The Mining and Lands Commissioner
Le Commissaire aux mines et aux terres
H. Dianne Sutter
Deputy Mining and Lands Commissioner
Friday, the 14th day of July, 2000
The Conservation Authorities Act
In the matter of
An appeal to the Mining and Lands Commissioner under subsection 28(5) of the Conservation Authorities Act by W.M.J. Gies Construction Ltd against the refusal by the Grand River Conservation Authority to grant permission for the construction of an access lane on Part Lot 16, Concession 5, City of Guelph.
W.M.J. Gies Construction Limited
Grand River Conservation Authority
Whereas an appeal to the Minister of Natural Resources was received by this tribunal on the 27th day of April, 1999, 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 Tuesday, December 7th, Wednesday, December 8th and Thursday, December 9th, 1999 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 Grand River Conservation Authority to grant permission for the construction of an access road through the floodplain and provincially significant wetland within the Hanlon Creek Watershed on Part Lot 16, Concession 5, City of Guelph be and is hereby dismissed.
- This tribunal further orders that no costs shall be payable by either party to this appeal.
Dated this 14th day of July, 2000
Original signed by H. Dianne Sutter
Deputy Mining and Lands Commissioner
The Mining and Lands Commissioner
Le Commissaire aux mines et aux terres
File No:CA003 - 99
Friday, the 14th day of July, 2000
H. Dianne Sutter
Deputy Mining and Lands Commissioner
The Conservation Authorities Act
In the matter of
An appeal to the Mining and Lands Commissioner under subsection 28(5) of the Conservation Authorities Act by Wm J. Gies Construction Ltd against the refusal by the Grand River Conservation Authority to grant permission for the construction of an access lane on Part Lot 16, Concession 5, City of Guelph.
Wm.J. Gies Construction Limited
Grand River Conservation Authority
The matter was heard in the Court Room of the tribunal, 24th Floor, 700 Bay Street. Toronto, Ontario on Tuesday, December 7th, Wednesday, December 8th and Thursday, December 9th, 1999.
Mr. John Doherty : Counsel for the Appellant
Mr. John Olah : Counsel for the Respondent
At the outset of the hearing, the Deputy Mining and Lands Commissioner noted that this appeal came before the office of the Mining and Lands Commissioner pursuant to subsection 28 (5) of the Conservation Authorities Act whereby":
An applicant who has been refused permission may, within thirty days of receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission."
The appellant followed the proper procedure with regard to this appeal.
The Mining and Lands Commissioner and Deputy Mining and Lands Commissioners are appointed by Cabinet pursuant to subsection 6 (1) of the Ministry of Natural Resources Act (R.S.O. 1990, c. M 31). Under Clause 6 (6) (b) of that Act, Cabinet may, by regulation, assign to the Commissioner and Deputy Commissioners, the authorities, powers and duties of the Minister. 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.
It is noted that the Deputy Commissioner and Mr. Daniel Pascoe, Registrar of the Office of the Mining and Lands Commissioner, visited the Gies site in the City of Guelph, on Wednesday, November 3, 1999.
In addition, a pre-hearing telephone conference took place on Tuesday, November 9, 1999. The Deputy Commissioner, Mr. Pascoe, Mr. Doherty and Mr. Olah took part. The purpose of the prehearing was to secure agreement regarding any issues not in dispute and for which no evidence would be required at the hearing itself Both parties agreed that the following issues were not in dispute:
- The process or procedures of the Grand River Conservation Authority;
- The flood elevations agreed upon by the experts of each party (Regulatory flood elevation is 316.34 metres);
- The submitted survey plan as being true representation of the proposal;
- The wetland boundaries as defined by the appellant's expert, in their Scoped Environmental Impact Assessment report, dated October 3,1997;
- The subject lands falling within the regulatory jurisdiction of the Grand River Conservation Authority; and
- A construction permit would be required if the appeal is granted.
Wm J. Gies Construction Limited owns approximately twelve (12) hectares of land in Part Lot 16, Concession 5, City of Guelph since December 1965. The table land slopes gently from the east from Hanlon Parkway and from the north from Kortright Road footnote 1 towards a tributary of the Grand River system known as Hanlon Creek. The area to the west is composed of the Hanlon Creek valley and wetlands. These areas are susceptible to periodic flooding. This watercourse is bridged at Kortright Road. The lands abut what is known as old Downey Road, which has a dead end at the City of Guelph well field laneway. It passes through an area regarded as wetland and is bridged over the Hanlon Creek. The City has installed a gate at the north end of the bridge to prevent public access to the well field. This road has not been closed. The lands have been used for agricultural purposes with the present access via a laneway from Downey Road and Kortright Road through the floodplain.
Wm J. Gies Construction Ltd. has a rezoning application before the City of Guelph for high density residential uses consisting of three apartment towers with approximately 288 units, housing in excess of approximately 500 persons. The Official Plan designates the lands General Residential (allowing residential densities of up to 100 units per hectare) while the Zoning is Agricultural. The application proposed an access driveway to the Downey Road/Kortright Road intersection, through the floodplain, over lands owned by the City of Guelph. An emergency dry land access was proposed, also over the City of Guelph lands (former road allowance of Kortright Road) to link up with the existing Kortright Road. No access is allowed to the Hanlon Parkway since it is a limited access and fenced expressway.
During the preparation and processing of the application, the Grand River Conservation Authority negotiated the floodplain driveway with the applicant, avoiding any encroachment through the wetlands, the approval being subject to the availability of a dry land emergency access.
In addition to refusing approval of the rezoning proposal, the City of Guelph, has also refused permission for any access to the Gies lands, including an emergency access / exit on Kortright Road. Appeals have been submitted to the Ontario Municipal Board requesting rulings on:
- the proposed comprehensive zoning by-law of the City of Guelph which would designate and zone the lands in question for wetland and urban reserve (OMB File No. R950284), and
- the Gies application to rezone the lands from agriculture to residential to permit the proposed apartment development (OMB File No. Z980124).
These Appeals have been adjourned sine die pending a decision regarding the access issue; before this tribunal.
An application is also pending before the Ontario Superior Court of Justice regarding the matters of adverse possession rights and failure to provide access when part of Kortright Road was closed.
In response to this situation, on January 11, 1999, Wm J. Gies Construction Ltd. submitted an application to the Grand River Conservation Authority to construct a driveway across the Hanlon Creek wetlands and floodplain in order to provide access to old Downey Road to service the residential development. (Ex. 1, Tab l-a) It is this application that the Grand River Conservation Authority (GRCA) refused. The reasons for the refusal are set out below. (Ex. 1, Tab 2 -c).
- This proposal is contrary to Grand River Conservation Authority and Provincial Policy for Flood Plain Management as sole access to the proposed development is subject flood risk;
- This proposal would place health and safety of future residents at risk in time of flooding due to inundation of the proposed access;
- This proposal would increase the risk and cost of emergency measures required in time of flooding due to inundation of the proposed access;
- This proposal is contrary to Grand River Conservation Authority and Provincial Policy on wetland management by requesting infilling of the wetland. This will result in the loss of wetland area;
- The crossing of the wetland by the lane will result in additional fragmentation of the designated Hanlon Creek Wetland complex;
- We are of the opinion that this proposal is contrary to the recommendations and objectives of the Hanlon Creek Watershed Study. The Hanlon Creek Watershed Study has been adopted by the Grand River Conservation Authority, for use by staff, as a guide in the review of applications within the Hanlon Creek watershed;
- The granting of this permission may be perceived as setting a precedent. Approval of this application could result in increased pressure to grant other similar proposals. "
This is the matter which is before the tribunal. The subject lands are owned by Gies Construction and have, until very recently, been actively farmed.
Mr. John Olah, Counsel for the Grand River Conservation Authority, stated that the GRCA has two concerns:
- the traversing of the Provincially Significant Wetlands with an access road; and
- the traversing of the floodplain by an access road which would be the primary and only access to the proposed development.
In both cases, the area is susceptible to 1.5 metres (5 feet) of flooding during a Regional Storm and the 100 year storm and to a lesser degree during a twenty-five and fifty year storm.
- What is the status of the dry land/safe emergency access to the site?
- Would the prospective residents of the proposed development be afforded safe ingress/egress during a regional storm if the proposed driveway intrudes into the flood plain?
- Does the application for the intrusion into Provincially Significant Wetlands for access purposes meet the objectives of Provincia1 and Authority policies regarding the protection and maintenance of such lands?
- Would an approval create a precedent within the GRCA and the province as a whole with regard to wetland intrusion?
Relevant legislation, policy statements and watershed plans:
The following Legislation, Provincial Policy Statements, Implementation Manuals and Watershed Plans provide the framework within which the tribunal must make its decision.
- The Conservation Authorities Act - R.S.O. 1990, c.C.27, as amended
- Policy Statement – Flood Plain Planning - A Statement of Ontario Government policy issued under the authority of Section 3 of the Planning Act 1983, dated August 11, 1988 (Ex 3 - C,Tab 2-c )
- Flood Plain Planning Policy Statement – Implementation Guidelines – October 1988 To be read with the Policy Statement
- Policy Statement – Wetlands – A Statement of Ontario Government Policy - issued under the authority of Section 3 of the Planning Act 1983, dated May 14,1992. (Ex 3 -B: 2-c)
- Manual of Implementation Guidelines for the Wetlands Policy Statement
Dated November 1992 (Ex 3 - B: Tab 2 -a)
- Policy Statement – A Statement of Ontario Government Policy issued under the authority of Section 3 of the Planning Act 1983; Dated May 22, 1996. (Ex 3 -B: Tab 2 -d)
- The Hanlon Creek Watershed Plan, dated April 1993 and prepared by Marshall Macklin Monaghan Limited and LGL Limited for the City of Guelph (Ex. 3-B: 2-b)
- The Planning Act - R.S.O. c.C. 13, as amended
The following witnesses were qualified as experts on behalf of the Appellant:
Mr. John Aliens was recognized as being qualified to give opinion evidence in planning and development matters within the City of Guelph. He has a Bachelor of Environmental Studies and is Vice-president and Senior Planner of the Hamilton Branch of Planning and Engineering Initiatives Ltd. His Curriculum Vitae was submitted as Ex. 7 and his Witness Statement as Ex. 2.
Dr. R. Jonathan Planck was recognized as being qualified to give opinion evidence in the area of environmental assessment preparation and design. Dr. Planck has a doctorate in Mathematical Ecology, Environmental Physiology and Comparative Psychology with significant experience in habitat issues and the dynamics of ecological systems, including involvement in many studies on the Hanlon Creek watershed, in both the private and public sector, including the GRCA. His Curriculum Vitae was submitted as Ex 13 and his Witness Statement as Ex 2.
Mr. Alex. Harrington was recognized as being qualified to give opinion evidence with regard to water resources and hydraulic analysis. He has a PhD in Civil Engineering and is the principal of R.A. Harrington and Associates Limited His Curriculum Vitae was submitted as Ex. 19 and his Letter Report found in Ex 1 - Tab l-c.
The following witnesses were qualified as experts on behalf of the Respondent:
Mr. Frederick Samuel Natolochny was recognized as being qualified to give opinion evidence in the matters before the tribunal in his role of Senior Resource Planner with the GRCA with responsibility for administering the permit applications received under Ontario Regulation 149 and for the review and commenting on Planning Act applications. His Curriculum Vitae was submitted as Ex 3- Tab A-1 and his Witness Statement is found in Ex 3- Tab A-2.
Mr. Wayne R. MacMillan was recognized as being qualified to give opinion evidence concerning biology and wetlands in his capacity as supervisor for Land Resources, Resource Management Division for the GRCA. He is a member of a steering committee dealing with wetland environmental impact studies and their requirements. In addition, he was part of the study team and subsequent implementation team for the Hanlon Creek Watershed Plan. His Curriculum Vitae was submitted as Ex 3 - Tab B-1 and his Witness Statement is found in Ex 3- Tab B-2.
Ms. L. Lorraine Minshall was recognized as being qualified to give opinion evidence concerning flood control and water resources planning. Mrs. Minshall has a degree in Water Resources Engineering and is presently the Manager of Water Resources Planning for the GRCA which includes the management of the Authority's Flood Warning system. Her Curriculum Vitae was submitted as Exhibit 3- Tab C -1 and her Witness Statement is found in Exhibit 3- Tab 2.
Summary of property ownership
Mr. Doherty outlined the history of the ownership of the Gies property (Ex 12). Originally, the parcel contained 19.0 acres but an expropriation for a gas easement occurred in 1953. The appellant purchased the lands on December 20, 1965. The ''well field" lands, located at the end of Downey Road, were deeded to the City of Guelph in 1968. In 1971, a large tract of land was taken from the easterly boundary for the future Hanlon Expressway. Between 1971 and 1998, the City of Guelph secured various parcels located along the northerly boundary as part of a new link to the Hanlon Expressway. A portion of the old Kortright Road then became redundant and was legally closed in December 1971. The tribunal noted that the appellants claim that no notice of the By-law regarding the closure of the road was provided to them, even though they had frontage on the portion to be closed. This is the section of road that would provide the second access to the Gies lands for agricultural purposes and the location of the proposed emergency access in the initial rezoning application.
The City of Guelph was deeded an easement for sanitary sewer purposes across the Gies lands in 1974, further fragmenting the property.
Issue 1 evidence
What is the status of the dry land/safe emergency access to the site?
These acquisitions have forced Gies Construction to negotiate with the City of Guelph in order to secure any access from Kortright Rood. At this time, however, the City has refused to allow any such access. Allan C. Hearne, Development Planner for the City of Guelph, indicated in a letter to Mr. John Olah and dated December 2, 1999, that:
Gies has no legal entitlement to access across City owned lands" and ''does not have permission from the City to use these City owned lands for any purpose including the construction of a road to service an apartment project on the Gies lands." (Ex. 4-C)
Apparently this position first became known to the appellant during the 1998 OMB hearing. Mr. Ariens indicated that the location of this access had been the subject of discussions between the applicant and the City of Guelph (Kortright Road) and the Ministry of Transportation (Hanlon Parkway) resulting in agreement that what was proposed represented the "best possible location from a traffic standpoint". So it came as a surprise to Gies when the City took the position at the Board of "no access...period".
Routes "A" and "B" are the two alternatives which had been proposed in the first application for rezoning and entered Downey Road near the intersection of Kortright Road. Both crossed City owned land and the floodplain, but did not intrude into the wetlands. The emergency access was proposed further east along Kortright Road. The subject of the application before the tribunal is the location of Route "C" which intrudes into both the floodplain and the wetlands.
Mr. Ariens believes that the City of Guelph has not actually refused the emergency access, but only an access over either Routes "A" and "B" and pointed out the words in Mr. Hearne's letter.
As in #1 above, the City owns' the lands on which the purposed "Emergency Access" is located. These lands have also not been declared surplus to the City's requirements and are not on the City's inventory of property for sale. Until the development potential of the Gies lands has been determined, it is not appropriate to determine the suitability of the proposed emergency access." (Ex. 4-C - re #5)
It is Mr. Ariens' opinion that the City of Guelph has not said a definitive "No" regarding this emergency access, but wished to settle the land use issues first The letter from Mr. Hearne is dated December 1999, subsequent to the OMB Hearing and Mr. Ariens believes it to revert to the original position of the City.
Mr. Ariens expressed the opinion, however, that if Mr. Gies is denied access to Kortright Road or Downey Road over the City of Guelph lands, it leads one to question how a land owner can reach these lands to carry on farming activity. The owner really has no choice but to enter his own land by clearing a trail through the wetlands from Downey Road. He acknowledged that the wetlands are designated Provincially Significant Wetlands in the Hanlon Creek Watershed (Ex 8 - 1998 Aerial Photograph).
Mr. Ariens did agree with Mr. Olah that no formal agreement or easement in writing from the City of Guelph exists which would grant Gies Construction Ltd. access to Kortright Road for a dry land or emergency access, but he was of the view that City staff had made a verbal commitment. He reiterated his belief that the City had only taken the stance of "no access" with regard to the originally proposed Routes "A" and '"B'". He has always had the understanding that if they get the land use approved, the appropriateness of that access would be decided.
Mr. Ariens confirmed that the rezoning proposal before the Guelph City Council involved dry land access for emergency purposes. He believes, however, that the present application is the same application, except for the main access being via the proposed Route "C".
Mr. Natolochny (respondent's witness) stated that he was not aware of any assurance in writing by the owner of the lands (City of Guelph) that the dry land area from Kortright Road would be available to the development as an emergency access. He indicated that the staff response to the City in commenting on the original proposal was that it be refused until such time as the access could be provided Mr. Natolochny viewed item 5 of the Hearne letter (Ex 4) as "a deferral of a decision" on the matter of the location for the emergency access, but went on to indicate his view that item 1 of the same letter is quite definite in denying permission by the City to use city-owned land for any purposes of access.
Mr. Doherty suggested that Mr. Natolochny had changed his view about the availability of emergency access. Mr. Natolochny disagreed based on the fact that the application before the tribunal provides no assurance of the availability of dry land access. The initial review resulted in staff support of the application If the emergency access was provided. Staff would be prepared to support that application today, but he noted that the new application does not provide the necessary assurances regarding access. Even if such access was available, the wetland issue remained of great concern to the GRCA.
Despite the City's position, Mr. Ariens believes emergency access is available from Kortright Road and Hanlon Parkway, if necessary. Emergency vehicles could park along Kortright Road and emergency personnel could enter on foot. This would necessitate carrying equipment into the site, but these vehicles could also just drive over the public lands to get into the site without a formal emergency access being provided. He went on to suggest that the flood waters on Kortright Road would have an impact on the access to the Kortright development to the south. This area had been approved for development despite this potential flood hazard. Mr. Ariens concluded that "the nub of our case is environmentally responsible and it represents good planning" and he maintained that there would be safe access.
Mr. Natolochny disagreed with this suggestion which would mean crossing over private property, either on foot or by vehicle for a considerable distance. It is not known whether a fence or noise wall might be a requirement of development, either of which would create a barrier to such access. A fence already exists along Hanlon Parkway. He indicated that such a method of entry cannot be viewed by the GRCA as an access with any status. He was unsure as to whether it would be acceptable to the City of Guelph. Mr. Natolochny also pointed out that the Kortright community had a secondary access from the south, Kortright Road not being its sole access. In addition, he stated that alternative access to the Gies lands was available through the adjacent lands (City of Guelph) and "it was incumbent on the applicant to reach a mutually agreeable solution to providing access either through acquisition or easement'.
Further evidence from Mrs. Minshall, on behalf of the respondent, indicated that she also had no knowledge of any commitment form the City of Guelph to provide an alternative emergency access. Since this is the sole means of access to the Gies property, it must be concluded that no safe access/egress can be provided for people or vehicles, including emergency vehicles, through a floodplain area with a potential depth of 1.5 metres of flood waters.
Mr. Harrington, for the appellant, stated that he understood that the current application had been reviewed by the GRCA without the secondary emergency access. His hydraulic analysis, however, was carried out on the assumption that there would be a secondary emergency access. The concerns were to avoid altering the flood elevations from those proposed originally in order to ensure access to the apartments through Route "C" during most flood events. The elevations used were sufficient to meet this criteria.
Mr. Doherty stated that since the City of Guelph has effectively "landlocked" the Gies property by refusing access across their lands to Kortright Road, a unique situation has been created which would justify the granting of the appeal by the tribunal to enable the proposed development to proceed.
Mr. Olah submitted that the core of the appellant's case was that there was no other option available for access except through the wetland and floodplain lands on the Gies property.
Issue 2 evidence
Would the prospective residents of the proposed development be afforded safe ingress/egress during a Regional Storm if the proposed driveway intrudes into the flood plain?
It was noted that the Provincial floodplain management policies and regulations arose from the 1954 Hurricane Hazel event, in which more than eighty people lost their lives throughout Ontario, due to flooding, particularly in the Humber River Valley. Subsequently, the Province of Ontario instituted the floodplain policies to ensure that this tragedy did not happen again. This is one of the major policies for which the tribunal must have regard for in deciding this matter.
Mr. Fred Natolochny (GRCA) outlined, for the tribunal, the history of the applications, as well as his involvement with them. During the review, the GRCA requested a scoped environmental impact study in order to determine the impacts on the lands as set out in provincial policy statements. The features in question were the floodplain, the wetlands and the watercourse itself.
The GRCA accepted the resulting study which proposed the main access through the floodplain (either Route's "A" and "B") and "had no objection to development of the residential component proceeding on the basis that it had been demonstrated through this study that there would be minimal impact on the wetland area, and that the development was not intruding on the provincially significant wetland".
The GRCA had accommodated development using floodplain access in the past, as long as safe emergency access could be provided. In the Gies application, emergency access had been proposed on Kortright Road which negated the serious concern the Authority had had with respect to flood damage and safety. The proposed entrance was subject to a significant flood risk of approximately 1.5 metres depth, a risk that was far greater than the GRCA would deem acceptable for residential development of any type. footnote 2 As a result, the alternative access was essential prior to the Authority endorsing the project. Full access onto Kortright Road was not acceptable to the traffic engineers due to its close proximity to the Hanlon Parkway intersection, but it appeared that it would be acceptable to provide dry land and safe access during a significant flood event. It was for this reason that the GRCA staff, as a commenting agency under the Planning Act, responded to the City of Guelph recommending approval only if the emergency access was in place.
It was noted that agreement had been reached to carry out a cut-and-fill program in order to balance the small intrusion of the parking lot into the flood prone area in such a way as to have no effect on the storage within the floodplain.
Mr. Natolochny outlined the two main issues involved in the present application. The laneway, referred to as Route ''C', was the crux of the matter, since the original review dealt with all the other issues. The proposal to provide an access laneway on fill would negatively impact on (a) the wetland swamp, and (b) the floodplain. Because these issues were not addressed satisfactorily by the applicant, the GRCA refused the application.
The application provided hydraulic information regarding flood levels and velocities which was passed onto the GRCA's engineer for review and comment Mr. Natolochny stated that the cover letter from R.A. Harrington and Associates Ltd; (Ex. 1- Tab 1-C) dated January 4, 1999 stated there was no impact on flooding.
The review of the application resulted in a major concern about the depth of flooding along the Downey Road corridor and the new laneway to a level of 1.5 metres (4.92 feet - approximately 5 feet) - a significant level of flooding with respect to safety. Emergency vehicles could not navigate through such a level in order to access any intensity of development, be it single family or multi-unit residential. This type of application is very rare and would usually be refused or alternative access negotiated. Mr. Natolochny indicated that the chief concern with the application, however, dealt with the intrusion into the wetland and this was the issue highlighted before the GRCA membership.
Mr. John Ariens agreed that the GRCA had accepted the location of Routes "A" and "B" through the floodplain with the emergency dry land access during the processing of the original application. He noted that the Route "A" entrance is fifty (50) metres north of the proposed Route "C" entrance. The elevation at Route "A" is 315.59 metres while at Route "C", it is 315.36 metres - an insignificant difference of .23 of a metre.
Due to the marginal difference in flooding depth between these two routes, it is the appellant's position that there would be no aggravation of the flood hazard for the future residents of the proposed development if Route "C" was accepted. The location of Route "C" is through the narrowest section of the wetlands and as far north as possible from the channel of Hanlon Creek while remaining within the Gies frontage. Exhibit 11-A identifies the following flood event elevations for the area:
- Five Year Floodline - elevation 314.95 metres
- One hundred year floodline - elevation 315.36 metres
- Existing (and proposed) Regional Floodline - elevation 316.48 metres
All three levels could have an impact on the Downey / Kortright intersection with Route "A" and the proposed Route "C" access point (315.59 and 315.36 respectively), indicating the same degree of impact on both proposals.
Mr. Ariens noted that when the Downey / Kortright intersection was upgraded by the City of Guelph in the mid 1990's, it was Not raised, in order to be above the flood levels. He concluded that the City had had no concern regarding a limited and flooded access for the Kortright community at that time and he questioned why they now had concerns regarding the Gies proposal.
The proposal increased the driveway width to a minimum nine (9) metres in order to avoid / reduce any interference and / or conflict with other vehicles at the point of entry. This would reduce the likelihood of any blockage for emergency vehicles at the entrance point. He believes that the property can be developed with only one point of entry as is done in other instances of multiple family developments by providing this extra wide access point.
Mr. Ariens introduced the suggestion that if the Gies rezoning is successful, it would seem logical that the City would require an upgrading of Downey Road as a condition of approval. The road could be raised a foot or more to match the grade at Kortright Road. Mr. Ariens agreed that the Permit application had not included this change in grade but stated that the rebuilding of Downey Road is important and should be a condition of approval regarding this decision, if the appeal is successful.
Mr. Ariens' opinion was sought regarding Subsection 3 (5) of the Planning Act (Bill 20) which indicates that both the proponent and the tribunal must "have regard to" provincial policy statements. He contends that this is not as strong as the earlier Planning Act's words "shall be consistent with" (Bill 163) and thus provides some flexibility. He views the situation as unique within the terms of , 'having regard to". The lands are designated for residential development. The proposal provides for environmental enhancement and he believes that the positives out weigh the negatives of the intrusion into the wetlands and floodplain.
Noting that Provincial Policy Statements exempts agricultural operations, Mr. Ariens reiterated that anyone trying to farm the property may have to enter by clearing a farm lane through the wetlands and the floodplain. From a land use perspective, moving the next step from a farm lane to a proper driveway is not a significant jump as far as impact on both the wetlands and the floodplain are concerned.
Mr. Ariens stated that the likelihood of a regional event is remote and thus, he considered the proposal a safe development. He was comfortable with the planning aspect of approximately 600 people being located in an area where emergency access would be cumbersome and difficult for emergency personnel during a regional storm. He did acknowledge, however, that a safe dry land access certainly would be preferable and was convinced this access would eventually be secured.
Through Mr. Natolochny's evidence, it was made clear that the application had requested the right to "construct a road on fill". (Ex 1 - Tab I-A) Exhibit 11-B shows that the elevation at the centre line of the Route "C" laneway is 314.84. The Site Plan (Ex 11-B) depicts both a profile and a plan view of the laneway, and provides information about the proposed laneway width, describes the fill depth and the provision of the three culverts to allow for hydraulic flow. The volume of fill required to build the laneway through to where it would join with the former Route "A" is 583.6 cubic metres or approximately 40 to 50 truck loads. This was later confirmed by Lorraine Minshall.
The profile view confirms that the point of entry to the Gies lands is proposed at an elevation of 314.84 metres. The application provided no information indicating there was an intention of raising Downey Road, as suggested earlier by Mr. Ariens.
Mr. Natolochny agreed that the difference of .2 m in elevation between the entrance way at Routes "A" and "B" versus Route "C" is not significant, given the depth of flooding. Both Downey Road and the reconstructed Kortright Road would have a flooding problem during a Regional event, The flood risk is the same for all three possible access points and all would require an emergency access in order to be supported by the GRCA.
Mrs. Lorraine Minshall provided evidence regarding the flooding impacts in the area and how those impacts relate to the Provincial Policy Statements.
The review of the circumstances affecting the Gies lands is based on the Provincial Flood Plain Policy Statement (Ex. 3-C: 2-c;) and the Flood Plain Implementation Guidelines, both dated August 11, 1988. Although the Guidelines "reflect the intent of the provincial policy Statement" and are "not intended to be rigid procedures", the emphasis is placed on minimizing the creation of new problems. New development is prohibited or restricted in the one zone flood plain (S.4.2.)
The Hanlon Watershed and thus the Gies property is totally within a one zone floodway. While the GRCA discourages the development of roads or driveways through the floodplain, there are circumstances where they are allowed and can be considered and designed for passive use so not to affect flooding and the management of the floodplains. There are, however, certain guidelines with the Provincial Policy Statement – 1997 which must be met. (Ex. 3-C: Tab 2-a) Section 3.1.3. permits development and site alteration if:
- the hazards can be safely addressed, and the development and site alteration is carried out in accordance with established standards and procedures;
- new hazards are not created and existing hazards are not aggravated;
- no adverse environmental impacts will result; footnote 3
- vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;"
The Gies application did not demonstrate that these guidelines could be met and as a result, the GRCA found the application to have an unacceptable risk to life and property in the event of a Regional Storm event.
With regard to the present application, Mrs. Minshall indicated that the Authority had accepted the engineering analysis regarding flood levels submitted by R.A. Harrington and Associates Limited. (Ex. 1 - Tab C) The GRCA also accepted the report's conclusion that the construction of the proposed laneway would not increase the flood levels in the area more than what would have occurred with Routes "A" or "B".
The flood depth along the existing profile for the area of the access road ranges from 0.75 to 1.5 metres (5 feet) during a regional storm event. The flood profiles (Ex. 4 -B) indicate minor flooding, which would only occur below the proposed roadway during a two year return storm.. Water would lap at the laneway at the five year flood return level while the road would be affected to a minor degree at the 10 year level. The access at Downey Road would definitely be affected at the 25 year level by approximately .4 metres (plus 1 foot) This increases to approximately .5 metres (1.5 feet) at the 100 year storm level and would rise to 1.5 metres (5 feet) during a regional storm event.
Because of the construction of the Route "C" laneway, raising it above the floodplain and the wetlands, the flooding would result in a small lake forming in the low area of the floodplain, while both the proposed laneway and a section of Downey Road would be flooded to a depth of 1.5 metres out to Kortright Road during a Regional Storm event.
The Implementation Guidelines further discuss the issue of the impact of water velocity or the speed of the water flow on people and vehicles. Unsafe access occurs where natural movement can be impeded and people may float and may be swept away. Vehicles also can float, experience stalling and even be swept downstream. In the Gies are, the water will be moving very slowly in the floodplain, increasing in velocity towards the actual bed of the Hanlon Creek. The depth, however, would still create a problem and should not exceed .8 metres ( 2.6 feet) for safe pedestrian movement. Typical automobiles are impeded at the 0.3-0.5 m flood depth, while large emergency vehicles are impeded at 0.9 -1.2 metres of water depth.
Mrs. Minshall referenced the charts in Exhibit 4-B indicating that the flood depths are reaching unsafe access levels at about the 25 year return storm for normal vehicles. In addition, as the flood depth increase, the road would not be visible and it would be more difficult to determine the actual condition as well as the location of the road itself.
The Flood Plain Planning Policy Statement discourages the development of new buildings where vehicle and pedestrian movement would not be available during flood events. (Section 7.2) The Implementation Guidelines have been adopted as the operating policies of the GRCA (Ex 3C:2 - b) along with all other Provincial Policy Statements. Mrs. Minshall agreed that the Statements provide some flexibility through the Planning Act and the "have regard to" requirement, but, it is the GRCA's responsibility to provide recommendations and comments to the municipalities that respect these policies.
A dispute arose regarding the Downey Road elevation which the GRCA applied in reviewing the application. Mr. Doherty suggested that if a 315.68 metre elevation was used as being the middle or top of Downey Road, as shown in the GRCA's HEC-2 Summary file (Ex 1- Tab I-D), the flood depths would allow safe passage for emergency vehicles without stalling. In response to this, Mrs. Minshall confirmed that the figure is found in the HEC-2 cross section data base. She clarified, however, that this is a physical figure representing how the "road appears to the water that is flowing over it" and it may not be the elevation of the road itself. This could include railings and any other objects which would impede the flow of water. The GRCA prefers a field Survey figure as being more accurate. She maintained that the GRCA reviewed the profiles shown by Mr. Harrington which they believed were based on a Surveyed spot elevation of 315.84, located at the entrance point to the Gies laneway.
Mrs. Minshall concluded by indicating that the GRCA believes that in order for the safe access requirement to be met, dry emergency access is required for both people and vehicles. In this regard, the Gies application cannot meet this policy, since only one access is assumed to be available. If a second safe/dry land access were available, this concern would be diminished.
Mr. Alex. Harrington clarified his report indicating that he had been asked to look at whether the laneway would have any impact on the dynamics of the Hanlon Creek from two perspectives: first, the flood elevation impact, and second, the impact of the laneway's construction on the hydraulics (velocity) of the Hanlon Creek. He was to then ensure that the new road elevations were not subject to frequent flooding.
The hydraulic analysis done on the assumption that there would be a secondary emergency access. The concerns, were therefore to avoid altering the flood elevations and to ensure frequent access to the property. The elevations used were sufficient to meet this criteria. The proposed road was to be created with fill at a 3.35% grade and raised to a point where it would be out of the more frequent flooding situation - a five to twenty-five year storm return. Mr. Harrington now understands that the new application was reviewed without the secondary emergency access. Therefore, the assumptions in the hydraulic analysis are not totally applicable to the criteria being used to evaluate it, but if 315.68 metres is the elevation of Downey Road and the new lane began at the same level, then the flooding through the entrance would vary from .66 to .7 metres for the access road. The final elevation of access road would be 315.59 metres, once the road works were completed.
The Harrington hydraulic modeling and analysis used both the GRCA's own HEC-2 Model (Ex. 1- Tab 1-d) and the flood line / risk mapping (Ex. 18) elevation of 315.68 metres for Downey Road from the culvert crossing over almost to Kortright Road, assuming it to represent the road elevation.There are no bridge railings or any major obstructions to negate thisassumption. This elevation would put the Downey roadway above the 100 year storm event.
Mr. Harrington agreed that the elevation of 314.84 metres does exist at the edge of Downey Road at or near the entrance of Route "C" and that it was shown on the Site Plan which was developed through the use of field surveys. (Ex. 11 -B) There is a definite elevation difference of more than 30.48 centimetres (one foot) between the centre road level and the shoulder of the road. The number used in his analysis is from the HEC-s summaries of 315.68. He agreed that this number, which is part of the GRCA's data base, is a representational or theoretical number as opposed to an actual, field surveyed number.
Issue 3 evidence
Does the application for the intrusion into Provincially Significant Wetlands for access purposes meet the Provincial and Authority policies regarding the protection and maintenance of such lands?
The context for this evidence is the Provincial Wetland Policy. Because of the loss of over 75% of the wetlands in Southern Ontario, the Province adopted a policy to prevent further loss of these wetlands, in particular, those designated as Provincially Significant.
Mr. Natolochny told the tribunal that the application involved seeking permission to construct a lane through provincially significant wetlands and the floodplain of the Hanlon Creek in order to provide the only access to the site. The Authority had no information at the time and has received none since, that an alternative access might be available. In order to evaluate the proposal from the wetland perspective, the staff relied on the Provincial Policy Statement, 1996 – Natural Hazards (Exhibit 3 -Tab C- 2 -c) and the Natural Heritage section of the Provincial Policy Statement and the Hanlon Creek Watershed Plan. The Manual of Implementation Guidelines for the Wetlands Policy Statement, dated November 1992 (Ex. 3 - Tab B: 2(a), also was referenced.
The loss of wetlands has been of great concern to the Authority. The draining and clearing of the wetlands for agricultural use and for urbanization is the main reason for this loss. The majority of the wetlands are forested swamps which provide shade for the wetland water. With their loss, the released water is warmer and the amount of storage is significantly reduced, all of which contribute to changes in the ecological system. The cumulative impacts of development in adjacent areas also contributes to wetland degradation.
This wetland is in the area where the GRCA does not allow a policy of compensation – trading wetland for wetland. The loss of contiguous wetlands in areas designated provincially significant is not permitted. During the review of the application, the Authority relied, in part, on the Limnoterra Ltd. Scoped Environmental Impact Statement (Ex 20) and found that the report substantiated the staff's conclusions. During the initial review, the wetland boundary had been agreed to by all parties, but the current application intrudes into the wetland. The proposed placement of fill would result in a node of the wetland being cut off north of the lane, separating it from the larger body of the wetland to the south. This was viewed as increased fragmentation.
During the pre-hearing telephone conference, agreement on the boundary of the Provincially Significant Wetlands in this area of the Hanlon Watershed was reconfirmed. Mr. Ariens referred to Ex. 9 - the aerial photograph - pointing out that the "the farm laneway" from Downey Road (also the location of Route "A") had been accepted as the easterly boundary of the wetlands. This was based on the work done in the Scoped impact assessment report by Limnoterra. Ltd (Ex. 20).
Mr. Ariens reiterated that the only access possible for Gies is within the approximate 28 metre frontage to the north of the bridge structure. An approximate nine (9) metre right-of-way would be cleared through the wetlands and raised with fill. A series of culverts would maintain the base flow in and out of the remaining wetland area to the north. This area could, in his opinion, be classified as a minor extension and not an intregal part of the overall wetland or core area which is located along the creek. Mr. Ariens maintained that the Gies proposal would not impact on the core area and since the proposal requires the wetlands to be dedicated to the City of Guelph, it is understood that the City, as stewards of the land, will maintain the wetlands and adjacent areas in their natural state.
With regard to the Hanlon Creek Watershed Plan, Mr. Wayne MacMillan (GRCA) gave some background information to the Plan preparation, indicating that the perceived problems leading to the study dealt with the increasing urbanization of this sub-watershed, with drinking water for the City of Guelph being a related issue. Hanlon Creek is a cold water fishery stream. There was concern about the impact future growth would have on the wetland complex and its natural habitat. The Plan required very detailed and lengthy Environmental Impact Statements to support new development.
All the available data was collected and analyzed with the final report providing conclusions and a plan for the management of the Watershed. The GRCA adopted the Plan as policy and as a guide for staff dealing with future development. The data as to the amount and maintenance of the water supply to wetlands and floodline studies was "scoped" in order to reduce the demand on future studies. The Plan was to serve as a "comprehensive" environmental impact statement for the whole of the Hanlon watershed.
Mr. Ariens agreed that this Plan has been adopted by the GRCA and the City of Guelph as "a guide to development, and maintenance and enhancement of the watershed of Hanlon Creek", but because it is not a formal planning document like an Official Plan, it is his opinion that this document has even less status than any provincial policy statements, which are at least recognized by the Planning Act. As a result, the Watershed Plan should be applied in a more flexible way. It deals with the core area and Mr. Ariens believes that the proposal still maintains and enhances the core area of the wetlands. They have had "regard for" these policies in planning the project and they have put forth their best efforts to address these important policies.
Mr. MacMillan introduced Figure 3.4.1. of the Hanlon Creek Watershed Plan which depicts the Natural Core Areas and Recommended Buffers which were mapped on the Gies lands. Except for an area at the northeast corner, the whole property appears to fall within the classification of natural core and recommended buffer areas. Mr. MacMillan stated that the wetland portion was approximately 30 metres in width to the east of Downey Road. This area has long been regarded as a very sensitive and fragile area that require enhancement, with particular regard to its width. The swamp is at its most narrow width through the Gies lands and opens up to the west between Downey Road and Kortright Road.
The role of each wetland and riparian habitat complex, as a core natural habitat (stream banks and the stream itself), is to provide surface water systems enabling barrier free water movement and narrow land connections (or corridors) enabling wildlife movement between wetlands. These swamps dry up in the course of the year allowing trees to survive. (Constraint Area 1) The species of concern, including wildlife, move outward toward the adjacent lands (Constraint Area 2) and to the drier habitat moving from one wetland to another within the overall complex. The adjacent lands support the wetlands and what occurs on these lands will affect the precipitation runoff feeding the moisture into the wetland. These lands also provide a food source and nesting area for the wildlife habitat.
Dr. John Planck, through his company, Limnoterra Ltd; was responsible for the Scoped Environmental Impact Statement dated February 1998. (Exhibit 20) Dr. Planck referred to his Witness Statement (Ex. 2) as being a 'review of the environmental aspects of the laneway proposed as Option "C" or Laneway "C" across provincially significant wetlands". The original Scoped Assessment did not deal with the new proposal to intrude into the wetlands, but he was responsible for the preparation of the present application to the GRCA. Dr. Planck stated that the issue is whether the road crossing within a wetland will disrupt the function of the wetland or the quality and/or the integrity of the wetlands. One way to address this issue is to compare existing sites where intrusion has actually occurred resulting in identifiable evidence, such as the various before and after studies carried out as part of the Hanlon Parkway construction. The Hanlon wetland complex extends a considerable distance on either side of Hanlon Parkway, so these studies helped to determine impact.
In the second review of the area relating to Route "C", however, the Limnoterra botanists field studied the site in order to identify any visible tracks, vegetation, and wildlife presence which would be reasonably considered "provincially significant". None were found, although a fair bit of stress or disease was found in individual plants. The area contains both upland as well as wetland species. footnote 4 There is a substantial number of non-native species, such as European Buckthorn. Dr. Planck stated that the research had confirmed the area as part of the wetland, one resulting from "seasonal high groundwater table conditions".
Dr. Planck explained the background with regard to the "linkages and corridors" terminology indicating that ecologist began to propose these linkages and corridors in the late 1950's due to a concern about the fragmentation of ecological systems and habitats and the need for ecological isolation to maintain certain species. A great many studies were undertaken, but the issue still is controversial. For example, linkages have assisted in the movement of species that are not desirable and thus could provide negative impacts. Planners have adopted this philosophy and Conservation Authorities, through Watershed Plans, sought to connect areas which had not been connected for years and which may never have been connected. These issues still have not been dealt with, leaving a controversy behind.
Part of the study for Route "C" was to discover whether there was something specific in the area that had not been covered in the original report. Specifically the degree of continuity in the functioning of this particular area as a corridor for species to move through had to be determined and whether there were any species present which might become restricted by the presence of a roadway. In moving east from Downey Road, the roadside ditch, which is not considered part of the wetlands, must first be crossed. Beyond that, the vegetation ranged in age from 30 to 100 years, consisting of fast to slow growing species. During June and July, no standing water was found and as a result no connectivity existed. No continuity was found for aquatic species to give them the ability to link and continue through the wetland, except through the core stream area itself.
Regarding the deer trails, these animals normally walk just inside the tree edge for protection, looking into the area where they want to feed. Edge shubbery tends to be their dominant diet. Rarely would deer cross Kortright Road. These animals are extremely adaptable and easily change their patterns and thus their trails. Dr. Planck believes the existing deer would shift their pattern to accommodate Route "C", not finding it impairment to movement.
With regard to the impact the construction (with fill) of the proposed roadway would have on the wetlands and the natural habitat, Dr. Planck made the following observations:
- The main disruption would result from the removal of all the vegetation from the proposed road right-of-way.
- The core area of the wetland or the "creek valley stream" which was mapped for the Watershed Plan would not be touched / impacted nor would the aquatic habitat.
- The existing mobile wildlife species living in this "edge habitat situation" would not be impeded by the roadway as most readily adapt to changed conditions.
- Limnoterra found some evidence of overcrowding of animal species in the Gies fields since other lands in the area have been developed. However, this would be a temporary situation since the area is not suitable for the entire life history of any of these animals. The area cannot be construed as being "an island or the last ditch effort for the [animal] population".
- Species which would be affected, would have already left the area due to the impact of the existing roadway (Kortright). The research confirmed this.
- The land uses in the surrounding area have changed substantially from agriculture to residential over the past decades. This change has affected the wildlife, depriving them of their food source, shelter and nesting areas. The Gies application will have little further impact.
- Increasing naturalization of the valley and the residential areas will further alter the food source and habitat, having a more significant and negative impact on the wetland function and integrity than the proposed road.
- The storm water facility will be constructed in a long, linear manner and become a new wetland biologically. It will attract a movement of species between the new wetland and the existing stream valley / wetland. The two will become "quite closely coupled".
- The existing wetland and its continuity has already been broken many years ago by Downey Road and the intrusion of the municipal well.
- If the old laneway ceased to be used and removed, it is probable that the wetland species would continue to move and colonize towards the corner of old Downey Road and Kortright Road.
- The type of landscaping along Kortright Road also has created another habitat discontinuity and destroyed the corridor function both through the large expanse of asphalt, the basically manicured lawns the City has planted and the installation of sidewalks.
- Traffic along the new roadway will have an impact, but the traffic and what the City has done along Kortright Road is far more significant. In addition, Kortright Road is a barrier, unlike Hanlon Parkway where a pedestrian underpass and animal corridor were installed when the road was constructed.
- No evidence was found which would give the fragmented portion of this wetland any importance with respect to the whole wetland. Therefore, its separation has no significant impact.
- Humans (with pets) actively use the area now and are very intrusive to the habitat.
The use and the meaning of the words "corridors and linkages" created further debate between Dr. Planck and Mr. Olah. The Hanlon Swamp, consisting of approximately 500 acres, is located east of the Parkway and continues westward, south of the Gies lands. Mr. Olah referred to a narrow '"finger" which passes through the Gies lands and crossing under both Downey and Kortright, as a corridor connecting the two wetlands / swamps. Mr. Olah maintained that the true definition of "corridor" deals with the ability of wildlife to move through the area. Dr. Planck disagreed with this interpretation of "corridor". It was agreed, however, that the Hanlon Creek Watershed Study concluded and recommended that this area was and should be shown as a natural corridor linking the Hanlon Creek swamp to the Speed River marsh wetland system and that the area was recommended for preservation.
Dr. Planck's definition of "corridor", however, is not the version used in the Hanlon Creek Watershed Plan. The corridor movement definition he uses is one where the animals move from their feeding area to water and then back to their bedding areas. This does not mean moving along the stream bed corridor.
The firm of LGL Limited which carried out the biological portion of the Watershed Study did not come to a conclusion in the Study, but did make a statement regarding a corridor and its function. No basis for the corridor statement was provided which would have allowed for a scientific conclusion to be drawn. This statement disagreed with Dr. Planck's view that the corridor function had been destroyed. He did not agree that the biological report had been a serious study, but had provided a general overview which ignored ''specific built and unbuilt features" in the analysis. ''No evidence of a terrestrial corridor function that interconnects in any significant way the Speed River to the upper Hanlon swamp" was found in this study, other than a clear movement of birds and aquatic organisms in the creek itself.
Dr. Planck believes that the location and width of the broad corridor referred to in the Hanlon Creek Watershed Plan running through the Gies lands was a guideline and required specific studies in order to be confirmed. Linmoterra had done such studies and had found no trails indicating wildlife movement along such a "corridor" but instead the trails and pathways were associated with feeding behaviour in the corn fields. In his opinion, the corridors go through the culvert under Downey Road and is "tightly" associated with the stream itself or "the valley stem ".
Through the Policy Statement of Ontario Government – Wetlands - May 1992 (Ex. 3-B:Tab 2-c) the Province's objective has been to ensure that there is no loss of wetland functions or wetland areas of provincial significance within the Great Lakes / St Lawrence area Dr. Planck explained that:
approximately 98 percent of the wetlands in this part of Ontario are what we call discharge wetlands. They receive water from ground water. The soils are saturated. There may be some storage of surface water due to imperfect drainage."
It is the provincial view that wetlands help to maintain and improve water quality, although Dr. Planck indicated there is some evidence to the contrary. Flood control sediment entrapment and prevention or reduction of pollution are other functions of wetlands. Dr. Planck further agreed that wetlands support complex food chains for animal habitat.
With respect to the issue of the loss of 75% of the wetlands in Southern Ontario below the Canadian Shield, however, he stated that the author of that statistic has told half the story and does not speak to all the wetlands that have been created. He is not aware of what the net difference is, but agrees that a substantial amount has been lost not only due to development, but also primarily due to farming and forestry.
Mr. Olah referred to various documents with Dr. Planck, including the 1996 Provincial Policy Statement (Ex3-B:Tab 2-d) specifically, the policies dealing with Section III – 2. Resources and 2.3. Natural Resources regarding protection of natural heritage features and areas from incompatible development and preventing development and / or site alteration in provincially significant wetlands. Dr. Planck agreed that the GRCA has responsibility for this policy and had "continuously exhibited" concern for the loss of such wetlands.
Dr. Planck agreed with the approach taken in producing the Hanlon Creek Watershed Plan, in particular with Goal 2: "to restore, protect, and enhance water quality and associated aquatic resources and water supplies."
He further agreed with the first management option of preventing direct physical damage and encroachment into key natural systems, but he could not support the restriction of land uses in order to enhance "the value of two or more natural areas by providing a physical connection between them".
There are two types of constraint areas to be protected; one being the natural core areas and the other being buffers, corridors and linkages. The Gies development plan contains both constraint area types, but Dr. Planck contended that most of the environmental issues had been successfully dealt with by the GRCA and the Environmental Committee through the review of the original proposal. The original Limnoterra study for Routes "A" and "B" provided extensive detail regarding the core and adjacent areas of the wetlands and the impact on the habitat. The point that there was a lack of a corridor function and continuity through the floodplain leading to the conclusion that "nothing very specific to this particular area that would impact the junctions and integrity of the wetland system" could be found, formed that part of the study which has been accepted. The only added issue in this application is the intrusion into the wetland and in Dr. Planck's opinion, the tribunal must decide whether an exemption to the various policies should be given. He could not agree with Mr. Olah's assertion that this was an intrusion into the last vestiges of "natural terrain" through provincially significant wetland and the creek valley. Major intrusions have occurred, historically, such as:
- the Downey Rd crossing of the entire wetland which has existed for over 100 years;
- the Kortright Road bridge crossing of the core area;
- the crossing of the Hanlon swamp by the Expressway, since the 1970's;
- the construction of the municipal well in the late '60's very close to the creek bed;
There is no evidence of any significant impact on wildlife because of these intrusions and Route "C" basically adds no further impact for animal movement than what exists today.
Mr. Doherty requested comment from Dr. Planck concerning the section of the Hanlon Creek Watershed Plan relating specifically to the description of Constraint Area 1 (Natural Core Area):
Land uses which do not result in the above, may be considered if it is shown that they cannot be located (due to physical infeasibility) in adjacent Constraint Area 2 areas. "
In Dr. Planck's opinion the application falls under this paragraph since no other general entry is available to the development in Constraint Area 2. In addition, if the land continued to be used for agricultural purposes, then access could be maintained since the Provincial Policy Statement allows agricultural uses to continue, a point previously raised by Mr. Ariens.
Mr. Olah questioned Dr. Planck regarding some statements made in the original Linmoterra report. Dr. Planck confirmed that this report had suggested that the wetlands should be avoided in order to protect them and their inherent functions. Page 47 of Exhibit 20 (Section 9 - Vehicular Access) state; the following:
The Downey Road access presently proposed is over an existing access (farm lane). Access further to the north onto Downey Road is not feasible due to the close proximity of Kortright Road. Access further south onto Downey Road would necessitate construction through and the loss of a portion of the provincially significant wetland associated with Hanlon Creek. This option would not meet the intent of the Hanlon Creek Watershed Plan or Provincial Wetland Policy."
The report is clear in stating that the intent of the Hanlon Creek Watershed Plan would not be met when less destructive alternatives are available. Dr. Planck agreed with this statement and indicated that he had recommended to Gies Construction that the Route ''C' proposal had an emotional component that would lead to expensive and drawn-out studies and hearings. The intrusion of Route "C" into the Provincially Significant Wetland was a measure of last resort and not his first choice. He has, however, seen instances and this is one of them, where after studies are done, scientific support for the intrusion can be given.
With regard to the negative effects of heating that have occurred on the stream, Dr. Planck referred to the pond located on the property to the south of the Gies lands. Dr. Planck told the tribunal that this was a man made (farm) pond and a Rehabilitation Plan prepared by a Dr. Balby and himself in the late seventies recommended that it be filled due to the impact it was having on the heating effect of the Hanlon stream. To date, this has not occurred.
Evidence submitted by Mr. MacMillan (GRCA) indicated that he had carried out the biological review of the Gies proposal for the wetland laneway. Although he had not carried out the actual environmental study, he had visited the site a number of times and reviewed the Limnoterra report in detail as it related to the present application.
The GRCA has had a long standing concern about the loss of any of this very narrow core area of a provincially significant swamp, since there is so little wetland left from the Expressway down to the Speed River. The subdivision to the southwest and the fill required when the well was created have encroached onto the core area as well as adjacent slopes causing past narrowing of the core area. These actions occurred prior to the Hanlon Creek Watershed Plan being adopted.
The second concern of the GRCA dealt with the potential loss for connectiveness in the corridor and the subsequent loss of habitat with the creation of another barrier to wildlife movement and fragmentation of the wetlands. Wildlife does have the ability to walk under the Hanlon Parkway through a pedestrian style culvert, moves outwards and along the Gies core area and Downey Road and, in some cases, over Kortright Road through an open grassy meadow, on downstream to the Speed River. Access under Kortright Road is not available, but this has not hindered the more mobile species from reaching the lower reaches of the Hanlon Creek and on to the Speed River through the trails identified in the Limnoterra report.
The proposed construction of a new access road or lane is considered "development" under the provincial wetland policies (Ex 3 - B:Tab 2-a). - an action which "shall not be permitted within Provincially Significant Wetlands". The definition of "development" includes structures, site grading, excavation, or the placing or dumping of fill (page 8 of the 1992 Policy Statement on Wetlands - Ex. 3-B: Tab 2-c) . Mr. Macmillan noted that the dumping of fill and the construction of structures disrupts the wetland function and can change the form of the wetland. Trees can be lost which change a swamp into a marsh or meadow, thereby impacting on the habitat that can survive. He noted that the proposed laneway would be forested on either side, limiting visibility for the animals, as opposed to the grassy meadow of Kortright Road, which would allow greater "visibility" for any animals crossing the road to the next wetland complex. He accepted the location of the main deer and small animal trail identified in the EIS through the existing forested area and is of the opinion that the proposed Route "C" would impact on this trail. Wildlife are using the area as a natural corridor between wetlands.
There was agreement with Dr. Planck's assessment that wildlife concentrate closest to the water itself, and move outwards, on a daily basis, from this area into the upland areas.
The existing agricultural uses certainly could continue, but Mr. MacMillan did not agree that an application for farm related access along Route "C" would be the same and have the same impact as one for a residential development. In any case, this would be a new application and the GRCA would request the proponent to demonstrate the impact on the wetlands through the proper study which would be assessed on its own merits.
Mr. MacMillan agreed that if Route "C" was approved, a provincially significant wetland would remain, but it would be fragmented. He felt that this fragmentation could have an affect ultimately on the corridor width, but, he could not comment on the value assigned (scoring) to the remaining wetland without going through the wetland evaluation procedure and monitoring the situation.
The Authority contended that this is the main connection between the headwaters areas of the Hanlon Creek and the Speed River Complex. ( a view not shared by Dr. Planck). It is a stream corridor, not a dry land corridor, with sloping forests, ground water discharge areas and floodplains. The area has the greatest degree of promise of sustainability over the long term and it is important to the spread and colonization of plants throughout the system.
With regard to Mr. Doherty's suggestion that the Wetlands policy is flexible towards transportation facilities (roads), Mr. MacMillan indicated that the vast majority of plans he had reviewed were supported by either a class environmental assessment or a full assessment which took in due consideration of resources of provincial interest. He has rarely seen a private development which would compare to these major facilities.
Issue 4 evidence
Would an approval create a precedent within the GRCA and the province as a whole with regard to wetland intrusion?
Mrs. Minshall provided some examples throughout the watershed where wetlands and access would be an issue, suggesting that the impact in rural areas comes mainly from estate residential development (Ex. 3-C:2-e) The GRCA receives numerous inquiries for approval of access to a high and dry parcel of land where the only existing access, on the landowners property, would be through a wetland or a floodplain. Similarities are always researched, but each application is reviewed on its own merits.
In the Gies case, the GRCA is very concerned with the issue of precedent since the only access would be through floodplain and wetlands with no safe access being provided. The Authority promotes dry access as the desirable situation, but at minimum, safe access is required for residential developments. The result of an approval of this application would be increased pressure throughout the watershed to approve applications with similar issues. The GRCA is very concerned with minimizing the public cost of flood damage and of evacuations in times of natural hazard events.
Both Mr. Natolochny and Mr. MacMillan agreed with this concern. Mr. MacMillan, in referring to the wetland issue, stated:
I would state that if we have great difficulty sustaining this corridor over the long term, certainly, other linkages which are dry and have fewer development constraints will be at risk."
The granting of approval for a floodplain access where a flood depth of approximately 1.5 metres could occur and where there is an intrusion into a significant wetland, could be viewed both by landowners and possibly by Authority members themselves, as being an acceptable standard. This should not be the case. Approval of the Gies application could add considerable weight to the review of other applications.
A different view was put forth by the appellants. Although Mr. Ariens had not done any studies to determine the existence of other land-locked parcels through a wetland or floodplain, based on his knowledge of the watershed, he did not believe there were any. He stated that the examples provided by the GRCA were like comparing apples and oranges. They were all in rural areas where the land was not designated for development, but where the issue would and could be dealt with when such a process did occur in the area (Ex 6 - tab E).
Neither Mr. Ariens or Dr. Planck believe that a Gies approval would create a precedent. Both view the application as unique, specifically from an access point of view. No other opportunity for access exists for Gies Construction. Mr. Ariens stated that every application has some unique aspect to it within "the complex technical variables" which planners must deal with. It is the balancing of these variables which distinguishes each application.
In the case of the Gies application, the appellants believe that the extensive environmental analysis shows that the impact on the wetlands is minimal and sufficiently unique to warrant a positive consideration by the tribunal.
For the appellant - Mr. John Doherty
The tribunal is directed to have regard to the various policies adopted by the Province and the GRCA under the following legislative regime:
- the Conservation Authorities Act - Subsection 28 (5)
- the Mining Act - Part VI - Section 121
- the Ontario Planning Act - Section 2 (n)
Section 121 of the Mining Act states that a decision should be made based "upon the real merits and substantial justice of the case". Part 1, Section 2 (n) of The Planning Act, deals with the resolution of Planning conflicts, involving public and private interests and subsection 2 (o) refers to the protection of public health and safety.
The wording 'shall have regard to' was specifically chosen to provide a degree of flexibility, as it realizes that a particular policy may not be totally applicable under all circumstances. This wording puts a definite onus on decision-makers. These clauses are very significant to the Gies case due to the unique circumstances which display competing policy demands and private interests with regard to the access issue.
Given the City of Guelph's position of refusal regarding access over their lands, the City is virtually land locking the property in order to prevent development. This creates the unique situation where the only access available to the residentially designated Gies lands is from Downey Road through Provincially Significant Wetlands.
The GRCA accepted the original access route through the floodplain, provided that an emergency access to Kortright Road was available. Mr. Doeherty stated that the present application also includes this access. Mr. Harrington's hydrological analysis was prepared on this assumption, but, it was seen that the GRCA reviewed the analysis without the access. It should be recognized that the Site Plan submitted to the GRCA included this emergency access. The flooding issue would disappear If the access was allowed.
If the access is not available and based on the hydrologic analysis, (which was accepted by the GRCA) the elevation would be 315.68 metres at the centre point of Downey Road. This would produce flood levels of 0.66 metres during a regional storm (316.34 m - 315.68 m), an acceptable level for the passage of motor vehicles and emergency vehicles. The Harrington analysis was carried out using the GRCA's own statistical information -the HEC-2 and topographical contour mapping showing the areas of flood risk. It appears that the GRCA misinterpreted the information in this analysis as to the level of the roadway. It would only appear sensible that the grade at the laneway entrance way would match the mid point grade of Downey Road which would greatly diminish the flood risk for the prospective residents. No new flood hazard is created with Route "C" than would have been present with Route "A".
With regard to the wetland issue, Mr. Doherty requested that the tribunal accept and prefer the evidence presented by Dr. Planck that Route "C" will not negatively impact the function, form, connectiveness or biological quality of the wetland. The Scoped Environmental report carried out by Dr. Planck's firm and accepted by the GRCA, provided an extensive scientific analysis of the area. This report was not shaken by any of the respondent's witnesses. Mr. MacMillan only put forward limited justification for refusal through a discussion of the deer trails and their probable movements, including the crossing of the heavily traveled Kortright Road, leading to a conclusion regarding connectiveness in the Hanlon valley system which misinterprets and misapplies Dr. Planck's conclusions.
The GRCA did not provide sufficient evidence to conclude that the ecological system is not protected. The Hanlon Creek Watershed Plan, as a guideline document, requires the test as to whether development Impairs the function, form connectiveness or biological quality of the area.
The evidence shows an impact, not an impairment The Plan also allows flexibility for land uses
which do not result in the above [impairment] may be considered ifit is shown that they cannot be located due to physical infeasibility in adjacent Constraint Type 2 areas"
The "physical infeasibility" does exist in this application due to the attitude of the City, but the proposed roadway is a minor intrusion and would result in minor fragmentation since it is on the very edge of the wetland. It is not essential to the wetland in order to establish connectiveness, nor is it essential for the movement of the species back and forth within the corridor.
In addition, the corridor is not unduly narrowed and no significant plant life or rare species and wildlife will be endangered. The wildlife habitat will adapt to the new laneway as they seem to have adapted to the previous intrusions into the wetlands. There could even be an opportunity for expansion or evolution of the wetland into the meadow next to Kortright Road and towards the new storm water facility. In addition, this facility of more than a hectare in area, more than offsets the loss of the small portion of the wetlands.
Reference was made to the Galat Decision (1977) which dealt with the issue of precedent. Commissioner Ferguson discussed the issue of accessibility through only the floodplain and found that due to an approval of a severance, that special access problems were created which should not raise any concern over precedent issues. Further, Dr. Planck indicated that the proposal would not generate a precedent since there are no other examples in the Hanlon watershed which might be proposed for development on land locked property, as the Gies lands are. Mr. Doherty suggested that too much emphasis was being placed on the issue of precedent.
The alternatives before the tribunal are:
- unconditional approval;
or, since this was a hearing de novo,
- approval with conditions, as has been done in a number of other Commission decisions/orders, which might include some implementation details, such as:
- provision of an emergency access onto Kortright Road; or
- a recommendation to the City that the laneway entrance grade match the mid-point of Downey Road; or
- a Site Plan provision be imposed under Section 41 of the Planning Act to carry out the entrance feature in (b) above;
Mr. Doherty stated that the appellant's had met the onus of proof and that there is a reasonable basis for exemption from the policies in question. The sense of flexibility in the phrase ''have regard to" is important and such a decision would give effect to the tribunal's statutory authority to provide a decision upon the real merits and substantial justice of the case, as otherwise, Gies will be landlocked and his development rights impeded. Even his agricultural rights are in jeopardy. Such a decision also would provide an appropriate balancing of the various relevant policies. A policy is not a rule of law. It does mean that flexibility is allowed by the very use of the words "have regard to".
Final argument - respondent - Mr. John Olah
The tribunal is appointed under the Ministry of Natural Resources Act and has been assigned the powers, duties and authority of the Minister to hear any matter that is appealed under section 28 of the Conservation Authorities Act, not the Planning Act and the Site Plan provisions of that Act. Mr. Olah maintained that the tribunal has the right to dismiss or to grant appeals, but does not have the right to impose conditions.
The issue before the tribunal deals with an appeal of the decision made by the Grand River Conservation Authority to refuse the application to fill and construct a new roadway over an area of provincially significant wetland and floodplain within the Hanlon Creek Watershed. The decision must be based on the information provided to the Authority in order to arrive at a determination. Mr. Olah stated that the application was frozen at the time of the appeal.
The policies the tribunal must have 'regard to' have an emphasis on public safety and the proper control of hazardous lands throughout the entire watershed. Decisions by the tribunal have upheld this principal. So the questions before the tribunal are:
- Is the access consistent with good flood plain management principles?
- Is the intrusion into provincially significant wetlands consistent with the principle of conservation of land?
With regard to the issue of dry land access, despite Mr. Doherty's claim that such access was part of the application before the Authority, there is absolutely no evidence that the City of Guelph has or will consent to the use of its property for this access. He submitted that the tribunal should expect to see a written document in order to confirm any approval. In fact, the letter before the tribunal actually says the opposite. The ability was there for the City to be brought before the tribunal, but it is obvious that this was not done as there was no useful evidence to be secured.
According to Mr. Olah, this leaves the tribunal with the proposal for the access to Downey Road through both the wetlands and the floodplain where 1.5 metres of flood water depth could occur during a Regional Storm event. This depth makes the laneway inaccessible for emergency vehicles. The suggestion that emergency vehicles could park along Kortright Road and access the development on foot over a distance of 600 feet does not make sense. This does not constitute safe access.
The first Gies application that received support for the floodplain access by the GRCA proposed emergency access. The applicant recognized the need for this emergency access and this was accepted by the Authority. However, the new application has not provided this emergency access.
Mrs. Minshall's evidence showed that the proposed entrance would be subject to frequent flooding commencing around the 25 year return storm event Mr. Harrington provided evidence to the tribunal about the use of a different, but theoretical, elevation figure which would supposedly reduce regional storm flooding to a level allowing access by emergency vehicles. The source of this information was the Authority's HEC-2 model which is based on 1981 data and the aerial photographic base for the flood risk topographical mapping. Mr. Olah believes that Mr. Harrington agreed that the most reliable topographic elevation corresponds with the spot elevations from an actual survey plan. This survey and the site plan which were submitted to the GRCA were prepared by the appellant's consultants. If the appellant wished to change the numbers, then a new application should be submitted to the GRCA for review.
Mr. Olah reiterated the importance of the origin of provincial floodplain policy as being the 1954 Hurricane Hazel disaster when 81 people lost their lives and some $75 million dollars worth of damage occurred. The policies now steer development away from areas where this problem could arise again. The policies say no to development where new hazards are created, the environment is adversely impacted and where there is a safety issue. According to Mr. Olah, the appellants have not shown that these criteria can be met and nothing has been shown which should cause an exemption to the policies of the Province of Ontario and the GRCA. The essence of the appellant's case is that it is a unique situation. It is unique but only in that it involves a request for a tribunal decision where high density, multi residential is involved. Most of the appeals have dealt with single residences or very small developments involving few people.
Mr. Olah referenced Chalmers v Grand River Conservation Authorities - FileCA007-95 (1977) decision in which the flooding depth was substantially less than this proposal. In her decision, Commissioner Kamerman stated:
There is no issue that the depth of flooding on Tallwood Drive would be in the neighbourhood of 0.8 metres during a regional storm, although Mr. Haley has maintained that this depth would be 0.78 metres. The tribunal finds that it prefers the evidence on behalf of the GRCA as to the actual depths which would be experienced." (Ex. 6 - Tab 5 - page 49)
The Commissioner went on to describe the property as having a pond adjacent to the proposed access road. Due to rising water levels inundating the pond and overtopping the road, this pond would be visible only if the storm level was a five year event or less. As a result there would be a very real possibility of a vehicle going off the driveway and ending up in a pond of unknown depth. She found that there was no safe access or egress in this case.
Evidence was put forward of a similar concern in the Gies case with regard the visibility of the roadway during a major flood event.
Mr. Olah also mentioned the Avery v Lake Simcoe Region Conservation Authority – File CA 005-96 (1999) and Wozniak v Grand River Conservation Authority (1988) with regard to decisions of the Commissioner and the Deputy Commissioner dealing with the need for safe access and egress. If for no other reason, the Gies appeal should be denied on the grounds of unsafe access for the residents, either on foot or in vehicles and for emergency vehicles.
As to the matter of the wetlands, it is interesting to note that Dr. Planck felt that this access through the wetlands was a last alternative, and because of this, it is justified. As a scientist, however, he did not recommend it to his client in the first instance and due to the negative public impact it would create in the second instance. (current application)
Mr. Olah stated that it is important to understand that wetlands have major significance to the ecological system through their various functions. It is also important to note the continued loss of these lands throughout Southern Ontario. The original application for a zoning amendment avoided these wetlands. So it would appear that the applicant, in the initial application, had found them to be an important feature to avoid. The Scoped EIS stated that any access through the wetlands would not meet the intent of either the Provincial Wetland Policy Statement nor the Hanlon Watershed Plan.
The Parties have all agreed on the boundary of the provincially significant wetlands and further, the various Provincial Policy Statements are very clear in that development and site alterations are not permitted. Significant evidence would be required to overcome this very strong direction.
The question of whether the appellant has persuaded the tribunal that there is no impairment of the function, form or connectiveness and biological quality through this proposal is paramount to the decision. Mr. Olah referred to the dispute about the issue of connectiveness between wetlands. The GRCA 's policy states that there are two large wetland complexes - the Hanlon to the east and the Speed to the west and that they are connected through a narrow and fragile neck on the Gies site. As a result, any removal or fragmenting of the wetland in this area will contribute to further narrowing of the linkage. In fact, in order to protect the linkage, the area should be enhanced rather than damaged and fragmented.
The evidence shows that the proposed "laneway" will be nine (9) metres wide and will handle approximately 200 cars during peak evening periods. This will be a city street. The appellant on the other hand maintains that their site specific study indicates no natural corridor exists at this location and therefore no impairment will occur by constructing the new laneway.
The GRCA says there is a corridor of animal species movement and points out that this statement was in the original draft of the EIS report. Dr. Planck, however, states that it is really regional movement within the area itself and not from Hanlon swamp to the Speed swamp. In either case, there is agreement that there would be a busy roadway intruding into what presently is an area where a considerable number of animals and birds live and where daily movement occurs.
The Manual of Implemenation Guidelines for the Wetlands Policy Statement (Ex.3- Tab B-2-a page 9) states:
In general, it will not be incumbent upon the provincial government or the planning authority to prove that development may have a negative effect on provincially significant wetlands. The burden of proof is with the proponent to demonstrate compliance to the Policy.
The onus is on the appellant to prove that there is no violation of a policy and that his permission was inappropriately denied based on the application that was before the Authority.
If approval was granted, there is an important issue of precedence. The GRCA has a major concern about precedent throughout their total area of jurisdiction. The loss of even a small amount of the wetland will have an impact on the demand for relief in some other area of the watershed. Just because this land is "land locked" does not make the situation unique. The Authority must treat each applicant fairly, so approval of this appeal will have an impact on Authority decision making for both flood plain development and wetland intrusions.
In the Chalmers appeal, the Commissioner stated on page 56:
If allowed, the Chalmers proposal would amount to a rewriting of the provincial policy in respect of new development in a floodplain or areas within a one zone concept area, being a precedent of such order of magnitude that it cannot be allowed
Approval of this application would establish a dangerous precedent and could put in jeopardy the ability of the GRCA and all other Conservation Authorities to manage their watersheds …. Both floodplains and Wetlands. It should be the policy statements and the Watershed Studies which guide the decision, not the legal access issue facing the appellant.
Mr. Olah stated that the tribunal is an inappropriate forum to seek the remedy to Mr. Gies' problem. The arguments are always the same … this property is unique, there will be no other precedent, etc. This should not be the test of the matter. The test should be concern for the future residents and their safety and the additional public costs that would occur under emergency situations. The balancing concern should be the right of the Province and the community's interest in terms of safe access and of preserving what little wetland is left. Beyond that, is the possible future issue of being required to provide remedial measures to ensure safe access, again, at significant public cost.
During summation by Mr. Olah and Mr. Doherty, a dispute arose over the jurisdiction of the tribunal to hear new evidence and / or alter the application itself. The concept of de novo was part of this discussion.
As noted by Mr. Doherty, the tribunal stated at the commencement of the hearing that "Pursuant to clause 113 (a) of the Mining Act, these proceedings are considered to be a hearing de novo".
In examining the matter of 611428 Ontario Limited v. Metropolitan Toronto and Region Conservation Authority (unreported -CA-007-92 -1994), the tribunal notes the following:
"For purposes of appeals under the Conservation Authorities Act, the Procedures and substantive portions of Part VI of the Mining Act apply, insofar as they are not otherwise limited by specific wording of the sections. The tribunal finds that its jurisdiction in hearing appeals under the Conservation Authorities Act is that of a new hearing. "
"Finally, the historical practice of the tribunal has been to consider all evidence adduced by the parties, notwithstanding that such evidence was not before the conservation authority" …. "Following from this, having heard all of the evidence which the parties put forward, the tribunal is empowered to make its own findings and substitute its own decision for that of the conservation authority."
In making a determination, the tribunal has the ability to do what a Conservation Authority is empowered to do in the first instance. In Bye v Otonabee Region Conservation Authority (unreported-CC 1357-1993), the Commissioner stated:
"Nowhere in the Conservation Authorities Act are conservation authorities given authority to balance competing interests in reaching their determinations. However, in the Principles of Floodplain Planning Policy, at paragraph two of page 6, those bodies which must have regard to the policy are required to consider loca1 conditions in connection with applying the policy. This includes physical, environmental, economic and social conditions. 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 a very limited capacity of land within their jurisdiction and based on the degree if severity to allow or refuse permission"
The tribunal finds that it will apply these statements to the Gies case and will determine the flood plain and wetland issues on their merits, relative to the risk, not only for the applicant and the future residents of the development, but also for the community at large. The individual's rights must be weighed against the public interest.
With regard to the matter of imposing conditions, again, since the authority has the ability to impose conditions when an application is approved, so does the tribunal. Even though the application must remain the same as submitted to the Authority or as Mr. Olah stated "the application is frozen", the tribunal can accept any new evidence which may be relevant, even though it had not been previously before the authority.
Issue 1: What is the status of the dry land / safe emergency access to the site?
A decision with regard to this issue leads logically to the decision on the second issue relating to safe access to the Gies site. The two are irrevocably tied together.
In the instance of the first application dealing with the rezoning, the applicant proposed two possible routes of entry to the development, both of which traversed the floodplain, but did not intrude into the wetlands. An emergency dry land access was shown on the site plan entering onto Kortright Road. All three points of access crossed City owned lands. The floodplain access was approved by the GRCA on the basis of the emergency access being put in place, and the staff provided these recommendations to the City of Guelph Planning Department, in their capacity as a "commenting" agency.
Despite Mr. Ariens contention that if the land use was approved, the appropriateness of the accesses would be decided, it appears that the City of Guelph has not accepted either of the access points nor the land use proposal itself. The tribunal finds that the letter from Mr. Hearne (Ex 4 - c) is clear in stating that:
- the City lands over which access is required are not for sale, nor declared surplus;
- the City is concerned about the potential for adverse environmental impacts;
- the City has not granted permission to Gies to use these lands for any purpose and Gies has no "legal entitlement" to access;
- the City does not support the development of the lands for the 288 unit apartment project due to severe development constraints on the property; including the floodplain and wetland areas and their impacts on the development.
In addition, the City testified at the OMB that they did not approve of any access over their lands.
Mr. Doherty has stated that the application presently before the tribunal was submitted with a site plan showing the emergency dry land access from Kortright Road. This results in a proposal for access through the wetland/floodplain which should be considered as having emergency access. He also stated, however, that the City of Guelph has virtually landlocked the Gies property creating the "unique" situation which justifies the granting of the appeal. Obviously, only one of these positions can be accepted. The tribunal does not accept the position that the proposal includes the emergency access. The application to the GRCA is "to construct road on fill" through provincially significant wetlands. (Ex. I-A) No mention of the emergency access was made in the application, nor apparently, when the applicant appeared before the Authority at the hearing.
In the final analysis, it does not matter whether the appellant's site plan does or does not include emergency access since the City of Guelph has refused access through their lands. The tribunal agrees with Mr. Olah's position that a letter from the City would have been expected If any agreement existed. In fact, the Hearne letter says the opposite. In addition, both the appellant's and the respondent's witnesses acknowledged that no correspondence nor written agreements exist whereby the City of Guelph agrees to the crossing of its lands in order to provide dry land access to the development site. No witnesses were called to dispute this position.
The tribunal, therefore, finds that there is no evidence to conclude that emergency dry land access will be provided to the site and accepts this as fact. The tribunal also accepts Mr. Natolochny's testimony that alternative access is available to the Gies lands via the City owned lands if a "mutually agreeable solution" could be achieved, but it was up to the appellant to negotiate this either through easement or acquisition. The tribunal believes that the issue of whether the City of Guelph can withhold access to Gies Construction is a matter for the Courts to decide and not this tribunal.
In addition, the tribunal does not accept Mr. Ariens view that emergency access can be achieved by the parking of emergency vehicles along Kortright Road and even Hanlon Parkway, requiring the transporting of any emergency equipment into the site on foot. Although the tribunal acknowledges that residents could exit the property, on foot, either to Kortright Road or the Hanlon Parkway, by climbing or breaking through any barrier, the tribunal believes this is far from being a satisfactory safe standard for new development. Too many people would be affected by this proposed development with approximately 288 units and the distances from the roadways are too great to provide effective emergency services, especially with the probability of the existence of barriersuch as fences, trees, and the like. These barriers also could prevent these vehicles from running over the curb to gain access, without an actual roadway being in place. Mr. Natolochny was unsure about the position of the City of Guelph, but he pointed out that the GRCA could not accept this method of entry for emergencies as access with any status of safety. The tribunal agrees. In an emergency, time is of the essence and this type of access could create an emergency in its own right. Such a proposal is found to be untenable.
In summary, the tribunal finds that the application provides no approved dry land/safe access to the Gies development site. This results in the sole access being through the laneway proposed to be located in the provincially significant wetland and the floodplain of the Hanlon Creek. The tribunal, therefore, will review the remaining issues with this decision in place.
Would the prospective residents of the proposed development be afforded safe ingress/egress during a Regional Storm if the proposed driveway intrudes into the flood plain?
The flood plain policies for which the tribunal must have regard, include the 1988 Policy Statement – Flood Plain Planning and the accompanying Flood Plain Planning Policy Statement – Implementation Guidelines. Within the policy section, there are a number of relevant statements which the tribunal must have regard for.
New development footnote 5 in the flood plain is to be prohibited or restricted (S.4 - One Zone Concept)
- Ingress / egress for new buildings be such that vehicular and pedestrian movement is not prevented during times of flooding. (S. 7 - Flood proofing)
In assessing the proposal, the Implementation Guidelines point out a number of factors in the interests of public safety and local need which should be considered (page 43) in the Gies proposal. These are:
- the nature of the development
- flood susceptibility
- implications of flooding on the proposed inhabitants of the development
- the provision of essential services
The Grand River Conservation Authority, in accepting the initial application's access through the floodplain, showed their willingness to interpret their policies in a flexible manner, as long as their major concern regarding safety for future residents of the development was dealt with in a satisfactory manner. The proposed emergency access would have provided this satisfaction, but it obviously was eliminated as a possibility with the second and current application when it became 'clear that the emergency access would not be granted by the City Of Guelph.
The nature of the development
The Gies development proposes approximately 288 apartment units in three buildings. An acceptable occupancy benchmark in today's planning parameters from 1.9 to 2.1 persons per unit. This could result in a population of approximately 547 to 605 people for the development. The sole access to these units is from Downey Road through floodplain lands, some of which are classified as Provincially Significant Wetlands. The intrusion of the sole access into the valley land causes the tribunal concern from a public safety point of view.
The proposed application does not involve the impact on only one family, as was the case in Avery v. Lake Simcoe Region Conservation Authority (unreported -CA005-96). Six hundred people could be affected. Emphasis in the Policy statement is ('placed on minimizing the creation of new problems'. No problem exists at the moment, but in the tribunal's view, a substantial problem would be created If the sole access is through the floodplain.
Both parties have accepted the Regulatory Flood elevation as the base from which to determine the flood levels for the various storms. Mrs. Minshall indicated in her witness statement that the accepted regulatory figure was 316.34 metres (Ex. 3 -C-2) at the Downey Road intersection with the Route "C" alignment.
However, there is a dispute regarding which elevation level at the Route "C" entrance is appropriate for the testing of the flood levels and therefore, determining the amount of risk involved. Mr. Doherty submitted "new" evidence regarding the base topographic figures used in the Harrington analysis in response to Mrs. Minshall's testimony. The tribunal is faced with a discrepancy of views which has led to the need to review at least three different scenarios.
According to Mrs. Minshall's review of the information in Mr. Harrington's analysis regarding the flood elevation, (Ex.l-c) and the Wright-Dietrich Preliminary Grading Plan (Ex.ll-B), the surveyed spot elevation located at the edge of the existing paved area of Downey Road is 314.84 metres. This is the location where the greatest level of flooding would occur and is the base grade figure used by the GRCA in their decision. According to Mrs. Minshall, and based on this figure, the depth of flooding during the Regional Storm event would be 1.5 metres (4.92 feet).
In addition, Mrs. Minshall stated that the proposed road profile shows a range from the 314.84 metre spot elevation to a proposed 315.59 metre elevation over the culverts, gradually rising, with some variations, towards the development lands to the east. The depth of flooding along this profile, therefore, equates to a range of 1.5 metres., (4.92 feet) to 0.75 metres (2.46 feet) over the culverts. Mr. Harrington agreed with the analysis, regarding the culvert area.
We then have Mr. Ariens providing testimony that the proposed grade elevation at Route "C" is 315.36 metres at Downey Road (Ex. 11-B). The impact of flooding in a regional storm would be .98 metres (3.21 feet).
Mr. Harrington provided testimony that his analysis utilized the GRCA's own HEC-2 model as well as their floodline topographic21 mapping. (Ex. I-D) Despite the existence of an actual surveyed spot elevation, he maintained that the proper elevation to use in testing flooding depths was the HEC-2 (902.5 section) figure of 315.68 metres, being the centre line of Downey Road opposite Route "C" since it would also become the new elevation at the actual entrance way of the lane. Using these figures, the depth of flooding at the Downey Road entrance way to Route "C" would be 0.66 metres (2.165 feet) during a regional event.
In summary, these three elevation scenarios would provide the following flood depths during a Regional Storm, based on the 316.34 metre floodline elevation:.
- The surveyed spot elevation of 314.84 metres -1.5 metres (4.92 ft.)
- The proposed grade elevation at Downey Road of 315.36 metres - .98 metres (3.22 ft.)
- The HEC-2 figure at the centre line of Downey Rd of 315.68 metres - 0.66 metres (2.165 ft.)
The tribunal must determine upon what basis these various elevation figures were generated.
The tribunal notes that Mrs. Minshall indicated that the 314.84 spot elevation, located at or close to the property line, was selected since it was a surveyed level and therefore, not subject to change. (Ex. 11-B) The GRCA accepts field surveyed elevations as more reliable than the topographic mapping prepared photogrametrically. The Authority uses such figures in their assessments whenever they are available, such as in the current application. The HEC-2 figures are theoretical, representing how the area would appear to the water flowing over it and not necessarily indicative of the actual elevation of the area itself.
Mr. Ariens stated that the 315.36 figure is based on the Preliminary Grading Plan prepared by the Engineering firm of Wright-Dietrich and clearly shown on Exhibit 11-B.
Mr. Harrington states that the Authority accepted his analysis which was based on the GRCA's own data and which clearly shows the 315.68 figure as the base of the Downey Road (Ex. 1 - C and D)
The tribunal, in order to make a determination as to which scenario is the most relevant, prepared several tables, using the various elevations provided through the evidence. These tables are attached to the decision as an Appendix. The tables are described as follows:
- Table 1 - Comparison of Flood Levels at Intersection of Route "C" and Downey Road
- Table 2 - Depths of Flood Water along Route "C "- Existing Grades
- Table 3 - Depths of Flood Water along Route "C" - Proposed Grades
The Harrington Report has shown that there will be no changes in the expected flood levels as a result of the construction of the Route "C" laneway. The GRCA has accepted this assumption, as shown in Table 1 of Exhibit 4-B. The tribunal also accepts these flood levels and accepts that the cut and fill exercise proposed in the initial application is still applicable in the current application.
However, in reviewing all the evidence, the tribunal accepts that 314.84 metres is the existing grade at the edge of Downey Road, but does not accept Mrs. Minshall's use of this figure as the base level for the review of the flood risks for the proposed road. She did not discuss the grade elevation shown on the Preliminary Grading Plan (Ex. 11-B) of 315.36 metres at the entrance, even though her analysis used the other proposed grades along the Route "C" laneway. The tribunal is of the opinion that the review should have used the figures presented by Wright-Dietrich as opposed to the existing grade. There is no doubt that if the existing grade was used, the flood depths would be in the neighbourhood of 1.5 metres at the intersection, but if the proposed grade of 315.36 metres is used, then the flood depth would be .98 metres (3.21 feet) at the entrance. Mr. Harrington's 315.68 metre elevation at the centre line presumably would have connected to this proposed grade, but no evidence was submitted to indicate this as fact.
Using the proposed grades, water would begin lapping at the edges of the road during a 50 year return storm and be level and probably beginning to run over the road during a 100 year storm The road would certainly be flooded during a Regional storm to a level of approximately 0.98 metres (3.21 feet) at the entrance way. (Appendix Tables)
In its analysis of the flood risk at the entrance and along the Route "C" laneway, the tribunal, therefore, will accept the preliminary grade of 315.36 metres as submitted by Wright-Dietrich.
Mr. Harrington's statement that the roadway was designed and would be constructed to be above the more frequent flood events appears to be appropriate, since lapping and subsequent overtopping does not begin until the 25 to 50 year storm level. This statement was made on the basis of an emergency access being provided, and he acknowledged that the circumstances were different in the current application from what he had understood, since no such access is available.
The tribunal does accept Mrs. Minshall's summary of the conditions that would occur in the area during a regional storm event. Based on the tribunal's review of the survey plan, (Ex. 11-B), the area of the floodplain-wetlands surrounding the roadway would be inundated by floodwaters varying in depth from 1.88 metres (6.17 feet) to 2.33 metres (7.64 feet). Indeed, a small lake would form in the low parts of the valley. Without any grade changes (which are not shown as proposed on the Preliminary Grading Plan of Ex. 11-B), Downey Road also will be flooded along its entire length to Kortright Road. The existing elevation of Downey Road at Kortright Road is 315.34 metres which would result in a 1.0 metre (3.28 feet) flood depth.
This would result in an inability to actually see either the Downey Road or the Route "C" road way or their condition, as well as the condition of the area surrounding them, especially if the person driving any type of vehicles was not familiar with the area.
In order to provide safe access from Kortright Road along Downey Road, Downey Road would require upgrading. Although Mr. Ariens suggested that this upgrading would be a natural condition of proposal's approval and Mr. Doherty suggested that the tribunal could approve the application with this being a condition, no actual evidence was submitted that Downey Road will be approved for upgrading by the City of Guelph. As a result the tribunal must assume that any upgrading is not part of the current application and therefore, must consider the flood impact along Downey Road as well as along Route "C". In addition, if this stretch of road was to be filled, it would naturally have an impact on the storage capacity of the valley and the agreed upon cut and fill process and could, therefore, have an impact on the flood levels.
An examination of the Flood Plain Planning Policy Statement – Implementation Guidelines (Ex. 3-C: Tab 2-d - page 37) provides data regarding the threat to life caused by the depth and velocity of water in flood conditions.
With regard to people:
A product of depth and velocity less than or equal to 0.4m2/s (4 ft2/s) defines a low risk hazard providing that the depth does not exceed 0.8 m (2.6 ft.) and the velocity does not exceed 1.7 me/s (5.5 ft./s)".
Although the risk is relatively low under "stagnant backwater" conditions, the flood levels on the proposed roadway reach 0.98 metres at and along the roadway profile at the Regional storm level. This is almost at the depth where children will float in such backwaters during a flood condition (1 metre /3.3 feet). The tribunal notes, however, that since the roadway is approximately 20 to 25 metres from the actual creek bed, it is doubtful that this area can be considered a "stagnant backwater" and therefore, it is probable that the velocity will have increased which would, therefore, increase the risk to children and some adults if they attempted to exit this site on foot along Route "C". Pedestrians also may not be able to distinguish where the actual road is and could stray off it into the surrounding valley area. The tribunal, therefore, finds that the access, being the sole "legal" access not provide safe access for children and many adults under a Regional storm event.
With regard to automobiles:
Ingress and egress from a flood proofed area by most "typical" automobiles will be halted by flood depths above 0.3-0.5 m (1 to 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).
It can be seen from the Appendix - Table 3, dealing with the proposed grades along the Route "C" profile, that the flood depths during a regional storm event would exceed the flood depths recommended for safe access by the typical automobile. Stalling can occur at the O.3 to 0.5 metre flood level and Table 3 shows the flood depth at the entrance to be .98 metres. There are various other locations along the laneway which would be vulnerable to flooding during lesser flood events. The tribunal, therefore, finds that the typical automobile would not have safe access through the laneway and Downey Road during a regional storm.
With regard to emergency vehicles:
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.
Using the proposed grade of 315.36 metres at the entrance to the Route "C" laneway, flooding during the regional storm would be at a depth of 0.98 metres (3.21 feet). This flood level is within the guidelines for access for emergency vehicles. Flooding along Downey Road would also occur to a depth of 0.95 metres to 1.28 metres at various locations along the roadway. This would be approaching a flood level where emergency vehicles would begin to experience difficulty. The tribunal notes that this problem would cease to exist along Downey Road if it was reconstructed, but as noted, no actual evidence was submitted indicated this will occur. With regard to emergency vehicles, the tribunal, therefore, finds that marginal safe access can be provided to the site along route "C".
Implications of flooding on the proposed inhabitants of the development
The tribunal has noted that there could be approximately 547 to 605 persons living in the proposed apartment development. Under normal circumstances, very few of these people will have ever experienced, first hand, a storm event the size of the regional storm. They would look out of their apartment windows to see the valley completely flooded and their sole means of access under approximately three to three and half feet of water. If they wished to walk, it has been suggested that they might be able to hop a fence to the surrounding streets, but many would not be able to do that, having a disability in one form or another. If people were ill and needed an ambulance, they quite possibly might panic, which could have significant implications for many residents of the development.
Large emergency vehicles, such as fire trucks, could reach the apartments if there was a fire, but due to the marginal safety afforded other emergency vehicles, it could be difficult for an ambulance to reach the buildings safely. Certainly, automobiles would not make it through the water without stalling and if they tried and did stall, then a further hazard could be created by abandoned vehicles. A nine metre entrance may not be of any advantage in this type of situation.
The provision of essential services
Essential services include hydro, gas lines, sewer and water services which appear to be easily available for the site. Other essential services are fire protection and ambulance. It has been noted that fire protection would be available and to some degree, some health related services through. the fire fighters training, but it may be difficult for other emergency vehicles to access the site during a regional storm event. These could include ambulances, hydro and telephone trucks as well as service trucks if something unforeseen occurs to affect the emergency services. The tribunal does not view this issue as having as significant an impact, but when added to the other issues which do have such impact, it requires consideration.
The Provincial Policy Statement – Flood Plain Planning states that ingress and egress for new buildings should be such that both vehicular and pedestrian movement is not prevented during times of flooding. It is clear that this policy cannot be met in a safe fashion in the current application. The tribunal does not accept that safe access is provided when only emergency vehicles can access the site. Automobiles and people should be able to do this as well. The tribunal agrees with the GRCA's position that safe access cannot be provided to the site without dry emergency access also being available.
Therefore, after reviewing the factors which should be considered in determining safe access, the tribunal finds that the prospective residents of the proposed development cannot be afforded adequate safe egress or ingress, during a Regional Storm, through the proposed driveway.
Does the application for the intrusion into Provincially Significant Wetlands for access purposes meet the objectives of Provincial and Authority policies regarding the protection and maintenance of such lands?
The policies relating to wetlands for which the tribunal must have regard are numerous:
Section 2.3 of the 1997 Provincial Policy Statement outlines the Natural Heritage policy which does not permit "development or site alteration" in "significant wetlands" south of the Canadian Shield, other than for agricultural purposes. (Exhibits 3-B:2-d and 3-C: 2-a) Neither party dispute that the lands in question are designated as "Provincially Significant Wetlands", nor that the surrounding (buffer) area can continue to be used for agricultural purposes, although Mr. Doherty indicated that the latter could be in jeopardy.
The Policy Statement continues in Section 3 – Public Health and Safety where it states that development may be permitted in hazardous lands if certain conditions are met, one of which is that ''no adverse environmental impacts will result". footnote 6 (s. 3.1.3.)
The May 1992 Wetlands Policy Statement (Ex 3-B:2-c) has the following Goals
- To ensure that Wetlands are identified and adequately protected through the land use planning process;
- To achieve no loss of Provincially Significant Wetlands: "
And as an objective:
to ensure no loss of Wetland Function or Wetland Area of Provincially Significant Wetlands in the Great Lakes-St Lawrence Region."
These policies very clearly outline the intent of the Province of Ontario. Obviously, a great many events, including shifts in land uses and the development of road and public utility networks, have impacted the wetland systems throughout the years. The substantial loss indicates how great the impact has been. It is this loss that has led to the development of the present policy for "protection". The tribunal agrees with Commissioner Kamerman in Bye v. Otonabee Region Conservation Authority (unreported -CC 1357-1993), when it was stated that:
The Wetlands Planning Policy is a clear direction from both the Minister of Municipal Affairs and Cabinet to place provincially significant wetlands on a higher level than other concerns by local planning bodies. The role of conservation authorities, on the other hand, is primarily concerned with natural resources. They do not need to be encouraged in this regard. In fact, the standards they apply to section 28 applications may be far more rigorous than contemplated by the Provincial Wetlands Policy Statement..."
In the Forward to the Manual of Implementation Guidelines for the Wetlands Policy Statement dated November 1992, both Deputy Ministers issued a statement that the guidelines were not meant to be rigid, but that the approach selected should be developed to reflect the intent of the Provincial Policy Statement. The tribunal accepts Mr. Doherty's position that the words in the policies do provide the tribunal with flexibility in reviewing and deciding the issues. The tribunal also notes, however, that individual approaches are acceptable as long as the goals of the policy are met. The last paragraph on page 27 of the Manual reinforces this position:
The objective of this policy is to prevent degradation. It is not meant to preclude well-considered wetland management programs designed principally to rehabilitate wetlands …."
This implies that the management and retention of the wetlands is the first priority of the province and any intrusion must be carefully and thoroughly evaluated.
It should be noted that the Statement itself addresses wetlands from a "land use perspective" and therefore does not directly control activities such as grading, draining and filling. These activities are dealt with under the Floodplain Regulations adopted by the individual Conservation authorities, as is the case with the GRCA.
The other Policy document to be considered by the tribunal is the Hanlon Creek Watershed Plan (Ex.3-B:2-b) This Plan, as accepted by the City of Guelph and the GRCA as a policy document and development guideline, had as its Mission Statement:
To develop a watershed plan that allows sustainable development aimed at maximizing benefits to the natural and human environment on a watershed basis."
The protection, enhancement and even the restoration of water quality and the associated aquatic resources, as well as water supplies, was the second of the three goals. One of the major conclusions dealt with buffers and linkages. The Plan concluded that corridors linking the core natural areas into a continuous system was highly desirable in order to maintain the value of the wetlands from further stress. The tribunal notes that the Plan states that these linkages perform a minor role in terms of water balance, (p. 172) but "these linkages are vital to the overall health and value of the larger and more diverse habitats which exist in the core areas. Under no circumstances should these linkages be lost". (p. 176)
The Hanlon Plan designated the Gies wetlands as provincially significant within Constraint Area 1.
Their continued protection is one of the foundations of the Hanlon Plan. Within this area:
No land use [is] permitted which impairs the junction, form (shape and size), connectiveness or biological quality of the area. Land uses which do not result in the above, may be considered if it is shown that they cannot be located (due to physical infeasibility) in adjacent Constraint Type 2 areas. "(p. 174)
These provincial and authority policies were applied by the GRCA in coming to its decision of refusal of the Gies Construction's application to intrude into the wetlands for a road access to their proposed development. The issue before the tribunal, therefore, is to determine what impact this intrusion has and to what degree is this impact affected by the Provincial Policy Statements and the policies of the GRCA with regard to the wetlands.
The tribunal finds Dr. Planck's evidence compelling with regard to his analysis of the wetland and the effects the road way or Route "C" would have on the wetland if constructed. The original Limnoterra Scoped EIS and the further work carried out by Limnoterra Limited, subsequent to the original access being denied, dealt with the specific area of the wetland where the proposed Route "C" was to be located. Dr. Planck stated that the area was reviewed in order to determine the impacts it would have on the hydrology and ecology of the area as well as the overall Hanlon Swamp. (Ex 2-a)
The tribunal accepts the fact that Dr. Planck supervised this further study both in Limnoterra's office and in the field. The tribunal, however, also accepts that Mr. MacMillan, on behalf of the GRCA, reviewed both the original Scoped EIS and subsequent letter report and recently visited the site on several occasions to verify the findings. Though he did not carry out any independent studies, the tribunal finds this to be normal procedure within the terms of the Implementation Guidelines ( page 27) and notes that the Guidelines place the burden of proof on the proponent to show how they have had regard for the Wetland Policy Statement. (Ex 2-B: 2-a - s. 3, page 9)
Dr. Planck's observation's regarding the conditions found in the valley (Evidence - pages 23–24), are accepted for the most part by the tribunal. These are the observations and facts that apparently led him to the conclusion that the impact of this road would be minimal on aquatic and mobile wildlife species. The field studies concluded that no wildlife presently living in the area that would be hampered by the proposed road. Mr. MacMillan's discussion on the location of the existing deer trails would appear to be a non-issue since evidence was heard (and accepted) that deer are very versatile and adaptable to their environment and will move quickly to where they can secure new habitat, as will other small mammals. For the most part, the creek "corridor" is available to aquatic animals and birds will continue to find food in the area and carry seeds along the "corridor" as is usual at present.
The issue of movement of the more mobile animals within the valley system, however, does not seem as clear cut. Dr. Planck stated that these animals will stay in the area or move towards the Hanlon Swamp as opposed to going towards the Speed Swamp by crossing Kortright Road. It does seem logical to the tribunal that animals such as deer and other smaller animals, would probably leave the area, at least during construction.
Mr. MacMillan's submission that some animals will probably also cross over Kortright Road to reach the northwestern valley also seems logical to the tribunal. Dr. Planck stated that the animal species do not spend their "whole life history span" in the one location. Based on this and on Dr. Planck's evidence that these animals are used to crossing Downey Road and would not be affected by a new road, it seems logical that the animals would also attempt to move across Kortright Road, whether it was safe for them to do so or not. It is the tribunals view that these animals do move along the valley corridor, but it is not necessarily the stream bed or stem corridor.
Little discussion took place with regard to the impact on the vegetation in the area. It is naturally understood that the vegetation along the route of the laneway will disappear and since the valley would not be used for agricultural purposes any longer, some of the wildlife's food sources will disappear. Dr. Planck stated that "naturalization" will occur between the storm pond and the remaining wetlands. This was put forward as a positive, and yet it was also stated that naturalization will alter the food source for wildlife. This could, therefore, have a potentially negative impact on the wildlife living in the two constraint areas located on the Gies property.
There is no doubt that Dr. Planck's observation that the entire area is experiencing a major shift is correct. This shift has been occurring for many years through the development of new industrial and residential uses, the new Hanlon Parkway and the upgrading of Kortright Road, all of which have had a significant impact on the wetland area. As a result, Dr. Planck's view is undoubtedly correct, that it is
impossible to say that this application area would have a distinguishable effect if the area for the road was taken away"
The tribunal agrees that there is potential for the existing wetlands to expand northwards towards Kortright Road, especially if the existing access lane is abandoned. The naturalization of the valley lands between the storm water facility and the wetlands will also occur. The tribunal sees this as a possible improvement to the environment, despite the possible negative impact on wildlife food sources. Dr. Planck is correct in stating that new wetlands will be created through the development of the storm water management pond, however, the tribunal notes that the Implementation guidelines Manual does not allow for "compensatory replacement", meaning the creation of new wetland in place of an existing wetland ( Ex. 3-B: 2- a -page 16). The improvement to the wetland certainly would be in keeping with the goals of the Hanlon Creek Watershed Plan, in that the new wetlands would be an "enhancement", but the tribunal does not accept the possible new wetlands as a replacement for what could be lost. The tribunal believes that the Policy should prevail.
The evidence provided certainly appears to support the view that the impact on wildlife and aquatic life, on the vegetation and the corridor linkages are insignificant. It is clear that the area to be lost is very small and there has been a great deal of impact in the past. However, the tribunal finds that there are several issues, beyond the policy statements themselves, which cause a concern, some of which were only touched upon during the hearing.
These issues deal with the following:
- The application is for a roadway, through a wetland, which will provide access to apartments, housing up to approximately 600 persons. This could equate to 200 to 300 vehicle trips per day. The road bed will be built to withstand this kind of use. It is not the same road bed required for a farm lane and the comparison is not accepted. Agricultural uses are allowed in lands adjacent to wetlands, but this application deals with residential development Therefore, the tribunal does not view the references to a farm lane as relevant.
- It has been stated that the new roadway will not cause many problems for the wildlife presently living in the area as they will continue to cross the road at will. However, this should be a concern, from a safety point of view, for both the animal population as well as for the motorist. The proposal is to construct a road over which 200 to 300 cars might travel each day. These vehicles also would have to travel over the existing Downey Road, which at present would have very minor vehicular use since a barrier at the bridge structure prevents further access. Only municipal service vehicles would have much cause to use Downey Road. This issue was not discussed in any depth during the course of the hearing.
For approximately 100 years, these animals have been used to the existence of Downey Road, as pointed out by Dr. Planck, but with the influx of new vehicles to which they are not accustomed, the situation will change for the animals and can cause a negative problem for the residents and any guests. It has been noted that the wetland vegetation will be removed from the corridor, but will remain relatively dense along the road side. A deer, for example, running out from the wooded area in front of a car can cause a great deal of damage and has been known to cause deaths, depending on the speed of the vehicle. The original proposal would have a similar impact through the floodplain area but very little impact along Downey Road itself.
The tribunal finds that this issue is impacted by the Provincial Policy Statement that requires that no new hazards be created and existing hazards not aggravated. Although this applies specifically to times of flooding, erosion and other emergencies, the policy requiring that people and vehicles be provided with safe access and egress also seems relevant to the issue of animal mobility. The tribunal finds that there is a significant potential for a new safety hazard to be created by the expanded use of Downey Road as well as the provision of a new road through an area of wetland used by certain wildlife.
The tribunal has analysed the various Policy Statements of the province and the authority as they impact the wetland issue and finds that these policies are very strong. Even though the statement is made that they should not be considered rigid, the policies themselves appear to be quite definite as to their direction to the resource based commenting bodies. After extensive review, the tribunal takes the same position. Words such as "the first consideration is wetland protection" (Manual-p.26) and "the Policy statement allows for no loss of wetland area …. this means no loss." (Manual-p. 16) make it very clear to the tribunal that the province has very high expectations with regard to the protection of the remaining wetlands. The policies reviewed specifically were:
- The Policy Statement – Wetlands, (Ex.3-B: 2-c). As the policy relates to the Great Lakes - St Lawrence Region, the goal is to achieve "no loss" of Provincially Significant Wetlands. The objective is to "ensure no loss " of wetland function or area of these significant wetlands. (p. 4). The policy acknowledges the various benefits that are derived from the protection of these lands that affect the environment, the residents and the economy of the province. The policies themselves further strengthen the goals and objectives by stating that:
- Development is not permitted within Provincially Significant Wetlands; (2.1)
- Development on adjacent lands is only permitted, as demonstrated by an E.I.S., if:
- there is no loss of wetland functions; (2.2.a)
- there is no loss of contiguous wetland area; (2.2.d)
- The Manual of Implementation Guidelines for the Wetland Policy Statement repeat the main goals and objectives of the Policy Statement itself stating that "all planning approaches must ensure that the goals of the policy statement are met". (Ex. 3-B: 2-a) The document states that the existence of abundant wetlands in the northern part of the province does not compensate for the loss in the south (p.6). Despite the statements about "flexibility", the Policy states that:
"The first imperative of this policy Statement is that provincially significant wetlands are not to be developed. This is a clear indication that the provincial interest is to prevent the further loss of function of provincially significant wetlands in Ontario." (p.10)
The guidelines do suggest that both public and private roads shall be located outside Provincially Significant Wetlands wherever possible, but allows this to occur if the impact can be shown to be minimized through a full Environmental Assess Study.
The following outlines the tribunals findings in regard to these Policies:
Loss of Function: It has been stated that the tribunal found Dr. Planck's evidence regarding this matter very compelling. However, the fact that he also stated that it was almost "impossible to say that this application area would have a distinguishable effect if the area for the road was taken away" is disquieting to the tribunal, as it calls into question the value of any of the "before" studies (ie. Scoped EIS ) and naturally, the "after" study, which could prove to have an impact in one form or another on aquatic and wildlife species as well as vegetation impacts, would not be available until after the actual road construction.
Further, according to Dr. Planck, the Gies wetlands exist due to seasonally high ground water table conditions. footnote 7 The engineered design would unite the two areas of the wetland divided by the new road way to allow the hydraulic movement of water, thus not interfering or causing a failure of the ground water system from replenishing the supply in both areas. The tribunal believes that it is possible for the hydraulic component of the proposal to be accomplished in order to maintain the wetland water levels. This, however, is also a proposition put forth in a ''before'' circumstance and one which cannot be tested until after the construction of the road. Again, it is too late at that point.
As a result and despite the fact that Limnoterra could not find "anything very specific that would Impact the functions and the integrity of the wetland system", the tribunal is not satisfied that, in fact, there is "no loss of function". The tribunal believes that some of the function will inevitably be lost as a result of the construction of the new road, be it from a hydraulic or wildlife and vegetation point of view and finds that the proposal does not satisfy the policy of no loss of function.
Contiguous Loss: Evidence was submitted to demonstrate that the wetland in this area has already been fragmented by historical actions. This suggestion seems to have been made as a justification for further fragmentation. Policy 2.2.d in the Manual states that development on adjacent lands may be permitted if it does not result in a " loss of contiguous wetland area". (p. 14) Even though there is a potential for the northern portion of the wetland to survive, the construction of the roadway will result in this loss of contiguous wetlands. The potential impact was outlined by Dr. Planck as being insignificant. Mr. Ariens classified the intrusion as minor and the portion to be "cut off" as a minor extension and not an intregal part of the overall wetland. On the other hand, Mr. MacMillan indicated that the area has long been regarded as a fragile and a very sensitive area that requires enhancement, especially with regard to its width. This is basically the only evidence that was submitted on this issue.
The condition of the wetland in this area is discussed in the Hanlon Creek Watershed Plan. Although this is only a policy of the GRCA, as opposed to a provincial policy under the Planning Act the tribunal does accept the document as adding weight to the impact that development will have in the Hanlon watershed in general and the Gies lands in particular. The fact that extensive and cooperative efforts occurred in producing this plan gives it a status accepted by the tribunal. In addition, the Hanlon Plan is the result of the direction given in the Policy Statement – Wetlands in which the first goal was to:
"ensure that Wetlands are identified and adequately protected through the land use planning process; " (Ex. 3-B:2-a-p. 1)
The tribunal accepts the GRCA's position as put forward in the Watershed Plan that enhancement, rather than possible degradation, is needed in this area and finds that the policy of no loss of "contiguous wetland area" cannot be met with the introduction or "Route C".
Road Construction: Mr. Doherty has suggested that because the City of Guelph has virtually landlocked the property by refusing access, Gies Construction has no choice but to secure an access along the only frontage owned by the company. This requires construction within the wetlands. He has suggested that Policy 4.1. is applicable because of these unique circumstances. The policy states:
"New utilities/facilities shall be located outside Provincially Significant Wetlands wherever possible. Approval authorities shall consider alternative methods and measures for minimizing impacts on Wetlands functions when reviewing proposals to construct transportation, communication, sanitation and other such utilities/facilities in Provincially Significant Wetlands. " (page 25)
The policy manual does state that the utilities/facilities may be public or private. The Hanlon Watershed Plan also allows land uses which due to ''physical infeasibility" cannot be located in adjacent areas to Constraint Area 1. This is allowed only if the use does not impair function, shape, size, connectiveness or biological quality within the area. The manual also states that the burden of proof of the impact rests, through a full EIS, with the proponent and that the first consideration remains the protection of the wetland.
The tribunal accepts Mr. Natolochny's premise that access outside the wetlands is still a possibility, but requires either the support of the City of Guelph, through negotiations or the Ontario Court system, through judgment. It is physically feasible for the access to be located outside of the wetland area. This tribunal cannot accept that all avenues to solve this access issue have been sufficiently completed. The "last resort" has not yet arrived. The wetlands are an important and irreplaceable resource in this or any other area of the province, too important to allow any loss while other avenues for a non intrusive solution still remain. The tribunal finds that alternative access outside the wetlands remains a possibility and therefore, the proposal does not meet the intent of Policy 4.1.
In summary, it is quite apparent to the tribunal that the wetland statements are very important policies within the scope of provincial policy statements. They are strongly worded, discouraging encroachment in all but the most unique circumstances. The tribunal does not find the filling of wetlands for the purpose of access to be unique, as this, unfortunately, is not an uncommon circumstance. What is uncommon is the length of the proposed access across both the wetland and the floodplain and the fact that it would be to serve an apartment complex, not an individual residence.
Dr. Planck recognized the importance of the policies in the initial Linmoterra Scoped Environmental Impact Statement wherein the wetland boundary was determined and agreed to. His admission that the proposed access would result in a loss of a portion of provincially significant wetland and would not meet the intent of either the Hanlon Creek Watershed Plan or the Policy Statement – Wetlands and that he had recommended against the access as it would create a public emotional issue is seen as very significant by the tribunal.
For the reasons given, the tribunal does not believe that the application for the intrusion into Provincially Significant Wetlands for access purposes meets the goals, objectives or policies of either the Provincial or Authority policy documents regarding the protection and maintenance of the wetlands on the Gies property. In considering these policies, the tribunal finds that it is proper to apply them in a rigourous manner. The tribunal therefore, having considered the specific facts of this appeal, finds that it would adversely affect the Conservation of land through a degradation of the exisiting Provincially Significant Wetland.
Would an approval create a precedent within the GRCA and the province as a whole with regard to wetland intrusion?
The tribunal accepts the Authority's position that promotes dry access as a desirable situation, but at minimum, safe access is required for residential developments. That is the reason the initial rezoning application was approved through the floodplain as the emergency access was proposed. The current application does not provide this access.
The tribunal also accepts the Authority's concern regarding development impacts on the sustainability of the remaining wetlands in the watershed.
Although the tribunal did not give much weight to the examples of similar impact, the Authority's concerns about precedence on both the floodplain and the wetland issues appear valid.
With regard to the appellant's arguments, the tribunal does not accept the proposition that the site is unique environmentally because it is being landlocked by the City of Guelph. Certainly the environmental analysis shows minimal impact on the wetlands, but the tribunal is convinced that there will be impact, certainly from a loss of area perspective and probably function perspective. In addition, the absence of a safe access is unacceptable to the tribunal.
Policy 2.2. of the Policy Statement – Wetlands states that development is permitted on adjacent lands if it does not result in:
subsequent demand for future Development which will negatively impact on existing Wetland Functions."
The Implementation Manual, in expanding on this policy, states that:
consideration must be given to the effect that this proposal will have for creating demand for additional uses which will impact on wetland functions. (p. 21)
If this application was to be approved, the tribunal accepts that the GRCA would have difficulty in reviewing subsequent applications which might either intrude into a Provincially Significant Wetland or not have safe access, due to the potential for flooding. Such a decision certainly would be used by other applicants in attempting to demonstrate precedent.
This application would not be before the Mining and Lands Commissioner if the original proposal for access through the floodplain with a second safe access had been successful. The Authority had shown its willingness to work with the applicant to solve a problem. However, when it came to the wetland intrusion, the authority exhibited its deep concern for the preservation of wetlands. The tribunal shares this concern.
Further statements in the Manual of Implementation Guidelines for the Wetland Policy Statement are relevant to this issue:
The key determinant here is to continue to assess potential impacts with each new proposal and to establish the principle that development approvals are finite, not precedents. Some examples of development which would not meet the intent of the policy statement and specifically, the provision of subsequent demand are:
- development on adjacent land with provision of access and egress or infrastructure through a provincially significant wetland" (p. 21)
Although the tribunal acknowledges that, if the application were to be approved, the Authority would encounter some difficulty with regard to precedent setting in the future, it also has the ability, as does the tribunal, to rely on the policy statements themselves. It appears to the tribunal that the proceeding paragraph from the Wetland Manual goes directly to the point of this appeal.
Therefore, the tribunal finds that the policy statements themselves offer sufficient protection to the resource commenting bodies to eliminate any concern for precedent setting.
As was suggested by Mr. Ariens, each application does have something unique about it which requires a decision to be brought forth based on the individual merits of the case. The tribunal believes, however, that the merits should deal with those matters required under the Conservation Authorities Act and the resource policies on flooding and wetland preservation that form the basis of the various provincial and conservation authority policy statements.
While not legally bound by the provincial policy statements, it is important to note, once again, the statement in the Policy Statement – Flood Plain Planning:
…the Mining and Lands Commissioner, in hearing appeals and Ontario Municipal Board appeals affecting floodplains, should also "have regard" to the Policy Statement in their deliberations. Obviously, it is anticipated that tribunals such as the Mining and Lands Commissioner, would give major significance to an approved Policy Statement and any deviations would therefore have to be very well substantiated and justified."
Based on the evidence and the reasons outlined for each of the four issues, the tribunal does not find the application to be justified from either a floodplain safety or loss of wetland function or area perspective. The application cannot be considered unique from an environmental point of view and the tribunal finds that the provincial policy statements must take precedence. In the view of the tribunal, the burden of proof has not been met and as a result, it will order that the appeal in this matter be dismissed.
The tribunal further finds that no costs shall be payable by either of the parties in this matter.
Gies versus Grand River Conservation Authority (CA 003-99)
Table 1 - Compamon of flood levels at interesection of Route 4 "C" and Downey Road
|Storm levels||Level 314.84 m||Level 315.36 m|
|2 year - 314.69 m.||-||-|
|5 year - 314.89 m.||0.05 m (0.16 ft.)||-|
|10 year - 315.06 m.||0.22 m (.72 ft.)||-|
|25 year - 315.26 m.||.42 m (1.38 ft.)||-|
|50 year - 315.35 m.||.51 m (1.67 ft.)||lapping|
|100 year - 315.36 m.||.52 m (1.7 ft.)||level|
|Regional - 316.34 m.||1.5 m (4.92 ft.)||.98 m (3.21 ft.)|
Table 2 - depths of flood water along Route "C" - Existing grades
|Storm levels||Existing grades||Depth of flood waters regional storm||When flooded first|
|2 year - 314.69 m.||At road - 314.84||1.5 m (4.92 ft.)||5 Year|
|5 year - 314.89 m.||314.42 m||1.92 m (6.3 ft.)||2 Year|
|10 year - 315.06 m.||314.57 m||1.77 m (5.8 ft.)||2 Year|
|25 year - 315.26 m||314.94 m||1.4 m (4.6 ft.)||10 Year|
|50 year - 315.35 m.||315.17 m||1.17 m (3.83 ft.)||25 Year|
|100 year - 315.36 m.||315.42 m||0.92 m (3 ft.)||+ 100 Year|
|Regional - 316.34 m.||315.76 m||0.58 m (1.9 ft.)||+ 100 Year|
|316.34 m||- 0 -||-|
Table 3 - Depths of flood water along Route "C" - Proposed grades
|Storm levels||Proposed grades||Depth of flood waters regional storm||When flooded|
|2 year - 314.69 m.||At road - 315.36||0.98 m (3.21 ft.)||100 Year|
|5 year - 314.89 m .||315.59 m||0.75 m (2.46 ft.)||+ 100 Year|
|10 year - 315.06 m.||315.34 m||1.00 m (3.28 ft.)||50 Year|
|25 year - 315.26 m.||315.40 m||0.94 m (3.08 ft.)||+ 100 Year|
|50 year - 315.35 m .||315.50 m||0.84 m (2.76 ft.)||+ 100 Year|
|100 year - 315.36 m.||315.59 m||0.75 m (2.46 ft.)||+ 100 Year|
|Regional - 316.34 m.||315.82 m||0.52 m (1.71 ft.)||+ 100 Year|