on all sides; surround; put a wall or fence around' (Gage Canadian Dictionary), Ms. Poor maintained that neither the gazebo nor the deck were enclosed and because there was a roof overhang, the deck should constitute a veranda on which had been placed an unenclosed gazebo structure.
3. RVCA's 20% Expansion Policy
Ms. Poor expressed her opinion that the policy allowing 20% above the original building size was not based on any rationale that she could determine. It appeared that the former allowance of 10% was not being followed in practice, so the RVCA arbitrarily increased the percentage. In her view, even the 20% policy has been clearly shown to be outdated since there are "more and more people moving to the so-called hazardous areas”. She cited examples of tiny houses next to large houses both receiving the 20% increase which in effect makes the larger houses even larger. This is not fair, just or responsible and leads to "elitism". It would be fairer for everyone if a maximum size was set as opposed to a percentage.
Ms. Poor believes that home owners are being prevented from developing their own property in the way they wish for no good reason except that an arbitrary policy exists. In her words, the public is being "boondoggled" by the Rideau Valley Conservation Authority.
Two of the Hilly Lane neighbours, Mr. Robert Gougeon and Ms. Sylvia Johnston, whom Ms. Poor called to give evidence regarding their experiences with the RVCA, indicated their dissatisfaction with the RVCA's attitude. Ms. Johnston stated that she had to fight to get the 20% allowance for her property. The homeowners felt that the Authority did not explain the reasons for the policies and always reverted to the safe access issue. However, under cross examination of these witnesses, Mr. Brodmann determined that both parties received most of what they had requested.
Mr. Don Rudman also was called as a witness regarding his experience with the Authority. His initial application was not approved and an agreement eventually was reached allowing him to build onto his house and add a garage. He talked about the height restrictions regarding the garage, designed to limit future ability to develop a second storey which could lead to an increase in occupancy. It was his view that getting an approval became a "moving target" in that the policies and practices and the interpretation of them seemed to keep changing. He also found the conditions imposed to be onerous.
4. Safe Access
Ms. Poor indicated that the RVCA staff have told her and her neighbours "we don't want you living there". This obviously refers to the floodplain of the Rideau River. It is her contention that this view "may" cloud policy making as well as the interpretation of the policies to the detriment of the residents.
Hilly Lane can flood up to a depth of one and half metres (close to 5 feet) and Ms. Poor indicated that she witnessed flooding of the road in 1998 all the way from County Road 19. The Hilly Lane residents attended a number of public meetings in 1992 and 1993 dealing with a Flood Damage Reduction Study undertaken by the RVCA in the area. One of the proposals in this study was to build up the local (private) roads to a level within 30 cm (11-12 inches) of the Regulatory Flood Level, costing approximately 3.4 million dollars. The Hilly Lane section, on a 50-50 basis, would have cost $390,000.00. Ms. Poor assumed that the Authority had no concerns at the time about the hydraulic effect of the proposal which would have provided some level of safe access/egress for the homeowners. However, nothing ever came of this proposal and to her knowledge, no formal request to develop a project was ever put forward by the homeowners. They were waiting for the Authority to do this.
Ms. Poor believes that the Authority should have proceeded with this project to protect the lives of the residents and to provide safe access/egress for development as is their mandate under the Provincial Policy Statement. Instead, the RVCA uses an inequitable local policy allowing a 20% increase in building size.
Mr. Don Rudman moved to the area in May of 2001 from British Columbia and he compared the Rideau River to the BC rivers describing it as a "pussy cat of a river". He could not understand why the RVCA was so concerned about new development and stated that, in his view, the problem is just beginning as more and more people convert their cottages to permanent homes. This same attitude appears in the comments received by the RVCA in response to the Rideau River - Long Reach Flood Damage Reduction Study carried out in 1993. (Ex. 4-d)
Two other issues were discussed by Ms. Poor during the hearing; one dealing with her belief that the RVCA policy is ultra vires the Conservation Authorities Act and the second dealt with alleged falsehoods contained in the RVCA's correspondence.
1. Issue: Ultra Vires the Conservation Authorities Act: Ms. Poor submitted that a policy that prevents anyone from doing something on the presumption of guilt is clearly ultra vires. She stated that "there is no authority in the land that can deny someone the permission to do something legal because somewhere down the road they may do something illegal." Ms. Poor contends that she was not given any other rationale for Policy 1.3.3. and could not find this reason written within the policies.
Through the evidence submitted by the Hilly Lane neighbours, Ms. Poor submitted that they all had been given the same impression that something might occur down the road (closing in of decks, etc) and therefore, the RVCA must make sure it could not occur (increased occupancy).
2. Issue: Ms. Poor contends that the RVCA stated falsehoods in their September 19th, 2002 letter. These falsehoods dealt with:
(i) the screening of the gazebo: evidence showed that the porch was not screened in at the time of the hearing;
(ii) sharing of walls and roof of gazebo with addition: Ms. Poor stated that only one wall and part of the roof would be shared with the main structure if the addition were added;
(iii) construction would result in a 33.76% increase in size: there is no evidence that the gazebo would become part of the living space, but would become a veranda.
(iv) the understanding that the gazebo would remain an accessory building when its permit was obtained: Ms. Poor believes that the RVCA should have said that the gazebo "must remain detached from the main roof of the house" and does not view these two statements as the same.
Evidence of Respondent
Mr. Brodmannn called the following witnesses on behalf of the respondent, all of whom were sworn as being qualified as experts in their respective fields to provide opinion evidence with regard to the Poor property and application.
Mr. Don McIver, a graduate geographer holding a diploma in Public Administration, is the Manager of Planning and Regulations for the RVCA. (Ex. 4-a- Tab b)
Mr. McIver noted that the RVCA is governed by the Conservation Authorities Act and shall have regard to the Provincial Policy Statement issued under Section 3 of the Planning Act on May 22, 1996. This statement replaced the Comprehensive set of Policy Statements that had been issued prior to this date. In the case of the conservation authorities, this included the 1988 Flood Plain Planning Policy Statement and the 1992 Wetlands Policy Statement. Both these older documents had Implementation Guidelines attached which, according to Mr. McIver, continue to be used by the RVCA and all other authorities in reviewing any projects and applications in wetlands and floodplains.
The Provincial Policy Statement is based on three principles:
1. managing change and promoting efficient. cost-effective development and land use patterns which stimulate economic growth and protect the environment and public health;
2. protecting resources for their economic use and/or environmental benefits; and
3. reducing the potential for public cost or risk to Ontario's residents by directing development away from areas where there is a risk to public health or safety or of property damage.
Within the Policy Statement, the RVCA must have particular regard to Section 2.3. Natural Heritage and to Section 3.1. Natural Hazards. Section 3.1 is particularly relevant to the Poor property. The entire property is located within the 1:100 year flood level, the designated flood level for Eastern Ontario. In the case of the RVCA, the entire valley is in a "One Zone" floodway which does not permit development or site alteration (3.1.2.). It is a very restrictive policy which does allow for some flexibility through Section 3.1.3. Under this section, development/site alteration can take place if certain conditions are met: These conditions are as follows:
a) the hazards can be safely addressed and the development and site alteration is carried out in accordance with established standards and procedures;
b) new hazards are not created and existing hazards are not aggravated;
c) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies; and.......
The policy requires that all of these conditions be met before development/site alteration can occur.
The RVCA has taken advantage of the flexibility provided and developed policies which provide some development leeway for residents in the Rideau valley. The first policy, developed in 1989, allowed homeowners to expand their residential structures up to 10% of the original size. It became apparent that a more streamlined policy document was needed and the RVCA' s Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures, Placing of Fill and Alterations to Waterways were adopted by the Executive Committee in October 1993. (Ex. 2-d) The Authority approved amendments twice in 1999 and lastly, on February 21, 2002. These policies were adopted under Section 28 of the Conservation Authorities Act and relate to Ontario Regulation 166 which provides for the Regulations of the RVCA regarding fill, construction and alteration to waterways.
Section 1.1. (c) of the policies states:
" New development must not increase the risks to public safety which are expected to be present during the regulatory flood (or more frequent floods); in this regard the availability of access to and egress from the structure and the potential depths of water over access routes will be the primary consideration. "
This is one of the general principles of the Policy which the RVCA saw as extremely important in developing the flexible expansion policy. They are very aware of the increasing number of cottages being renovated for permanent living accommodations. The old method of control through local by-laws of seasonal versus permanent is no longer allowed under law. Therefore, the Authority must deal with all of the existing residential units in the same way.
The new policies increased the allowable expansion of a structure to 20%. Mr. McIver indicated that the use of 20% had been somewhat arbitrary. When the public meetings were held regarding the policy document, it became apparent that the 10% did not provide sufficient flexibility. Staff's analysis of the situation verified that a large number of residential units existed in the floodplain area with a typical seasonal use building being around 1000 square feet. This led to the recommended compromise figure of 20% of the gross floor area or 20 square metres (215 square feet) whichever was the lesser amount, as opposed to an overall maximum square footage guideline. It was staffs opinion that the percentage increase would not cause an increase in occupancy of the existing residential units, while a maximum figure could lead to the potential redevelopment of many of the properties which in turn could increase the occupancy rate of an area that is subject to a flood risk during the Regional Storm. Such increases could have an impact on many of the Authority's concerns such as safe access/egress and flood storage. Limiting the size allows the Authority some measure of control over growth in areas where growth would not be allowed under the present day legislation.
Mr. McIver also dealt with the issue of the Official Plan and Zoning for the area. He stressed that municipal documents, as well as those of conservation authorities must be consistent with the Provincial Policy Statement. The statement is intended to provide policy direction on matters of provincial interest related to land use planning and development. The Preamble to the policy document states:
"Section 3 of the Planning Act requires that, in exercising any authority that affects planning matters, planning authorities "shall have regard to" policy statements issued under the Act"
This means that the municipal Official Plans and Zoning By-laws must conform to the Provincial Statement. In the case of the Township of North Grenville, the Official Plan designates the Hilly Lane area as "Hazardous/Environmentally Sensitive”. The OP policies were developed in cooperation with the RVCA and require the involvement of the Authority in the development process in order to make sure that the proposals follow both the municipal as well as the Authority's policies and regulations. Section 7 of the OP deals extensively with the policies for the area indicating that "Generally, no development will be permitted within the floodplain ". Additional policies exist regarding the maintenance and replacement of existing residential units.
North Grenville's Zoning By-Law 4-90 (South Gower) also conforms with the Policy Statement indicating that the Hilly Lane area is zoned "FP" - floodplain within a Rural zone. (Ex. 4-a)
In response to Ms. Poor's question about the "clandestine effort" of the Authority geared to getting residential development out of the floodplain, Mr. McIver indicated that no such policy existed. Certainly, the Authority would prefer that the risk to people could be removed, but the Authority has no funds for such a project which would involve extensive acquisition. As a result, they are attempting to be of as much assistance as possible to the existing homeowners while maintaining their overall goal of preventing new development in the floodplain.
With regard to the proposed program to build up the roads - either public or private roads - the Authority has not now nor have they ever had funding to carry out the project since the 1995 change in the funding formula. As a result, no action has been taken with regard to the Flood Damage Reduction report.
Mr Bruce Reid, a professional engineer, is the Water Management Coordinator for the RVCA. He is qualified as an expert in floodplain hydrology matters.
Mr. Reid discussed the Rideau River -Long Reach Flood Damage Reduction Study introduced by Ms. Poor. (Ex. 4-c) Mr. Reid indicated that the Study was carried out to quantify flood damage and assess the risk of ingress/egress to the many residential units located in the floodplain. (Ex. 4c and d) Hilly Lane is located within the Study's Arcand Subdivision area (Area No. 11). Table 5 of Exhibit 4-c indicates that the Arcand area could expect approximately $61,426.00 annual damage costs (1989 dollars) due to flooding. Of the 14 areas involved in the Study, the Arcand area ranked as number one, with 25 residential units affected and 930 metres of roadway. This meant that if funds were available, they would be directed to the Hilly Lane area first.
Several techniques were recommended to reduce the flood risks in the area:
Again the Arcand Subdivision received a first priority rating. Since there is a low velocity of flow along the Long Reach portion of the river, the build up of the road beds appeared to be a feasible method of reducing the safety risk to homeowners, along with the flood proofing requirements. The RVCA received preliminary estimates to carry out the work which would have been shared on a 50-50 basis with the homeowners.
The flood level in the Hilly Lane area was established at 87.72 m. There are no elevations on the Poor lands, the closest elevation being 86.15 metres on Hilly Lane. Based on this data, Mr. Reid estimated that the flood depth at the road closest to the Poor residence would be 1.57 metres (approximately 5 feet) during a Regulatory Storm. It was noted that the last significant storm event was in early April of 1999, a storm that exhibited a return period of 3.5 years. The RVCA actually measured water levels during this event which resulted in an estimated flood level of 86.28 metres. This would represent 0.15 metres or 5 inches on Hilly Lane. Photographs of various floods were provided in Exhibits 2 and 12. The April 1999 photographs show the cars parked on the main municipal road at the point of access to Hilly Lane. (Ex.2 Tab B-I0) These photographs show the extent of the flooding throughout the whole area, including Hilly Lane. The actual road base was not visible. The only features indicating the existence of Hilly Lane were the surrounding stands of trees. The tribunal also notes that there seems to be no way of knowing the depth of this water.
During cross-examination of Mr. Reid, Ms. Poor requested information about the mandate of the Authority regarding their flood forecasting and warning systems. Apparently, the long range forecast is based on the snow pack as of March 1st every year. The water content equivalent is then calculated. If the snow pack is heavy and under the right conditions, flooding could occur. This is then translated into "real time" in order to determine when flooding might take place. The average time of notice is 3-5 days. This could be shorter with spring freshets, which are rather unpredictable. The message is issued by the RVCA through the local media and the Authority's website. The initial response to any flood conditions is by the municipality for the area where the problem has occurred.
In addition to this, Parks Canada operates their own system of dams, locks and reservoirs along the Rideau system, but they work in conjunction with the RVCA. This system provides some measure of flood control, but because of the nature of the valley, further engineered controls would not be effective.
Ms. Poor concluded her cross examination with the statement that "people are willing to take responsibility for living with the risk and dealing with it ".
Ms. Shelley Macpherson, who holds a Bachelor Degree in Geography, has been the Regulations Planner for the RVCA since 1990. Her job is to review applications as to how they would be affected by the Regulations and Policies as approved by the Authority. In this position, she also deals with any infractions of these regulations and policies. The Authority receives about 150 applications annually regarding development. Fill or site alterations represent 60% of this total with the remaining being in the construction area. One hundred and thirty-eight of these were dealt with by staff with 135 being given outright approval. There typically is a lot of negotiation, with staff advising the applicants of the approval level required by the policies and regulations. In addition, applicants receive "lawyers letters" regarding the details of compliance and the Health Unit is notified.
Ms. Macpherson discussed the various applications which had been referenced by Ms. Poor. With regard to the Rudman application, the Authority was concerned about the size of the garage as to its impact on the future sewage disposal needs and Mr. Rudman was directed to the Health Unit. The approval conditions/actions were provided to Mr. Rudman including a requirement for a minor variance which the RVCA supported. However, no further action was taken by Mr. Rudman at that time. In February 2002, the policy was changed with a size limitation being imposed on garages of 534 square feet and only one storey allowed. The RVCA was concerned about the size of detached buildings on the small lots and the implications for flood storage and future sewage disposal needs. Mr. Rudman got caught in this time frame of change. He was, however, given some leeway because of this and received approval for a 24 X 24 foot garage or 576 square feet. (See Ex. 2-b: house 17)
The Gourgon application (See Ex. 2-b: house 24) has a history dating back to a former owner. In 1993, there was an application to enlarge the dwelling by enclosing 96 square feet of deck. This amount was above the 10% limit at the time, but the Executive Committee of the RVCA did approve up to 528 square feet. Gourgon purchased the property in 1999 and in September, submitted an application for a 300 square foot addition. This meant that the building was still small but the request went well beyond the 20% guideline. The application was denied because of this but negotiations continued and the Gourgon's received approval for an 11 x 13 foot structure allowing an increase to approximately 800 square feet. This was larger than the policy, but because of the size (under 1000 square feet), it was the opinion of the RVCA staff that the intent of the policy was maintained. A new septic system was required. In addition, a two storey, two car detached garage was approved in August of 2000, prior to the new policy regarding size limitations. Ms. MacPherson was sure the Gourgon's would have liked something larger, but the RVCA went as far as they could go.
A three phase application was approved in 1997 for the Johnston property (See Ex. 2-b: house 25) involving a new raised foundation on piers, a detached garage and a new septic system. In 2000, the application was changed to include an attached garage, a portion of which was a replacement. However, this revised application exceeded the 20% guideline and the Executive Committee refused the application. As a result of negotiations regarding the height and the size, the application was approved but only up to the 20% level.
With regard to the Poor application, Ms. MacPherson noted that no decks were requested in the original application and the Authority does not approve anything that is not requested. She noted that the Authority took no action on the deck construction until Ms. Poor returned for approval of the gazebo, which was also under construction without approval. With regard to Ms. Poor's comments regarding her intention of returning for approval of a new bedroom/sitting room for her mother, these were comments only and not part of the application. The Authority cannot comment on anything that they have no information about nor can they assume that the applicant would follow through with any comments regarding intent.
During the cross-examination of Ms. MacPherson by Ms. Poor, Ms. MacPherson indicated that it was Mr. Reid and not herself who had prepared the policy and regulation documents on behalf of the Authority. The original set were produced in 1989 in consultation with the Provincial Ministries and adopted by the Executive Committee and the Authority. These documents are always sent to the various municipal clerks for comments and recommendations from the various Councils who represent the RVCA municipal membership. In 1993, there were some changes proposed regarding the issue of safe access to properties within the floodplain. Public meetings were held within the watershed. It also was at this time that the 10% policy for construction was approved. Even though there was no demand for this by the public, the Authority thought it would provide some benefit to the homeowners in the floodplain areas. The policies, while permitting additions, in effect, allowed the continued use of buildings in the floodplain but placed a size limitation on the overall building and required proper flood proofing. It was through these policies that some limitations were placed on occupancy where safe access was not available. In 1999, the Policies were again amended to increase the 10% allowance to 20% or no greater than an additional 215 square feet.
Ms. Poor requested that Ms. MacPherson comment on the issue of roof lines. A maximum 10% overhang is allowed (could be up to 4 feet). This limits the potential ability to create a habitable space or a storage crawl space in the area under the overhang. Even with a space limitation, if the exterior walls are extended, then new living space would be created. Ms. Poor indicated that this information backed up her argument that certain actions are refused or allowed based on what could happen in the future. She reiterated her view that this was unfair and illegal.
With regard to the deck area that has walls/screens and doorways and creates a "walkway" along the north side of the house, Ms. MacPherson stated that in her view this is an enclosed walkway and becomes part of the habitable space but this matter would not be pursued through enforcement under Section 28 of the Conservation Authorities Act.
She agreed that "habitable space" is not defined and may actually be redundant, but referred to page 13 of the Policy document and the definition of "gross floor area" :
"Gross floor area, when referring to a dwelling, means the total area of all floors of habitable space measured between the outside surfaces of exterior walls and includes a basement. "(Ex.2 - Tab D)
Ms. MacPherson noted that municipal by-law definitions vary from one municipality to another.
With regard to the gazebo and the application for the addition, Ms. MacPherson stated that it was her opinion that the gazebo has been enclosed by the use of post and beam construction with window openings which were to be screened, as stated in the application. Continual enclosure certainly was possible. She stated that if the addition was to be built, the gazebo would no longer be detached since the outside walls of the gazebo become the exterior walls, making the gazebo space part of the "gross floor area". On this point, Ms. Poor disagreed stating that the outside wall of the new addition would really be the exterior wall. However, Ms. MacPherson emphasized that this would be so only if the gazebo did not exist. The new addition would be allowed a 10% overhang, again, if the gazebo was not present.
Ms. Poor asked how important the public safety concern for residents and service people was for the RVCA, making reference to the fact that many natural disasters occur where no policies or bodies exist to protect people. Ms. MacPherson acknowledged that there has never been a natural resources disaster in the Rideau Valley like that which occurred in the Humber Valley during Hurricane Hazel. However, one of the Authority's roles is to protect people and property. The Authority takes this mandate very seriously.
The final witness for the respondent was Ms. Jocelyn Chandler who has been the Information Specialist for the Authority for two years. It is her job to provide information to landowners regarding the Authority policies and to assist them in preparing their applications. She dealt directly with Ms. Poor on her last two applications.
Although not employed by the Authority at the time of the 1998 application for reconstruction, she was aware that the approved application allowed for a new dwelling 3.3% larger (1040 square feet) than the original cottage and that it was to be flood proofed. There was no request for any decks in this application. The issue of the construction of the large front (river side) deck was raised at the staff level sometime later, but no violation notice was issued.
Between the spring of 2002 and July 3, 2002, the piers for the "gazebo" deck were installed without a building permit (Ex. 12 - Photo 1). Ms. Poor was notified that a permit was required. An application for the deck and a gazebo, which included words indicating that screens would be installed, was then submitted by Ms. Poor. Approval was given on July 8, 2002, for a detached auxiliary building. Since the roof was not floating, this was considered an enclosed building.
The application, however, was approved subject to certain conditions, the most relevant being:
"3. all the Township’s requirements as per the zoning and Ontario Building Code are to be met and adhered to:
4. any changes in the proposed structure must be reviewed by the Authority prior to implementation;
5. the roof of the gazebo must remain detached from the main roof of the
(bolded in report)
6. no enclosure of any portion of the deck is permitted; (bold)" (Ex. I-b (iii))
Although what was built was more substantial than what is thought of as a gazebo, the application was approved since it met the Authority policies as an auxiliary building.
Ms. Chandler did agree that Ms. Poor said that she would be applying for a further construction permit, but no suggestion of where or what was conveyed to Ms. Chandler. She felt that Ms. Poor had about 8% of allowable space to work with, being approximately 165 square feet. There was further discussion about the need to keep the auxiliary structure separate from the residential structure. By attaching it to the residential building, it would become part of the gross floor area since the gross floor area is measured around the outer walls.
There was more discussion on August 15, 2002 with Ms. Poor (as well as with Ms. Chandler's supervisor) regarding the gap of one metre required between the two structures. If this separation had been part of the application, it could have been approved. A follow up letter was sent to Ms. Poor on September 3, 2002 (Ex 2 - b) which expressed the concern of the RVCA about "the apparent creeping intensification of development" in the area because of the severe flood prone nature of all the properties and the access road into the Hilly Lane area as well as the location of the property within the Kemptville Creek provincially significant wetland. Ms. Poor was told specifically that the addition must not exceed a cumulative 20% of the gross floor area or 20 square metres and the proposal must not alter "the potential use of the building or structure". However, before the letter was actually sent, Ms. Poor had decided to appeal to the Executive Committee.
Ms. Chandler outlined the decision of the Executive Committee (Ex. 2-d) to deny the application in that it did not meet the 20% policy being 17.34% larger than what was allowed. This was a real concern to the Authority because of the "precedential "implications. If the policies are not followed, it is difficult for the Authority to defend and negotiate with the next applicant. Ms. Chandler mentioned that Ms. Poor had not done anything with regard to the condition regarding the shoreline vegetative buffer zone (Condition 9 - Ex. 2) and seemed to have ignored the condition that the deck was not to be enclosed. When things like this happen, the Authority tends to write their conditions in a tighter manner.
Ms. Poor asked Ms. Chandler if there was anything in the policy that says a gazebo must be detached in order to be an auxiliary building. Ms. Chandler acknowledged that the words may not be clearly stated, but there is no doubt in her view and in the view of the Authority that when the gazebo became attached by a common wall, it became an addition and no longer was an auxiliary building. She reiterated that the gazebo was a substantial structure. Ms. Poor maintained that the gazebo was part of the veranda, but Ms. Chandler indicated that this was not so, since an overhang (ie. roof of gazebo with no walls) would exceed the 10% allowable overhang.
Ms. Poor wondered if she had used her mother and her condition and need for the new room as part of her case, whether the Authority would have approved the application. Ms. Chandler indicated that, on the contrary, it would not have helped since there would be a safe access issue for an 83 year old in poor health.
a) Ms.Katlin Poor
b) The Rideau Valley Conservation Authority - Mr. Helmut Brodmannn
The tribunal wishes to reiterate statements made in previous decisions that note the difficulties that arise when one party is represented by experienced Counsel while the other party has no such assistance in preparing either their written or verbal submissions. In such situations, the tribunal must be fully alert to the need for natural justice for both parties while providing the appellant with the best opportunity possible to present his or her case. The onus to prove the case, however, rests with the appellant and not with the Conservation Authority. The Authority can provide the technical evidence which is disputed by the appellant, but the appellant must show valid and relevant reasons for their dispute, reasons that can be supported with expert evidence as opposed to assumptions and opinions. When this situation occurs, the tribunal must make decisions regarding the weight that it will attach to the evidence provided.
Ms. Poor was given as much latitude as was possible during the hearing in order to provide the necessary evidence to prove her case, all of which was done with the cooperation of the Conservation Authority. The technical information involved in this appeal dealt with floodplain and wetland boundaries, the depth of flooding in the Hilly Lane area, a remedial measures study, a review of other Hilly Lane applications, as well as the policies of the Province of Ontario and the RVCA. Ms. Poor did not dispute this technical information, including the depth of flooding, but she did dispute the interpretation of the policies and the Authority's good faith in interpreting and implementing the policies. She states that the conditions imposed on her applications have been inapplicable and unsupportable, and in one instance, insisted that the Authority has written "falsehoods",
The tribunal certainly accepts that Ms. Poor presented her case as a genuine, concerned citizen who had every right to appeal to the Minister. In addition, although she spoke regretfully, she was fully aware of the time and cost involved in this matter to herself, the witnesses, the Authority and indeed the Province. The tribunal, however, has found her arguments to be inconsistent and her evidence to be basically a summary of the trials and tribulations and the resulting opinions of both herself and other Hilly Lane residents of what they see as a bureaucratic government body's decision which did not quite go the way they wanted, despite the fact that the vast majority of applications received by the Authority are negotiated successfully and receive approvals. As we in society are constantly told, the lack of knowledge of the rules, regulations and laws that govern us cannot be a defense for actions taken either prematurely or illegally. With reference to the evidence provided by both parties, it actually appears to reinforce the arguments put forth by the Conservation Authority as opposed to the appellant.
With regard to the reason for the appeal relating to false statements being made by the Authority, Ms. Poor mentioned that the Authority stated that the porch was screened in, when in effect, it was not. This may be so, but her original application for the gazebo indicated the intent to screen in the gazebo and was approved on that basis. The other points raised (see page 12) all dealt with the interpretation of the policies, including the point about the gazebo remaining an accessory building, with which she disagreed. The tribunal does not view any of these points as falsehoods and as a result, finds that the issue of falsehoods is not relevant to the decision required of the tribunal.
In addition and although the tribunal does not doubt the sincerity of the Hilly Lane residents, the tribunal does not place a great deal of weight on the "evidence" provided. Most of it was heresay, even though it was useful to Ms. Poor in attempting to support her arguments about the inappropriateness of actions taken by the RVCA.
The inappropriateness or the appropriateness of the actions taken by the Authority will be discussed through the issues identified by the tribunal as those relevant to the Poor appeal.
Issue 1 - Are the Rideau Valley Conservation Authority's policies "ultra vires" the Conservation Authorities Act.
The tribunal has stated the "ultra vires" issue raised by Ms. Poor in this form only to indicate where in the findings the discussion of the issue takes place. Despite the fact that there was no supporting evidence provided by Ms. Poor (except to refer the tribunal to a lawyer in Ottawa) and Mr. Brodmannn asserted that this issue is not relevant since the Authority is "not acting on its own, but has been given a mandate by the Province of Ontario ", (p. 24) there are two points the tribunal will pursue in this regard.
One deals with whether the tribunal is bound by the RVCA' s policies in reaching its decision in the appeal and the other deals with Ms. Poor's belief that "there is no authority in the land that can deny someone the permission to do something legal because somewhere down the road they may do something illegal".(Ex.1 -p.4) These two points are involved with the question of "ultra vires" being asserted by Ms. Poor.
Actually, the question is really one for a judicial review of the decision of the authority and as a result, the tribunal has used the words in the proceeding paragraph to bring the matter into the jurisdiction of the tribunal process. Is the tribunal bound by the RVCA' s policies in deciding the appeal?
In this regard, it is useful to examine the role which policies play in the administration of justice by tribunals. The matter has been considered by the Supreme Court of Canada in Capital Cities Communications Inc. v. Canada (Canadian Radio-Television and Telecommunications Commission) [19781 2 S.c.R. 141. In this case, the Court considered the validity of a decision based on a policy statement as opposed to a statute or regulation. The late Chief Justice Laskin stated, at page 171:
"In my opinion, having regard to the embracive objects committed to the Commission under s.15 of the Act, objects which extend to the supervision of "all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy enunciated in section 3 of the Act", it was eminently proper that it lay down guidelines from time to time as it did in respect of cable television. The guidelines on this matter were arrived at after extensive hearings at which interested parties were present and made submissions. An overall policy is demanded in the interests of prospective licensees and of the public under such a regulatory regime as is set up by the Broadcasting Act. Although one could mature as a result of a succession of applications, there is merit in having it known in advance."
Although not referencing this case, Mr. Brodmann made this point in his summation when he stated that the Authority had the obligation to notify Ms. Poor and others of the flood risk and that the staff also had the obligation to alert Ms. Poor to the probable denial of her application.
This was done through the use of their policy and regulation documents, documents available to the public after having been approved in public under Provincial legislation.
Section 28 of the Conservation Authorities Act allows Authorities to make regulations applicable in the area under their jurisdiction. The section provides the technical guidelines for a Conservation Authority in the drafting and adoption of such regulations. Given this fact, it would seem preferable for an authority to provide a system of disclosing, in advance, the policies, guidelines or parameters it will consider in reaching its decision. Through the adoption of these policies, etc; any applicant is able, again in advance, to be aware of any issues which may arise and the information or actions required in order to gain approval for their application. In the case of the Rideau Valley Conservation Authority, their regulations were approved (and amended) by the Board of Directors of the Authority as early as 1999 and as late as 2002.
With this background, the tribunal has no doubt that an Authority has the right, and indeed the responsibility, to develop policies and regulations as guidelines for making decision within their jurisdiction. It is the finding of the tribunal, despite the assertion that the courts are the proper place for Ms. Poor to place her "ultra vires" issue, that the RVCA has not acted alone but indeed, has acted under the mandate provided by the Province of Ontario through the Conservation Authorities Act.
The second point which the tribunal wishes to address deals with Ms. Poor's argument regarding the prevention of an action now in order to prevent something else happening down the road. It was her strong opinion that the decision of the RVCA was based on the fear that the gazebo would be totally enclosed (glass windows, etc.) at some future date and this would then increase the gross floor area of the house and the possible occupancy. She sees this as an invalid interpretation of a policy for which she could not find any statement or rationale for this argument in the policy. As a result, the "ultra vires" issue was raised. In effect, it really comes down to a matter of the interpretation of the policies.
The tribunal is aware of the existence of provincial legislation and municipal by-laws which are drafted in a manner that would prevent an action in order to prevent another action from happening in the future. Experience has taught the law makers what can and does happen, and therefore they attempt to draft laws to prevent action which would have a negative effect on the public good. Often, these can be written in positive terms. Just as often they can be written only in the negative of "you must not".
Many of the Authority's policies do this. For example, Section 1.1(c) General Principles of the Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures, Placing of Fill and Alterations to Waterways (Ex. 2:e) is written in the negative:
"New development must not increase the risks to public safety which are expected to be present during the regulatory flood........ "
Section 1.1(e) deals with the minimum set back from the normal high water mark. This prevents something from happening now (construction of a building) that prevents something occurring in the future (flooding and/or destruction of a building) which would lead to both a hazard and public expense.
The South Gower Zoning By-law is another example of the "prevent something now to eliminate a future problem" scenario. Section 4.1.1. states that an accessory building is not to be used for human habitation. (Ex. 2-b: page 27). This is in place to prevent something else from happening in the future. In fact, the Provincial Policy Statement outlines preventative actions to avoid future problems.
None of these laws or policies are illegal since they have been enacted under appropriately approved legislation such as the Municipal Act (the South Gower By-law), the Planning Act (the Provincial Policy Statement) and the Conservation Authorities Act (the Authority Regulations and Policies).
It is obvious to the tribunal that the appellant sees these laws and policies as actions taken to prevent people from doing whatever they want with their own property and this is so. But for the most part, these laws and policies are put in place to protect the individual homeowner from a neighbours possible harmful actions and vice versa. The extent that these rules have been taken is a debatable issue, but the tribunal finds it to be a common practice in our democratic society and not something done to harass a specific neighbourhood, such as Hilly Lane.
Issue 2 - Is the tribunal required to have regard to the provincial policies and through them the policies of the Rideau Valley Conservation Authority?
Section 3 of the Planning Act requires that, in exercising any authority that affects planning matters, planning authorities "shall have regard to" policy statements issued under the Act. This statement forms part of the preamble to the Provincial Policy Statement.
Mr. McIver outlined for the tribunal the guidelines issued by the Province of Ontario through the Provincial Policy Statement which have been followed by the Authority in the preparation of their local policies. This document consolidated the previous provincial policies dealing with flood plain and wetlands planning into Section 2.3. - Natural Heritage and Section 3.1. - Natural Heritage. (see pages 13,14,15) The two previous policy statements had guidelines issued to assist in the implementation and understanding of the policies as well as the rationale behind them. These earlier documents are still used by the Conservation Authority in the implementation of their policies through the staff and authority review of any projects or development applications, such as the Poor application.
This procedure is outlined in the Rideau Valley Conservation Authority Policies Regarding Development including the Construction/Reconstruction of Buildings and Structures, Placing of Fill and Alterations to Waterways (Ex. 2: e), adopted in 1999 and based on a document that had Executive approval in 1993. These policies have been amended a number of times. Besides the actual Regulations, these policies form the guidelines for the decisions made by the Authority. The tribunal has already found that this was a proper action for the Authority to take.
The tribunal notes that Section 1.1. (f) of the RVCA's policies acknowledges their responsibility for assisting in the implementation of the Provincial Policy Statement in the local community as an organization considered to be a "planning body":
"It is the intent of the Authority that these policies shall be in conformity with and complement the Ontario government's "Provincial Policy Statement" made under the authority of Section 3 of the Planning Act (as approved by the Lieutenant Governor in Council, as well as their attendant implementation Guidelines." (Ex. 2-e: p.l)
This statement clearly indicates to the tribunal that the RVCA has "had regard to" the Provincial Policy Statement and has adopted the Implementation Guidelines as part of their policy.
The question remaining, therefore, is whether the tribunal needs to also have regard to the Provincial Policy Statement. This tribunal has addressed this issue in previous decisions. For example, in the "Conclusion" section of Avery v. Lake Simcoe Conservation Authority (tribunal file CA 005-96, March 29, 1999, unreported, p. 46), the tribunal stated:
"The Provincial Policy Statement on Floodplain Policy provides some insight into what might be expected of the Mining and Lands Commissioner with regard to the hearing of appeals in these matters. While not legally bound by the Provincial Policy Statement, ......
‘By the same token, the Mining and Lands Commissioner, in hearing appeals and Ontario Municipal Board appeals affecting floodplains, should also "have regard" to the Policy Statement in their deliberations. Obviously, it is anticipated that tribunals such as the Mining and Lands Commissioner, would give major significance to an approved Policy Statement and any deviations would therefore have to be very well substantiated and justified.’"
The tribunal further stated in Rinaldi v. Lake Simcoe Region Conservation Authority - (tribunal file CA 008-01, February 3, 2003, unreported, p.27):
"The major question facing the tribunal deals with whether and how to apply the Provincial and Authority policies in making its decision with regard to the Rinaldi request for a permit to cut and fill and subsequently develop residential units on the lots which are classified as wetlands and floodplain. The tribunal has a responsibility to have regard to the provincial documents that provide the guidelines and jurisdiction under which conservation authorities act ..........."
The tribunal finds that it has the responsibility to assist in the implementation of the Provincial Policy Statement by having regard to the provincial goals and policies. Since the RVCA's policies have been adopted in order to uphold the provincial policy, the tribunal finds it must review these policies as they relate to the following issue.
Issue 3 - Does a review of the Authority's local policies indicate inappropriate action resulting in inapplicable and unsupportable conditions being imposed on the Poor application?
Initially, this issue must deal with the question of whether the tribunal will accept and is bound by the policies of the RVCA or finds them "inapplicable and unsupportable" as argued by Ms. Poor.
As to the question of whether the tribunal will itself adopt the policy guidelines of the RVCA, the tribunal has long used the test set out in Segal v. The General Manager, The Ontario Health Insurance Plan ( Gen. Div. Div. Ct.) unreported, 347/97, November 24, 1994 in which Hart, Saunders and Moldaver JJ. considered an appeal from a decision of the Health Services Appeal Board and set out at page three:
"On an appeal to the Board from the General Manager, the Board may direct the General Manager to take such action as the Board considers he should take in accordance with the Act and regulations, and for such purposes the Board may substitute its opinion for that of the General Manager (s.21(1) of the Act). Where, as here, the General Manager had adopted a policy on the basis for exercising his discretion, the Board, in our opinion, is bound to consider that policy and not follow it if it considers it to be unreasonable. Once it has considered and adopted a general policy with respect to hospital services in general., the Board need not reconsider the policy in each subsequent case unless there are exceptional circumstances. However, we think it is still the duty of the Board in each case to consider whether the application of the policy is reasonable in the circumstances before it. The Board in a number of cases has found inapplicable some of the conditions in Appendix C in certain situations."
In its reasons for dismissing her appeal, the Board stated that:
"the appellant must meet the conditions laid down in Appendix C. In our opinion that was a misdirection so far as hospital services were concerned. In our view, the Board, having found that certain Appendix C conditions had not been complied with, should then have gone on to consider whether the imposition of those conditions as part of the policy was reasonable in the circumstances. This is what the Board has done in other cases. In this case, the Board should have considered whether it was reasonable to require a referral to a New York physician, and whether prior approval to the procedure was also required. "
After a review of this decision, the tribunal is of the opinion that the following steps would be relevant to a review of the RVCA policies which have been referenced in this appeal:
1. The tribunal must consider the policies and determine whether generally they will be adopted or rejected;
2. If adopted, the policies need not be reconsidered, unless a party pleads exceptional circumstances; in which case....
3. If adopted, consider whether it is reasonable to apply the policy to the Poor appeal;
4. If rejected, the tribunal will give reasons.
The tribunal has already accepted that the Authority has a responsibility to develop polices and guidelines which would assist them in reviewing applications and assist the public in understanding the goals and policies of the Authority as they might relate to their own issues. In addition to this acknowledgement. After a general review of the RVCA policies in relation to the Provincial Policy Statement, the tribunal finds that it will accept these policies and because of this appeal (which constitutes the ‘exceptional circumstance’), the tribunal will review the reasons for the denial of the application by the RVCA in relation to the issues raised by Ms. Poor. Reference will be made to Exhibit 2-d and the policy document in Exhibit 2-e.
It is necessary to review the basic guidelines or policies used by the Authority in the review of the Poor application. The letter from the Authority to Ms. Poor (dated September 19, 2002) indicated that the review of her application was carried out within Ontario Regulation 166/90 under which the local policy document was approved in order to implement, on a local basis, the provisions of Section 3.3 (Natural Hazards) of the Provincial Policy Statement. In addition, the impact of an approval of the Poor application on the objectives of the flood management program for the RVCA were reviewed, these being:
"i.. To prevent the loss of life;
ii. To minimize property damages and social disruption attributable to flooding;
iii. To encourage a coordinated approach to the use of land as it relates to water management; "
In the view of the tribunal, the reasons for the decision of the Authority to refuse the application are important to review and in effect, provide the real issues surrounding this appeal. Page four of the September 19th letter states:
"The Executive Committee is of the opinion that the combination of the existing gazebo and the proposed addition would constitute an effective increase in floor area in excess of20% of the gross floor area of the existing building; and thus this application cannot be considered as a Type 1 Addition under Section 1.3.3. and must be considered as a Type II Addition under Section 1.3.3.
The Executive Committee is of the opinion that the proposed addition cannot be approved as a Type II Addition under Section 1.3.3. since:
a. The property does not meet the requirements of safe access, pursuant to Section 1.2.6.
b. Granting of permission would be inconsistent with the Approved Development Policies adopted by the Conservation Authority, February 2002 and Provincial Policy, 1996.
c. The granting of permission would have precedential implications;"
a) Type 1 Additions: The Type 1 Additions are described in Section 1.3.3 (1) as being small additions which would be allowed in a floodplain if all the required provisions can be met. The most contentious provision in this instance is (a) as well as the definition of "gross floor area" about which the two parties completely disagree:
"the size of the addition does not exceed 20% of the gross floor area of the existing building or 20 square metres (215 square feet) whichever is the lesser. " (p.5. Policy Document-Ex. 2:e)
The RVCA says that the gazebo, at present, a detached accessory structure, would become part of the gross floor area or an attached structure once the proposed addition was added. The proposal did not allow any separation between the two parts, thus creating a structure with common walls and a roof. Gross floor area is defined in the policy (p.13) as
"the total area of all floors of habitable space measured between the outside surfaces of exterior walls and includes a basement."
Ms. Poor disputes this, stating that the exterior wall of the new addition should be considered the "outside" wall and not the gazebo walls. It should be thought of only as a veranda with an overhang.
The tribunal had difficulty following the reasoning of Ms. Poor's argument, especially since her own witness from North Grenville Township (Ms. Ostifichuk) could not agree with Ms. Poor's interpretation. The tribunal finds the respondent's evidence compelling and will summarize the reasons for this view, as follows:
1. The tribunal accepts that the gazebo was approved as a "detached accessory building", with screening, on top of a deck. (The approval did not allow any screening or enclosure of the deck itself.) Ms. Poor maintained throughout the hearing that the gazebo was not and would not be enclosed. While on the site visit, however, the tribunal noted that an approximately three foot particle board wall totally surrounded or enclosed the lower portion of the gazebo, except at one entrance way or doorway. Two by fours obviously provided the structure with its form and there were enough of these to give the effect of window openings. Ms. Macpherson and Ms. Chandler both provided the same opinions in their evidence. The gazebo was not enclosed with screens, but the tribunal finds it important that the applicant's drawing, submitted with the initial application for the gazebo's construction, indicated that it was to be screened. (Figure 18 -Ex: 2B). It is the tribunal's view that this "detached accessory structure" could easily be provided with windows, even insulated, etc. to provide a fairly comfortable "habitable" area.
2. The definition of gross floor area in the policy document specifically mentions "outside walls". With no separation between the gazebo and the new room, the tribunal is of the opinion that the new construction would connect the older residence to the gazebo and the gross floor area would therefore be enlarged. The gazebo cannot be classified as a veranda since the overhang could not meet the provision of a maximum of 10%.
3. Section 4 of the North Grenville (South Gower) Zoning by-law is very clear that an accessory building or structure is not to be used for human habitation. In addition, a minimum 1 metre distance must exist between a detached accessory building and the main building and in part 7 states that:
"Any building or structure which is attached to the main building will not be considered accessory for the purposes of the by-law" (Ex. 2 -b - p. 27)
Since the tribunal accepts that the gazebo would become attached, this by-law automatically negates the gazebo as an "accessory" building, even though there may be no intent by the Poor family to use the gazebo for human habitation. The opinion of the tribunal differs from that of the Authority in that the tribunal is of the opinion that the proposed action can have an impact on policy provision (c) which states that:
"the proposal will not alter the use or the potential use of the building or structure." (Ex. 2-e: Section 1.3.3 (1) p. 5)
The tribunal believes that the gazebo could become habitable space in the future if the proposal is approved. This would result in a possible increase in the occupancy of the area - an issue which has concern for the Authority as more and more cottage owners become permanent residents. The tribunal has already accepted the validity of the policy statements that prevent something being done in the present in order to avoid a problem in the future.
4. Having accepted that the gazebo would be part of the gross floor area and would no longer be an accessory structure, then it must follow that the calculations of the percentage of size increase over the original structure must be applied. The tribunal accepts that the new building would be 37.34% larger than the original structure that was destroyed and demolished and as a consequence, the 20% policy provision of the RVCA cannot be met.
5. The tribunal notes that Ms. Poor suggested in one statement that the Authority did not have the "right" under the Conservation Authorities Act to go beyond the statement in the Provincial Policy Statement that:
"Development will generally be directed to areas outside of :
b) hazardous lands adjacent to river and stream systems which are impacted by flooding and/or erosion hazards;" (Section 3.1.1.)
The provincial policy, however, through section 3.1.3., allows for exceptions under certain circumstance, all of which must be met before the development would be allowed. These statements have been included in the local policy document of the RVCA.
In contrast, the tribunal notes that Ms. Poor also suggested an opposing view that the Authority was too inflexible and that they should provide for a greater expansion of existing residential units in the Rideau Valley in order to be "equitable" to everyone, no matter how large their properties or incomes.
It is the opinion of the tribunal that the Authority has used its right to respond to local needs by adopting the policy to allow for limited residential expansion. It is their mandate to protect property and citizens within the watershed by the good management of the water resources. However, for financial reasons, they cannot purchase all of the property in the floodplain of the Rideau River in order to eliminate the risk to the public and to property, as much as they might wish to. Instead, they must deal with the problems that "historically" exist within their management plan and policies. The tribunal is of the opinion that they have done this for the benefit of the local residents by providing some flexibility in their development policies. The tribunal must discount the resident's view that they are being "boondoggled" ( p. 10). The policies are clearly there for all to see and understand.
The tribunal finds that the application by Ms. Poor cannot meet the accepted provisions of the RVCA policy document insofar as meeting the 20% expansion policy.
b) Type II Additions: Section 1.3.3.(2) of the policy document describes the Type II Additions as larger additions which would increase the gross floor area by 20% to 50% (up to a maximum of 50 square metres or 538 square feet). These additions must meet flood proofing standards and the standard for safe access/egress as outlined in section 1.2.6 Safe Access/Egress of the development policies. (Ex. 2-e: p.3) These guidelines require:
"For vehicular access routes (municipal roadways and private right-of way) safe access will be considered to be available if the depth of flooding at regulatory (1: 100 year) flood level along the full length of the traveled surface of the access roadway or right-of-way is no greater than 0.3 metres.
For pedestrian access routes (private laneway, driveways and walkways between residences and vehicular routes) safe access will be considered to be available if the depth of flooding at regulatory (1: 1 00 year) flood level along the length of the access/egress route is no greater than 0.8 metres." (Ex.2-e)
Mr. Reid indicated to the tribunal that the flood depth at Hilly Lane would be approximately 1.57 metres or 5 feet. This exceeds the requirements as stated in the guidelines for vehicular access as well as for pedestrian access/egress. The tribunal noted nom the photographic exhibit that the edge of the road and any ditches that exist could not be identified except that the woodland trees provide an indication of some sort of passage through the flood waters. It is obvious that there is a risk to the homeowners, particularly the ones who have decided to move permanently to Hilly Lane. It is quite easy to view the risk as one the Hilly Lane residents are willing to take and to deal with, even though there is an inconsistency in their favouring the use of public funds (which also are not available) to raise the level of their access roads. However, if a disaster did occur on the Rideau River, as took place during Hurricane Hazel, the responsibility for the safe evacuation and possible life saving endeavours rests with public agencies such as police, fire and ambulance, all at the cost of the local governments and the RVCA. It is for this reason that the Provincial Policy Statement was put in place in order to provide guidelines to minimize the risks and the potential cost to the public. Although obvious, it should be noted that under the Provincial Policy Statement and in todays world, none of these cottages would exist and there would be no risk involved for any residents.
The tribunal finds that safe access is not available to the Poor property and as a result the property cannot be accepted as a Type II Addition.
c) The tribunal wishes to comment on the relevance of the previous Poor applications to the one under appeal. Ms. Poor was made aware of some very important approval provisions at the time the gazebo/deck application was approved. The RVCA's permission letter of July 8, 2002 (Ex. I-b (iii) ) gave approval to that project but clearly stated certain conditions, such as:
"3. all the Township requirements as per the zoning and Ontario Building Code are to be met and adhered to;
5. the roof of the gazebo must remain detached from the main roof of the house;.
6. no enclosure of any portion of the deck is permitted;
9. a 3 metre wide natural vegetative buffer zone consisting of woody vegetation and shrubs must be established along the entire length of the shoreline to prevent further shoreline erosion of the property. "
The letter went on to indicate that the work was to be completed by July 1, 2003, failing which an extension of this approval would be required. In addition, it stated that:
"This letter of permission does not come into full force and effect until the attached copy of this letter is returned to the Authority offices in Manotick signed and dated which return shall be taken as indicating acceptance of the conditions of the Authority's approval and acknowledgement that the details of the proposal as described in this letter are a fair and accurate representation of the proposed undertaking. "
Ms. Poor acknowledged these conditions and signed and returned the statement on July 10, 2002.
With reference to point 9, the tribunal has no authority to deal with this issue since it is not part of the appeal application, but will comment that by raising this issue, Ms. Poor was before the wrong body. If she disagreed with the condition, she should have discussed this with the Executive Committee of the Authority at the time. Presumably, the Authority has an on going concern about shoreline erosion. The tribunal has no knowledge of whether Ms. Poor has implemented the condition and would assume that the Authority will be dealing with this matter since the gazebo application was approved and the conditions were agreed to by Ms. Poor.
However, with regard to the other conditions, the tribunal notes that Ms. Poor was duly warned that the by-laws must be adhered to and that the gazebo must remain detached. The tribunal believes that these conditions were very clear and Ms. Poor had to be aware that the one metre separation would be enforced and that a common wall could not be considered to be detached.
d) The last issue to be addressed deals with the final reason for the RVCA's refusal of the Poor application - "The granting of permission would have precedential implications." As the pressure builds for further development within the floodplain of the Rideau Valley, the Authority must have the resolve to uphold its policies and through them, the Provincial Policy Statement. The Rideau valley is an attractive place to live, albeit an area with some risk involved. Due to the fact that the river appears to be placid - a "pussy cat of a river" - the public finds it difficult to understand why a Conservation Authority would make such an issue about it and they will undoubtedly continue to complain about the bureaucratic agency. The Provincial Policy Statement is very strict with regard to new development, so it is the old development which will cause the Authority the greatest problems. Unless they maintain their policies, the tribunal agrees that a precedent would be set if the 37% increase involved in the Poor application received approval. As a result, the tribunal finds that the granting of the Poor appeal would create a precedent which could have long term negative consequences for the Authority.
In the final analysis, the tribunal finds that the actions of the RVCA have not been inappropriate. The conditions that were imposed, and agreed to by the appellant, are not inapplicable. Based on the evidence they have been shown to be supported by the policy documents duly approved by the Rideau Valley Conservation Authority.
As a result of the review and analysis of the evidence, the tribunal finds that the application by Ms. Poor cannot meet the requirements of either the Provincial Policy Statement or the Rideau Valley Conservation Authority's Policies. These points can be generally summarized as follows:
1. Safe ingress and egress cannot be provided to the property which is a major concern of the tribunal.
2. The request for an addition attached to the existing gazebo exceeds the policies of the RVCA which have been duly adopted under the authority of the Conservation Authorities Act.
3. A precedent would be set if approval was granted.
The tribunal expects that Ms. Poor could work out some sort of plan that will meet the RVCA policy if she wishes to proceed with the additional space without going beyond the 20% flexibility that exists within the policy.
In view of this, the tribunal finds in favour of the respondent and it will order that the appeal in this matter be dismissed.
The tribunal further finds that no costs shall be payable by either party to this matter.