Williams v. Rideau Valley Conservation Authority, 2022 CanLII 5476

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 28, 2022

CASE NO(S).: OLT-21-001540 (Formerly CA 001-21)

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellants: Ronald and Lynda Williams

Respondent: Rideau Valley Conservation Authority

Subject: Appeal of refusal to grant permission for the construction of a residential building (Permit Application No. RV6-0321)

Property Address: 6793 Rideau Valley Drive

Municipality: Village of Kars/City of Ottawa

Legacy Case No.: CA 001-21

OLT Case No.: OLT-21-001540

OLT Case Name: Williams v. Rideau Valley Conservation Authority

Heard: November 29, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Ronald and Lynda Williams

S. Greenberg

Rideau Valley Conservation Authority

C. Watson

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

Introduction

1Ronald and Lynda Williams (“Appellants”) applied for permission from the Rideau Valley Conservation Authority (“Conservation Authority”) to undertake development to facilitate the construction of a home on their property located at 6793 Rideau Valley Drive South (“subject property”) in the Village of Kars. The Appellants would like to construct a driveway and a single detached dwelling on the subject property. The subject property is currently vacant and lies on the flood plain of the Rideau River.

2On April 25, 2021, the Conservation Authority’s Executive Committee (“Executive Committee”) denied the Appellants’ development permission application.

3On May 19, 2021, the Appellants appealed the Executive Committee’s decision to the Tribunal under s. 28(15) of the Conservation Authorities Act.

4On November 29, 2021, the Tribunal heard the appeal by video hearing. At the hearing, the Tribunal directed both Parties to file written submissions on the applicable case law by December 2, 2021 (which the Tribunal received) and any reply submissions by December 3, 2021 (none were filed).

Issues

5Under s. 28(15) of the Conservation Authorities Act, the Tribunal may refuse permission to undertake development or grant permission with or without conditions. The central issues are whether the appellants have satisfied the applicable statutory, regulatory, and policy requirements for granting permission. In the present case, the Tribunal must:

a. determine whether the development permission would comply with the regulatory requirements in Ontario Regulation 174/06 (Rideau Valley Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses) (“Regulation 174/06”);

b. determine whether the development permission would be consistent with the Provincial Policy Statement, 2020 (“PPS”); and,

c. have regard to the Conservation Authority’s policies created for the purpose of guiding the exercise of its powers under the Conservation Authorities Act and Regulation 174/06. The relevant policies are the Conservation Authority’s “Policies Regarding the Construction of Buildings and Structures, Placing of Fill and Alterations to Waterways” (“Conservation Authority’s Policies”).

6Each of these issues is addressed below.

Evidence and Submissions

Evidence and Submissions of the Appellants

7Ronald and Lynda Williams each provided fact evidence. They stated that there are minimal flood risks at the subject property and there is minimal risk of property damage or danger to safety arising from the proposed development. They retained Magellan Engineering, which prepared an engineering report, dated October 12, 2021 (“Magellan Report”). The Magellan Report assesses the grading that would be necessary on the subject property to facilitate safe driveway access to the proposed dwelling. The Appellants stated that existing soil on the subject property that is above flood levels could be moved to the area of the proposed driveway. This would ensure that the proposed driveway is above the flood plain and help provide safe access, including for emergency vehicles. They also described their plans for the proposed single detached dwelling. They said it would be placed on pedestals to avoid flooding and ensure that it is flood-proof. They stated that it would have a non-corrosive frame and an adjustable multi-point foundation with pillars screwed into the ground, which would not restrict water flows. They stated that the proposed dwelling would be located 50 metres from the Rideau River and that drainage from the subject property would be directed to a ditch on Rideau Valley Drive South preventing erosion and preventing pollution from flowing directly into the river. They said the owners of a neighbouring property that is also on the flood plain recently were given development permission. They submitted that the same rules should apply to their proposed development.

8Mr. and Ms. Williams questioned the legitimacy of the Executive Committee’s decision and stated that the Committee considered inapplicable factors, including provisions in the Conservation Authorities Act that are not in force. They stated that the Conservation Authorities Act does not prohibit new development on vacant lots of record, such as the subject property. They stated that although s. 2 of Regulation 174/06 restricts development on flood plains and hazardous lands, there is no authority in Regulation 174/06 to make and enforce a blanket policy to ban development. They stated that s. 3 of Regulation 174/06 provides exceptions to the prohibition of development, which the Executive Committee did not consider in a reasonable fashion. They submitted that the Executive Committee focused on the Conservation Authority’s Policies that prohibit development on vacant lots of record and not on the exceptions in s. 3 of Regulation 174/06. They stated that the PPS encourages residential intensification in developed areas such as the subject property. Based on PPS policy 3.1.2, they stated that the proposed development should be permitted, provided that it is flood-proof. The Appellants submitted that there is no evidence that the proposed development would result in flooding, impact the control of flooding, cause hazards, threaten public safety, or cause property damage. They submitted that a wide range of policy considerations should be taken into account.

Evidence and Submissions of the Conservation Authority

9Eric Lalande is a land-use planner employed by the Conservation Authority. The Tribunal qualified him to provide opinion evidence in the area of land-use planning related to conservation authority matters.

10Mr. Lalande stated that s. 28 of the Conservation Authorities Act gives the decision maker discretion when considering an application for permission to undertake development. He said that Ontario Regulation 174/06 sets out prohibitions, with exceptions, regarding development on certain types of regulated lands, which the Executive Committee addressed.

11Mr. Lalande stated that the site of the proposed single detached dwelling on the subject property is about 1 metre below the flood limit for 1 to 100 year flood events. He stated that PPS policy 3.1 on natural hazards requires that development should be directed away from natural hazards, such as flood plains. He also stated that PPS policy 3.1.2(d) states that development and site alteration shall not be permitted within a floodway regardless of whether the property contains high points of land that are not subject to flooding.

12Mr. Lalande stated that s. 1.2(vii) of the Conservation Authority’s Policies states that development within the 1 to 100 year flood plain shall not be permitted on vacant lots of record, such as the subject property. He said there are no exceptions to this requirement. He questioned whether there is sufficient soil on the subject property for the proposed driveway to be built above the flood plain and he raised concerns regarding fill for a septic system. He stated that s. 1.4.4 of the Conservation Authority’s Policies requires that there be safe access to dwellings, including access by emergency vehicles, which would not be achieved through the proposed development.

13Mr. Lalande opined that the proposed development would introduce a risk to public health and safety. He also stated that, although the impacts would be minor, the proposed development would impact flood control, particularly if soil is moved on the subject property. He distinguished the development application for the neighbouring property referred to by the Appellants. He stated that it was for the renovation of an existing dwelling and it complied with applicable requirements.

Analysis and Findings

14Section 28(15) of the Conservation Authorities Act provides the Tribunal with discretion when determining whether to grant or refuse a permission under the Act to undertake development. It states:

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.

15When determining whether to grant or refuse a development permission, the Tribunal must consider the applicable regulations and policies. These include Regulation 174/06, the PPS, and the Conservation Authority’s Policies. Each of these is analyzed below.

1. Compliance with Regulation 174/06

16Section 28(1) of the Conservation Authorities Act provides conservation authorities with the power to make regulations prohibiting, regulating, or requiring permission for development if, among other things, the control of flooding may be affected. Section 28(1)(c) states (with emphasis added):

28(1) Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction,

(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development;

17Regulations made under this section must comply with Ontario Regulation 97/04 (on the Content of Conservation Authority Regulations under subsection 28(1) of the Act: Development, Interference with Wetlands and Alterations to Shorelines and Watercourses) (“Regulation 97/04”). Among its requirements, s. 3 of Regulation 97/04 requires that conservation authorities prohibit development in or on hazardous lands. This is subject to exceptions in s. 4 that allow a conservation authority to grant permission, if, in the authority’s opinion, the control of flooding (among other things) will not be affected by the development.

18Regulation 174/06 sets out regulations to be applied by the Conservation Authority in the Rideau River watershed. It follows the requirements in s. 28(1)(c) of the Conservation Authorities Act on making regulations and the requirements in Regulation 97/04, including the prohibition of development on hazardous lands (subject to exceptions).

Prohibition of Development on Hazardous Lands

19In regard to the prohibition of development on hazardous lands, s. 2(1) of Regulation 174/06 states, in relevant part:

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,

(c) hazardous lands; […]

The Conservation Authority argues that the subject property constitutes hazardous lands and s. 2(1)(c) of Regulation 174/06 applies. Regulation 174/06 does not provide a definition of “hazardous lands”; but s. 28(25) of the Conservation Authorities Act does. For the purposes of that section, which includes the regulations made under it, s. 28(25) defines “hazardous land” as:

“hazardous land” means land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock;

In the present case, the Appellants suggested that soil on the subject property could be moved in order to construct a raised driveway and provide safe access. They also stated that the proposed dwelling would be flood proof. Based on these plans, they stated that the subject property is not unsafe for development. In response, Mr. Lalande stated that the proposed development would introduce a risk to public health and safety, which is reiterated in the staff report that he prepared for the Conservation Authority, dated March 11, 2021, which states that “the granting of permission may jeopardize the health or safety of persons or result in the damage or destruction of property”. The Conservation Authority submitted that the subject property lies in the flood plain of the Rideau River and constitutes hazardous land.

20The Tribunal finds that the subject property constitutes lands that could be unsafe for development because of naturally occurring processes associated with flooding. Based on Mr. Lalande’s uncontradicted opinion evidence in this regard, the subject property is on the established flood plain and is subject to inundation in a 1 to 100 year flood event. The flood plain is delineated by the Conservation Authority in order to prevent floods and reduce their adverse effects, including those that could impact human safety. Although the Appellants gave evidence that steps could be taken to mitigate the effects of flooding, they failed to substantively respond to the issue of whether the subject property is unsafe for development because of naturally occurring processes associated with flooding. The Appellants failed to demonstrate that re-grading would result in the proposed development entirely being located above the flood plain or that their proposed measures would be effective and result in a safe environment. The Appellants failed to provide testimony from their engineer that could be tested before the Tribunal to demonstrate that their proposed measures to move soil would be workable or effective in the context of the subject property. Furthermore, the Magellan Report states that soils could be moved to build a driveway, but it does not address the proposed plans for the dwelling, which would be located at an elevation that is subject to flooding. There is no evidence on the effectiveness of the proposed dwelling to address health and safety in the specific context of the subject property or to address the specific risks and nature of flooding of the Rideau River in the immediate area.

21The Tribunal accepts the Conservation Authority’s evidence that the subject property constitutes hazardous land as defined in Regulation 174/06.

Exceptions to the Prohibition

22As noted above, s. 2(1) of Regulation 174/06 prohibits development on hazardous lands. Based on the findings above, these include the subject property. There are, however, exceptions to the prohibition. The exceptions are set out in s. 3(1) of the Regulation. It states:

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.

The interpretation of similar regulatory language was undertaken by the Divisional Court in Laforme v. The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287. That case involved a proposed development affecting a dynamic beach. The Court found that the test to be used when applying the s. 3(1) exception is whether the proposed development would have no negative impact on the control of flooding, erosion, dynamic beaches, pollution or the conservation on the lands in question (see paragraph 48 of the decision).

23Applying this test to the present case, the question is whether the proposed development will have no negative impacts on the control of flooding. (The impacts of the proposed development on erosion, dynamic beaches, pollution, and the conservation of land were not raised by the Conservation Authority.) As noted by the Court of Appeal in Gilmor v. Nottawasaga Valley Conservation Authority, 2017 ONCA 414 (“Gilmor”), at paragraph 78, the burden is on the Appellants to convince the decision-maker to permit the proposed development based on the exercise of its discretion. Standing in the shoes of the Conservation Authority, the Tribunal may grant the exception if, in its opinion, the proposed development will have no negative impacts on the control of flooding. The Tribunal notes that the Court of Appeal in Gilmor also stated that it is open to the decision-maker to take safety considerations into account when deciding whether to exercise its discretion in this regard (see Gilmor, paragraphs 73 and 76).

24Based on the evidence before it, the Tribunal finds that the Appellants have failed to demonstrate that the proposed development will have no negative impacts on the control of flooding. The Appellants state that there is no evidence that the proposed development would impact the control of flooding; but that is not the test. The burden is on the Appellants to demonstrate that the proposed development will have no negative impacts on the control of flooding. The subject property is located in the regulated flood plain, the delineation of which is aimed to address flood control and prevent the adverse impacts of flooding. Based on the evidence before it, the Tribunal cannot opine that the control of flooding will not be negatively affected by the proposed development. As a result, the Tribunal cannot apply the exception and grant permission for development under s. 3(1) of Regulation 174/06 on the subject property.

25Given these findings, the Tribunal finds that the proposed development does not comply with Regulation 174/06.

2. Consistency with the PPS

26In Gilmor, at paragraph 51, the Court of Appeal found that, for the purposes of s. 3(5) of the Planning Act, a conservation authority is a “local board” that is required to act in a manner consistent with provincial policy statements, including the PPS (see also Laforme, at paragraph 55).

27PPS policies 3.1.1(b) and (c), and 3.1.2(d) state (with emphasis added):

3.1.1 Development shall generally be directed, in accordance with guidance developed by the Province (as amended from time to time), to areas outside of:

b) hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards erosion hazards; and

c) hazardous sites.

3.1.2 Development and site alteration shall not be permitted within:

d) a floodway regardless of whether the area of inundation

contains high points of land not subject to flooding.

28PPS policy 3.1.4 provides exceptions to these policies. These exceptions apply to special policy areas and to situations where development is limited to uses that by their nature must be located within a floodway. There is no evidence before the Tribunal that the subject property is in a special policy area or that the proposed development by its nature must be located within a floodway. The Tribunal finds that these exceptions, therefore, do not apply in the present case.

29The Tribunal will now determine whether the subject property falls within the PPS’s definitions of “hazardous lands”, “hazardous site”, and/or “floodway” for the application of PPS policies 3.1.1(b) and (c) and 3.1.2(d).

Hazardous Lands

30“Hazardous lands” is defined (in relevant part) in PPS policy 6 in the following manner:

Hazardous lands: means property or lands that could be unsafe for development due to naturally occurring processes. […]. Along river, stream and small inland lake systems, this means the land, including that covered by water, to the furthest landward limit of the flooding hazard or erosion hazard limits.

31This is similar to the definition of hazardous lands in s. 28(25) of the Conservation Authorities Act addressed above. The PPS and Conservation Authorities Act definitions have identical language focusing on “land that could be unsafe for development because of naturally occurring processes”. Consistent with its findings above, the Tribunal finds that the subject property constitutes property that could be unsafe for development due to naturally occurring processes given its location on the flood plain of the Rideau River. Based on this, the Tribunal finds that the subject property constitutes “hazardous lands” as defined in the PPS.

Hazardous Site

32The term “hazardous sites” is defined (in relevant part) in PPS policy 6 in the following manner:

Hazardous sites: means property or lands that could be unsafe for development and site alteration due to naturally occurring hazards […]

Again, as determined above, the Tribunal finds that the subject property is subject to naturally occurring flood hazards, which make it unsafe for development and site alteration. Based on this, the Tribunal finds that the subject property constitutes a “hazardous site” as defined in the PPS.

Floodway

33The term “floodway” is defined in PPS policy 6. It states (in relevant part):

Floodway: for river, stream and small inland lake systems, means the portion of the flood plain where development and site alteration would cause a danger to public health and safety or property damage. […].

The Appellants submit that there is no evidence that the proposed development would result in flooding, impact the control of flooding, cause hazards, or threaten public safety. In response, Mr. Lalande opined that the subject property is prone to flooding and the proposed development would introduce a risk to public health and safety. This is supported in the Conservation Authority’s staff report, which states that the granting of permission may jeopardize the health or safety of persons or result in the damage or destruction of property. The staff report also identifies the subject property as being in a floodway. It states that the “Rideau River is administered as a one zone floodplain, wherein the floodway is considered to be entire limits of the mapped regulated floodplain”. Based on the evidence and submissions before it, the Tribunal finds that the proposed development would cause a risk and a danger to public health and safety and, based on the PPS’s definition, the subject property lies in a “floodway”.

Application of PPS Policies 3.1.1 and 3.1.2

34PPS policy 3.1.1(b) and (c) states that development shall generally be directed to areas outside of hazardous lands and sites. PPS policy 3.1.2(d) states that development and site alteration shall not be permitted within a floodway. Given the Tribunal’s findings that the subject property constitutes hazardous lands and a hazardous site and lies in a floodway, the Tribunal finds that the proposed development is not consistent with these policies. It was not contested that the proposed development would constitute “development” and requires “site alteration” as defined in the PPS.

35Based on these findings, the Tribunal finds that the proposed development is not consistent with the PPS.

3. Consistency with the Conservation Authority’s Policies

36The Conservation Authority created the Conservation Authority’s Policies for the purpose of guiding the exercise of its powers under the Conservation Authorities Act and Regulation 174/06. The standard practice of the Tribunal is to have regard to non-binding policies such as these when making a decision. However, the Tribunal notes that in Laforme, the Divisional Court found a development permit decision should be consistent with a conservation authority’s policies. The Court stated at paragraph 40 (with emphasis added):

40. The purpose of my review of the Policies is not to interpret and apply them to the project, but rather to determine, as part of a review of the record available to the Court, whether the Town’s proposed interpretation of the exception under section 3(1) of O. Reg. 151/06 is consistent with the Policies.

37In applying the Conservation Authority’s Policies, s. 1.1(c) sets out general principles. These include the prohibition of development that increases risks to public safety. Section 1.1(c) states:

1.1(c) New development must not increase the risks to public safety which are expected to be present during the regulatory flood (or more frequent floods); in this regard the availability of access to and egress from the structure and the potential depths of water over access routes will be the primary consideration.

As determined above, the Tribunal finds that the proposed development would increase the risks to public safety. These include risks which are expected to be present during a regulatory flood. Having regard to this policy, the Tribunal finds that the proposed development is not appropriate. It also finds that although the proposed raised driveway and floodproofing of the proposed dwelling could mitigate risks to public safety, the proposed development would still increase those risks and permission to undertake development would not be consistent with s. 1.1(c) of the Conservation Authority’s Policies.

38Prohibition of development in the flood plain is further addressed in s. 1.2(vii) of the Conservation Authority’s Policies. It states:

1.2 Development within the 1:100 year regulatory floodplain shall not be permitted except as allowed by specific policies elsewhere in this document. This includes:

(vii) new development on vacant lots of record;

There are no exceptions in the Conservation Authority’s Policies to the prohibition in s. 1.2(vii) regarding new development on vacant lots of record in the flood plain.

39It was not contested that the subject property is a vacant lot of record in the flood plain. The Tribunal finds that based on s. 1.2(vii) of the Conservation Authority’s Policies, the proposed development is prohibited on this basis. Having regard to this policy, the Tribunal finds that the proposed development is not appropriate. Given this ban on new development on vacant lots of record in the flood plain, the Tribunal finds that the issuance of permission to undertake development on the subject property would not be consistent with the Conservation Authority’s Policies.

Conclusions

40Based on the evidence and submissions before it, the Tribunal finds that permission to undertake development on the subject property would not comply with Regulation 174/06, would not be consistent with the PPS, and would not be consistent with the Conservation Authority’s Policies.

ORDER

41The Tribunal orders that the appeal is dismissed.

“Hugh S. Wilkins”

HUGH S. WILKINS

MEMBER

Ontario Land Tribunal

Website: 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.