The Mining and Lands Commissioner
In the matter of the Conservation Authorities Act
And in the matter of
An appeal against the refusal to issue permission to construct two single family residences and one double (semi-detached) residence on Block G, Plan 237, Chopin Drive, in the City of Cambridge in the Regional Municipality of Waterloo.
Grand River Conservation Authority
M. J. Somerville for the appellant.
J. M. Harris for the respondent.
On August 4, 1977 the appellant through his solicitors applied to the respondent for permission to construct "three single family residences and one double (semi-detached) residence", on Block G, Plan 237 on Chopin Drive in the City of Cambridge. The application was accompanied by a plan prepared in November, 1975 by Plant Assistance Services which illustrated two single family dwellings and one semi-detached dwelling. The purpose of the work was "infilling of residential uses". Following a hearing the executive committee of the respondent refused to grant the permission requested and the appellant appealed to the Minister of Natural Resources under section 27(2c) of The Conservation Authorities Act. By Ontario Regulation 900/77 the power and duty of the Minister to hear and determine the appeal was assigned to the Mining and Lands Commissioner.
The subject lands comprise the southerly 163 feet of Block G, Plan 237. The block is situate on the west side of Chopin Drive, formerly Water Street, in the part of the City of Cambridge that was formerly the Town of Preston. The block is owned by the applicant, his brother James and his mother, Jennie O'Geil. On the northerly part of the block, measuring 62.4 feet, there is situate a frame building erected in 1920 or thereabouts and presently resided in by the mother. Also at the northerly end and perhaps overlapping the subject lands in part is a second residential building with an attached garage and a further garage. The proposal of the applicant, who indicated that he had made the application on behalf of all of the owners was that the residence with the attached garage and the second garage would be removed, that no fill would be placed on the subject lands in the construction of the three buildings and that the basements would be constructed to the elevation of 897 feet and contain no openings. Chopin Drive has been asphalted and the necessary services are available. The subject lands are and have been for some time zoned "R2" which permits single and semi-detached family residences.
As a preliminary matter counsel for the respondent moved that the appeal be dismissed on the grounds that this is the fourth application for permission that has been brought by the same owners for the same land for the same type of buildings, namely two single family residences and one semi-detached residence. The first application, made in 1974, was supported by a survey by Clifford E. Stinson dated November 7, 1972 showing a similar subdivision of the subject lands and the proposed location on the subject lands of buildings that are similar to the buildings shown on the plan by Plant Assistance Services accompanying the present application. Counsel submitted that the present application involved the same parties, the same land, the same owners, and the same type of plans and should not be heard by this tribunal as this tribunal had by its decision of April 22, 1975 dismissed the appeal taken from the refusal of the first application.
In practical support for the motion it was pointed out that the present application was the fourth application that the respondent had been required to consider in a period of three years and that the applications were similar for all practical purposes. It was submitted that it was not the intent that a landowner should be permitted to have continuous applications of a similar nature. By way of legal support it was submitted that the doctrine of res judicata was applicable by reason of the 1975 decision of this tribunal. Reference was made to paragraph 104 of Part 4 of the section on Administrative Law contained in Volume 1 of the 3rd Edition of the Canadian Encyclopedic Digest (Ontario) which reads as follows:
104 The doctrine of res judicata, which is applicable to the ordinary courts of the land, also applies to judicial tribunals exercising judicial functions, though not to administrative tribunals. Thus if a quasi-judicial tribunal attempts to rehear a matter that it has determined already, it will be acting without jurisdiction and its decision on the rehearing will be quashed.
Reference was also made to paragraph 105 which reads as follows:
105 Statutory exceptions exist to the extent that certain tribunals exercising judicial functions are authorized to hold rehearings of the same matter, but even here there is a rule that unless new evidence of a significant nature is presented at the rehearing or there has been a significant change in relevant circumstances, then the tribunal cannot alter its original decision. A mere change of mind is not sufficient. However, the new evidence sufficient to justify a change in the original decision may be evidence which was available but was not presented at the first hearing. It does not have to be evidence that has come to light since the holding of the first hearing.
With reference to the characterization of the function of the Minister of Natural Resources in holding an appeal under section 27(2c) of The Conservation Authorities Act counsel for the respondent referred to the Supreme Court of Canada judgment in the case of Calgary Power Ltd. and L. C. Halmrast v. Clarence Copithorne  S.C.R. 24 where the tests for characterization were reviewed and it was submitted that the judgment is authority for the principle that a function under which a tribunal makes a decision determining the rights of subjects should be characterized as a quasi-judicial function. Counsel for the appellant submitted that a mere affecting of the rights of the subject does not make a function a quasi-judicial function and referred to the powers of committees of adjustment, municipal councils, and similar bodies that affect the rights of subjects and are not regarded as quasi-judicial bodies. He submitted that the type of function exercised by the Minister was administrative. He also submitted that it was improper to make a ruling at the preliminary stage as the evidence would show that there were significant differences in the applications and unless the continued applications of a landowner can be said to be an abuse of process or vexatious or frivolous, landowners should not be prevented from making additional administrative applications to the conservation authority for consideration.
The tribunal reserved the making of a decision on the preliminary motion pending the hearing of the evidence in the event the argument of counsel for the appellant was supported by the evidence and the evidence was heard. It was suggested to counsel that the question of the payment of costs pursuant to the provisions of Part VIII of The Mining Act might have some relevance on the question of multiplicity of applications but neither counsel in their final submissions where they repeated their earlier principles on this motion referred to this argument.
Without the benefit of an exhaustive review of all the authorities I have considerable doubt as to whether a function ought to be characterized as quasi-judicial. Basically there are five functions recognized in law which are as follows:
Executive functions are those functions of heads of state which rarely become a matter of judicial consideration. Legislative functions are the creation of laws whether it be by a legislative body or by an assignee such as by a municipality or a conservation authority. The judicial function is the interpretation and the implementation of law. The fourth function is the implementation of public policy through public bodies or officials. The fifth function is an application of legal principles by officials such as building inspectors and officials of building departments of municipalities in issuing building permits where there is a legal code of law that is administered by a non-judicial official, whose actions may be reviewed through the remedies of mandamus where there has been failure to apply the provisions of the code of law.
Superficially there is the possibility that the functions that have been referred to as quasi-judicial are in reality administrative functions in respect of which the courts in the interest of justice have established basic criteria. With the enactment of The Statutory Powers Procedure Act, 1971 and The Judicial Review Act, 1971 the needs for these criteria no longer exist and the criteria are codified, in effect, in Ontario with the result that there may no longer be any significance in considering that there is a sixth function.
Apart from the foregoing and examining the role of a conservation authority in respect of the granting of permission of the three types of permission dealt with in The Conservation Authorities Act, the pattern has developed that regulations have been approved by the Lieutenant Governor in Council prohibiting the construction of buildings or structures, the placing of fill or the alteration of channels with exceptions to the prohibition being created through permission in writing of the conservation authority. By the 1973 amendment to The Conservation Authorities Act, section 27 (2c) provided:
27.–(2c) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission.
There is nothing in the amendment to suggest that the review by the Minister is limited to a review of the legality of the decision and in my opinion the function exercised by the Minister on appeal is the same as the function of the conservation authority in exercising its jurisdiction in the first instance. The further assignment through the provisions of The Ministry of Natural Resources Act, 1972, as amended by The Ministry of Natural Resources Amendment Act, 1973, cannot change the character.
There is nothing in subsection 2c of section 27 of The Conservation Authorities Act that restricts the Minister's review on appeal to the question of whether there has been any improper interpretation of law or of any other matter. The Minister's powers on appeal are unrestricted and presumably fall within the same category of function as the function exercised by the conservation authority.
I have read the Calgary Power case and I find nothing in this case which would suggest that the function of a conservation authority in respect of the issue of permission is a quasi-judicial function. The case, in considering the requirements of a quasi-judicial function, clearly indicates that in addition to affecting the rights of subjects a tribunal exercising a quasi-judicial function must have the "duty to act judicially." As I understand this second requirement the determination of the tribunal must be based on the principles of the law as contrasted with public policy. Where the considerations of the tribunal are public policy the function is characterized as administrative. The remarks of Maitland J. are significant in defining the nature of an administrative function and read as follows:
Turning to the statutes in question here, it is significant that there is no requirement as to the giving of notice or the holding of any inquiry in relation to the expropriation itself, although there are specific provisions as to notice and as to arbitration proceedings in relation to the determination of the compensation to be paid in respect of the lands or interest in land expropriated. The Minister is given sole authority to decide whether or not lands or any interest therein are necessary for an authorized undertaking. There is no provision for an appeal from his decision. His decision is as a Minister of the Crown and, therefore, a policy decision, taking into account the public interest, and for which he would be answerable only to the Legislature.
The standard to be applied to any application under Ontario Regulation 356/74, and which is analogous to the regulations of other conservation authorities, is contained in section 4 of the regulation and reads:
.......if, in the opinion of the Authority, the site of the building.........will not effect the control of flooding or pollution or the conservation of land.
There is nothing in the regulation to suggest that the decision of the conservation authority must be based or should be limited to consideration of legal principles. The principles to be considered are engineering principles which in the context of the law as it has developed to date can only be regarded as matters of policy and the function of the conservation authority in my opinion is nothing more than a consideration of principles of public policy and should be characterized as an administrative function. Accordingly, I have bean shown no grounds on which the doctrine of res judicata should be applied to an application to a conservation authority for permission under its regulation.
In his final submissions on the subject counsel for the respondent suggested in effect that, the case having been heard before, the tribunal had no jurisdiction as it was in effect subject to the functus doctrine. Counsel for the appellant raised the interesting argument of estoppel in the fact that the respondent had advised the appellant that he had a right to appeal its decision to the Minister. There were no submissions in respect of all the requirements of an application of the estoppel doctrine by counsel and it does not appear that there has been any change in position by the appellant based on this representation. More significantly it appears to this tribunal that if the doctrine of functus were applicable at all, it would be equally applicable to the conservation authority and if the conservation authority had adopted this approach in dealing with an application, then an applicant ought to have such an issue raised at the hearing before the conservation authority or its executive committee. As a matter of fact there were a number of changes in the present application and I have considerable difficulty in concluding that a decision had been made on the facts of the present application. The most significant difference was the proposal to construct buildings without the addition of fill. The area of the subject lands according to the survey of Clifford E. Stinson dated November 7, 1972 was 17,233 square feet. The amount of fill proposed in the earlier and intervening applications was in the vicinity of two feet which would equal approximately 35,000 cubic feet of fill which would be in excess of 1,000 cubic yards of fill. In addition it was proposed to remove two existing buildings. I cannot conclude that the doctrine of functus applied to this application.
Turning to the merits of the application, the subject lands front on the west limit of the south end of Chopin Street. They are situate approximately 600 to 700 feet easterly of the east bank of the Speed River, a tributary of the Grand River which flows in a general southerly direction and joins the Grand River at a location approximately one-half mile southerly of the subject lands. The land between the subject lands and the Speed River is typical floodplain or river flats. Nelson Street runs in a north-south direction parallel with the extension of Chopin Drive and approximately one block to the east of such extension. It is two blocks in length. On the west side of Nelson Street there are three older houses and an apartment building erected over ten years ago. These buildings are easterly of the extension of Chopin Drive. With the exception of these houses and apartment building there is no existing building southerly or westerly of the subject lands to the east side of the Speed River.
The regional floodline for the subject lands was agreed by the witnesses for the respondent to be 897 feet. The elevation used in the previous application was 898 feet but the witnesses had no objection to the use of the lower elevation by reason of the tolerances in the contour mapping. The maximum observed floodline for the subject lands which is a calculated line based on engineering calculations and computer programs for the subject lands is 892 feet. The elevation for the flood in May, 1974 was 892.5 feet having completely inundated the subject lands and having caused some flooding of lands on the easterly side of Chopin Drive. The elevation of the subject lands is 891.4 feet at the south limit and 891.9 feet at the north limit. The elevation of Chopin Drive at the location was said to be three or four inches higher than the subject lands and is in the vicinity of 892 feet.
It will be observed from these elevations that in the event of a regional flood, based on an averaging of the elevations of the subject lands there would be 5.35 feet of flooding. The easterly boundary of the subject lands is westerly of or below both of the maximum observed floodline and the May, 1974 line by a distance of approximately 100 feet.
The position of the respondent was that under its policy there is some permitted construction in the area between the maximum observed floodline and the regional storm floodline but as these lands are below the maximum observed floodline the permission to construct the proposed new residential buildings was contrary to its policy.
The position of the appellant was that the latest proposal contains all of the flood protection steps that could be taken in respect of the subject lands, that the subject lands are unique by reason of their being the only land in the area that was zoned for residential use, that the planning committee and the council of the City of Cambridge had endorsed their application and that the respondent has granted permission in respect of other properties in the area in respect of which the refusal to grant permission for the subject lands is inconsistent.
With reference to the first point of the appellant the present application did not include the importation of any fill which would interfere with the flows of the river during flood conditions or reduce the storage capacity. It was proposed that the foundations of the buildings be raised so that the top of the foundation is at the regional storm floodline and that all floors and services would be above this elevation. It was further proposed to reduce the existing constrictions by the removal of a garage and a residence with an attached garage. One would have to admit that it appears that the appellant has gone as far as possible with respect to the alleviation of flooding concerns but this in itself does not make an unsafe property a safe one. During a regional flood there would be considerable, risk of danger to the proposed buildings as the area surrounding the buildings would be covered with more than five feet of water. There was no evidence to assure me that the buildings themselves could withstand the risks of such a degree of flooding and while one could say that the occupants of the proposed buildings would be safe during a regional flood provided they remained in the habitable portion of the proposed buildings, there can be no assurance that this condition would prevail and occupants, particularly children, would not leave the houses. There would be no access to the buildings as Chopin Drive also would be under five feet of water and there would be no way to deal with emergencies as ambulances, fire trucks and other emergency services could not gain access to the proposed buildings. It is most difficult to conclude that the steps, even if they may be all the steps available to the appellant, are sufficient to remove the risks that would be present during a regional flood. Notwithstanding the proposals of the appellant it is apparent that considerable risks continue to exist in respect of the property from flooding during a regional storm.
Dealing with the points of the appellant respecting the uniqueness of the subject lands and the support of the planning committee and the city council, the resolution of the planning committee reads:
That the Cambridge Planning Committee recommend to the City Council that they advise the Executive Committee of the Grand River Conservation Authority that from a land use and planning point of view the City of Cambridge has no objections to the granting of a fill permit to Mr. Ronald O'Geil.
By minutes of the council of the City of Cambridge for the meeting of September 19, 1977 the report of the planning committee was adopted in this respect. Sally Thorsen, the Commissioner of Planning for the City of Cambridge was called as a witness for the respondent and gave evidence that while the proposal was not in accordance with the official plan which designates the subject lands as hazard lands it was in accordance with the zoning by-law which has been in effect for some time. The report of the planning staff of the committee recommended that the committee should advise the council to recommend to the respondent that it did not recommend the granting of permission. Mrs. Thorsen also gave evidence that the report of the staff of the planning committee failed to refer to section 2.7 of the zoning by-law which reads as follows:
2.7 Lands Subject to Flooding
In all Zones the erection of buildings or structures for residential or commercial purposes shall be prohibited on land that is subject to flooding or on land where by reason of its rocky, low lying, marshy or unstable character, the cost of construction of satisfactory water-works, sewage or drainage facilities is prohibitive to the Municipality.
Counsel for the appellant brought out that there was no definition of the phrase "subject to flooding" and submitted that there is some suggestion in the wording that it involves flooding at annual or frequent intervals. There may be some legal basis for suggesting that the words of the by-law are not equivalent to the 'principles of Ontario Regulation 356/74 which uses the phrase "susceptible to flooding during a regional storm". Undoubtedly, the word "susceptible" has a broader meaning than the word "subject" but I doubt that any narrowness in the word "subject" would exclude the application of the phrase to lands below the maximum observed floodline which have been subject to flooding on three occasions during the last thirty years.
Further it is noted that the planning committee was very careful to qualify its recommendation and limit it to "a land use and planning point of view". Undoubtedly this reflects the view in the minutes filed as Exhibit 12 indicating that some members of the committee felt that they should not be commenting on matters respecting the provision of floods and the issue of permits by the respondent. However, keeping in mind the qualification in the recommendation of the planning committee and the fact that the report to the planning committee failed to refer to section 2.7 of the zoning by-law I fail to see how such resolutions can reflect on the assessment of the risks and the effect on the control of flooding. There is nothing in the report to the planning committee indicating the extent or depth of flooding in a regional storm and I find it difficult to conclude that the planning committee made any significant assessment of the risks associated with the proposed buildings.
With reference to the submissions respecting the inconsistent policy of the respondent counsel for the appellant referred to the Thorman subdivision. It was suggested by the appellant that one house in the subdivision had been constructed across the maximum observed floodline. The evidence of the respondent was that this subdivision which lies approximately one-quarter of a mile south of the subject lands and much closer to the river is completely situate above the maximum observed floodline and the May 1974 floodline and in fact only small portions of the subdivision are below the regional floodline. At the time the subdivision was approved the exceptions below the regional floodline were noted and arrangements were made with the municipality to have a provision written into the subdivision agreement to ensure that no houses should be erected below the regional floodline without permission of the respondent. Notwithstanding this arrangement one, two or three houses were commenced below the regional floodline. The matter was reviewed by the respondent and steps were taken to ensure that the houses were raised above the regional storm elevation and it was made a condition of the approval that minimum fill should be used. It is very difficult to conclude that this situation is analogous with the subject lands where the subject lands lie entirely below the maximum observed floodline and the May, 1974 line.
A development on the west side of the Speed River and carried out by John G. Schropp Builder Limited straddles all three lines. These lots lie on the east side of Fountain Street. Approximately half of the lots are above the three lines and it was suggested that fill had been placed on the rear of the lots and below all three lines. The evidence for the respondent in connection with this property was that the old Town of Preston had made an agreement years ago with the builder that he might be permitted to construct homes on this land provided a sewer was built at the expense of the builder. The sewer was built and the municipal officials supported the application on the basis of the prior commitment. It was pointed out that these houses are not constructed on the floodplain but are cut into a fairly steep bank. The front of the lots are at elevations of 910 to 920 feet. The regional floodline is similar to that for the subject lands i.e. 897. The houses were constructed with the equivalent of two basements. The first basement is completely enclosed and is below the regional flood elevation. However, the top basement extends to 903 feet with the result that the habitable portions of the buildings are all above the regional floodline. Counsel for the appellant submitted that there was a suggestion of political interference in connection with the approval. It was pointed out that permission had been sought in respect of seven lots but permission had only been granted in respect of five lots. The only conclusion that I can come to in regard to the facts in respect of this project is that the respondent persevered against considerable political pressure and, if not legal, at least moral commitments and was able to restrict any interference with the floodplain to a minimum.
The appellant referred to an addition to the Brewers Warehouse on the south side of King Street shown on the plan submitted by the appellant (Exhibit 15). It appeared that this addition had been erected below the maximum observed floodline. The evidence of the respondent was that the addition was an addition to a commercial property and that a different policy is followed in connection with commercial properties than is applied in respect of residential property by reason of the absence of habitation in commercial buildings. The evidence of the respondent was that the location while below the maximum observed floodline was above the May, 1974 floodline and accordingly, was in a less serious location than the subject lands. Reference was also made to fill that had been placed at the Grand Valley Auction Centre. The evidence of the respondent was that they were unaware of this activity. It was further pointed out that while it may be equally significant from a point of view of control of flooding the regulation of the respondent only prohibits the placing of fill in scheduled areas and, unlike the regulations of other conservation authorities, does not prohibit the placing of fill in the entire floodplain by including it in the schedules.
Reference was made to the construction of an addition at the Knotty Pine Kof-E-Bar. An addition was made on the water side of a commercial restaurant. The position of the respondent was that it was distinguishable if not justifiable on the basis of a commercial use and an extension of an existing operation.
The appellant referred to a project of Grant Hughes on Speedsville Road. He indicated that there were continuous filling operations at this site which are levelled and grassed as soon as possible after the dumping of the fill and submitted photographs showing a fairly substantial addition to an existing house. The evidence for the respondent with respect to the Hughes property was that the owner had originally applied for permission to erect a new house and this was refused. He subsequently applied for permission to close in a veranda measuring 9 feet by 11 feet and construct a second storey bedroom on the upper level covering the old porch and part of the house. This application had been given favourable recognition on the basis that it did not constitute an extension of the existing coverage. Also the building, while below the maximum observed floodline is above the May, 1974 floodline and the extension is on the side of the building which would not increase any problem of constriction.
Reference was made to the construction of the Knights of Columbus hall. The evidence for the respondent was that upon preliminary application it appeared that the site was above the regional floodline and the applicant was invited to bring in a survey. This was done and showed that the proposed building was above the regional floodline and accordingly, no permit issued. Reference was made to the considerable amount of fill but here again the regulation of the respondent does not prevent the placing of fill. It was further suggested but not established that the fill had been placed for the purpose of raising the elevations to show that they were above the regional floodline. Even assuming there was evidence of such conduct it would appear to be a matter of appropriate punitive action as contrasted with the establishment of a precedent.
Another project considered in the evidence was an apartment building project proposed by Max Woschnigg Construction Limited. The site of this proposed apartment building is immediately to the south of an apartment building erected at least ten years ago and situate on the west side of Nelson Street. At the time of the 1975 hearing respecting the subject lands a permit was in existence for this apartment building. Subsequently the owner made an application to the Ontario Municipal Board for a change of zoning and William Eric Lemp, the Director of Resources Planning of the respondent gave evidence at the Ontario Municipal Board hearing supporting the change in zoning. Notwithstanding this support the Ontario Municipal Board refused the application for a change in zoning and subsequently the respondent has terminated the existing permit and at the present time there is no authority to proceed with the project which continues to be not in accord with the zoning requirements. Counsel for the appellant suggested that the support of the respondent for this change in zoning showed some inconsistency with the treatment that had been afforded the appellant whose lands required no zoning change to permit the project requested. With reference to the reason for the issue of the permit in the first instance Mr. Lemp indicated that the permission had been granted prior to the 1973 amendment to The Conservation Authorities Act and it had been issued by a junior member of staff without any consideration by the executive committee. He has further indicated that his support for the rezoning change was based on the fact that there was an outstanding valid permission of the respondent and he considered it necessary to support the position that had been adopted. However, it is now a fact that this rather extreme exception to the policy of the respondent has been effectively remedied and if there is any precedential implications and if precedential implications are relevant it would seem that the granting of a permit to the appellant at this time would set a dangerous precedent in respect of any subsequent applications for a renewal of a permit for the Woschnigg apartment building.
The evidence of the respondent indicated that there had been applications that are in more favourable locations than the subject lands that had been refused in recent years. Reference was made to an application by Stephen Halicki in respect of a site on the west side of Nelson Avenue near the northerly end of the street and a very short distance south of the subject lands. Mr. Halicki had applied to create a thirty foot severance of a fairly large lot and proposed to erect a residence thereon. The maximum observed floodline and the May, 1974 floodline would pass through the centre of this property and the application was refused.
Reference was made by the appellant to the Nytch property which appears to be southwesterly of the site of the proposed Woschnigg apartment building. The respondent was unaware of this activity which appeared by the evidence to consist of the placing of fill. As indicated above the respondent has not assumed legislative jurisdiction over the placing of fill in this area. The witness Lemp also referred to a small storage shed that had been placed on the BP Station which was above the May 1974 floodline. This application was approved somewhat with reluctance on the basis that it was a commercial operation, was small in size and was a fairly substantial building having being erected and attached to a concrete base.
I have said on numerous occasions that I have considerable doubt as to the application of any doctrine of precedent in respect of applications for permission under The Conservation Authorities Act. The proper procedure is to consider each case on its own merits and in view of principles applicable to the hazards or inherent weaknesses of the lands that are the subject matter of the application at hand. While the doctrine of precedent may be highly significant in creating minor variances and exceptions to zoning by-laws, with the exception of hazard lands, the general approach of a zoning by-law is that the use of land is controlled through the by-law in the interest of the general public and to the extent that land in a particular area is witheld from higher economic use it is significant when exceptions are made in one case and not permitted in another. Where the economic value of land is restricted in the public interest solely from the point of view of orderly development of land the implications of precedent reflect on the fairness of the administration. In matters under The Conservation Authorities Act the issue is not the orderly development of land but the prevention of the development of lands that in themselves are unsuitable for development.
Two matters with respect to the present application arise from the foregoing comments. Firstly it may be said that regardless of whether the doctrine of precedent is applicable there was nothing in the precedents that show that a subdivision, although small in size, or even an individual residence had been permitted in an area that was subject to five feet of flooding during a regional storm or that was completely isolated and without access by reason of a similar amount of flooding during such a storm.
Secondly, counsel for the appellant emphasized that the position of the respondent was sterilizing a property that would otherwise be worth a minimum of $80,000. The worth of a property can only be related to its intrinsic value and if its intrinsic value for the purposes of residential construction is negligable I cannot conclude that the subject lands have such value and that the actions of the respondent are depriving the owners of the subject lands of the utilization of a parcel having such value.
Having regard to the general principles applicable to the present case it may be observed that the policies of the respondent are much more lenient than the policies applied by other conservation authorities. The special policy of permitting infilling in the areas above the maximum observed floodline or in the flood fringe, which has been followed by the respondent for a considerable length of time, has yet to receive general acceptance at a provincial level. Although the evidence did not disclose the provincial policy in this regard this tribunal must in its deliberations, as it is in effect exercising the jurisdiction of the provincial minister, have regard to provincial policy. The provincial policy is presently under review and the adoption of the principle followed by the respondent is presently under consideration. Against this background it would be most difficult for a provincial minister or his delegate to require a conservation authority to accept a more lenient policy than the respondent currently applies. I am satisfied that the respondent in this particular case has properly applied its policies to the application of the appellant and that its decision should not be reversed. It should also be noted that considerable emphasis was placed on the suggestion that the proposal of the appellant constitutes infilling. Without determining whether the extension of a row of houses on an existing street in a floodplain constitutes infilling, the principle is not applicable to this case as the principle is only applied to lands situate above the maximum observed floodline. As the subject lands are at least 100 feet below this line there is no room for the application of an infilling principle.
Applying general principles to the specific case I know of no general principle that would justify the granting of permission in the specific case. The hazard in a regional storm is obvious and significant. There was no grounds for application of the stage storage doctrine and the permission for construction in this case would lead to the risks outlined in the reasons of the respondent namely loss of life, cost of rehabilitation, cost of rescue and an increase in the risks of flooding due to loss of storage capacity and probably constriction although there was no evidence with respect to this particular subject.
Counsel for the appellant referred to the uniqueness of the property and its lack of precedential implications. This argument of uniqueness is based on a long standing zoning permitting residential uses. It would be a nice legal exercise to determine whether section 2.7 of the by-law prevails over the general zoning provision in respect of the subject lands. In my view, the zoning of lands that are in floodplain is not a relevant consideration when one considers the hazards of land that is the subject of an application under a regulation under The Conservation Authorities Act and permissive zoning does not establish or reflect on the issue to be considered in appeals such as the present appeal.
Counsel for the appellant referred to the fact that there was a very close vote before the executive committee in the rejection of the application. There was no evidence to disclose the reasons for the votes in favour of the application other than the suggestion that there were comments that the appellant ought to be compensated for his land. Obviously such a principle does not relate to the risks of flooding associated with the subject lands. This consideration would appear to relate more to the absence of a policy of land acquisition of floodplain rather than establish any lack of hazard in connection with the subject lands. Accordingly I cannot give any significant weight to this argument.
It is ordered that the appeal in this matter be and is hereby dismissed.
It is further ordered that no costs shall be payable by either of the parties to this matter.
Dated the 21st day of February, 1978.
Original signed by G.H. Ferguson
Mining and Lands Commissioner.