Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 10, 2022
CASE NO(S).: OLT-22-002914 (Formerly) CA 001-20
PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C. 27, as amended
Appellants: Eric and Antonia DenOuden
Respondent: Quinte Conservation
Subject: Appeal against the refusal to grant permission for the installation of a deck and dock (Permit Application No. REG0223-2019)
Property Address/Description: 2836 County Road 3, Part Lot 95, Concession 1, Ameliasburgh
Municipality: Prince Edward County
OLT Case No.: OLT 21-001536
Legacy Case No.: CA 001-20
OLT Case Name: DenOuden v. Quinte Conservation
Heard: In writing
APPEARANCES:
Parties Representative
Eric and Antonia DenOuden Self-represented
Quinte Conservation Sharlene Richardson Paul McCoy Brad McNevin
DECISION DELIVERED BY M. ARPINO AND ORDER OF THE TRIBUNAL
OVERVIEW
1Eric and Antonia DenOuden (“Appellants”) own the property at 2836 County Road 3, Prince Edward County (“Property”). The Property is located on the south shore of the Bay of Quinte in Prince Edward County.
2On August 27, 2019, the Appellants submitted Permit Application No. REG0223-2019 to the Quinte Conservation Authority (“Conservation Authority”) seeking permission to:
a. construct a dwelling;
b. install a septic system;
c. construct an armourstone wall along the shoreline;
d. place turf-slab permeable pavers as a boat ramp; and
e. construct a permanent pile supported deck and cantilevered dock (“Deck and Dock”).
3Permit No. REG0223-2019 was issued on October 7, 2019, for construction of the dwelling and installation of the septic system.
4On October 25, 2020, Permit No. REG0383-2020 was issued for the creation of a boat ramp with turf-slab permeable paver base, an armourstone wall and a concrete dock abutment.
5The Conservation Authority staff recommended denial of permission to construct the Deck and Dock.
6The matter regarding the requested permit for the Deck and Dock was referred to the Hearing Committee of the Conservation Authority (“Hearing Committee”).
7On December 5, 2019, the Hearing Committee denied the requested permit. The Notice of Decision provides,
THAT, the Committee decision is to support the staff recommendation that the application be denied as the application violates O. Reg 319/09, and that although the displacement of water is not measurable, there would be a cumulative impact for allowing this type of development.
8The Appellants appealed the decision of the Hearing Committee to the Tribunal (“Appeal”) under s. 28 (15) of the Conservation Authorities Act (“Act”).
9On March 31, 2021, the Tribunal convened a pre-hearing conference to determine the status of the Appeal and to move the matter forward. The Tribunal directed that the Appeal proceed as a written hearing with submissions being exchanged between the Parties and filed with the Tribunal.
10Under s. 28(15) of the Act, the Tribunal may refuse permission to undertake development or grant permission with or without conditions. The Appellants must satisfy the applicable statutory, regulatory, and policy requirements for granting permission.
11In the present case, the Tribunal must:
a. determine if granting a permit to construct the Deck and Dock would be consistent with Provincial Policy Statement, 2014 (“PPS”);
b. ascertain if issuing a permit to construct the Deck and Dock would comply with the regulatory requirements in Ontario Regulation 319/09 (“Regulation 319/09”); and
c. have regard to the Conservation Authority’s policies created for the purpose of guiding the exercise of its powers (Quinte Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses) under the Act and Regulation 319/09 (“Conservation Authority Policies”).
12The primary issue in the Appeal is if construction of the Deck and Dock is exempt from the prohibitions stipulated in s. 2.(1) of Regulation 319/09 which provides:
Development prohibited
2.(1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are,
(a) adjacent or close to the shoreline of the Great Lakes-St. Lawrence River System or to inland lakes that may be affected by flooding, erosion or dynamic beaches, including the area from the furthest offshore extent of the Authority’s boundary to the furthest landward extent of the aggregate of the following distances:
(i) the 100 year flood level, plus the appropriate allowance in metres for wave uprush and, if necessary, an appropriate allowance in metres for other water related hazards, including ice piling and ice jamming,
(ii) the predicted long term stable slope projected from the existing stable toe of the slope or from the predicted location of the toe of the slope as that location may have shifted as a result of shoreline erosion over a 100- year period,
(iii) where a dynamic beach is associated with the waterfront lands, an allowance of 30 metres inland to accommodate dynamic beach movement, and (iv) an allowance of 15 metres inland;…
(emphasis added)
Permission to develop
3.(1) The Authority may grant permission for development in or on the areas described in subsection 2 (1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development. (emphasis added)
13There is a similar provision in the Conservation Authority Policies s. 4.4.11 which provides:
…new development within the shoreline flood, erosion or dynamic beach hazard may be permitted where it has been demonstrated to the satisfaction of QCA that the control of flooding, erosion, pollution, dynamic beaches or the conservation of land will not be affected…
EVIDENCE AND SUBMISSIONS
Evidence and Submissions of the Conservation Authority
14The Conservation Authority submitted a report dated November 14, 2019, prepared by Sharlene Richardson – Regulations Officer.
15She recommended denial of the permit for the Deck and Dock “because is contrary to the QC Policy and Procedures Manual which clearly directs development to areas outside of the hazard and required setbacks.”
16Ms. Richardson asserts that the Deck and Dock would affect the “control of flooding” or the “conservation of land because the anchor and footings result in a displacement of water and the development results in a loss of natural shoreline habitat”.
17She also asserts that construction of the Deck and Dock is not consistent with s. 3.1 of the PPS, which directs development to areas outside of flooding hazards.
Evidence and Submissions of the Appellants
18The Appellants provided a written submission dated June 23, 2021.
19The Appellants stated that the Conservation Authority shares jurisdiction over the Bay of Quinte with the Cataraqui Conservation Authority (“Cataraqui Authority”). The Appellants submit that Cataraqui Authority routinely issues permits for construction of permanent boat dock supports to be placed in the Bay of Quinte.
20The Appellants argue that it is unreasonable for the Conservation Authority to deny a permit for something that is routinely permitted on the opposite side of the Bay.
21The Appellants submit that temporary docks have the potential to displace water and that the Conservation Authority allows the installation of temporary docks without permits.
22The Appellants assert that the Conservation Authority does not have a “serious concern” about the displacement of water and that displacement of water is not a valid reason to deny the requested permit.
23The Appellants state that the Deck and Dock would result in improved erosion control and potential flood reduction.
24The Appellants assert that s. 3 of Regulation 319/09 stipulates exemptions to the restrictions in s. 2.(1) and that the proposed Deck and Dock is permitted because it falls within the parameters of the exemptions.
25The Appellants provided an opinion letter dated October 24, 2019 from SJL Engineering Inc. (“SJL Engineering”), which includes the following statement:
In general, development within the shoreline hazard limit is not permitted, as per the QCA Policy Manual for Ontario Reg. 319/09.
26SJL Engineering referenced s. 4.4.11 of the Conservation Authority Policies which provides:
New development within the shoreline flood, erosion or dynamic beach hazard may be permitted where it has been demonstrated to the satisfaction of QCA that the control of flooding, erosion, pollution, dynamic beaches or the conservation of land will not be affected.
27SJL Engineering stated: “There is therefore no merit in performing an uprush analysis as the proposed structure is well within the regulation limit, as described in Section 2 of Ontario Reg. 319/09.”
28SJL Engineering provided a detailed analysis regarding the impact of construction of the Deck and Dock on control of flooding erosion pollution, dynamic beaches or the conservation of land:
a. …Control of Flooding…. it is the opinion of the engineer that little to no effect on flooding would be incurred by the proposed structure, with any marginal effect ultimately being positive to the control of flooding due to minor obstructions to wave uprush.
b. …Control of Erosion…. it is the opinion of the engineer that the proposed development has a minor, but positive influence on the control of erosion.
c. Control of Pollution… After the construction period is complete, there is no further potential for pollution. As such, any risks associated with the control of pollution are limited to the construction period and can be readily mitigated…
d. Conservation of Land… It is therefore the opinion of the engineer that the proposed works will have no measurable impact on the conservation of land and will in fact have a positive impact relative to a similar seasonal structure that requires annual placement and removal.
e. Dynamic Beaches… The shoreline in question does not meet the requirements provided in the Ministry of Natural Resources Technical Guide for the Great Lakes (MNR, 2001) to be defined as a dynamic beach. As such, dynamic beach impacts are not relevant.
29SJL Engineering addressed the requirements regarding access to the shoreline:
The proposed deck and dock structure are situated on the shoreline, but do not impede access to it. As such, it is the opinion of the engineer that the proposed development does not impede the minimum 6 m access allowance that must be provided.
30SJL Engineering provided the following closing remarks:
…it is the opinion of the engineer that the pile supported, and cantilevered design of the proposed deck and dock is justified given the distance from the shoreline to navigable waters, and that the control of flooding, erosion, pollution, dynamic beaches and the conservation of land will not be negatively affected by the proposed works.
31The Appellants assert that the Tribunal should prefer the professional opinion of SJL Engineering over the evidence of Ms. Richardson.
32The Tribunal notes that the SJL Engineering opinion letter was drafted by Seth Logan, P. Eng., a licensed engineer in the Province of Ontario with over 10 years of coastal engineering experience.
ANALYSIS AND FINDINGS
33The question for the Tribunal to determine is whether construction of the Deck and Dock will affect the control of flooding erosion, dynamic beaches, pollution, and the conservation of land.
34Based on the evidence before it, the Tribunal finds that the Appellants have failed to demonstrate that the construction of the Deck and Dock will have no affect on the control of flooding erosion, control of pollution, conservation of land.
35Section 28(15) of the Act provides the Tribunal with discretion when determining whether to grant or refuse a permission:
28(15) A person who has been refused permission or who objects to conditions imposed on a permission may, within 30 days of receiving the reasons under subsection (14), appeal to the Ontario Land Tribunal, and the Tribunal may,
(a) refuse the permission; or
(b) grant the permission, with or without conditions.
Compliance with Regulation 319/09
36There is also no argument regarding the prohibition of the Deck and Dock pursuant to s. 2.1 of Regulation 319/09.
37The Appellants submit that construction of the Deck and Dock is permitted pursuant to Regulation 319/09 s. 3 and is consistent with Conservation Policy s. 4.4.11.
38SJL Engineering provided a detailed analysis of the impact of the Deck and Dock on control of flooding erosion pollution, dynamic beaches or the conservation of land:
a. SJL Engineering opined that the Dock and Deck would have little or no affect on control of flooding. Minor or positive influence to control erosion.
b. SJL Engineering concluded that the affect of the Deck and Dock on pollution is limited to the construction period and can be readily mitigated.
39SJL Engineering also opined that the Deck and Dock would have no measurable impact on the conservation of land.
40SJL Engineering has opined that construction of the Deck and Dock would have little, if any, negative affect and in some circumstances, it might have a positive impact.
41The Appellants state that the Conservation Authority has not provided any evidence to support its claim that construction of the Deck and Dock would affect the control of flooding erosion, dynamic beaches, pollution, and the conservation of land.
42Given these findings, the Tribunal finds that the proposed development does not comply with Regulation 319/09.
Consistency with the Conservation Authority’s Policies
43The Conservation Authority created the Conservation Authority’s Policies for the purpose of guiding the exercise of its powers under the Act and Regulation 319/09. The standard practice of the Tribunal is to have regard to non-binding policies such as these when making a decision.
44Conservation Authority Policy 4.4.11 is similar to Regulation 319/09. The Tribunal has had regard for the Conservation Authority Policies.
Consistency with the PPS
45In the present case, the Tribunal must determine if construction of the Deck and Dock is consistent with the PPS.
46The Conservation Authority asserts that construction of the Deck and Dock in the floodplain is not consistent with the PPS.
47Policy 3.1 of the PPS generally directs development away from Natural Hazards. It is uncontested that the Appellants seek a permit to construct the Deck and Dock within the Shoreline Hazard Limit.
48Policy 3.1.4 provides exceptions to Policy 3.1. The Appellants have failed to provide evidence that construction of the Deck and Dock on the Property satisfies any of the criteria for exemption in Policy 3.1.
DECISION AND ORDER OF THE TRIBUNAL
49Based on the evidence and submissions before it, the Tribunal finds that permission to construct the Deck and Dock on the Property would not comply with Ontario Regulation 319/09 and would not be consistent with the Provincial Policy Statement.
50The Tribunal orders that the Appeal is dismissed.
51The Tribunal directs that no costs shall be payable by either party to this Appeal.
“M. Arpino”
m. arpino
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.