The respondents sought to bypass the Planning Act by claiming a creek running through their property was a navigable stream under the Beds of Navigable Waters Act, which would vest the creek bed in the Crown and naturally sever their lot.
The application judge agreed, finding the creek navigable based on historical dimensions and downstream use.
The Court of Appeal allowed the municipality's appeal, holding that navigability requires not just physical capacity but also potential practical public utility, including points of public access.
As there was no evidence of public access or practical public use of the creek on the respondents' property at the time of the 1831 Crown grant, the creek was not navigable.
