The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to issue permission to construct an addition to an existing house, situate on lots 11 and 12 in Concession III, West of Hurontario Street, in the Town of Caledon in the Regional Municipality of Peel.
James Young and Madelaine Young
Credit Valley Conservation Authority
J. P. Kiss for the appellants.
R. I. R. Winter for the respondent.
The appellants appealed to the Minister of Natural Resources from the refusal of the respondent to grant permission under Ontario Regulation 211/73 to construct an addition measuring twenty feet by twenty-two feet to an existing residential property on the westerly bank of the Credit River in lots 11 and 12 in Concession III, West of Hurontario Street in the Town of Caledon. The power and duty of hearing and determining the appeal was assigned to the Mining and Lands Commissioner by Ontario Regulation 90/78. The appeal was heard in Brampton on April 4, 1978.
Under Ontario Regulation 211/73 permission in writing of the respondent is required before erecting a structure in the floodplain of the Credit River. The appellants acquired the subject lands eleven months ago. The subject lands have a frontage of approximately 160 feet and a depth of approximately 360 feet. Erected on the subject lands is a three bedroom bungalow which probably had been a cottage at one time and has been winterized. A number of properties are situate along the western bank of the river and are either summer, cottages or winterized cottages. The house is situate approximately 150 feet from the west bank of the river.
The regional storm elevation for the part of the watershed in which the subject lands are situate lies between 860 feet and 862.5 feet. The elevation of the existing house on the subject lands and the site of the proposed extension lies between elevation 852.5 feet and 855 feet. The mean depth between these elevations is seven and one-half feet indicating that in a regional storm the subject lands would be inundated to that depth. James Young, one of the appellants, indicated that Credit Road which provides access to his property is at an elevation similar to his home and the floodline plans indicate this road to be at elevation 855 which would result in a depth of water from five to seven and one-half feet from a regional storm. Although the house is approximately 150 feet from the river the regional floodline is, by scaling, approximately four to five hundred feet westerly of the house.
The existing residence of the appellants lies approximately parallel with the Credit River. The house is constructed on a foundation and has a crawl space approximately three to four feet in depth under the house, the walls of which have been made of concrete block. The proposal was to add an extension on the southeast corner of the house measuring twenty-two feet in an easterly direction and twenty feet in a northerly direction from the southeast corner. In other words this addition would lie between the existing house and the river. The plans submitted with the application showed that the building would be erected on short concrete piers. The floor would be constructed at the same elevation as the floor of the existing house. There was nothing in the plans to indicate that the addition would be floodproofed in any manner.
Prior to submission to the executive committee of the respondent the application was reviewed by staff of the respondent. The staff indicated that they would not support the application and suggested that as an alternative the appellants might consider the construction of a second storey on the house. This suggestion was made without any proper inspection of the house to determine whether the construction of a second storey was architecturally feasible. Following a hearing the executive committee of the respondent rejected the application on the grounds that the proposed structure will, be susceptible to flooding and will affect the control of flooding. The appellants appealed on the grounds as follows:
- The control plan as determined by the Credit Valley Conservation Authority unduly restricts the proposed development.
- The proposed development will not be susceptible to flooding.
The appellants put in evidence the issue of two permissions in 1973 by the respondents and called as witnesses the recipients of the permissions.
Permission had been issued to Joseph De Boer for an eight foot by sixteen foot addition to a residence that was situate on the westerly side of Credit Road immediately across the road from the property of the appellants but still within the floodplain. At the time of construction Mr. De Boer was not required to raise the structure above the regional flood elevation. On cross-examination it was brought out that it was clear at the time of the issue of the permission that the purpose of the addition was for storage only and that the permission had a condition that the addition was not to be used for living area and could be revoked if it was used for such purpose.
Mrs. Pauline Kowbuz, who has resided in the area for twenty-five years, is an owner of a parcel of land fronting on the river and situate approximately five hundred feet northerly of, the subject lands. She and her husband own property having approximately 75 feet of frontage on the river and measuring 355 feet in depth. This property is not completely in the floodplain as a triangular portion at the northwest corner and perhaps extending for the full frontage of the property on Credit Road is above the floodplain at this location. Permission was granted by the respondent for the building of a home as contrasted with a cottage on the slope at this high part of the lot. Mrs. Kowbuz gave evidence that they were required to put in 200 truck loads of fill. Her evidence was not clear as to whether this was required by the conservation authority, the Ministry of Health in respect of septic tanks or the municipal building department. Regardless, this quantity of fill was placed on the property and the septic tank bed was installed in the fill. According to the calculations of Mr. G. Papadopoulos, the Regulations Enforcement Officer of the respondent, approximately four to five hundred cubic yards of fill would have been placed on the property.
On cross-examination it was brought out that there were four conditions of the permission. One of the conditions was that there should be no openings below the regional floodline. Secondly, the fill was required to be compacted to a specified standard. Thirdly, fill was limited to that shown on the plan and fourthly, the authority was not to be held responsible for loss of life or property damage resulting from flooding or slope failure. It was also recommended in the permission that a slope stability study be done for the banks on the property but this has not been carried out by the owners.
Both witnesses gave evidence that in their experience the river had never overflowed its banks.
Basil Albert Noles, P.Eng., the Operations Manager for the respondent, gave evidence of the floodline elevation and other relevant elevations in respect of the subject lands. He was cross-examined in respect of the permissions issued in 1973 for the Kowbuz and De Boer properties. As his employment by the respondent commenced after the issue of the two permits he was unable to assist with the discussions, if any, respecting the placing of fill or the implications of reduction of storage capacity, particularly in connection with Kowbuz's application. In the present case the loss of storage capacity and the susceptibility of the proposed building to flooding were the reasons for its refusal. He also indicated later in his evidence that there was an additional matter involving the effect on neighbouring properties resulting from change in currents. This evidence relates to the application of the constriction principles and in this regard it may be noted that the proposed addition is erected relatively close to the river in respect of the portion of the floodplain at which it is proposed to erect the addition and that the addition is at right angles to the flow of the river in the event it were to flood.
The witness was extensively cross-examined on the comparative significance of loss of storage capacity between the Kowbuz property and the proposal. Although he had not calculated the loss of storage capacity of the proposal he did agree that there was substantially more fill and loss of storage capacity in the Kowbuz application. Counsel also submitted to the witness that if floodwaters rose to the regional flood elevation they would flow into the proposed building and consequently there would be negligible interference with the storage capacity. The witness pointed out that this would be unlikely unless someone were to open the doors and in this regard he also pointed out that it was significant that such flooding would cause damage to the property.
With reference to the De Door addition the witness indicated that in cases of additions for storage purposes the policy of the respondent was not to hold that the loss of storage capacity was sufficient to refuse the granting of permission. Counsel suggested to the witness that the safety of the residents was not a matter to be considered by the respondent but a matter that should be viewed in the light of the property owner having assumed this risk. The witness did not exhibit any enthusiasm for this approach.
Counsel inquired as to whether the formula for the establishment of the regional storm elevation contained a safety factor. The witness indicated that his understanding of the formula was that it is an accurate calculation according to the scientific theories and does not contain a percentage increase in the nature of a safety factor. In his understanding the calculation is an accurate calculation of what would occur in a regional storm.
The witness indicated that there had been a general tightening of the policy of the respondent. He admitted that in the beginning there was a period of adjustment and in later years more serious considerations have been given to the more numerous applications, that have been received.
George Papadopoulos, P.Eng., the Regulations Enforcement Officer of the respondent, gave evidence of the general practice in respect of processing of applications, the discussions with the appellants and the making of an alternative suggestion. With reference to the Kowbuz application he pointed out that under the present policy of the respondent the permit would not be issued on the same basis as it was issued in 1973. It would be necessary for the Kowbuz's, if they were to apply today, to adopt the stage storage principle and provide alternative storage at the same elevation as the storage that would be utilized by the placing of fill and the construction of the building. He also indicated that under the current policy the respondent does not grant permission to construct living quarters below the regional floodline.
On cross-examination the witness enlarged upon the change in policy regarding applications which could be subject to the stage storage exception. He pointed out that today the respondent would require specific and detailed locations of buildings and grades and the provision of an equivalent storage replacement. Counsel asked the witness that if the loss of storage was not a factor in the Kowbuz application, were there any other factors to be considered. The witness indicated that the protection of people from the hazards of flooding not only to the applicants and the residents of the buildings that might be erected by applicants but to other property owners is a significant issue. Having established that there was no change in the regulation since 1973 at the time the Kowbuz application was granted and having brought out that the loss of storage capacity in the Kowbuz application was approximately 400 cubic yards as contrasted with 150 cubic yards in the present application, the witness agreed that had the application been for non-living accommodation the application might have received favourable consideration. He also admitted that there was no architectural or engineering basis to support the suggestion that a second storey be constructed to the building and that the only basis for this suggestion was that it would not increase hazards.
Counsel for the appellants argued that it is a principle of Ontario law that where an administrative body has been given jurisdiction, a person who is subject to that jurisdiction should be able to examine the past decisions of the administrative tribunal and based on the prior decisions determine the action he may take. He submitted that the respondent had in effect changed its policy improperly and that having regard to the type of decisions rendered in the past in the Kowbuz case and the De Boer case it was evident that the respondent was applying different principles to the present applicants than had been applied to other applicants in the past. He compared the granting of permission in the Kowbuz case where a substantial house with all its accoutrements was permitted at a location a similar distance from the river with the present application where an application for an extension of an existing building was denied. He submitted that there was no reason for such a difference in the application of the same regulation.
Counsel for the appellants argued that he had established that there was a comparatively insignificant loss of storage capacity in the proposal of the appellants, particularly in relation to the Kowbuz property and on this basis the present application should be considered to be less objectionable "than the Kowbuz application.
Counsel for the appellants argued that as the evidence clearly established that the significant factor considered by the respondent in refusing the present application was the fact that the subject matter of the application would be used for living quarters, such a consideration was beyond the matters to be considered by the respondent in exercising its jurisdiction. Section 4 of Ontario Regulation 211/73 reads as follows:
- "Subject to The Ontario Water Resources Act or to any private interest, the Authority may permit in writing the construction of any building or structure or the placing or dumping of fill or the straightening, changing, diverting or interfering with the existing channel of a river, creek, stream or watercourse to which section 3 applies if, in the opinion of the Authority, the site of the building or structure or the placing or dumping and the method of construction or placing or dumping or the straightening, changing, diverting or interfering with the existing channel will not affect the control of flooding or pollution or the conservation of land."
Counsel submitted that there is nothing in the matters that are to be considered by the respondent under the regulation relating to protection. of individuals from the hazards of flooding or the protection of property. He further submitted that the granting of the De Boer and Kowbuz applications and the refusal of the appellants' application did not establish a rational scheme of administration of the regulations and submitted that the respondent had not shown that there was a rational scheme under which the application should have been refused. He also submitted that in certain cases the word "may", which normally creates a discretion, is interpreted as "shall" and submitted that where statutory powers remove property rights or the right to use property the jurisdiction of the tribunal should not be increased and where an applicant falls within the clear terms of the jurisdiction of the tribunal to grant relief that relief should be granted. He relied on the case of Re Buzunis  3 W.W.R. 180.
The argument of counsel for the respondent was that the issue was not whether the appellants' land is flooded or has been flooded in the past but whether the land is subject to flooding in a regional storm. He also submitted that the question was not whether the Kowbuz or the De Boer permission was granted properly but whether permission should be granted in the specific case to the appellants. He submitted that the evidence indicated that in a regional storm the subject lands would, at the site of the proposed building, be subject. to seven and one-half feet of flooding. He referred to the cottage type of construction in the vicinity and to the north of the subject lands and submitted that the respondent should deal with applications in a reasonable and consistent manner. It was submitted that the evidence showed that since October, 1973 there had been no permission for development or the building of houses in this area and if the Kowbuz case were permitted to stand as an authority for the granting of permission in this case, such permission could not be withheld from all the other properties in the floodplain.
Counsel for the respondent submitted that the regulation had been designed to preserve human life and to prevent tragedies such as Hurricane Hazel and the Timmins storm. He referred to the Grand River flood of 1974 and the subsequent report of His Honour Judge Leach wherein he recommended as Recommendation No.13 that there should be no further building in floodplains. He pointed out the risk of subsequent owners acquiring land without the knowledge of the risks, particularly, if recent construction had been permitted. He submitted that one of the objectives of the regulation is to prevent the flooding of other properties and to prevent the increasing of hazards from flooding during regional storms. He further submitted that part of the flooding hazard against which the regulation had been designed was the destruction and floating away of buildings creating additional flooding hazards. He suggested that a further problem designed to be prevented by the regulation is the dangers to downstream owners resulting from the increased flooding from construction in the floodplain.
With reference to the submission of counsel for the appellant regarding the wording of section 4, counsel for the respondent submitted that the regulation merely sets out the principle and does not detail the methods by which the control of flooding is effected and accordingly, the hazards resulting from additional buildings would not be spelled out in the regulation as they are merely standards or examples or elements of the "control of flooding."
Counsel for the respondent further submitted that it was the obligation of the respondent to weigh long-term effects against the interest of the applicants. Admittedly the interest of the appellants is to obtain permission and the appellants would suffer hardship if permission were not granted. He indicated the willingness of the respondent to agree to an alternative method of construction to offset the hardship suffered by the appellants but submitted that the long-term purpose was to maintain the integrity of the floodplain and to avoid future losses of life and property.
There was some discussion regarding the issue of whether this tribunal could grant approval for an amended plan in which the addition would be placed on three foot concrete pillars erected by the appellants since their application had been filed. In view of the decision in this matter this point will not be dealt with.
Counsel for the respondent requested costs of the appeal. He indicated that the conservation authority was concerned with the cost of defending appeals and the need of taking staff from their work. He submitted that the evidence showed there were twelve to eighteen applications a week to be processed and if all applications were appealed there is a need for some deterrent to restrict the bringing of appeals to those matters where there is justification for appealing. It was submitted that the levy of costs in cases where there is no justification should be an adequate deterrent against unwarranted applications in the future. Reference was made to the fact that some minor steps had been taken in the construction and it was submitted that this was a further reason for awarding costs.
In his reply, counsel for the appellants pointed out that on the issue of personal safety, in this particular case there presently is a family living in the existing residence and the construction of the addition does not increase the element of personal safety. He submitted that the consideration of the nature of the buildings in the area was improper as there is nothing in the regulation that brings such matters within the area of legal consideration by the respondent. With reference to the suggestion of an alternative of building a second storey, it was submitted that the question of whether a reasonable alternative was offered should not be considered by this tribunal but that the question is whether the request should be granted. It was his submission that the only application before this tribunal was the original application of the appellants and there was no request by the appellants for permission that would utilize the cement piers erected by the appellants. It was submitted that the argument on costs was an extraneous argument and that there should be no arguments other than those relating to the flooding issues. The cost of administering the program by the respondent should not be taken into consideration. It was submitted that if an administrative authority uses a wrong principle, a principle so wrong that it begs review, and in fact acted beyond the four corners of its authority it should be reminded and effectively reminded of where its power ends. It was further submitted that if the appeal was denied the only grounds for denying the appeal would be that the proposed addition to the building interfered with flooding and interfered with such flooding out of character with other buildings in the area and in such case the levying of costs would be an injustice as the rights of the property owners have been taken away and they should not be penalized in seeking recourse for removal of their rights in a proper fashion.
The submissions of counsel for the appellants warrant two comments of a general nature. Firstly the general tenor of his suggested consideration of the decision of the respondent was that of a judicial review. His arguments would have been suitable, if not effective, if his client had moved for judicial review of the decision of the respondent, assuming the Divisional Court would concur that judicial review was applicable. The major thrust of his arguments was that the reasons or considerations of the respondent were beyond the jurisdiction provided by the legislative provision, the word being used here in the broader sense of including regulations, and accordingly the decision was wrong.
In this regard it may be noted that the nature of the appeal is not one to assess the legality per se of the decision of a conservation authority. The right of appeal and the legislative provision affecting the appeal are found in subsection 2c of section 27 of The Conservation Authorities Act, as enacted by subsection 4 of section 8 of The Conservation Authorities Amendment Act, 1973, which reads as follows:
(2c) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission.
Firstly it will be noted that the appeal is to the Minister of Natural Resources and not to a judicial body. Accordingly the review can only be considered to be an administrative review of the decision. The nature of the appellate jurisdiction is inconsistent with a concept of judicial review, indicating that the consideration on the appeal should be administrative rather than judicial. Having regard to the breadth of such an appeal, i.e. an administrative appeal, and keeping in mind as was pointed out by counsel that there are defined areas relative to the decision of a conservation authority, there is by contrast no restriction on the jurisdiction of the Minister in his exercise of policy in reviewing the decision. The obvious result is that a conservation authority, applying the principles contained in the section of its regulation analagous to section 4 of Ontario Regulation 211/73 could dismiss an application and on appeal in the interest of a matter of municipal, provincial, federal or even international policy the decision could be reversed. In other words, the review is not necessarily a reconsideration of the principles contained in the regulation although in. the majority of cases there is little else to consider. The significant point is that the review cannot be regarded solely on a judicial approach as to whether the decision of the conservation authority was subject to question on purely legal grounds.
On the other hand, if it became apparent in an appeal that a departure from a proper legal base occurred, and on a policy basis the permission should be granted, it seems unreasonable, inexpeditious and costly to require the appellant to take legal proceedings to quash the decision and in so doing still be in a position where he could not proceed with his undertaking. While there may he theoretical reasons for establishing proper legal procedures, these objectives can be established without requiring an individual landowner to bear the cost thereof and it would seem unrealistic to adjourn or dismiss an appeal on the grounds that this tribunal did not have jurisdiction to deal with the legal issues in a situation where a reversal on a policy ground, if warranted, would finalize the matter. I cannot accept the approach that regardless of the merits on a policy approach, permission should be granted if it can be established that the procedure or considerations of the respondent warrant judicial review. Accordingly the only recourse for this tribunal is to deal with appeals on their merits in respect of policy considerations.
The second general aspect of the submissions of counsel for the appellants related to a concept that the legislation and the creation of jurisdiction in a conservation authority deprives a landowner of his basic rights. While this general approach may be true in some aspects in that use of land may be prohibited or written permission may be required prior to exercise of use, the jurisdiction of conservation authorities is not analagous with building control, subdivision control or zoning laws. The latter are oriented to management concepts and a basic philosophy that the control benefits the public good even if an individual landowner's rights may be affected by preventing a use of which the land is reasonably capable. In contrast, the theory of the jurisdiction of conservation authorities is related not to control of land otherwise suitable for development but to the prevention of development of land that is inherently unsuitable for development. It is not a case of preventing the use of a capability of land but rather a definition of and the prevention of the abuse of an incapacity of land and while the affected land has an appearance of utility, in reality it does not equate with land not having such incapacity. For this reason it is not proper to make complete analogies to the legal considerations of such other areas of jurisdiction.
I have read the Buzunis case but do not find it helpful in this case. It deals with an application under section 32 of The Municipal Government Act, R.S.A. 1970 c.246 which provides for a hearing before a judge in respect of allegations of disqualification of members of councils. Under section 29 of that Act there is an express declaration of disqualification in respect of the purchase of land from the municipality. The case dealt with what Moore J. held to be an innocent purchase in which the mayor purchased a lot from the Town of Fort MacLeod and the mayor and other officials were unaware of the legislative requirements. Counsel for the mayor argued that even though the statutory provisions had been breached, there was a discretion to make the order disqualifying the mayor. Moore J. said at pp. 183 and 184,
"It is contended by counsel for Buzunis that the word 'may' in s. 32(2) of The Municipal Government Act imports a discretion. Section 32(2) states:
- 'Upon hearing theapp1ication and such evidence, either oral or by affidavit, as he requires the judge
- 'may, by order, declare the member to be disqualified, or
- 'may refuse the order, and, in either case, with or without costs.'
In my view, the word 'may' simply means that if a judge feels that on the whole of the evidence a member of council has not breached the Act, then, and only then, the court may refuse the order. If the court is satisfied that the Act has been breached then the word 'may' becomes 'shall' and it is the duty of the court to disqualify the member of council.
In MacDougall v. Patterson (1851), 11 C.B.,755, 138 E.R. 672, Jervis C.J. states at, p. 679:
'...the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'
The Legislature in enacting the legislation which is the subject matter herein intended that only under set circumstances can a member of council purchase real estate from the town. Such legislative direction cannot, in my view, be ignored if the facts in a case clearly indicate that the conditions or procedure prescribed by the Legislature have not been followed.
The word 'may' in s. 32(2) (a) must be read as 'shall' if the provisions of 8.29(2) (m) have not been followed. To hold otherwise would simply create chaos where on some occasions a member might be disqualified by a court and on other occasions disqualification might be refused.
In Wanamaker v. Patterson, [1973) 5 W.W.R. 193, 37 D.L.R. (3d) 575, the Appellate Division of the Supreme Court of Alberta per Clement J.A. dismissed an appeal from Kirby J. reported in  2 W.W.R. 737, 33 D.L.R. (3d) 250, in a case where Kirby J. had declared the mayor of the Town of Claresholm disqualified from continuing as a member of, council. The facts in Wanamaker v. Patterson, supra, are quite different from the instant case, however, it is clear from the learned judgments of Clement J.A. and Kirby J. that a statute of this kind must be strictly interpreted."
His Lordship, having found that there had been non-compliance with the Act, although innocent, held there was no discretion to refuse the order by reason of the innocence. It is noted that the role of the tribunal was fact finding and as a result of other decisions the law was clear. In this case, as in other appeals in addition to the fact issue, there is, in the approach of the regulations under The Conservation Authorities Act, an element of discretion in granting the permission. The words in section 4, "if, in the opinion of the Authority," remove the matter from the concept of a pure fact finding exercise and the exercise is more than a ministerial exercise such as the act or non-act of a building inspector which is subject to mandamus. It is the discretion of the conservation authority that raises the function from that of a ministerial act to an administrative act and one cannot, merely on the grounds of saying that the conditions of section 4 exist demand permission.
Turning to the condition of section 4, it has been observed in other appeals that the principle of the condition does not relate merely to whether there is an effect on flooding, pollution or erosion. The significant words are "control of". It is not only the effect of the particular application on the three matters that must be considered. In permitting exceptions a conservation authority cannot merely determine that there is an effect on flooding and a fortiore, refuse the application. If such were the approach there would be no permission issued, except where the risks can be alleviated, such as in some cases of application of the stage storage doctrine. The significant principle is the "control of flooding" and policies are established by conservation authorities to determine the circumstances in which structures which clearly affect flooding but can be permitted under the control program of the conservation authority may be permitted. Hence there have developed concepts of proposed use of structures and by comparing effects on flooding, without understanding the entire control program one might feel, as the appellants undoubtedly do, that permissions have been granted for more serious intrusions into the floodplain. Flood control not only includes prevention of flooding and damage and loss of life from flooding but also rescue and compensation programs where flooding occurs. These additional matters reflect on the policies to be adopted and relate to the concept of purpose or use of additional structures in the floodplain.
A related question is whether it is appropriate to hold that an adoption of a policy by way of exception to the general principle that all construction in the floodplain is prohibited (section 3 of Ontario Regulation 211/73) warrants the assumption that any other relaxation of the general principle that is analagous to the permitted exception should also be allowed. Keeping in mind that the admitted exception does affect flooding but in the policy of the conservation authority, the control of flooding can permit structures for the class of use, it does not follow that other structures which have an equivalent effect on flooding should be added to increase the overall hazard of a regional flood. A policy decision may be made to permit a certain class of structures for various reasons, such as the low economic cost of the structure, the minimal utilization of storage capacity and the minimal impact on flood control programs particularly those related to actual flood conditions. This does not mean that the flood control program of the conservation authority can assume the additional impacts of a class of use that may not have any greater impact on one particular aspect of the program. In other words, the exception cannot be made the rule, so that any individual structure, although outside the class of permitted uses, that has no greater impact than a structure within the excepted class in respect of one area of concern should by reason of the exception of the class become another exception for the individual structure and hence every structure of the class thereof. The policy decision to permit the first exception usually involves some adjustment of the program for the control of flooding, whether it be the construction of remedial works, the implementation of rescue facilities, or merely an assumption of a greater risk. The need to retain the increased hazard within the control program is obvious and the extension of exceptions on the ground of analogy to one aspect of the control program is dangerous.
Also there is no reason why a conservation authority could not change its policies. The science is relatively new and the scientific principles are constantly improving. Only in 1973 did the concept of definition of the floodplain change from area "below the high water mark" to area "susceptible to flooding during a regional storm" in the Credit River watershed with the repeal of Ontario Regulation 84/71. If the control policies need tightening, there is no reason why such should not be done and if done, precedents of earlier eras are not helpful. Also the concepts of the cut and fill principle have changed in the lost five years and reference to and reliance upon a decision made in 1973 cannot be considered conclusive of what should be done today. Decisions of that year probably reflect older policies and older scientific concepts than those now applicable.
Notwithstanding these comments a comparison of the Kowbuz application and the present application reflects a number of significant differences. Access to the Kowbuz's property and to the house that was erected is above the regional storm line but in the present case all of the subject lands and the access thereto, i.e. Credit Road, would be under five to seven and one-half feet of water in a regional storm. Unlike the present application, the Kowbuz property was capable of realistic floodproofing measures being taken and conditions of the permission related to such matters. Even if the proposed addition, and the existing house, of the appellant were floodproofed, it would be surrounded by a dangerous depth of water and the road would not be passable in a regional storm or storms of lesser intensity. The Kowbuz property was on the fringe of the floodplain. Even if the Kowbuz case is representative of today's policy of the respondent, which was not the evidence of the witnesses, there are three significant differences which would indicate that the two cases are not analogous in relation to control of flooding in all its implications.
With reference to the De Boer permission many conservation authorities permit garages, and outbuildings that are essential to the proper utilization of existing buildings in the floodplain. Usually these additions are small and the cumulative effect on storage capacity can be assumed in the flood control programs. I know of no conservation authority that would extend this exception to residential construction in the centre of the floodplain. The exception falls within those principles mentioned in the third preceding paragraph and, as indicated there, the extension of the exception on the grounds of comparability of loss of storage capacity is not warranted.
There was no evidence of recent permissions for new homes or extension of existing homes in the floodplain and the evidence of the witnesses for the respondent was that such had not been granted since October, 1973. I suspect that there may be cases subsequent to the De Boer case based on the principle of the exception used in that case but as indicated above there has been nothing produced before me to warrant the extension of that principle to residential quarters.
Counsel for the appellants raised the interesting point that the nature of the particular addition would not increase the risk of personal safety that already exists. He submitted that the addition of a living room would not increase the number of persons exposed to the existing risk that has been created by prior owners. While this may be the case with regard to the present owners, there is no assurance that subsequent owners may not utilize the additional space by increasing or otherwise changing the number or age of the inhabitants of the house. Regardless of whether the point is relevant, the significant issues are that with respect to the present application there is a storage capacity reduction, a constriction of flow and a significant risk to personal injury, and there is no adequate method of providing access in the event of a regional flood and no provision for floodproofing of the proposed structure and for these reasons it cannot be said that the respondent was incorrect in corning to the opinion that the control of flooding would be affected by the granting of the permission requested.
In my opinion, the granting of costs in this case is not warranted. An appellant to a provincial minister has no expectation that he may be heard by a tribunal having power to award costs and in the absence of such expectation or other significant reason the power to award costs should not be exercised in an administrative hearing.
It is ordered that the appeal in this matter be and is hereby dismissed.
It is further ordered that no costs shall be payable by either of the parties.
Dated this 17th day of April, 1978.
Original signed by G.H. Ferguson
Mining and Lands Commissioner.