The Mining and Lands Commissioner
Le Commissaire aux mines et aux terres
File No: CA 006-00
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Wednesday, the 5th day of December, 2001.
The Conservation Authorities Act
In the matter of
An appeal to the Minister of Natural Resources under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the establishment of a building envelope for a private residence within the regional storm flood plain of the Sixteen Mile Creek, Part Lot 2, Concession 1, (Esquesing), Town of Milton, Regional Municipality of Halton, Halton Region Conservation Authority File No. A/00/M/2.
Halton Region Conservation Association
Whereas an appeal to the Minister of Natural Resources was received by this tribunal on the 17th day of October, 2000, having been assigned to the Mining and Lands Commissioner (the "tribunal") by virtue of Revised Ontario Regulation 795/90;
And whereas a hearing was held in this matter on the 23rd and 25th days of May and the 18th and 19th days of June, 2001 in the Courtroom of this tribunal, 700 Bay Street, 24th floor, in the City of Toronto, in the Province of Ontario;
Upon hearing from the parties and reading the documentation filed:
- This tribunal orders that the appeal from the refusal of the Halton Region Conservation Authority to grant permission for development through the establishment of a building envelope for a private residence within the regional storm flood plain of the Sixteen Mile Creek in Part Lot 2, Concession 1 (Esquesing), Town of Milton, Regional Municipality of Halton, be and is hereby dismissed.
- This tribunal further orders that no costs shall be payable by either party to this appeal.
Dated this 5th day of December, 2001.
Original signed by H. Dianne Sutter
Deputy Mining and Lands Commissioner
File No: CA 006-00
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Wednesday, the 5th day of December, 2001.
The Conservation Authorities Act
In the matter of
An appeal to the Minister of Natural Resources under subsection 28 (15) of the Conservation Authorities Act against the refusal to grant permission for development through the establishment of a building envelope for a private residence within the regional storm flood plain of the Sixteen Mile Creek, Part Lot 2, Concession 1, (Esquesing), Town of Milton, Regional Municipality of Halton, Halton Region Conservation Authority File No. A/00/M/2.
Halton Region Conservation Association
The matter was heard in the Court Room of the tribunal, 24th Floor, 700 Bay Street, Toronto, Ontario on the 23rd and 25th days of May and the 18th and 19th days of June, 2001.
The tribunal undertook a site visit on Friday, May 11, 2001.
Mr. Douglas Quirt, Counsel for the Appellant
Mr. John Olah, Counsel for the Respondent
This appeal came before the Mining and Lands Commissioner pursuant to subsection 28 (15) of the Conservation Authorities Act 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
- refuse the appeal or
- grant the permission, with or without conditions.
The appellant followed the proper procedure 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) and Ontario Regulation 571/00. 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 clause 113 (a) of the Mining Act, these proceedings are considered to be a hearing de novo.
In addition, the principles outlined in the Statutory Powers Procedure Act apply to the hearing.
Originally, Mr. J. W. Sinclair was to act as Counsel for the Appellant. Mr. Sinclair had been the person who submitted the documents to the Commissioner's office prior to the commencement of the actual hearing. Subsequently, Mr. Douglas Quirt, a law partner of Mr. Sinclair, was appointed to represent the appellant just prior to the first day of the hearing on May 23, 2001
Mr. Quirt provided the tribunal with a statement from an engineer at the commencement of the proceedings indicating that this gentleman would be a witness for the appellant.
The tribunal notes that the respondent's Counsel, Mr. Olah, registered a strong objection regarding the untimely disclosure by the appellant's representatives. Despite this concern having been registered through the use of correspondence, telephone calls and email to the appellant's counsel over a lengthy period of time, Mr. Sinclair had not provided the information regarding the witness statements as required by the tribunal's order. As a result, Mr. Olah felt that the respondent had been placed in the unfortunate position of not being able to respond in a timely manner. Mr. Olah mentioned this concern at various times throughout the duration of the hearing, both during the time of the appellant providing evidence in chief and during cross examination. This concern was shared to a great degree by the tribunal itself.
With regard to the evidence of the appellant's engineer, Mr. Olah submitted that this evidence appeared to be a new application outlining the structure detail and a building envelope in a different location than what was part of the application to the HRCA and the application before the tribunal.
In ruling on this matter, the tribunal noted that Mr. Quirt had just been appointed as Counsel for whatever reason and the tribunal was prepared to allow some leniency for the sake of natural justice. In addition, and more importantly, without actually hearing what the evidence was, the tribunal could not determine if the evidence would address a new form of application or if the evidence actually would be relevant to the issues before the tribunal. As a result, the tribunal ruled that the engineer's evidence would be heard and the decision as to its admissibility and/or the weight the tribunal would place on this evidence, would be reserved. No further comments will be made regarding this matter within the following Background and Evidence sections of this Finding.
The property in question was purchased by the Curk family in the early 1950's. At that time, it had a frontage of 450 feet on Peru Road (First Line). Two northern parcels had a depth of 700 feet while the southern parcel was 150 feet by 400 feet. (Ex. 2-1).
In 1977, Mr. Curk submitted an application to the Regional Municipality of Halton's Land Division Committee to sever a parcel of land 175 feet by 700 feet upon which his existing residence was situated. The effect of an approval was to separate a parcel to the north of the house as well as create the southern parcel of 150 feet by 400 feet (45.72 meters by 121.92 meters), with the intent to build a smaller house on these lands. It is this southern parcel that was the subject of the hearing before the tribunal.
The severance application was heard in late 1977 (Ex. 5). The evidence that was submitted in support of the application stated that the land was not subject to flooding, should be considered infilling as opposed to strip development and that the applicant was prepared to pay development levies to the Town of Milton at the appropriate time.
The Halton Region Conservation Authority supported the application, based on the policies in existence at that time, indicating that there appeared to be sufficient flood free land available for development. They requested a condition that a warning schedule be attached to the title with regard to the potential for flooding on a portion of the land. The Land Division Committee subsequently approved the severance in early 1978.
As a result of this approval, Mr. Curk believed that he was entitled to a building permit anytime in the future, upon the payment of the applicable lot levies. It was not until early in 2000 that Mr. Curk decided to seek approval to build a new home on the severed lot. During this process, he found that the approval of Halton Conservation was required before any permit would be available from the Town of Milton. An application for Authority approval was submitted by Mr. Curk's solicitors, Holden & Sinclair, on February 10, 2000.
The review by Authority staff indicated that the flood plain mapping and the policies of the Authority had changed over the twenty year period since the severance was granted. The new mapping showed that the whole property was within the floodplain of the Sixteen Mile Creek and as such, the application would not meet the policy considerations and was refused. A Hearing was held by the Conservation Authority on September 14, 2000, at which time the staff report and recommendations were accepted and the permit was denied.
A notice of the Authority's decision was delivered by registered mail to Mr. Curk's solicitor, Mr. William Sinclair, on September 15, 2000. This decision was appealed to the Minister of Natural Resources by letter dated, October 17, 2000 (Ex. 2- 12), thus meeting the requirements for an appeal "within 30 days of receiving the reasons under subsection (14), Conservation Authorities Act - Section 28 (15 ". An Order to File was issued by the Mining and Lands Commissioner on October 20, 2000 (Ex. 1-14).
- Are the issues of municipal and regional planning relevant to the decision to be made by the tribunal?
- Should the policies and guidelines of Halton Conservation that were in existence at the time of the previous approval of the Curk severance, take precedence over existing policies and guidelines in determining the appeal?
- Should the matter of the severance approval be relevant in determining this appeal?
- Does the application for the construction of a dwelling unit meet the goals, objectives and policies of the Province of Ontario and the Halton Region Conservation Authority?
Evidence for the appellant
Through sworn evidence, the appellant, Mr. Murray Curk, indicated that he had bought the property in part of the north east half of Lot 2, Concession 1, (Esquesing), Town of Milton, municipally known as 72 Peru Road, in the early 1950's. Through the 1978 Severance application, three parcels were created.
The Curk family had lived in a house on the middle portion of the property at the time of Hurricane Hazel, in the fall of 1954. He stated that there was no flooding on his lot at that time, but he was aware of the extensive flooding in the downtown area of the Town of Milton. footnote 1 
In 1977, Mr. Curk submitted an application to the Town of Milton Land Division Committee for a severance of his land into three parcels. From a review of Exhibit 5, entitled "Land Division Committee - Land Conveyance Questionnaire", the application appears to have been for a separation of the parcel on which the Curk residence was located from the two adjoining parcels to the north and south, these two parcels to be retained. The report attached to this questionnaire appears to be the Minutes of the Land Division Committee meeting of November 8, 1977, when the initial hearing was held.
Mr. Curk apparently wished to sell the parcel with the existing house, as well as the parcel to the north, keeping the southerly parcel, on which he planned to construct a new house for his retirement. Mr. Curk's solicitor maintained that this type of development should be considered infilling since the parcel, consisting of 6.1 acres, was not large enough to sustain a farm operation. It is not clear to the tribunal whether the application was amended to provide for two lots, but in any case, the southerly lot was part of the final application.
The Land Conveyance Questionnaire (Ex. 5) provides the comments of the Halton Region Conservation Authority staff, dated October 18, 1977, as follows:
This property is downstream of the Kelso Reservoir and a portion at the rear of the lots may be susceptible to flooding during a regional storm. An engineering report produced for the Halton Region Conservation Authority advises that flows up to 3,000 c.f.s. could be experienced in the Sixteen Mile Creek between Kelso and Milton. It appears, however, that sufficient flood free land does exist on these lots to allow the development of a single family dwelling. Our staff therefore request that should the Land Division Committee approve these severances, it be conditional on the lands susceptible to flooding and regulated by the Halton Region Conservation Authority being scheduled on the title of the lots to be created. This scheduling will provide a warning protection for any future landowners which may not appreciate the flows which could occur across the rear of the property.
The Land Division Committee subsequently approved the severance of the southerly parcel in early 1978, subject to an agreement being entered into by the Curks with the Town that the applicable lot levies would be paid when a building permit was issued. An Agreement appears to have been executed by all parties on April 11, 1978 to this effect (Ex. 2-4). The tribunal assumes that it was registered, although no evidence was submitted to indicate that this was done. Mr. Curk certainly showed his intent to live up to the Agreement since his solicitors requested the Town for the "applicable lot levies" information by letter, dated April 6, 1998, at the beginning of the current process.
The actual Minutes of the 1978 Land Division Committee meeting when the severance was approved were not submitted in evidence, so it is not clear to the tribunal whether the request of the Conservation Authority was included in the conditions of approval.
Because of this approval and the Halton Conservation comments, Mr. Curk maintained that the Authority gave permission for a future residence to be built, since they agreed that "sufficient flood free land does exist on these lots to allow the development of a single family dwelling". The Authority acknowledged that the area proposed for the dwelling (on the southerly parcel) was flood free and that it was only the rear portions of the lands that were susceptible to flooding.
Mr. Quirt stressed that it is important to understand that Mr. Curk believed he was entitled to a building permit at anytime in the future because of this approval, and upon the payment of the applicable lot levies. He had the expectation that he could either sell the land as a severed lot or build on it himself. In fifty years on the property, he had never seen the land flooded.
As a result, it was a great surprise to him when he was told through correspondence from the Chief Building Official for the Town of Milton, dated May 21. 1998 (Ex. 2-6), that the property "appears to be totally within the OSC (Open Space Conservation) zone" and that a building permit may not be available without the approval of the Conservation Authority.
Mr. Curk indicated that he had "heard" that the rules and policies of the Conservation Authority could have changed, but because he had the severance, he did not think it would apply to him and that "his right to build" was maintained. He stated that he never got any notice about any mapping or policy changes and never received any warning from the Authority that they would not "honour their word" as provided in their comments on the severance application.
The application was submitted to the HRCA on February 10, 2000 by Mr. Curk's solicitor. It included a request to build a 2500 square foot house with basement, a map indicating the Curk property within the Town of Milton, an excerpt from the Flood Map for the area showing the Curk property and a plan, dated January 10,2000, prepared by Fred G. Cunningham Inc. (OLS) indicating the "approximate location of proposed house" within the lot. (Ex. 2 - 9 and 11)
The Plan was reviewed by staff and found unacceptable. Mr. Curk eventually requested a full hearing before the Conservation Authority, which was held on September 14, 2000, at which time, the Authority upheld the recommendation from the Authority staff. Still of the opinion that he had a legal right to build because of the severance, Mr. Curk requested an appeal to the Office of the Mining and Lands Commissioner, via the Minister of Natural Resources.
During cross-examination by the respondent's Counsel, Mr. Curk reiterated that the property did not flood during Hurricane Hazel, nor has it flooded since that time. He was aware of the Milton Main Street flooding. Mr. Olah reviewed the history of flooding on the Sixteen Mile Creek with Mr. Curk, referencing the Sixteen Mile Creek Conservation Report 1958. prepared by the Ontario Department of Planning and Development. (Ex. 4C:4). Mr. Olah quoted from the report regarding the Hazel Storm over the watershed:
At the height of the storm, the rainfall amounted to seven inches in a 24-hour period, an unprecedented downpour. The Sixteen Mile Creek quickly became a raging torrent; the Record-Star (Oakville newspaper) states that the water level rose eight feet in as many minutes. Surface water flooded hundreds of cellars and basements; (Pages 18 -19)
Torrential rain, on March 6, 1956, combined with melting snows at the headwaters of local streams to send flood waters through the town of Milton....... At Woodward Avenue, the water rose to within six inches of the top of the culvert. " (page 21)
"On February 25, 1957, the Sixteen Mile Creek at Milton was once again "the swollen waters ", filled with fences and fallen trees, ice flows and heavy currents." (page 21)
Mr. Curk did not remember any "raging torrent ", and stated that most of the floods described were in a different tributary than the one in question. He did remember the W oodward Avenue flooding, but indicated that area is approximately five (5) kilometers from his property. He stated that he did not always go back to the creek, past the planted evergreen trees, to see what was happening to it during a storm. If water had been there, then he assumed that the whole property would have been flooded.
With regard to the matter of Mr. Curk's knowledge about the changes in policy which have affected his lands and resulted in the Authority's decision regarding the application, Mr. Curk stated that he had only ever seen the Notice of a Public meeting in the evidence book provided by the Conservation Authority. (Ex.4-B: 3-4 ) However, he stated that even if he had seen it in the newspapers, he would not have paid any attention to it as he did not feel it would pertain to him since he had a deed for the severed lot and had been paying taxes on it.
In re-examination and also with reference to the 1958 Sixteen Mile Creek Report (Ex. 2-4) and the 1956 photographs of flooding in downtown Milton (Ex. 2-5), Mr. Quirt solicited a positive response from Mr. Curk to the question that the Conservation Authority would have known all about these flooding circumstances when they provided their comments to the Region of Halton Land Division Committee and agreed to the severance application in 1977. (Ex. 5)
Mr. David Curk provided sworn testimony on behalf of his father, Murray Curk. Mr. David Curk briefly told the tribunal that he was born in 1960 and was raised on the Peru Road property. His observed remembrances were that there had been no flooding of the property during his lifetime. He did indicate that he had been away at school between 1979 and 1983, but he now had a home office in the dwelling unit to the north of the property in question.
In cross-examination, Mr. David Curk made it clear that he understood that the issue dealt with the Regional Storm level and that this event had never actually occurred over this area of the Sixteen Mile Creek. He was aware of the past flooding in downtown Milton and the work that the Conservation Authority has done, through channelization, to try to rectify the problem of what he described as "infrequent flooding". He agreed with his father that all the flooding described was downstream of the Curk lands.
The third witness for the appellant, Mr. Sergio Pompilii, was sworn as an expert witness in urban and land use planning. Mr. Pompilii has a Master Degree in Urban Geography with specialized courses in urban design. He has been employed by a number of companies, including Cumming-Cockburn & Associates Ltd., as a land use planner. Currently, he is president of his own company in London, Ontario. (Ex. 2 -15) The majority of his current work is done for the development industry.
Before proceeding with this witness, the tribunal ruled on an objection from Mr. Olah that planning evidence is not relevant to a conservation authority appeal, citing Commissioner Ferguson's ruling on this issue in the matter of Hinder v. Metropolitan Toronto and Region Conservation Authority 16 O.M.B.R. 402-1984. (page 41) wherein he stated:
While the objectives of the municipalities and the Authority may be coincidental and supportive of each other, the tribunal cannot conclude that official plans and zoning by-laws, which are broader in scope than matters within the legislative jurisdiction of a conservation authority, authorize the Authority to apply the municipal policies in administering its regulation.
The tribunal, while leaning to Mr. Olah's opinion on the issue, nevertheless took the position that the appellant, in the interests of natural justice, should be given some leeway in providing evidence they thought was relevant. The tribunal decided to determine the direction of the evidence, reserving the right to consider the weight to be applied to such evidence when making its decision.
Mr. Pompilii provided an overview of the planning for the area. Schedule 4 of the Region of Halton Official Plan designates the Curk lands as "rural" and "greenlands". The property is located within the industrial and residential expansion area for Milton and the OP estimates a growth from 3000 people in 2001 to 50,000 by 2011.
The Town of Milton adopted Official Plan Amendment #7 in June of 2000. This plan agrees with the Regional OP's designation of residential and industrial for the area abutting Peru Road. The Curk property is shown as being within the "Urban Expansion Area" for the Town and the land use designation is "Greenlands A" within a "residential" area. (Schedule B - Ex. 2 -18) Peru Road is shown as a "collector road" on Schedule F, dated December 9, 1997. ( Ex. 2-16)
Mr. Pompilii's chief evidence dealt with the matter of the planning for Peru Road. At present, Peru Road has a rural cross section. The Town of Milton is in the process of reviewing a new gateway for the western portion of the Highway 401 corridor within the Town's boundaries. It is Mr. Pompilii's understanding that Milton is proposing a full interchange at Peru Road / Dublin Road and is undertaking an Environmental Assessment to determine the exact location of the access. A new Schedule F to the OPA, dated June 7, 2000, indicates this location and the possible redesignation of Peru Road to a higher service level. (Ex. 7 - also described as Schedule 3 to OPA #7)
If such a plan proceeds, Mr. Pompilii believes that it will have an important impact on Peru Road, changing its character from a "collector" to a "minor/major arterial" category. A photo board provided graphic evidence of the various transportation service levels throughout Milton (Ex. 9). If Peru Road becomes a major arterial road, the right-of-way would increase to 35 meters and include boulevards, sidewalks and probably bicycle paths. Extensive upgrading would be required resulting in a dramatic change to the landscape and the land use for the area. The Curk property would be affected by land purchase or expropriation as well as regrading, and a new bridge would be required to the south. In any such process, the Conservation Authority would be involved in the decisions.
The Curk property itself is one of many small holdings along Peru Road (Ex. 11 ) with considerable development on the east side and south of the river crossing. Mr.Pompilii provided the tribunal with photo boards (Exhibits 13, 14, 15) of the Curk property showing the proposed point of access to the lands. The existing residence and access point also are shown, along with views of the wooded portion of the lands. These boards indicated that a culvert was needed in order to gain access to the lands. Mr.Pompilii expressed the opinion that this access had received Town approval, presumably with the understanding that residential development was to occur.
Mr. Pompilii agreed with Mr.Curk's belief that the severance approval granted him the right to build a new home. This case is unique and Mr.Curk should not have to go back to square one because he had not acted on the approval until now. Mr. Pompilii did agree, however, that if Mr. Curk was applying for the severance today, the outcome would be different.
During cross examination, Mr. Olah submitted a sketch, dated December 2000, to Mr. Pompilii which was described as "the current sketch" of the environmental assessment review being undertaken by the Town of Milton. This was secured from Mr. Bill Mann of the Town of Milton by the HRCA staff Mr. Pompilii acknowledged that this sketch was more current.
Mr. Olah reported that the parameters for the environmental study have been enlarged to include the stretch of the Highway 401 from the Peru/Dublin area to Tremaine Road in the west. No definitive decision has been made and in fact, only the Terms of Reference have been prepared, but the outcome of the study could result in a decision to not proceed with any new access point or one of the options could be selected. The report does show that such a west end interchange will be needed but the conclusions and the timing are speculative at this time. (Ex. 30)
Mr. Olah discussed the official plan designations of the Curk lands with Mr. Pompilii who acknowledged that these lands were designated "Greenlands A" (Ex. 4-C: 20) and were zoned OSC (Open Space Conservation). It was his opinion that Mr. Pompilii had mentioned these facts only in passing, stressing, instead his opinion that the transportation network would have a significant impact on the future of Peru Road and thus, the Curk property.
Mr. Pompilii confirmed that neither the Official Plan nor the Zoning By-Law allowed residential development on the Curk lands "If there was no previous approvals", implying that the granting of the severance was a previous approval. He also acknowledged that the Curk lands did not fall under a "Special Policy Area'? designation as is being investigated for downtown urban Milton.
Mr. Pompilii also agreed that a new residence on the Curk lands would be considered "development" under the definitions outlined in the Provincial Policy Statement -1997. This Statement says that no new development should occur in floodplains in order to protect society from future problems. The Curk lands are located within the floodplain of Sixteen Mile Creek according to the Flood Risk Map - Sheet 25 (Ex. 1-2) and the policies of the Authority prevent any development within the floodplains.
Mr. Pompilii believes that there is a "grey area" with regard to the Curk application because of the 1978 approval by the Conservation Authority, thus making the application unique. He did agree, however, that if Mr. Curk was starting fresh to-day, none of the following five documents would allow the proposed development:
- the Region of Halton Official Plan
- the Town of Milton's Official Plan
- the Town of Milton's Zoning Bylaw
- the Provincial Policy Statement
- the Halton Conservation Policies
Mr. Quirt countered Mr. Olah's argument by securing Mr. Pompilii's opinion that the previous severance gave Mr. Curk a right that became non conforming when the by-laws and policies changed. He argued that both the lot and the intended use, therefore, became non conforming.
The fourth witness for the appellant was Mr. Robert Clipsham who was sworn as an expert in dealing with both the hydrology and surveying of floodplains. His practice consists of about 20% survey activity with 80% being civil engineering, of which 15 to 20% dealt with storm water management and hydrology issues.
During his review of the Curk project, Mr. Clipsham indicated that he had walked the property and examined all the documents provided to him. These had included the surveyor's updated topographic mapping, dated May 15, 2001 (Ex. 18), Halton Conservation's floodline mapping (Ex. 1-2) and the Provincial Policy Statement and ,floodplain guidelines. The topographic information enabled him to prepare two cross sections, designated as "Section C-C and Section B-B" (Ex. 19) with which he determined a building envelope in an area he described as "the closed loop" of the 209 metre contour. (Ex. 20) His proposal was for a dwelling with a finished floor level of 209.96 metres (the actual Regional Storm level) plus a 34 centimetre freeboard for a total of 210.30 metres. Along with the required flood proofing, he believes this proposal would meet the guidelines of Halton Conservation (Ex. 1-10: page 3).
Mr. Clipsham referenced the guidelines included in the staff report to the Halton Resource Planning/Water Management Advisory Committee regarding the Curk project (Ex. 1-3). These guidelines allow development if safe access/egress can be secured through determining the effects of both the depth and velocity of the flood waters. The velocity should not exceed .8 metres per second (mps). Exhibit 1-3 shows that the velocity at the Curk property was determined as .55 mps.
The Curk application shows that the proposed dwelling would be approximately 40 metres from Peru Road requiring an access road to be built with fill. Mr. Clipsham indicated that this "driveway" would be built at 209.70 metres, less than .3 metres (1 foot) below the flood level and would travel over much less distance than the 40 metres referenced earlier in order to be within the municipal setback standard of7.5 metres (Section C-C).
At this time, it became quite apparent to the respondent's counsel and to the tribunal that Mr. Clipsham was discussing a different building envelope than that shown in the application before the tribunal. The appellant was given the opportunity to decide whether he wished to have the hearing adjourned in order to allow for a new application to be submitted to Halton Conservation for review or whether he wished to proceed with the present application that was under appeal. The tribunal indicated that if a new application again was refused, then the hearing could continue, with the revised application being the issue. The tribunal was not prepared to accept the revised plan at this time (Ex. 19) as this would circumvent "natural justice" for the respondent, since there had been no opportunity for them to review the proposal nor to analyse its impact.
The appellant decided to continue with the present application and from this point on, Mr. Clipsham was advised to discuss only the application before the tribunal.
Revised cross sections were prepared and submitted by Mr. Clipsham which dealt only with the original submission. (Ex. 21 and 21A) The proposed design showed the finished floor being at the 209.96 metre level, plus a freeboard of 34 centimetres for a total of 210.30 metres.
Mr. Clipsham referred to the Provincial Flood Plain Planning Policy Statement, dated October 1988, regarding the flood proofing of the dwelling (Section 3.7) noting that the policy states that:
Any new development permitted in the flood plain, in accordance with this policy statement, be protected by acceptable floodproofing actions or measures.
Ingress/egress for new buildings be such that vehicular and pedestrian movement is not prevented during times of flooding. (page 30)
Noting the words "acceptable floodproofing", he applied the policy statement's criteria to his proposal for Mr. Curk, as follows:
Depth (Threat to Life) - in stagnant backwater areas (zero velocity) depths in excess of about 1 metre (3.3 feet) are sufficient to float young children, and depths above 1.4 m (4.5 feet) are sufficient to float teenage children and many adults; (page 36- Ex.4-B:10)
The proposed driveway would be 0.70 metres below the Regional Storm level of 209.96 metres - less than the 1 metre and 1.4 metre depth outlined in the criteria.
"Velocity (Threat to Life) - in shallow areas, velocities in excess of about 1.8 m/s (6 ft./s) pose a threat to the stability of many individuals;" (page 37 - Ex. 4-B:10)
The velocity submitted by Halton Conservation is 0.55 m/s (Ex. 1-3) - less than the criteria of 1.8 m/s. Mr. Clipsham acknowledged that with the fill placement for the driveway and some fill for landscaping purposes, the backwater effect would not, in his opinion, significantly increase the velocity.
Depth and Velocity (Threat to Life) - A reasonable approximation of the combined hazard of depth and velocity can be made with the product of depth and velocity. A product of depth and velocity less than or equal to 0.4 m²/s (4 ft.²/s) defines a low risk providing that the depth does not exceed 0.8 m (2.6 ft.) and the velocity does not exceed 1. 7 m/s (5.5 ft./s); (page 37)
The product of Depth and Velocity is determined as 0.70 X 0.55 equals 0.385 -less than the criteria of 0.4 m²/s.
Vehicular Access - ingress and egress from a floodproofed area by most "typical" automobiles will be halted by flood depths above 0.3 - 0.5. (1 -1.5 ft.). A maximum flood velocity of 3 m/s (10 ft./s) would be permissible, providing that flood depths are less than 0.3 m (1 foot); A depth in the range of 0.9 - 1.2 m (3-4 ft.) is the approximate maximum depth for rapid access of large emergency vehicles; (page 37) .
The proposed depth of 0.70 metres is greater than the criteria for the typical automobile but the velocity of 0.55 m/s is less than the criteria of 3 m/s. The depth-velocity product is substantially less than the criteria of 0.9 - 1.2 metres for emergency vehicles. Mr. Clipsham stated that if an automobile stalled, the. occupants could still walk to safety.
Structural Interpity (Above Ground) - 0.8 m depth (2.6 ft.) is the safe upper limit for floodproofing the above ground/superstructure of conventional brick, brick veneer and concrete block buildings using closures and seals..... The maximum permissible velocity depends on soil type, vegetation cover and slope but ranges between 0.8 - 1.5 m/s (2.6 - 5 ft./s); (page 37)
Mr. Clipsham's figure of a depth of 0.43 to 0.61 metres (Ex. 21A) is less than the safe upper limit of 0.8 - 1.5 m/s for floodproofing with the maximum permissible velocity of .55 m/s also being less than the criteria. In his opinion, the floodproofing criteria could easily be met.
He also discussed the issue of incremental balance. proposing that the landscape material and the access road fill could be obtained from the higher levels of the site itself (above the 209 contour), thus achieving a balanced cut and fill. He stated that the property was located in the ''floodfringe area" where the flood water velocity would be dissipating. He did acknowledge, however, that a minor floodway could be created between Peru Road, the building envelope and the driveway.
With flooding depths of .5 metres to 1.16 metres at the edge of the property and a driveway height of 1.1 metres at Peru Road, a backwater effect could be created. Regional storm flood waters might go over the driveway, but Mr. Clipsham suggested that culverts, through the driveway, would allow for a freer flow and allow for humans to wade through without floating.
During cross-examination by Mr. Olah, it was pointed out that Mr. Clipsham had used three different figures with regard to the height of the driveway. Exhibit 17 stated 209.70 metres, Exhibit 21 was 209.26 metres and during testimony, Mr. Clipsham stated 209.46 metres. Mr. Quirt responded that Mr. Clipsham had provided a range of heights to indicate that the road could be engineered for minimal impact on the floodplain. This evidence was not clear to the respondent's Counsel nor to the tribunal and no evidence was submitted to validate the statement.
Mr. Olah indicated, in reference to Mr. Clipsham's cross section, it appeared that the elevation at the centre point or crest of Peru Road is 209.14, an elevation that is lower than the point where the driveway would link to Peru Road. Mr. Clipsham was not aware of whether a permit would be required for this sort of circumstance but he did indicate that the driveway would have to meet Peru Road at its existing level.
Mr. Olah referenced the need for fill. Since the house would be built on a concrete pad in the floodplain, this factor, along with the fill required for landscaping and the long driveway, would remove some of the storage capacity from the flood plain. Mr. Clipsham responded that the depth of fill would vary from 0 metres at Peru Road to .86 metres, if the driveway height was at 209.26 metres (Ex. 21) He had not done, nor had he been requested to do, any calculations regarding the amount of fill that would be required nor had he determined the amount of displacement this would create (an Incremental Balance Study). In his opinion, the displacement would be minor since a cut and fill exercise using fill from another area in the floodplain on the Curk lands was proposed.
There was no contrary evidence to dispute the elevations plotted by Fred G. Cunningham and the following flood depths were noted:
- 209.23 - .76 metres flood depth
- 209.22 - .74 metres flood depth
- 209.14 - .82 metres flood depth
- 209.17 - .89 metres flood depth
- 209.01 - .95 metres flood depth
Mr. Olah, in referencing Exhibit 4-C:10, noted that vehicular access would not be possible during a Regional Storm since the flood depth would be approximately .82 metres at the municipal road. The calculation of velocity and depth would result in a product of .82 X .55 equaling .451 m²/s which, Mr. Clipsham agreed, exceeded the minimum Guidelines standard of 0.44 m²/s.
In his re-examination of Mr. Clipsham, Mr. Quirt introduced questions and information regarding the velocity of the flood waters and safety factors for humans. He referred to the "3 X 3 Rule" in the 1988 Provincial Guidelines. This reference elicited an objection from Mr. Olah in that this rule only applies to professional staff working in field conditions and it is not mandated by the Province of Ontario under any of the existing Policies and Guidelines (Ex. 4-A: 2 to 5). Mr. Quirt dropped this line of questioning since Mr. Clipsham agreed with Mr. Olah that it was inappropriate to use this rule.
Evidence for the respondent
Mr. Cory Harris was called as a witness to review the Curk application process. At the time of it's submission and in his then capacity as Watershed Engineering Technologist, Mr. Harris reported through Mr. Ray Guther, Manager of Watershed Engineering Services to the Director, Mr. Robert Edmondson. He had reviewed the application with other staff members and prepared the composite report that was submitted to the Resource Planning/Watershed Management Advisory Committee on June 5, 2000. Mr. Harris confirmed his understanding of Mr. Pompilii's evidence regarding the "Greenlands A" Official Plan designation and the Zoning of "Open Space Conservation (OSC)".
The Advisory Committee conducted a site visit on June 15, 2000 (Ex. 1-5) and subsequently supported the staff recommendation to refuse the application (Ex. 1-6). Mr. Curk was given and accepted the option of appearing before the Authority's Executive Committee. This hearing was held on September 14, 2000 (Ex. 1 documents), at which time, the recommendation of the Advisory Committee was upheld. Mr. Curk proceeded to appeal this decision to the Minister and hence to the Mining and Lands Commissioner.
Mr. Harris indicated that Halton Conservation had jurisdiction over the Sixteen Mile Creek drainage area. The Hood line for the Regional Storm is a Hurricane Hazel based calculation, as is the case throughout Southern Ontario. The basic topographic information was secured through aerial photographic technology in 1983 and the actual mapping was completed in 1985-86, providing an update of the 1976-77 mapping (which was in use at the time of the Curk severance). The actual Floodline Mapping Study was completed in 1988 by Proctor and Redfern Ltd. (Ex. 4-B: 3) Mr. Harris also noted that Ontario Regulation 150/90 - Fill Construction and, Alteration to Watercourses for the Halton Authority (Ex. 4-A: 2-6), as well as the 1988 Provincial Flood Plain Policy Statement (Ex. 4-B: 3-10) and the 1997 Provincial Policy Statement (Ex. 4-A: 2-4), were not in existence at the time of the Curk severance (Ex. 2-11).
The Flood Risk Map - Sixteen Mile Creek - Sheet 25 (Ex. 2-2) indicates that the Curk property is located totally within the floodway of the Sixteen Mile Creek, in accordance with the One Zone Concept. In addition to the Regional Storm line, the Fill Line is identified on Sheet 25. Permits are required for any construction inside this line. A number of the plotted cross sections are in close proximity to the Curk property and are numbered for identification. These cross sections represent the HEC-2 lines used to model the floodplain data and in Mr. Harris's words, are best described as "perpendicular slices of the floodplain". The Kelso Dam, constructed in 1965, is upstream of the Curk property and because of its purpose to provide minor flood protection and flow control to the downstream creek, it has a minor effect on the Curk lands.
Mr. Harris went on to state that it was not the "normal" practice of Halton Conservation to deal with an application that does not contain information about the proposed structure, grading, and floodproofing, as well as access-egress details. Although Mr. Curk enquired informally on a number of occasions about submitting an application, he was always told that such a submission would not receive staff support since it was contrary to Provincial and Authority policies. Mr. Curk, however, wished to proceed with a building envelope scenario in order to secure a decision from the Authority. Eventually, staff agreed to accept the application on this basis, in order to save Mr. Curk any major expense for engineering and architectural designs.
The application was received on February 10, 2000 and included the Cunningham topographic survey plan showing the proposed building envelope. (Ex. 1-1) The topographic information compared favourably with the Authority's mapping, allowing staff to review the application with some accuracy. The data regarding the site is as follows:
- Regional Storm flood elevation is 209.96 metres, while the 100 year storm elevation is 209.01 metres;
- flow velocity across the site under the Regional Storm would be 0.55 metres/second.
- ground elevations on site range from 207.85 to 209.53 metres;
- Regional Storm flood depths range from 0.43 to 2.11 metres, which exceed the requirements for safe access/egress;
- Regional Storm flood depths at the proposed building envelope range from 0.43 to 0.61 metres;
- Regional Storm flood depths along the road frontage range from 0.78 to 0.95 metres;
The velocity figure is recognized in the Proctor and Redfern Study, and is believed to be a conservative figure, basically favouring Mr. Curk. It was noted that at cross section 15.248, downstream from the Curk property, the velocity is 1.36 metres/second (m/s). It is very possible that the velocity at the Curk property should be just under 1 m/s.
The significance of these numbers was reviewed in relation to the various policies of the Province of Ontario and the Halton Conservation Authority.
1. The Provincial Policy Statement - dated February 1, 1997 (Ex.4-A: 2-4)
In dealing with the Provincial Policy Statement. Mr. Harris cited the definitions of "development" and "Floodway" as being relevant to the discussion. These are found in the Definition section of the Statement:
Development: means the creation of a new lot, a change in land use, or the construction of building and structures, requiring approval under the Planning Act. (p. 13)
Floodway (for river and stream systems): means the portion of the Flood plain where development (.............) and site alteration would cause a danger to public health and safety or property damage. Where the one zone concept is applied, the floodway is the entire flood plain. (p. 15)
Section 3 .1.1. dealing with Natural Hazards, states:
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; (p. 10)
The Flood Risk map (#25) clearly identifies the Curk property as being totally within the Sixteen Mile Creek floodplain for the Regional Storm and as a result of this potential susceptibility to flooding hazards within the One Zone Concept footnote 2  floodplain, is considered hazard land under the Provincial Policy Statement and development is not permitted.
The property has no "Special Policy Area" designation (Section 3.1.2. b) which does allow development under certain circumstances. This section has no relevance to the Curk issues.
Section 3.1.2. deals with conditions that must be met if development is allowed, but since the Curk application did not satisfy the policies outlined in Sections 3.1.1. and 3.1.2., there was no need to review these policies any further.
2. Conservation Halton (Halton Region Conservation Authority) Policies. Procedures and Guidelines for the Administration of Ontario Regulation 150/90- Fill. Construction and Alteration to Watercourses dated October, 1999 (Ex.4-A:2-6)
Section 3.1. deals with Valleys, Flood Plains and Wetlands and states:
Except where allowed under policies 3.2.- 3.10, development (i.e. filling, grading and construction) is prohibited, within a creek/stream valley (i.e. fill line mapped), hazardous lands (i.e. susceptible to flooding during a regional storm), and wetlands. (p. 14)
Mr. Harris noted that the policies mentioned as exceptions, 3.2. to 3.10, do not apply to the Curk project and so again, the Curk application did not meet the policy guidelines. Upon the recommendation of staff, the Hearing Committee of the HRCA denied the application (Ex. 1-13) for the following reasons:
"The establishment of a building envelope in this location, within the Regional Storm flood plain of Sixteen Mile Creek:
- would occur within an area identified as hazardous lands adjacent to a river or stream system which is impacted by flooding and or erosion hazards, contrary to Provincial Policy 3.1.1 b);
- is contrary to Provincial Policy 3.1.2 b), which prohibits development in a floodway;
- would create and aggravate existing flooding hazards in the area, contrary to Provincial Policy 3.1.3 b);
- would prevent vehicles and people from safely entering and exiting the area during times of flooding, erosion and other emergencies, contrary to Provincial Policy 3.1.1.d); and
- is contrary to Conservation Halton Policy 3.1, Valleys, Flood Plains and Wetlands, which prohibits development in hazardous lands. "
Mr. Harris noted that the Authority's "Summary of Facts" (Ex. 4-A: 1.1 - p. 4) indicated a concern with respect "to potential impacts on upstream flood levels and loss of flood plain storage", but since no information on these issues had been submitted by the applicant, they had "not been investigated nor documented".
In addition, it was pointed out that the Authority has been "consistent in applying its policies which prohibit development on historically created lots which are susceptible to flooding". Mr. Olah referred Mr. Harris to the activity that had taken place on the Sandhu property at 52 Peru Road, south of the Curk property. This structure had been in existence as a recreational facility and dance hall since the nineteen fifties, but had been rented out as a residential unit since the nineteen seventies. There was a second residential unit on the property.
Through Reply Evidence later in the hearing, Mr. David Curk agreed that the building in question was a dance hall in Peru Park in earlier years, but after Kelso Dam was built (1956), the dance hall was closed and remained closed for 30 years until around 1986 when the building began to be used as a residence. Undated photographs were submitted by the appellant through Exhibit 33 showing a barn-like building. The Authority submitted pictures of the house through Ex. 27 showing the recent renovations.
The former owner, Mrs. Reichert stated, in an affidavit, dated August 1999, that she had lived at 52 Peru Road for "some 52 years" and that the two-storey building in question had been in residential use since 1970. (Ex. 22) Mr. D. Curk disagreed with this claim, maintaining that this use came into being much later and thus the permission for a second residential unit on the lot was not legal. However, a renovation permit was granted to Mr. Sandhu in 1999 following receipt and acceptance of this affidavit by the Town. The Town indicated that a lot with two units was a permitted use under the Zoning Bylaw in 1970.
Mr. Harris stated that the Authority had not been circulated by the Town on the Sandhu renovation application, (Ex.22) but the matter was reported by an Authority Enforcement Officer in July of 2000 and investigated by staff. A meeting was held with Shelley Switzer, Chief Building Official for the Town of Milton, to discuss this lack of circulation. It was discovered that the approval had been given for the purposes of "modification to the existing structure". The vast majority of the work that was involved was "inside" work (drywall, electrical, plumbing) which the Authority has no jurisdiction over, with a small portion being "outside" work (some removal, addition of new porch and the reconstruction of a concrete garage). If the Authority had been notified, this work would have been approved under their Minor Addition Policy.
Further, Mr. Harris stated that Mr. Curk had also received approval for a minor addition to his existing home in 1997. The Authority received his application (Ex. 23A) and approved the permit (N97/M114 - (Ex. 23B) on June 10, 1997, on condition that the owner enter into an agreement to "save harmless" the Authority from any claims for damage by future flooding.
Three copies of the Authority executed Agreement (Ex. 23C) were forwarded to Mr. Curk for signature (Ex. 23D). No comments were received from Mr. Curk at that time and apparently the addition was built. The tribunal notes, however, that this Agreement was apparently not executed by Mr. Curk, and as a result, never registered.
During cross-examination, Mr. Quirt asked Mr. Harris if he had been mindful of the "innovative solutions" suggested in the 1988 Flood Plain Planning Policy Statement-Implementation Guidelines (Ex. 4-B: 3-10) where it states:
- "The guidelines are not intended to be rigid procedures" ;
- "results should not necessarily be considered absolute" (p.1).
- "Land use planning within the floodplain involves trade offs between flood risk and development" (p.1).
- "It is expected that flexibility will be exercised in planning and managing flood plain lands, particularly as it relates to minor encroachments" (p.1).
- "every minister.... commission or agency.. shall have regard to policy statements issued under subsection (1). "(of Planning Act - p.7).
- "The wording 'shall have regard to' was specifically chosen to provide a degree of flexibility. "(p.7)
Mr. Harris responded that the Authority was mindful of these policy statements and he fully understood that flexibility was allowed in making recommendations to the Authority. However, the staff are mandated to "have regard to" the policies and thus were looking towards the issue of new problems and not retroactivity.
Mr. Harris indicated that the staff used the flood plain mapping existing in 1976-77 when they commented on the Curk Severance application It was the best information available to them at the time. The documents being used today have been updated and more accurate mapping is available. He acknowledged that some margin of error will exist in the calculations and the velocities will vary from cross section to cross section He also indicated that Cross section 15360 at the 209.96 metre elevation (Map 25) was used to determine the flow rates for the Curk property and reiterated the belief that the velocity figures were an advantage to Mr. Curk.
Mr. Quirt spent some time discussing page 21 of the Proctor Redfern Report (Ex.4-B:3-3) with Mr. Harris. This page provides the statistical data regarding the velocity and roughness coefficients for the various HEC-2 computer generated cross sections on the Flood Risk Map Sheet 25. Mr. Harris established that there are three sections to a floodplain cross section - the left overbank, the channel and the right overbank. As noted, cross section 15.360 lies diagonally toward the middle of the Curk property, in the right over bank of the Sixteen Mile Creek. The cross sections provided the following data:
|At 15.540 Upstream||Velocity||Roughness|
|Left Over bank||.73||.070|
|Right Over bank||.56||.070|
Water surface elevation or Regional storm level - 210.19 metres
|At 15.360 Curk Site||Velocity||Roughness|
|Left Over bank||.65||.070|
|Right Over bank||.55||.070|
Water surface elevation or Regional storm level- 209.96 metres
|At 15.248 Downstream||Velocity||Roughness|
|Left Over bank||.76||.070|
|Right Over bank||1.29||.070|
Water surface elevation or Regional storm level- 209.57 metres
Mr. Quirt suggested to Mr. Harris that the data shows a gradient transition between the cross sections with the water level (flood level) also decreasing between them. In the case of the Curk lands, the flood waters would rise and spill over Peru Road from the west to the east and pond below the main grade of Peru Road to the east of the Curk lands.
Further, the variance in the water surface elevation between the 15.360 and 15.248 cross sections is between 209.96 metres and 209.57 metres or .39 metres. Mr. Quirt queried where a cross section would be sited if inserted half way between these sections. Mr. Harris replied that it would be at the entrance driveway to the subject lot where the water level might be lower by about .188 of a metre (or a flood elevation of 209.77 metres) if a "linear relationship" existed. It was noted, however, that the flood depths produce a horizontal relationship as opposed to linear.
Throughout his testimony, Mr. Harris had referred to a number of slides, copies of which were provided to the tribunal and listed as Exhibit 28. One of these slides, marked Curk -D & CB #11, provided the elevations and flood depths from north to south within the Peru Road road allowance in front of the Curk property. Mr. Quirt stated, with agreement by Mr. Harris, that the figure of 209.14 metres was the elevation of the crown of the asphalt at the entrance way and therefore, the flood depth at that point would be .82 of a metre. (209.96 - 209.14) If, however, it was assumed that a new cross section at this point would have a flood elevation of 209.77 metres, then the flood depth would only be a difference of about .64 metres. Further, if it was assumed that .55 m/s was the velocity used at a new driveway cross section, then the resulting Depth to Velocity ratio (Threat to Life) would be .64 X .55 for 0.352 m²/s, which is less than the guideline of 0.4 m²/s for emergency vehicles.
Mr. Quirt also suggested that since the floodplain was wide, then the water would spread out further, thus reducing both the depth and the velocity., In addition, he suggested that the model probably did not account for the gradient and the roughness (i.e. what is under the water in the form of trees and hedges). Mr. Harris agreed that the hedges and trees on the Curk lands would affect this coefficient but explained that these factors are picked up in the roughness coefficient.
The topographic information indicates that there are some closed loops which represent either a rise in elevation or a depression. Mr. Quirt suggested that the higher elevations would provide some protection for a house, since the potential flood levels would be lower.
In discussing the Incremental Balance issue with Mr. Harris, Mr. Quirt quoted Mr. Clipsham as saying that this was a principle of flood plain management which could be used as an option in the Curk case to maintain the storage capacity of the flood plain. Mr. Harris agreed, but stated that the impact could not be determined without hydraulic studies being undertaken. In addition, the cut and fill procedure usually is done on opposite sides of the river. He agreed that it could be engineered to protect the back water effect, but questioned whether it was the right thing to do.
With regard to the Kelso Dam and Reservoir, Mr. Harris reiterated that it's purpose was for minor flood control and low flow augmentation. If the water was held back, the downstream flow would be reduced. The Authority has a policy, adopted in 1987, with regard to the operation of its dams and the maintenance of water levels. (Ex. 4-B: 3-8) As a result of the dam's purpose and its operational policies, it was assumed not to be there with regard to the HEC-2 models. The Proctor and Redfern study indicates that:
The effects of Scotch Block, Hilton Falls and Kelso reservoirs on downstream flows were simulated", (Ex.4-B: 3-3 - p.18)
It was not clear to the tribunal whether the model did simulate an impact or whether the impact was considered to be negligible.
Mr. Quirt concluded with a reference to the Provincial Flood Plain Planning Policy Statement Implementation Guidelines as they relate to flood proofing. These policies stress the desirability for dry passive flood proofing measures to the regulatory storm level for all types of development, but he stated that because this was an infill project, there should be some flexibility. He suggested, in referencing page 36, that the policy supports "any acceptable floodproofing approach" for infilling circumstances.
Mr. Olah, in re-examination, countered that this policy deals with non-residential/non-habitable uses. The policy also states that wet floodproofing should not be considered acceptable for large lot residential development, only for non residential/non habitable development (p. 35)
Mr. Olah returned to a discussion of Mr. Quirt's "assumed cross-section". Mr. Harris agreed that he had been asked to interpolate the depth figure of 209.57 for the downstream cross section 15.248 onto a new cross section at the driveway location. However, Mr. Quirt, in his analysis, had not used any interpolated figures for the velocity, but used the figure for the 15.360 cross section of .55 m/s. In fact, the velocity figure downstream is more than double at 1.29 m/s. Therefore, if the velocity was also interpolated, it would be an average of 1.29 and .55 or .92 m/s. This would create a depth and velocity product of 0.58 m/s. which does not meet the guideline in the report of .45 m/s by a difference of .14 m/s. It is imperative that both values be used to get the proper "interpolated" answer. You cannot pick and choose.
Mr. Olah referred again to the Flood Plain Planning Policy Statement- Implementation Guidelines. (Ex. 4-B: 3-10) at which time Mr. Harris indicated his agreement with the following points:
- Floodproofing is an inappropriate solution since the Curk proposal does not meet the first hurdle of the policy, that being safe access;
- The Land Use Planning process is the responsibility of the municipalities, but Conservation Authorities are responsible, as commenting agencies, to make sure that the municipalities have regard for the Flood Plain Planning Policy Statement. (p. 5)
- The policy does provide flexibility to the Authority decision making, but the intent of the policy is to minimize the creation of new problems. In terms of new construction, there is little or no flexibility. The policy provides a "preventative approach to flood plain management" (p.7)
- Municipalities, through their Official Plans, also have very little flexibility since they are directed to develop policies "whereby no new buildings or structures are permitted which are susceptible to flood related damages". (p. 15)
- Uses with "minimal formal structure are, in general, considered acceptable in flood plains because the threat to life and property damage is low". (p. 16)
- Under the One Zone flood plain concept, "buildings and structures which can be located outside the flood plain are not permitted. " This applies to roads, bridges agriculture and passive uses, etc. There is no flexibility in this statement. (p. 19)
Mr. Olah concluded his cross-examination with the statement that under all of these policies, it is clear that the Curk proposal is not allowed.
The second witness for the respondent, was Mr. Ray Guther. Mr. Guther was sworn as an expert witness to provide opinion evidence regarding water resources and hydrology policies and their impact on the Curk property. He is a registered Professional Engineer and is presently the Manager of Watershed Engineering Services for the Halton Region Conservation Authority. His experience with the Authority dates back to 1995 during which time, he carried out the flood plain analysis for the Sixteen Mile Creek Study.
Mr. Guther first addressed the function of the Kelso Dam and Reservoir relative to the Curk property and referenced the Proctor & Redfern Group Sixteen Mile Creek Reservoir Operations Study. dated February 1987. (Ex. 4-B:3-8) This report was prepared in conjunction with the Canada/Ontario Flood Damage Reduction Program. (Environment Canada and the Ministry of Natural Resources)
The Kelso Dam was built in 1962 and about 73 kilometres of the subwatershed drains into the reservoir. As stated earlier, the Dam and Reservoir have a multifunctional purpose of flow augmentation for the downstream area of Sixteen Mile Creek, some flood control and some recreation. It is usually drawn down over the summer to augment the downstream flow but only to an extent that would maintain the recreational levels.
Kelso has a limited storage capacity with emergency spill over areas in the parking lot and boat launch areas. As a result, the reservoir can provide limited flood protection only to the Town of Milton and only during the lesser but more frequent storm events. Once the storm level goes beyond the 25 Year Storm, the dam has no protective ability and would be overtopped. A Study, entitled Dam Break - Impact on Floodlines was carried out around 1988 and although not named, the study used the Kelso Dam as the example. The study looked at the potential for the failure of a control structure and at the impact of such a failure on flood levels and the resulting flood damages. (Ex. 4-B: 3-9) It concluded that the impact on downstream flood potential can be significant, especially during the more frequent events if the dam failed. In addition, the report concluded that a failure could result in large peak flow rate increase immediately downstream of the dam, with a reduced impact as the flow reaches the damage centre (Milton).
In 1988, Dillon Engineers issued a report entitled Milton Flood Damage Reduction Study. (Ex. 4 -B:3-5) The Project Manager, Ivan Lorant, was considered a leader in the water resource field at the time. Milton is very flood prone, which explains the presence of so many studies for the area. This particular study recommended, among other things, that:
- Downtown Milton be designated a Special Policy Area with the unregulated 100 year storm event being the standard for the minimum level of protection;
- 150 metres of channelization and berming at the 100 year protection level be built in downtown Milton;
- New development should not be allowed within the Special Policy Area that would increase the risk to life (i.e. hospitals, homes, schools, etc) and a Warning System should be in place for existing residents;
- Maintenance and operation of the Kelso Reservoir should continue in order to reduce flood damages from frequent events;
The channelization program was undertaken and the procedure re the designation of a Special Policy Area is underway.
A number of studies have been carried out since the Sixteen Mile Creek Conservation Report was initially released in 1958. In 1970, Philips Planning and Engineering Limited released the Town of Milton. 16 Mile Creek - West Branch. Flood Control Report. (Philips Report) It was this report that was utilized by Authority staff in commenting on the Curk's 1977 Severance application. In 1988, Proctor & Redfern Group issued the Technical Report - Floodline Mapping Study of the Sixteen Mile Creek. (Ex. 4-B:3-3) Carried out under the Canada / Ontario Flood Damage Reduction Program, its purpose was to update the 1970 floodline data. Technical methodology had advanced a great deal in the period 1970 to 1988 providing more accurate, sophisticated and stringent standards for flood plain mapping. Hydraulic analysis was performed establishing the flood levels which were then plotted on topographic maps. The Regional Storm floodline was plotted, as were cross sections, at set intervals, which were identified by number and the surface elevation for each floodline indicated.
This report also identified flood problems in Milton downtown and elsewhere in the watershed, as had the Dillon Report, and recommended:
- "an overall floodplain and storm water management program be established to control potential flood damages. (p. 35-36) and
- "the floodplain maps produced in this study should be used as the basis of administration of the Halton Region Conservation Authority floodplain management regulation" (p.35)
The present Curk application was reviewed against the updated data available to the staff. Cross section 15.360 was chosen for the analysis since it was close to the proposed building envelope. The technical data for this cross section (Ex. 4-B: 3-3 –p. 21) indicated that the water velocity at the channel was 2.67 and .55 in the right overbank. The roughness coefficients were .24 at the channel and .070 at the right overbank. A description of the "headings" on this chart were provided to the tribunal through Exhibit 32. Since no specifics were provided with the application, other than the topographic data, this information was not used and the denial of the application basically was due to the policy issues as opposed to any flood proofing or even the access/egress issues.
Mr. Guther described Exhibit 4-A:2-12 as a ground profile showing the Regional Storm Flood elevation for the Curk property at the 15.360 cross section. The flood depth would be substantial - approximately 3 metres - at the creek channel. The land rises to a height of approximately 209.5 metres in the mid section of the lot, and then drops down again to the road allowance of Peru Road to 208.59 metres and rises again to the crown of Peru Road at 209.14 metres. Peru Road declines slowly to the south where the creek crosses under a bridge. The Regional Storm flood levels would range from 0.43 to 2.11 metres across the site. A profile showed the negative effect of the these flood waters on humans and on automobiles at the cross section.
Mr. Guther continued with a discussion of the proposed access/egress to the development as it would relate to the 1988 Flood Plain Planning Policy Statement - Implementation Guidelines to the Curk proposal. This policy document states:
as a minimum, ingress and egress should be considered "safe" for all new buildings, such that velocities and depths do not hinder safe pedestrian and vehicular movement during times of flooding. (p. 36)
The guidelines go on to indicate maximum depths of flooding and a maximum combination or product of flood depth and velocity. This guideline should not be exceeded in determining safe access/egress in order to avoid a threat to life. It is important to understand that depth increases buoyancy and velocity increases instability. (p. 132) Both depth and velocity are required in order to determine the proper product.
Mr. Guther summarized earlier testimony regarding the guidelines in the policy as:
- Maximum flood depths for vehicle access averages 0.4 metres. Typical vehicles will be halted by flood depths above 0.3 to 0.5 metres (1 - 1.5 feet), while emergency vehicles may gain rapid access in flood depths of 0.9. It was noted that mufflers and electrical systems on vehicles can be affected by flooding sooner than people and can stall out as a result.
- Maximum flood depths for most adult pedestrians is about 1.37 metres (4.5 feet) while acceptable limits for school aged children is about .9 metres (3.2 feet).
- Acceptable limits for the product of velocity and depth for a low hazard or safe pedestrian access is a product that is less than or equal to.4 m2/s. provided the depth does not exceed 0.8 m and the velocity does not exceed 1.7 m/s. (Ex. 31: WSB#2-5)
Figure 17 in the Implementation Guidelines (p.138), entitled Flood Plain Stability Chart for Humans depicts the product rules of depth and velocity for the various "rules". The Province has only accepted the 2 X 2 Rule (not the 3 X 3 or 3 X 2 Rules) as the criteria for safe access/egress for humans.
Exhibit 31- WSB #3-10 shows the depth of flooding on the site and along Peru Road. Based on the Authority's mapping (Sheet 25) and the applicants's survey data (Ex. 20), the velocity-depth product ranges from 0.407 m²/s on the Peru Road crest to 1.60 m²/s at the actual channel site. In all cases, the product of velocity-depth on the Curk site is in excess of the guideline of 0.4 m²/s for safe access/egress. Mr. Guther reiterated that the guidelines provide maximum figures.
There was agreement that the discussion using interpolated data was not determined on an accurate basis. Simple interpolations were reasonable between cross sections and a chart was provided which used the interpolated driveway elevation of 209.76 metres with the velocity of .92 m/s. This chart indicated that the product value would be even higher than what the staff had used, and therefore their position is again shown as favouring Mr. Curk rather than the Authority. He stressed that it would be best to develop a new cross section in order to compare the data properly.
With regard to roughness, typically hedges are not included in the calculations as they could be ripped out, with the debris flowing downstream. The lodging of debris from upstream, however, could increase the roughness. The roughness would be reduced where a road is paved, but this could also increase the flow rate or velocity of the water.
Mr. Guther indicated that the Natural Hazards Training Manual - January 1997 (Ex. 4-A: 2-5) also is a provincial policy used in conjunction with the Public Health and Safety Policies in Section 3.1 of the Provincial Policy Statement. Mr. Olah made reference to the first paragraph of the Manual's Introduction:
Increasing pressure to live in close proximity to water, particularly over the last forty years, has resulted in extensive and increasing property damage, risks to public health and safety, detrimental impacts to local ecosystems, and immeasurable social disruption costs. For municipalities and governments, it has also meant increasing public liability, escalating public costs related to the installation, maintenance, replacement or upgrade of protection works required to safeguard vulnerable developments, and mounting public costs to address unwise individual decisions.
Mr. Guther stated that this document reinforces and explains in detail the main policy statement and the flood plain policies of the Province of Ontario and the Authority. It continues to condemn the creation of new hazards in the flood plain and expands upon the safe access/egress issue by stating:
care should be taken when fulfilling this requirement to ensure that the selected approach does not compromise the other requirements identified in Policy 3.1.3. For example, constructing an elevated access roadway to permit development within a flood susceptible area that in turn increases flooding on adjacent lands and compromises Policy 3.1.3.(b) footnote 3  should not be considered acceptable. (p.7)
Another policy statement indicates that where any one of the issues or conditions contained in the Policy 3.1.3. cannot be met, the proposed development and site alteration should not be permitted. (p. 61 )
These statements directly relate to Mr. Clipsham's testimony regarding the proposal to mitigate the flood flow by the installation of culverts through the proposed raised driveway. The driveway, itself, would result in a loss of flood storage area, thus increasing the depth of the flood waters to the north. If the Curk proposal was approved, this could become part of a cumulative effect with each development proposal that came forward.
In addition to the decrease in storage capacity, the reduced flow area would also result in less area for friction to build up. It is the water friction that slows the flow. Further, with the installation of either the driveway barrier or the culverts, debris could easily pile up or clog the culverts, forcing the water over the driveway. Of further concern to the Authority, neither pedestrians or drivers would be able to see the edge of the raised driveway, creating a safety hazard under flooded conditions.
With regard to the proposal to cut and fill from similar elevations, this would assist in maintaining the existing storage capacity, but no plans were submitted to allow for a review of the implications and impacts of the volumes and hydraulics. A new model would be required to carry out this review. This applies to the design of the access road as well. The point of contact of the driveway with Peru Road must be at the edge of the asphalt. Mr. Clipsham indicated that the driveway elevation would be at 209. 26 metres (Ex. 21). Since the elevation along the Peru Road is 208. 59 and 209.14 at the crest, the driveway would have to fall in elevation to enter upon Peru Road, creating a further unsafe condition. If Peru Road were to be reconstructed into a arterial cross section as suggested by Mr. Pompilii, a new bridge structure would be required to the south of the Curk lands. This probably would result in increased flood depths on the Curk property.
Mr. Olah referred Mr. Guther back to the impact of a Regional Storm on the Sixteen Mile Creek. Mr. Guther quoted from the original 1958 Sixteen Mile Creek Conservation Report (Ex. 4-C: 4-4):
The official rainfall recording station nearest to Milton at the time of Hurricane Hazel was located at Hornby, where 6.80 inches of rain was recorded during the forty-eight hour period From the isohyetal map of the storm, it was determined that 5.94 inches of rain fell on the area draining into Milton. Had the storm been centred on the Sixteen-Mile Creek Watershed instead of the northern part of the Humber Watershed, which is about thirty miles north-east of Milton, the average depth in inches over the entire area would have been 8.60 inches during the forty-eight hour period This possibility, together with the higher peak flows in the streams which will result from the predicted urban development in the areas upstream from Milton, stresses the seriousness of the flood threat to the town. Since this threat becomes greater with each succeeding year, it is felt that the seriousness of the situation cannot be emphasized too strongly. (p. 43)
He indicated that later analysis increased the estimated 8.60 inches of rainfall to 10.5 inches.
These factors would have an increased impact on the Curk lands if a Regional Storm was to occur.
Cross-examination by Mr. Quirt of Mr. Guther continued the discussion of the Proctor and Redfern Floodline Mapping Study of the Sixteen Mile Creek in reference to Sheet 25 - Flood Risk Map - Sixteen Mile Creek. (Ex. 1 -2). The map sheet is a visual representation of the area surrounding the Curk lands. The mathematical HEC-2 model was produced in 1988. Since that time, there has been some changes or refinements made downstream from the Curk lands, some by the Authority and some by consultants. There have been some studies done upstream, but none of these would have an effect on the model used to review the application including the Subwatershed Study. This Study was not done for floodplain modeling and only dealt with the moderate storm level, not the Regional Storm level. In addition, Mr. Guther stated that the Philips Study was not appropriate for the regional storm flood line studies, but mainly appropriate for flood storage determination.
Flood storage could have some affect on the timing of the river's peak flow, but there is no proof of this. It could be possible that there would be some affect during the early part of a storm, but once the Kelso storage limits were reached, the peak flow would then follow.
Mr. Quirt asked about the effect of the duration of the rainfall period on flood flows. He noted that Hazel was a 72 hour model, while it was not clear what duration model was used for the Proctor and Redfern Study. Mr. Guther responded that the HEC-2 model uses peak flows, not the rainfall duration rate. The models are mathematical models and are all based on the historical Hurricane Hazel storm, centred over the Humber Valley, not over the valley in which Mr. Curk's lands are located. The flows used in the earlier studies, upon which the severance decision was based, were updated through the Proctor and Redfern Study, using improved technology to provide more accurate data. The severance decision referred to a flow rate of 3000 c.f.s. (Ex. 5) It did not deal with the depth of the water which would have been involved if the more sophisticated HEC-2 modeling had been available.
The mathematical model provides precise figures and uses variable assumptions. There basically are two models which provide a progression of modeling expertise leading to the HEC-2 model. One is the hydrology model and the other the hydraulic model. Bridges or other obstacles do not affect the hydraulic model according to the standards set down by the Province of Ontario. Data can be and is adjusted to actual events that have occurred which could lead to changes in the Hydrology Model. This new data could provide new information regarding depth of water, in order to upgrade the Hydraulic Model. There is always some variations between the actual and the models as was indicated to in the Proctor & Redfern Study. (p. 18-19)
In explaining how the model works through the flow rate (speed) and water depth in the floodplain, Mr. Guther clarified that the Hydrology Model data is inserted into the calculations and the HEC-2's Hydraulic Model calculates the flow rate. The roughness and slope or gradient of the channel will impact the velocity. With a broad floodplain, the velocity is probably slower while it is faster where the channel is narrow and steeper in gradient.
Mr. Quirt referred Mr. Guther to cross section 15.540, upstream of the cross section used to review the Curk application. This cross section touches the north west corner of the Curk property and reaches Peru Road at the edges of the floodplain. The velocity data is .73 m/s at the left overbank, 2.80 m/s at the channel and .56 m/s at the right overbank. (p. 21) The right overbank is very wide and flood depths are shallow. Mr. Guther stated that no generalized solution can be developed without using all the data since the entire channel is affected by its parts across the whole cross section. In particular, he mentioned the following points:
- As a result of assumptions being made regarding hedges and trees within the roughness coefficient, the figures used are "estimates". However, field inspections and aerial photographs are used to determine the location and impact of trees, etc.
- The HEC-2 model provides the velocity factor of .56 m/s for the cross section;
- The three sections of the flood plain are considered;
- The flow will expand and contract because of bridges, culverts, etc;
- The valley slope or gradient also is included in the model, although there is no specific calculation regarding the slope in the data sheets. (p.21) The input files do show slope level, but calculations are needed for their inclusion in the model;
Mr. Quirt questioned whether an energy loss translated into slower velocity. Mr. Guther indicated that there were many variables, but in the simplest of terms, stream energy is lower as water flows downstream and there is a loss of energy with the contraction of the water as it passes through a bridge structure.
With reference to the Sandu property, it is located in the left overbank of the channel and is in the vicinity of two cross sections - 15.248 and 15.227. The level of the flood waters is approximately .39 of a metre lower than the "Curk cross section", however, the roughness coefficients are all the same. The velocity is less in the southerly cross section (15.227) both at the channel and in the left overbank, presumably since the overbank is broader at this point and is quite narrow at the northerly section (15.248).
After a great deal of discussion, Mr. Quirt asked, with Mr. Olah's agreement, that Mr. Guther be requested by the tribunal to run another cross section - one that would go through the Curk property and be downstream from Section 15.360. The tribunal approved of this request and a new cross section was presented through further Evidence In Chief by Mr. Guther and submitted as Exhibit 34. This new cross section, labeled 15.30 and calculated as an average across each of the three areas of the valley, provides far better information than an "interpolated" cross section. It was placed in an appropriate location between the existing cross sections. The following chart compares the original cross section 15.360 with the new cross section 15.30.
Cross section/Depth, 15.360 (209.96), 15.360 Revised (209.93) footnote 4  15.30 (209.92)
|Left Over bank||.65||.070||.67||.070||.45||.070|
|Right Over bank||.55||.070||.56||.070||.54||.070|
Mr. Guther indicated that the two cross sections were almost identical from a depth and velocity perspective. The velocity figure is an average and in actual fact would vary across the whole overbank area. The velocity is beginning to drop slightly at the new cross section as the water begins to be constrained back into the channel in order to meet the bridge culverts downstream. The ground surface itself is flat with little vegetation to impair the flow.
Mr. Quirt, in cross-examination, asked about the use of the "Warning" note in the new charts. This did not appear in the original Proctor & Redfern data sheets. Mr. Guther indicated that the note is likely indicating that there has been some changes or updates in some aspect of the modeling. There could have been an additional cross section inserted or an increase in the expansion or contraction coefficients of the flow. It does not mean that the data is incorrect. In this case, the new cross section 15.30 was inserted which modified the data.
Mr. Guther summarized his testimony by stating that:
- The data presented by both cross sections does not meet the standards of the Floodplain policy in as far as the flood depth and velocity are concerned and result in a velocity/depth product that would not ensure safe access for pedestrians;
- The Federal/Provincial Flood Reduction Program developed the standards that have been accepted for all Conservation Authorities to follow;
- The early 1970 Proctor and Redfern model, used during the Severance application, dealt only with the flow rate and not the flood depth. Under today's standards, both must be used as was seen in the 1988 Proctor & Redfern Study. The Dillon Study, is virtually a peer review situation, and concluded that the 1988 study was appropriate.
- The hypothetical rainfall event, required by the Province of Ontario policies, is Hurricane Hazel. This standard was superimposed over the Sixteen Mile Creek.
- There is not as much calibration done for a Regional Storm event since the soils become saturated allowing for less variables in the mathematical equations.
- The Sixteen Mile Creek is a moderate sized watershed in which the peak flow rate is fast with less warning time. This peak is even faster in the upper reaches of the watershed. As the watersheds get bigger, flows increase but it takes longer to reach the peak flow time.
- There is an increase, in general terms, of both roughness and velocity in an overall cross section where there are trees or other obstructions.
The final witness for the respondent was Brenda K. Axon. Ms. Axon was sworn as an expert witness to provide opinion evidence with regard to planning issues and historical data relating to the flood plain management policies of both the Province and Halton Conservation. She has been an employee of the Authority for twenty years and is presently the Manager of Watershed Planning Services.
The historical basis for the Conservation Authorities Act is the protection of life and property from flooding. Ms. Axon indicated that many very serious storms have occurred since "Hazel", but it continues to be the storm event in Southern Ontario against which all others are compared. The Act and the Provincial Policy Statement use:
a preventative approach to flood plain management, whereby planning and the regulation of development ensures that new development is not located in flood susceptible areas and that upstream and downstream problems do not occur. This is the preferred approach to flood plain management and is also the most cost effective means of reducing the risk to life and property. (Ex. 4-C: 4-2)
Reference was made to a comparative analysis carried out by Environment Canada in August and September of 1986 between extreme rainfall events which occurred in Michigan and in Ontario where it was determined that the climatology and the watershed responses of the river basins were very similar. Average precipitation for each event ranged between 50 mm. and 180 mm. for 24 hour and 48 hour periods respectively. Extensive flood damage was caused in Michigan because of the heavy precipitation, estimated at approximately 500 million US dollars for the two months, while little flooding damage occurred in Ontario. The later was valued at $500,000. The report concluded that:
although Michigan sustained extreme damages and suffered the loss of lives, Ontario had, for September, higher flood yields. Even though Ontario's yields were higher, the Province recorded only a small fraction of Michigan's damages. (Ex. 4-C:4-3)
This comparison emphasized the benefits of the flood plain management strategies employed within the Province, strategies that were very different than those in Michigan over the long term. The Provincial policies were successful in minimizing property damage and risks to life. This was also borne out by an examination of the Saguenay River storm event in the Province of Quebec in 1996 where damages were estimated to be approximately 800 million and 10 people lost their lives. Quebec, like Michigan, does not have restrictive land use policies which seek to keep people from living in flood risk areas.
Further historical information was provided regarding flooding outlined in the Sixteen Mile Creek Conservation Report of 1958. This Authority predated the amalgamation of several Authorities into the Halton Region Conservation Authority. Newspaper reports were cited with regard to the Hurricane Hazel event with one stating that the "rainfall amounted to seven inches in a 24 hour period, an unprecedented downpour". (p.19) The report went on to state that:
This chapter has discussed the occurrence of twenty-six period" of high water on the Sixteen-Mile Creek, recorded between 1797 and 1957, (a spread of 160 years). Only seven of these recorded floods took place before 1900; nearly three times as many have been recorded in the ensuing 57 years. In the 36 years, 1922 to 1957 (inclusive), the number of floods is eighteen, an average of one every second year. (p.21-22)
The majority of these flood events were in the Milton area and photographs of the 1965 flood were provided to the tribunal. (Ex. 4-c: 4-5) It was noted that the Curk property was approximately 3 kilometers from the Town area where the photographs were taken.
Ms. Axon reviewed the Provincial Policy Statement 1997 as it relates to the Curk application. The Public Health and Safety section (3.1.1) directs development away from hazardous lands adjacent to rivers and stream systems where flooding could have serious impacts. In fact, the policy quite strongly states that site alteration and/or development will not be permitted in a floodway, except where a Special Policy Area has been designated. There is no question that within the policy, the Curk proposal is considered to be "development". Any activities such as filling and grading would be considered as "site alteration". Since this area of the Sixteen Mile Creek is within the One Zone Concept area, the "floodway" is the entire floodplain area. It has been demonstrated that the Curk lands lie totally within the flood plain or flood way and as such, the Curk proposal is not permissible under any of these policies.
Ms. Axon reviewed the Watershed Planning reports that have been used by the Halton Region Conservation Authority to direct and implement policies. In 1983, the Interim Watershed Plan was adopted. (Ex. 24) All the Authority and Provincial policies that existed at the time were consolidated into this document, including the Fill Construction and Alteration to Watercourse Regulation. This report predates, but anticipated, the Proctor & Redfern Flood Line Mapping Study that was completed in 1988.
In 1997, a report entitled Protecting Resources Naturally was adopted by the Authority. This provided an updated basis for the Authority's administration of Ontario Regulation 150/90 and its "program of plan input and review".(Ex. 25) It gives direction for the Authority's role at both the provincial and municipal levels and provides "a description of the policies, procedures, technical analysis and standards that apply to the regulations and planning functions ".
In 1999, a further report was adopted as the operating policy for Conservation Halton, entitled Fill Construction and Alterations to Watercourses - Policies. Procedures and Guidelines for the Administration of Ontario Regulation 150/90. (Ex. 4-A:2-6) The Curk project was examined against the policies outlined in Section 3.1. of this report and against the 1997 Provincial Policy Statement both of which prohibits development within a creek valley, hazardous lands and wetlands. As a result of these policies, the Curk application was denied.
Ms. Axon maintained that Halton Conservation has been very consistent in upholding both the Provincial and Authority policies of prohibiting development within flood susceptible areas of the Sixteen Mile Creek. The Regulations provide the Authority with some flexibility to allow the construction of minor additions or non-habitable structures provided it was shown that the works would not increase the risk to life or property and could be flood proofed and the particular construction could not be built outside the Regional Storm flood line.
In her Witness Statement (Ex. 4-C: 4-2), Ms. Axon stated that:
The Curk application is not unique. The approval of a building envelope within the Regional Storm flood plain could be seen as setting a precedent to permit similar applications within the watershed. It would result in increased pressure throughout the watershed to approve new flood susceptible development which would increase the risk to life and property. (p. 4)
The Authority had undertaken a Property Flood Susceptibility Analysis for the Sixteen Mile Creek which indicated that there are 16,228 sites located within the Sixteen Mile Creek watershed, of which 1388 have some portion of the property within the Regional Storm flood plain. Approximately 495 have no buildings or structures. There are a number of others that are located within wetland areas and considering that the Sixteen Mile Creek represents about one third of the whole Authority area, the number of undeveloped properties could be significant. It was anticipated that there would be future pressures to develop these properties which has led to the Authority's concern about sending any signal to these landowners if the Curk application was approved.
Ms. Axon detailed several examples of situations within the watershed that would be. similar to the Curk application. The Scalise Property is located about one kilometre upstream from the Curk lands, but on the same tributary. In this case, a severance was "historically" created in 1976 for a previous owner. In 1990, Mr. Scalise applied to Halton Conservation for residential construction which was denied by the Executive Committee. An appeal was submitted to the Minister of Natural Resources but was withdrawn prior to the hearing.
The Scalise and the Curk applications are very similar in that the lots were both created by severance with the approval of the Conservation Authority, based on the information current at the time. As has been noted, this information was updated in 1986-88 by the Proctor & Redfern Study which determined that both lots were totally within the flood plain.
Another residential application dealt with the Sammut property on the Bronte Creek. This property is within a flood susceptible area during the Regional Storm. A knoll existed on the property which the owner proposed to excavate to create a cut and fill balance. Although this proposal was turned down and never appealed, there continues to be enquiries about development potential of the property.
Examples in Hidden Valley on Grindstone Creek and two properties within the Hayesland Swamp, also on the Grindstone Creek system, were mentioned as development proposals which would be impacted by any precedent set by a Curk approval.
Moving to a discussion of the Planning documents for the Curk lands, Ms. Axon reiterated that the property was designated "Greenlands A" in the Official Plan for the Town of Milton and Open Space Conservation in the Zoning By-law. (Ex. 4-c: 4-20). These documents recognize the flood susceptibility of the property. The existing house on the other Curk parcel would be non-conforming under the new By-laws since it was built prior to their enactment, but the lot in question would fall within the area where development would be prohibited to-day.
In summarizing her evidence, Ms. Axon stressed the Authority's continuing concern about "precedent" through an increase risk to life and property that would be set if the Curk application was approved. There has been no new development in the flood way under the updated policies of both the Province and the Authority. The Authority sees no flexibility for new construction but it does allow existing homes to change in a minor way or be reconstructed if destroyed by fire. A Special Policy Area also provides flexibility for commercial endeavours but not for residential uses.
Mr. Quirt, in cross-examination of Ms. Axon, suggested that there was a hidden agenda for Authority staff. Other than trying to be fair, Ms. Axon noted there was no such agenda. Retroactivity was not an issue in reviewing the application, since it is the role of staff to try to maintain a balance between competing interests, within the parameters of the Policies. She reiterated that the decision to refuse had been based on the guidelines in the Provincial and Authority policies that emphasized that no new problems should be created. Any new development would do exactly that.
Mr. Quirt requested information regarding the lots of record outlined in the Property Flood Susceptibility Analysis in relation to her concern regarding precedence. Ms. Axon indicated that such lots could have been created up to 1996. She was not, however, aware of any lots that had been approved by severance at an earlier date, that had received development approval from the Authority under the updated policies and guidelines. Scalise is an example of this, having received its severance in 1976 but development was refused under the updated policies. Even though the Scalise property is closer to the Sixteen Mile Creek than the Curk project, they are both within the flood plain and again, the Authority's decision to refuse was based on the Policies and Guidelines and flood risk mapping that was current at the time of the application.
In the case of the Curk lands, it was noted that the driveway was proposed to be 80 to 100 metres (262-328 feet) in length, a short distance according to Mr. Quirt. Ms. Axon disagreed, saying that the driveway still was located totally within the valley and entirely flood susceptible which could lead to a risky access/egress situation for any residents of the property.
Mr. Quirt referred back to the policies of the Province which indicate that flexibility should be used by the Authority. Ms. Axon indicated that the circumstances that allow this are fairly narrow. Minor additions to residential units are allowed but cannot include any new bedrooms. Like the requirement to accept the upgraded requirements for septic systems, hydro installations and building code guidelines, so must the upgraded flood plain management guidelines be accepted. No new problems are allowed that create a potential for increased risk to human life. Along with the municipal land use process, these policies which keep development out of the flood plain, are a much better approach to follow for risk management than building expensive dams and dykes that was the norm when Conservation Authorities first were created.
Although a discussion on Special Policy Areas was again initiated, the tribunal notes that the Curk property is not within such an Area. The designation is being considered only for downtown Milton, under the process required to define such an area. Development of a non residential nature may be permitted within such an area, but new residential development is very limited and where allowed, it will require safe access and floodproofing.
Final arguments - Appellant: Douglas Quirt
In essence, the application is a request to fulfill the intent of the severance application, approved in 1978. The Land Division Minutes indicate that the Committee and the Conservation Authority were mindful of Mr. Curk's intent to construct a residence. This is illustrated by the conditions which firstly, deferred the payment of the lot levy until construction took place and secondly, by the Authority requesting an Agreement be registered on title that would include a Warning Clause regarding possible hazards. Mr. Curk's intent to build a new residence in the future was quite clear.
The Flood Plain Planning Policy Statement - Implementation Guidelines - 1988 (Ex.4-B: 3-10) requires all resource management bodies to "have regard to " the existing Provincial Policies. This statement is not cast in stone but provides some flexibility in unique situations. Mr. Quirt maintained that the Curk application is a unique situation. It is not a "new problem" since the severance was granted and it was clear a house would be built. It is not a "retroactive" problem. The decision had been made in 1978. It is not now fair that Mr. Curk is denied what he had approval for from Halton Conservation and the Land Division Committee. The precedent effect should be considered as very minor. It is a unique lot of record, different than any other. Only the Scalise property has any similarities.
Mr. Quirt acknowledged that Mr. Guther had been fair in acknowledging that variances would occur in the flow velocity over the floodplain. He maintained, however, that the minimal increase of .21 m²/s over the .4 m²/s standard in velocity / depth, in all likelihood would be safe for access/egress along a portion of the property frontage.
In addition, Mr. Pompilii's evidence regarding the need to upgrade Peru Road, either as a collector or an arterial road because of development pressures, no matter where the 401 interchange might go, shows that reconstruction would have to take place at some time in the future. This reconstruction would have to be mindful of safe access/egress to each property for existing development as well as for the proposed development.
Mr. Clipsham provided clear evidence that there was a way to build a new dry proofed residence with a safe access driveway, both above the flood line of the Regional Storm, and by using an engineered balanced cut and fill on the property itself.
The Curk family maintain that there has been no flooding on the severed lands over the last fifty years. The evidence of the Authority agrees with this, even during Hurricane Hazel. The flooding that is shown is a computerized model of a storm like Hurricane Hazel centred over the Sixteen Mile Creek, not the real thing.
The Sandhu property was identified by David Curk as not being a residence until much later than maintained by the previous owner. It should not be used for this purpose and it was pointed out that Mr. Harris had acknowledged that the Authority was not consulted about the use change or the renovations of this property.
Mr. Quirt agreed that policies were needed throughout the Province, but policies are just that. They are not law, but only expressions of concern by the Province and the Conservation Authorities and modifications can and should be made when reviewing individual circumstances. There are no conservation or planning principles that Mr. Curk cannot and will not comply with through negotiations.
He has waited twenty-five years to construct the new house and the right to do so should not be denied. If he had known that policy changes were to take place and that his right to build was at risk, he would have taken the necessary steps to secure a permit earlier.
In summary, the proposal should be considered unique because:
- the severance was granted for residential use and is legal;
- Halton Conservation agreed with the intended use by their original approval;
- no precedent is set since the project is unique in the Sixteen Mile Creek Valley;
- the residence can be floodproofed;
- no flooding has occurred on the property in over fifty years;
- it is reasonable to expect a flexible approach considering the merits of the case;
- the Agreement requested during the severance hearing can be placed on title to relieve the Authority of responsibility for future risks;
- Mr. Curk could have secured a building permit at the time of approval since he had fulfilled all the conditions for the severance approval;
A ruling against the Curk proposal would be tantamount to making the property worthless - an expropriation without compensation. Through the evidence provided during the discussion of the final cross section, it was shown that averages were used across the flood plain and the variables involved were acknowledged. Mr. Quirt maintained that there was sufficient leeway for the tribunal to provide a positive decision.
The tribunal was provided with a number of previous decisions of the Mining and Lands Commissioner but no comments were provided by Mr. Quirt. They included Marilyn Dick and Douglas Dick v. Ausable Bayfield Conservation Authority (1995), Sam Kyriazis v. Lake Simcoe Region Conservation Authority (1995), Walter Bak Farms Limited v. Lake Simcoe Region Conservation Authority (1999), Charles Churchill Halton Region Conservation Authority (1988) and Victor Odorico v. The Halton Region Conservation Authority (1983).
Final arguments - Respondent: John Olah
The primary position of the Conservation Authority is that the Curk application violates both the Provincial Policy Statements and Guidelines and the Authority's own policies. Since everything else is a corollary to this position, the tribunal must focus on this point.
The province learned a very painful lesson during Hurricane Hazel. Section 28 was the Province's response to community interest and was enacted five years after this major storm. Through it, the Conservation Authorities were required to balance the rights of individual property owners against the mandated responsibility of protecting the community at large. Good watershed management took precedence. As time went on, the policies turned away from the construction of control dams to the prevention of further development in flood plains in order to protect people from further risks from flooding.
Guidelines were developed with the Regional Storm floodline mapping forming the basic criteria. In the case of Halton Conservation, this work was done in 1988 and Public Meetings were held to explain the project to the residents of the watershed. Mr. Curk indicated that he did not know about or attend these meetings and if he had known about it, he probably would not have gone anyway as he assumed he had his permission to build and therefore the study was not relevant to his property. This was also unfortunate since a new and better model was produced, one that was far superior to the one utilized when the Curk severance was granted. A well respected engineer, Mr. Ivan Lorant, carried out a "peer review" of the flood mapping study and concluded that all was done in accordance with the standards that were accepted by the Province.
This model was highly predictive and accurate. Mr. Clipsham did not quarrel with its validity, while Mr. Quirt tended to be selective in choosing to discuss only velocity and not depth.
With regard to the severance application, Halton Conservation could comment only on Curk's request to separate one piece of property from another. piece of property. They would not have been commenting on any specifics regarding a building permit application. That would have come later, but they did put forth the warning of their concern about future flooding potential. This concern was illustrated by their request to register a sort of "save harmless" agreement on title...an agreement that was never registered. The severance only created a lot of record. It did not approve a building permit. It is unfortunate for Mr. Curk that he waited twenty-five years, as there were many changes in policies during that period of time. There are two new Provincial Policy Statements and at least two implementation guidelines documents to accompany these policies. The Authority itself carried out and implemented the flood line study, while the Town and the Region undertook new Official Plans and Zoning Bylaws which .implemented the greenlands and hazard land designations. All of these documents seek to avoid new problems. It is quite clear that a new residence will create new problems. There is no flexibility in the policies relating. to the proposed new development, since this flexibility only relates to minor additions and non residential uses. Mr. Curk already has taken advantage of the available flexibility.
Everyone argues uniqueness, but in this case, there is no uniqueness. Twenty-five hundred lots of record could come forward throughout the whole of the Authority's area, while approximately 829 are flood susceptible within the Sixteen Mile Creek watershed. A number of examples were given, but it is the sad truth that all these lands are subject to the hazard land designation even though the potential applicants want to increase the property value through severances, filling and other permits.
The method of lot creation does not matter in terms of watershed management. The cumulative effect of possible approvals on these lots is what is of great concern to the Authority, especially since the adoption of the preventative approach to flood plain management. The wisdom of this approach was confirmed through the comparative studies done in Michigan and on the Saguenay River which demonstrated the lower financial impact in Ontario due to the preventative policy initiatives.
The proposal cannot meet the 2X2 rule standard of .4m²p/s for depth and velocity with regard to safe access/egress. The 40 to 80 metre (+) driveway length also contributes to concern about safety, since it would be below the Regional Storm level and it could be very difficult to see the actual roadway during a flood, thus creating a dangerous circumstance.
The tribunal should remember that the flood data suggested by Mr. Quirt was "interpolated" data and until the final cross section was submitted, the assumptions made were based on velocity only and not the product of velocity and depth. Mr. Quirt was trying to compare "apples and oranges" instead of "apples and apples".
With regard to Mr. Curk's evidence that the property has not flooded in fifty years, there is historical evidence of what has happened in the Milton area. Some of these floods may have affected the Curk lands and it is important to note that based on the data, the average flood is a two year return flood with Sixteen Mile Creek peaking very quickly due to its hydrology.
Mr. Olah repeated his earlier belief that the evidence provided by Mr. Pompilii was not relevant to the decision required of the tribunal. Beyond the fact that it was basically planning evidence, it also was highly speculative. Mr. Pompilii acted more as an advocate for Mr. Curk than as an expert witness. Even the planning evidence made little mention of the. Greenland designations in the relevant Official Plan documents. Mr. Olah restated the decision made in Hinder v. Metropolitan Toronto and Region Conservation Authority 16 O.M.B.R. 402-1984 regarding the relevance of planning matters in a Conservation Authority's appeal. He also referred the tribunal to the Donald Bye and Otonabee Region Conservation Authority decision, which concluded that:
"The conservation authorities are not bound by the Planning Act or Section 3 provincial policy statement in making their determination under Section 28 of the Conservation Authorities Act" (p.53)
and further, on page 54:
"a conservation authority must examine and determine the innate ability of the land to withstand adverse impact of the development. At no time can a decision as to zoning be seen to override the decision of a conservation authority. "
A secondary planning issue relates to the suggestion that the lot was "non conforming" because a severance had been granted. The lot was and remains vacant and was only used to grow trees, not to house people. The ability to grow trees remains. Again this matter is not relevant to appeals under the Conservation Authorities Act.
With regard to the appellant's engineering evidence, it was noted that Mr. Clipsham is a highly qualified engineer who had little time to adequately prepare for the hearing. Regardless, it is important to remember that the more engineers design to solve a problem relating to flooding, the more the wisdom of the preventative approach to flood plain management is broken down. To the Authority, this is a dangerous precedent. Storage is lost through the addition of buildings and the reconfiguration of the landscape, which then begins to create possible problems and risks for neighbouring properties. The community perspective must be considered as an important issue in the decision by the tribunal. The proposal fails to take into account the watershed approach. An approval would put the very staple of flood plain management, the floodplain policies, at risk.
In conclusion, Mr. Olah stated that the granting of the severance in 1978 should not be considered as permission to construct a dwelling unit on the Curk lands. There was no agreement to allow such building. Delay has caused Mr. Curk's problem, but the public should not have to pay for this non action on his part. The Authority believes it would set a dangerous precedent for the future. A new problem has been avoided to date due to the wisdom and courage of the legislators of this province who believe in the protection of people and property from risk from flooding.
Prior to and throughout the hearing, the respondent's Counsel expressed concern about the lack of timely response from the appellant regarding issues, evidence and witnesses. The tribunal also wishes to express its concern regarding this aspect of the hearing.
The tribunal, in the interest of "natural justice" allowed certain evidence to be submitted by the appellant in order to determine its admisability and relevance. It must be noted, however, and as had been requested by the tribunal, the background evidence of the witnesses should have been supplied prior to the hearing, as was done by the respondent. This lack of opportunity for both the respondent and the tribunal for prior review of the evidence to be presented, prolonged and complicated the hearing. Natural justice must apply to both parties. The tribunal accepts and shares the respondent's concern over this matter, but, in the final analysis, believes that all matters were dealt with thoroughly and fairly during the hearing.
The remainder of the Findings will deal with the administrative and technical issues that were raised on the basis of the evidence submitted and a review of past decisions and policies, relevant to this hearing.
Issue #1: Are the issues of municipal and regional planning relevant to the decision to be made by the tribunal?
The appellant's witness, Mr. Sergio Pompilli provided, as a professional planner, a great deal of evidence dealing with issues of a possible new access to Highway 401 at Peru Road, the impact that this would have on Peru Road itself and the resulting impact of any upgrade of Peru Road on the Curk property. He contended that urban development would ocurr in the area to the point of encroaching on the Peru Road frontages. This evidence was secured from Official Plan documents for the Region of Halton and the Town of Milton. It was Mr. Pompilii's argument that these land use issues and the impacts they would have should lead the tribunal to a positive view regarding the development of a new housing unit on the Curk lands. No mention was made by Mr. Pompilii of the policies relating to floodplain management that exist today.
The question as to whether the tribunal and before it, the Conservation Authority, should make decisions based on planning documents can be addressed in a number of ways.
Firstly, Section 20; 1 of the Conservation Authorities Act states that:
The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals. R.S.O. 1990,c,C,27,s.20.
The Act seems clear that the mandate of any Conservation Authority is to deal with the management of the natural resources within its jurisdiction.
Secondly, the Province of Ontario adopted the Provincial Policy Statement in February of 1997. This document outlines "key provincial interests related to land use planning" and requires that planning authorities "shall have regard to" to any policy statements issued under the Planning Act.
The guiding sections for Conservation Authorities is 2.3. Natural Heritage and Section 3 Public Health and Safety. The first section of this document deals with development, land use patterns and housing. Although the whole document must be dealt with by municipalities, the Conservation Authorities are limited in what they must have regard for within the policy statement.
Thirdly, the Flood Plain Planning Policy Statement - Implementation Guidelines ( October 1988) is a statement of policy issued by both the Minister of Municipal Affairs and the Minister of Natural Resources states:
Fill, Construction and Alteration to Waterways Regulations of Conservation Authorities do not regulate land use. This is the responsibility of the municipalities of Ontario. However, Conservation Authorities are also commenting agencies pursuant to applications submitted for approval under the Planning Act. In this regard, they are responsible for ensuring that the municipal documents have regard for the Flood Plain Planning Policy Statement notwithstanding the existence of a Regulation.
It is clear to the tribunal that through these policy statements that Conservation Authorities do not have any approval powers with regard to land use issues per se, but it is incumbent on them to make sure that land use decisions respect the provincial policies dealing with resource management issues, such as flood plain planning. This gives them a double role, firstly as a resource agency making comments on official plans, subdivisions, and consents, as well as zoning bylaws and variances, to ensure that their policies and those of the province are included in the documents and decisions, and secondly, as a resource agency dealing with applications affecting water resources and floodplain management.
Commissioner Kamerman's comments in Donald Bye v. Otonabee Region Conservation Authority (unreported) November 19. 1993 deals with this issue with much clarity. The tribunal believes that it is useful to replicate the relevant portion of the text found on pages 53 and 54 of the decision.
"Nowhere in the Conservation Authorities Act are conservation authorities given authority to balance competing interests in reaching their determinations "....... While a planning body may weigh competing uses in order to arrive at the highest and best use of a tract of land, conservation authorities do not consider, nor do they have the power to consider the relative merits of competing interests. Their mandate is to determine the impact of a proposal on the very limited capacity of land within their jurisdiction and based upon the degree of severity to allow or refuse permission. There is no power in conservation authorities to weigh or consider the relative merits of economic and social implications with those of susceptibility to flooding, risk to loss of property or life, pollution of surface waters or soils, and general ecosystem concerns within the watershed. The conservation authorities are specifically charged with determining the merits of a proposed encroachment based on risk not only to the applicant, but to affected persons both upstream and downstream of the proposal. In other words, in considering the right of a property owner to use his or her land, a conservation authority will weigh the individual's rights against the public interest, in so far as it concerns flooding, pollution or conservation of land
Commissioner Kamerman concluded with the finding that:
"conservation authorities are not resource planning bodies for the purposes of section 28 applications, nor is the Mining and, Lands Commissioner a resource planning body for purposes of considering appeals from decisions of authorities. "
The tribunal is also mindful of Commissioner's Ferguson's ruling in Hinder v. Metropolitan Toronto and Region Conservation Authority 16 O.M.B.R. 402-1984 -as submitted by Mr. Olah. (page 41 - Hinder Decision in Book of Authorities) . Based on a review of the legislation and policy statements, the tribunal agrees that Conservation Authorities are not in a position to apply municipal policies in administering their own regulations. Although a co-operative responsibility exists between Authorities and Municipalities to have regard for provincial policies, no matter which Ministry has ownership for these policies, Conservation Authorities must work within their own mandate. This mandate does not deal with the impact of municipal planning decisions regarding roads, etc. The Authority can deal only with such matters as they relate to the impact on flood plain management and the safety of human life and property.
Commissioner Ferguson reiterated this argument in the later decision of Churchill v. Halton Region Conservation Authority- May 11. 1988 in dealing with an issue of fill regulations. He stated that such regulations which are allowed under the Conservation Authorities Act "are not planning regulations. They are regulations related to the inherent capacities of the land involved". Commissioner Ferguson defined the later as related "to the construction of buildings". (p. 10)
As a result, the tribunal finds that Mr. Pompilii' s testimony regarding planning issues do not have any substantial relevance to the decision required by the tribunal.
Issue #2: should the policies and guidelines of Halton Conservation that were in existence at the time of the previous approval of the Curk severance, take precedence over existing policies and guidelines in determining the appeal?
Throughout the hearing, Mr. Curk and his Counsel contended that because the severance had been granted and because the Authority had approved of the severance, that he should be able to maintain his right to build a new residential structure on the severed lot. The fact that the policies had changed did not matter to the decision required by the tribunal. In addition, as a witness for the appellant, Mr. Pompilii also expressed his belief that Mr. Curk should maintain this right.
On the opposite side is the Conservation Authority, who has refused permission for this house to be built, based on the adopted policies that now exist. These policies include:
- The Official Plan for the Town of Milton which designates the Curk lands as "Greenlands A".
- The Region of Halton's Official Plan which also designates the lands as "Greenlands".
- The Town of Milton's Zoning By-Law which zones the lands as "Open Space Conservation".
- The Provincial Policy Statement which requires that no new development be allowed within floodplain lands;
- The Halton Conservation Authority policies which implement the provincial strategy to minimize the creation of new problems or the aggravation of existing problems.
The tribunal notes that Mr. Pompilii, under cross-examination, acknowledged that if the Curk's had not secured the earlier severance and were applying for it today, that they would certainly be unsuccessful based on all these documents.
The tribunal acknowledges that Halton Conservation was part of the "planning" process in developing the Official Plans and Zoning by-laws for the Town and the Region, but only in their role of ensuring that municipalities "have regard to" the resource management policies adopted by the Provincial Policy Statements and the Authority itself.
The data used by the Authority at the time of the severance has since been updated by a very sophisticated technical method which produced what has been accepted by the province and the engineering community as the standard for determining the probability of flood depths, velocity, and roughness within the flood plain. With this data, the standard Hurricane Hazel storm can be superimposed over any watershed in order to determine the flood level for the Regional storm. This storm is the accepted standard within Southern Ontario for designating flood prone lands and provides the basis for the Regulations adopted by Halton Conservation.
The tribunal understands that different policies existed when Mr. Curk received his severance, but the tribunal accepts that the data now available is more accurate than that used during the severance hearing in 1978. This has resulted in the Authority's altered position that the Curk property is completely within the floodplain of the Sixteen Mile Creek as opposed to there being "sufficient flood free land" available for development.
Policies, regulations and procedures change over time in every aspect of government operations as well as within private enterprise operations. Documents such as the Ontario Building Code have been revised over the years as better information and methods are developed to improve safety within building standards. The Province developed Policy Statements to deal with issues facing the population with regard to planning and development. Floodplain policies were developed to implement the altered provincial direction to minimize the creation of new problems as opposed to the building of large flood control structures. These policy documents were supplemented with guidelines, in order for the agencies and the general public to understand what was being required. Halton Conservation, along with many other Authorities, were able to develop better methods of determining the extent of flooding in the river valleys under their jurisdiction. This work has resulted in new policies and regulations.
The tribunal accepts the fact that society must abide by the laws in force at the time of any action taken. Even if Mr. Curk had been aware of the changes made to the Authority's flood plain policies (and attended the Public Meeting) as well as the changes adopted in the new Official Plan and Zoning By-Laws (which designated his lands as floodplain where further development should not take place) any opposition would not have changed the outcome because the updated information had altered the circumstances. It is unfortunate for him that he did not act earlier on his approval nor understand the implications of the changes. Ignorance of the law has never been accepted as a reason for allowing something to occur that is not allowed.
It is for these reasons that the tribunal finds that the Halton Conservation policies and guidelines, as well as all other municipal and provincial policies, in place at the time of the Curk application to construct a home are the only relevant documents to be considered in this hearing and they will take precedence over the previous policies in effect in 1978.
Issue #3: Should the matter of the severance approval be relevant in determining the appeal?
The tribunal views this matter more as an issue of planning than of conservation, but will deal with this matter since it was one of the major issues raised by the appellant.
Counsel argued that Mr. Curk's right to build a home stems from the fact that the lot had become non-conforming when the by-laws and policies had changed. Other than making this statement, no evidence was provided to back up this argument.
Barron's Canadian Law Dictionary defines "Non-Conforming Use" as follows:
A use of land or buildings that lawfully existed prior to the enactment of a zoning by-law and that does not conform to the by-law enacted but may continue to exist as a 'non-conforming use'. (Fourth Edition p. 182)
There was no change in the use of the land before the by-law was amended by the Town of Milton. The lot was vacant then as now. It would appear that the issue of non-conformity does not exist but in any case, it is not relevant to the decision as to whether the lot is subject to flooding under to-day's standards.
In addition, the tribunal has found that the verb "to sever" means to divide or make separate. (Oxford Dictionary - Seventh Addition) The noun "severance" is the severed state. That is all it means. There are no implied rights other than the land can be sold or transferred as a separate entity. There may be an expectation of rights such as those held by Mr. Curk because he was required to say why he wanted to sever his lands and paid taxes (like anyone else with vacant land). The Land Division Committee, however, is authorized only to divide the land, not comment on the future land use and certainly not provide any building approval. Nor was Halton Conservation.
What Mr. Curk has is a lot of record which is located within the flood regulated area of the Sixteen Mile Creek, which now has greenlands and open space designations attached to it. The uses allowable are those outlined for vacant land within these zones. Actually, no evidence was submitted that outlined the designations of the lands at the time of the severance with the exception of the statement in Exhibit 5 - the Minutes of the November 1977 Land Division Committee - that the applicant "realized the Planning Dept. felt that it was not an exact conformity to the zoning by-laws ".
Of additional interest to the tribunal are some statements found in the Flood Plain Planning Policy Statement of October 1988. Page 51 deals with lots of record affected by the floodplain. It states:
While existing lots of record may require special consideration due to real or inferred development rights, the technical information and subsequent policies change over time. Because development rights may have been conferred on individual properties at one point in time, there should be no inferred property owner entitlement to development rights in perpetuity.
In the Curk case, development rights may have been "inferred" but as stated, they were not "conferred". Despite either of these words, the rules changed and Mr. Curk got caught in this change and was required to follow the new rules to apply for permission from Halton Conservation to build a residence. The tribunal notes that the Town of Milton Planning Dept. advised his Counsel of the need to follow this process. (Ex. 2-6)
The tribunal finds that the fact that Mr. Curk received a severance in 1978 has no more relevance to the hearing only as historical data. It happened and it has resulted in a parcel of land being created that is the subject of this hearing.
Issue #4: Does the application for the construction of a dwelling unit meet the goals, objectives and policies of the Province of Ontario, and the Halton Region Conservation Authority?
Conservation Halton receives its mandate from the Conservation Authorities Act. This Act provides the goals or objectives of all Authorities in the province through subsection 20.(1) in which they are authorized to establish programs to further "the conservation, restoration, development and management of natural resources".
And further, clause 21.(1)(a) provides the Authority with the ability to develop programs "whereby the natural resources of the watershed may be conserved, restored, developed and managed ".
This is the mandate that Halton Conservation was dealing with when they undertook the Floodline Mapping Study of the Sixteen Mile Creek in 1987-1988. (Ex. 4-B:3-3) This report provided the updated floodplain information which the Authority, subsequent to the 1978 Curk severance approval, adopted as the basis of their policies for the management of the Sixteen Mile Creek watershed. The flood and fill lines shown on Sheet 25 (Ex. 1-2) were established using the technical methods accepted by the Province of Ontario and funded through the Canada/Ontario Flood Reduction program. The tribunal has already found that this is one of the relevant policy documents upon which the Curk application must be reviewed. (Issue #2)
Halton Conservation staff are authorized to use the mapping document, along with others that have followed, such as the 1999 Fill. Construction and Alterations to Watercourses - Policies and Procedures (Ex.4-A:2-6) in determining their recommendations regarding any development applications in the valley system of the Sixteen Mile Creek. This later document further enunciates the principle mandate of Halton Conservation as:
to prevent the loss of life and property due to flooding, to prevent pollution and to conserve and enhance natural resources.
Moving on to provincial policies, the tribunal, as well as Halton Conservation, are required to "have regard to" these policy statements. The Preamble of the 1997 Provincial Policy Statement (Ex.4-A: 2-4) provides an overview of why such statements have been issued.
Doing things right the first time can avoid the need for costly remedial measures to correct problems. and also
The wise use and protection of these resources over the long term is a key provincial interest.
The policy statement continues with a list of principles dealing with the management of change in such a way as to protect the environment. The third principle states that Ontario's environmental health and economic prosperity depend on:
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 property damage.
The tribunal finds this principle significant in the Curk application in that the land in question is totally within the calculated Regional Storm flood plain for the Sixteen Mile Creek, an area designated as a risk area. This fact, as submitted by the respondent, was agreed to by the appellant's witness, Mr. Clipsham, and was not disputed by his Counsel.
A third provincial policy document of note is the Flood Plain Planning statement, approved by the Lieutenant Governor in Council on August 11, 1988, a document issued jointly by the Minister of Natural Resources and the Minister of Municipal Affairs. This management document puts forth three components which are to work in concert:
- Prevention: involves land use planning and regulation of development;
- Protection: involves structural and acquisition measures; and
- Emergency response: involves flood warning and combat/disaster relief.
This policy emphasizes "the preventative approach" as the preferred approach to flood plain management within the province. The statement's Implementation Guidelines - October 1988 (Ex, 4-B: 3-10) expands the principles and provides detailed guidelines to Conservation Authorities for their use in dealing with development. The guidelines state that Official Plans should include policies that prevent new buildings or structures from being built on lands susceptible to flooding. (p.15) The tribunal was impressed with the comparison, provided by Ms. Axon, between the policies in the State of Michigan and the Province of Quebec regarding flood plain protection and the results of the preventative policies as emphasized by the Province of Ontario. Substantial sums of public and private dollars have been saved in this province because of this emphasis. (Ex. 4-C: 4-3)
These are the basic policies which guide the work of Halton Conservation. The tribunal accepts all these policies, in their general sense, as they relate to this work but must examine some of the specifics of the policies in order to decide the Curk matter. This has been done by reviewing the reasons provided by Halton Conservation in refusing the Curk application, resulting in this appeal.
The building envelope would occur within an area identified as hazardous lands adjacent to a river or stream system which is impacted by flooding and or erosion hazards, contrary to Provincial Policy 3.1.1 b. and with regard to the Authority's policies
The establishment of a building envelope in this location "is contrary to Conservation Halton Policy 3.1, Valleys, Flood Plains and Wetlands, which prohibits development in hazardous lands."
Evidence of historical flooding throughout the Sixteen Mile Creek was provided to the tribunal, but, most of this evidence dealt with flooding either in the actual lower reaches of the watershed or within the urban area of Milton and did not specifically deal with the Curk lands. The Curk's pointed out that, to their knowledge, the property has not flooded in over fifty years and they had never seen any 'raging torrent" in the vicinity of the land.
Notwithstanding this testimony, the tribunal understands and accepts that the floodline policies of Halton Conservation are not based on an actual flood event but on a calculation which used the Hurricane Hazel storm (centred over the Humber River Watershed) as the basic guideline for plotting the Regional Storm levels in the watersheds of Southern Ontario. The 1988 Proctor and Redfern Study determined this line for the Sixteen Mile Creek. The records indicate that the Regional or Regulatory Storm floodline on the Curk property would be at an elevation of 209.96 metres (or 209.93 metres as per Ex. 34) while the ground elevations on the site range from 207.85 to 209.53 metres creating flood depths of 0.43 to 2.11 metres (1.41 feet to 6.9 feet) over the site. This data clearly places all of the Curk lands within the hazard lands definition of the Provincial Policy Statement. Of interest to the tribunal was Mr. Guther's testimony that later analysis has increased the amount of rainfall that could be expected if a "Hazel" storm occurred over the Sixteen Mile Creek which could increase the flood depths and the potential for higher peak flows in the watershed as urban development takes place further upstream.
The tribunal further notes that Mr. Clipsham used the Authority figures to argue his development proposal for the Curk lands. As a result, no disagreement as to the calculated flood level figures was apparent to the tribunal. Both the Authority and Mr. Curk's witness agreed that the data used for the site was based on a positive comparison between the appellant's survey data (Ex. 2-9) and the Authority's topographic information on Map Sheet 25.(Ex. 1-2).
The Provincial Policy Statement (3.1.1.b) generally directs development away or outside of hazard lands, while Halton Conservation's Policy 3.1. (p.10 - Ex. 4-A: 2-4) outrightly prohibits development within a creek valley, hazard lands and wetlands. (p. 14 - Ex.4-A: 2-6) Based on these policies and the floodplain evidence provided, the tribunal finds that it is quite clear that the Curk property lies solely within the calculated Regional Storm flood line of the Sixteen Mile Creek, which line is accepted as the regulatory storm. The impact from possible flooding is increasing as time passes. As a result, the tribunal has no dispute with the conclusion reached by the first and fifth reasons in Halton Conservation's decision and recognizes that the lands are totally within the hazard area of the Sixteen Mile Creek, where, under Halton Conservation policies, development is prohibited.
The establishment of a building envelope in this location is contrary to Provincial Policy 3.1.2 b), which prohibits development in a flood way;
Firstly, the tribunal notes that Policy 3.1.2.(b) refers to "connecting channels" while Policy 3.1.2.(c) refers to "floodways". The tribunal assumes, due to the wording of the sentence, that the later was the Policy being utilized by the Authority staff and will refer to 3.1.2.( c).
The Provincial Policy Statement clarifies that in the "one zone concept", the floodway is the entire flood plain. Mr.Harris indicated that the Sixteen Mile Creek watershed fell within this "one zone concept" and therefore, the floodway is the whole floodplain.
A second definition of "floodway" is outlined in the Flood Plain Planning Policy Statement:
the channel of a watercourse and that inner portion of the flood plain where flood depths and velocities are generally higher than those experienced in the flood fringe. The floodway represents that area required for the safe passage of flood flow and/or that area where flood depths and/or velocities are considered to be such that they pose a potential threat to life and/or property damage.
The tribunal accepts that there is no "flood fringe" involved within this valley, although it is noted that Mr. Quirt attempted to insert the concept of a flood fringe into the discussion. As a result, the tribunal finds that the Authority was following provincial policy with regard to Reason #2 in which development in a floodway is prohibited.
The establishment of a building envelope in this location "would create and aggravate existing flooding hazards in the area, contrary to Provincial Policy 3.1.3.( b);
Policy 3.1.3.(b) directs that no new hazards should be created or existing hazards aggravated by development or site alteration on lands designated as hazardous. To this point, it has been established, and agreed upon by the tribunal, that the Curk property is totally located in a floodway which will be susceptible to flooding by the Regulatory Storm, and therefore can be classified as "hazardous land".
Mr. Curk's witness, Mr. Clipsham, recognized all of these conditions, but submitted that with the use of fill, a new residence could be constructed on the site and a reasonably safe access through the floodplain to Peru Road could be provided. He proposed to secure the required fill from another part of the property in order to create a "balanced cut and fill" situation.
The details surrounding this proposal were vague and for the most part, produced while the witness was actually testifying during the hearing. Mr. Clipsham indicated that he had not done, nor been asked to carry out, an "Incremental Balance Study" for Mr. Curk regarding his proposal, so he was not able to provide the tribunal with any information regarding how much fill would be required. In addition, since none of this information was submitted to the Authority for review prior to the negative decision being made regarding the "building envelope" application, the respondent was not able to provide any proper response as to the impact of the proposal. As a result, the tribunal finds it difficult to put much weight on Mr. Clipsham's evidence, but is sure that if he had been given the proper opportunity to prepare a submission for the Authority, it would have been reviewed carefully with regard to the flood plain cross sections and data regarding the Sixteen Mile Creek.
In this regard, the tribunal is aware that an engineered solution probably could be developed, but the question remains whether that solution would meet the guidelines set down in all the policy statements. The tribunal finds Mr. Guther's reference to the provincial policy compelling, where it indicates that if anyone of the conditions in the guidelines cannot be met, then the proposed development should not be approved. (Policy 3.1.3.)
The policy issues basically were used in recommending a refusal of the Curk application, but the discussion of Mr. Clipsham's proposal raised the issues that the Authority anticipated in the third reason for refusal. Mr. Harris indicated that these issues would revolve around the possible impact of the filling or the altering of the floodplain on the flood levels of upstream properties by a reduction in flood storage. Mr. Clipsham suggested that this affect would be minor since a "balanced cut and fill" operation was to be used on the site.
However, other evidence suggested that even if flood waters could flow through the proposed driveway culverts, the danger of debris building up along the driveway to the point where the culverts could be blocked and therefore, of no further use, was a very real concern. Both the barrier of the house and the driveway likely would .force the flood depths to increase, thus increasing the potential for flooding upstream beyond the existing regional storm level. The fact that the Kelso Dam and Reservoir, because of its designed purpose, would be of no benefit for flood reduction during a Regional storm, gave the tribunal pause in considering it as a benefit for the Curk property. In fact, it would appear that, because of the dam and its inability to reserve flood waters during a Regional Storm, the timing and the severity of the peak flows could be a disadvantage to the downstream lands.
Through the examples provided of various applications denied by the Authority, the tribunal finds that the Authority has been consistent in applying the policies which govern their activities. They appear to have shown flexibility in dealing with existing hazards, such as the approval of the work on the Sandhu property as well as on the existing Curk residence to the north, but flexibility with regard to the creation of new hazards certainly is not supported.
The tribunal finds that this direction is totally within the guidelines and policies of both the Province and the Authority and accepts the premise behind the Authority's Reason #3 as valid. The evidence substantiated the Authority's concern that new development would assist in creating a new hazard and very likely would aid in increasing the flood hazard in the area.
The establishment of a building envelope in this location "would prevent vehicles and people from safely entering and exiting the area during times of flooding, erosion and other emergencies, contrary to Provincial Policy 3.1.1.d) ;
The part of the definition of floodway as representing" that area required for the safe passage of flood flow and/or that area where flood depths and/or velocities are considered to be such that they pose a potential threat to life and/or property damage" is significant to the Curk proposal in that it was this issue that produced extensive discussion involving velocities and flood depths and their relationship to the potential for the threat to life and/or property.
The tribunal referenced the Flood Plain Planning Policy Statement (August 1988) and its Implementation Guidlines (October 1988) in dealing with the matter of safety regarding the Curk proposal. This deals with both the floodproofing of the proposed residence and the access/egress of the residents through the floodplain to Peru Road and beyond.
The first part of the policy for floodproofing in Ontario (page 30 -Ex. 4-B:3-10) basically states that any permitted flood plain development must be protected by acceptable flood proofing. In this regard, Mr. Clipsham submitted that a residence could be built in the flood plain and flood proofed to meet the provincial criteria to provide safe living accommodation. This residence would require fill for landscaping and for the provision of a driveway which Mr. Clipsham also submitted would provide safe access and egress for the residents.
In addition, Mr. Quirt submitted that, under the Provincial Policy Statement. the proposal should be considered "infilling", in which case, the policy provides for flexibility by allowing "any acceptable flood proofing" measures to be used for development in a floodplain. Upon reviewing this statement on page 36 of the Implementation Guidelines for the Flood Plain Planning Policy Statement. the tribunal instead accepts Mr. Olah's submission that this policy refers to non residential/non habitable development and not to development such as proposed by Mr. Curk.
The definition in the policy (page 33) describes infilling as "development of previously undeveloped lots generally bounded by existing development on adjacent sides". These words provide the tribunal with some understanding as to why Mr. Quirt would attempt to attach this definition to the Curk proposal. However, the tribunal finds that the Curk proposal cannot be considered as "infilling" just because Mr. Curk already has a residence on a lot to the north along Peru Road that was constructed prior to the current flood plain policy guidelines. The definition provides some flexibility in the policy, but the tribunal notes that floodproofing is only allowed if the criteria concerning flooding depths and velocity can be met and if safe access/egress can be provided to the property.
With regard to this safe access/egress matter, reference is made to the second part of the floodproofing policy statement on page 30 of the Flood Plain Planning Policy Statement (August 1988) and its Implementation Guidelines (October 1988) whereby vehicular and pedestrian movement must not be prevented during flood conditions for any new buildings.
The cross sections, submitted through the Proctor and Redfern study, provide the data used to determine the flood depths, velocity and roughness of the flood waters on any particular flood plain site. Mr. Quirt attempted to "improve" the flood data's affect on the Curk property through the debate regarding a hypothetical cross-section, but this did not provide the tribunal with any credible information since, as Mr. Olah observed, it was created by Mr. Quirt using "apples and oranges". Only the depth figure was used in the interpolation, not the velocity figure. If the velocity figure also had been used, Mr. Harris demonstrated that the depth/velocity product would have been higher than that at the cross section used to review the Curk application. (Section 15.360) It is this Depth and Velocity Product (Threat to Life) which tells the tale with regard to the application.
Having prepared the new cross section in response to the product debate, (Section 15.30) Mr. Guther was able to provide the tribunal with further data, as well as deal with Mr. Quirt's concern that another cross section at the point of entry to the site would provide for a better review of the application. As it transpired, the data for the two cross sections were virtually the same, although the velocity was dropping slightly in the new location.
During this process, the regulatory flood levels were adjusted slightly to 209.93 and 209.92 respectively (page 33 of Evidence). However, the results of this calculation indicated that the guideline for a low risk hazard ( less than or equal to 0.4 m²/s) for the Depth/Velocity Product continued to be exceeded in the vast majority of situations over the property. The following situations, located opposite the proposed entrance to the property, substantiate this fact for the two cross sections:
- at the centre of Peru Road - (209.14 m. elevation) - product is 0.442 and 0.421 m²/s.
- at property line - (208.59 m. elevation) - product is 0.75 and 0.79 m²/s
With the introduction of the access driveway through the flood plain, the safety issue becomes of major significance. Mr. Clipsham had proposed that the driveway be filled to an elevation any where from 209.26 metres to 209.70 metres resulting in an approximate reduction of the flood depth to 0.64 metres (2.16 feet) to 0.22 metres (.72 feet). However, the crest of Peru Road is at 209.14 metres, a level lower than the proposed access driveway. Mr. Clipsham acknowledged that the driveway height would need to be modified in order to meet the existing level of Peru Road. This would naturally increase the depth of the flood waters in the vicinity of the property's access point to approximately 0.74 metres to 0.82 metres (2.55 to 2.679 feet). Using the velocity average of .55 m/s, the product value at this point would be 0.396 to 0.451 m²/s, the later value exceeding the provincial guidelines. It does not exceed the product guideline by much, but the tribunal accepts Mr. Guther's statement that this guideline is considered a "maximum", not a minimum.
The evidence did not establish the actual length of the driveway, but it was estimated to be in the neighbourhood of eighty to one hundred metres (260 0 - 328 feet). The driveway would be built with fill, on top of the floodplain. The flood plain elevations throughout the driveway area vary from approximately 208.72 to 209.32 metres, resulting in an approximate minimum flood depth of 1.2 metres to 0.6 metres (3.93 -1.97 feet) on either side of the driveway. Using the average of elevations 208.72 and 208.89 metres (208.8 m), as shown on the Cunningham topographical survey (Ex. 1-1) at the driveway's midway point to Peru Road, there could be a flood water depth of 1.12 metres (3.67 feet) along it's sides. The flood depth on the driveway itself would vary, depending on the final height (as indicated in the previous paragraph), from 0.22 to 0.64 metres (.72 to 2.16 feet). The result would be a 80 to 100 metre driveway covered with an average of 0.43 metres (1.4 feet) of water and surrounded by an average depth of flood waters of 1.12 metres (3.67 feet). At the average velocity of 55 m/s, the product result would be 0.236 m²/s on top of the driveway and 0.616 m²/s along the sides, in the flood plain.
This may produce a simplistic argument, but when the tribunal reviews the matter in this manner, it is clear that through a portion of the driveway's length, the flood depth of 1.12 metres (3.67 feet) in the floodplain exceeds the depth guidelines of 0.8 m (2.6 feet). As a result, the product of the velocity and depth exceeds the guidelines in this circumstance in the floodplain, but can meet the guidelines on top of the driveway.
The floodplain guidelines speak to the ability of young children to maneuver through about 1 metre (3.3 feet) of flood waters without floating, while adults would float in depths above 1.4 metres (4.5 feet). The tribunal, however, notes that this applies to "stagnant backwater areas" with zero velocity. That is not the case in this circumstance and the tribunal must assume, without further technical data, that the flood water will have a greater velocity than zero, both on top of the driveway and certainly in the floodplain area and as a result, there certainly could be a danger to young children in any attempts to wade through flood waters. With regard to vehicular access, typical automobiles, but not emergency vehicles, have the potential to be halted on the proposed driveway area in the average water depth of 1.4 metres. The guidelines suggest these vehicles will be halted in water depths of 1 to 1.5 metres while emergency vehicles would be affected in the depth range of 0.9 - 1.2 metres (3-4 feet).
The issue, therefore revolves around safe ingress/egress over a driveway constructed through a flood plain and through the actual/existing access point to Peru Road. During a regional storm event, pedestrians and vehicles leaving the shallower flood area of the driveway, could drop into the deeper flood plain area at either side without knowing what was happening. Mr. Clipsham's comments about wading through the water if a car stalled out also could lead to people falling into the deeper flood areas. Some sort of markers would be required along the edge of the driveway. During peak flow conditions, however, there would be a strong potential for these markers to disappear, thus removing the "safety" feature.
In addition, the tribunal has great concern about the access point at Peru Road where the driveway would have greater flood depths because of the existing grades. Neither of these factors provide security for safe access and egress to the site. Once on Peru Road, the only way out of the flood plain would be northwards.
The tribunal shares the authority's view regarding the lack of safe access/egress for the proposed building envelope and finds Mr. Guther's reference to the Natural Hazards Training Manuel (Ex. 4-A: 2-5) both compelling and very relevant to the Curk application. This policy condemns the creation of new hazards in the flood plain and states:
care should be taken when fulfilling this requirement to ensure that the selected approach does not compromise the other requirements identified in Policy 3.1.3. For example, constructing an elevated access roadway to permit development within a flood susceptible area that in turn increases flooding on adjacent lands and compromises Policy 3.1.3.(b) should not be considered acceptable. (p.7)
The tribunal finds that the application does not meet the requirement for safe access for pedestrians and vehicles as outlined in the policy documents. (3.1.1.d) The safety of humans, whether on foot or in vehicles, in the end, must be the main concern of the tribunal.
As noted, the tribunal has found that the safety issue is of the utmost importance in making the decision relative to the building envelope proposal and in this regard, the tribunal is clear that the site does not provide for this security. As such, the tribunal does not find any justification to allow a further encroachment into the flood plain for residential purposes.
Physical encroachments into flood plains for new dwellings and driveways, as proposed here, have, in the past, cost this province millions of dollars and many lost lives. Commissioner Ferguson alluded to this problem of encroachment and it's effects in Churchill v. Halton Region Conservation Authority in his 1988 decision. He stated on page 9:
Any physical modification of the flood plain by fill, channelization, bridge abutments or other structures has an effect on the flood plain. Any activity within the flood plain such as the proposed fill may have the effect of increased flooding on the site, either upstream or downstream.
The tribunal agrees that each time this happens, the flood plain storage area is reduced. Flood depths and velocities increase, raising the danger to pedestrians and vehicles, as well as property.
The Provincial policies point to a preventative approach, an approach now accepted throughout Ontario and adopted by Halton Conservation and in this case, by the tribunal.
The tribunal finds that the goals, objectives and policies of the Province and the Authority can be met only by refusing to allow this new development within the flood plain of the Sixteen Mile Creek. Due to the location of the Curk property in an expansion area of the Town of Milton, an approval of this kind could also contribute to being' cumulative effect' and this is an issue that will be facing the Authority to an increasing degree over the next few years. New technological advances will undoubtedly create changes in the Authority's data base and mapping as years go by, but the Authority needs to be consistent in applying their policies, as they appear to be doing by refusing applications which are totally within designated hazard areas.
In view of the tribunal's position that the Provincial and Authority policy statements must take precedence, in particular as they relate to safe access, it will order that this appeal be dismissed.
The tribunal further finds that no costs shall be payable by either party to this appeal.