Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 23, 2023

CASE NO(S).: OLT-21-001845 (Formerly 19-060)

PROCEEDING COMMENCED UNDER section 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended;

Appellant: John Sherk (File No. 19-060) Appellant: Elizabeth Sherk (File No. 19-061) Appellant: Kathryn Stouffer (File No. 19-062) Appellant: Estate of Norma Sherk (File No. 19-063) Respondent: Director, Ministry of the Environment, Conservation and Parks

Subject of appeal: Order issued to submit a completed application for a Permit to Take Water for the dam constructed Reference No.: 4567-BDKPTK-1 Property Address/Description: Part of Lot 10, and Lot 11, Concession 14 Municipality: South Frontenac Upper Tier: County of Frontenac OLT Case No.: OLT-21-001845 Legacy Case No.: 19-060 OLT Case Name: Sherk v. Ontario (Environment, Conservation and Parks)

Heard: December 8-9, 2022 by Video Hearing

APPEARANCES:

Parties Counsel/Representative*

John Sherk Self-Represented

Elizabeth Sherk John Sherk

Kathryn Stouffer John Sherk

Director, Ministry of the Environment, Conservation and Parks Paul McCulloch* Catalina Karam (Student-at-Law)

DECISION DELIVERED BY C. HARDY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision relates to the hearing of an appeal pursuant to s. 100(4) of the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended (“Act”) against Director’s Order No. 4567-BDKPTK-1 issued on July 24, 2019 (“Director’s Order”). The Director’s Order upheld the Provincial Officer’s Order No. 4567-BDKPTK (“Provincial Order”) issued on July 18, 2019. On August 7, 2019, John Sherk, Elizabeth Sherk, Kathryn Stouffer (“Appellants”) and the Estate of Norma Grace Sherk (“Estate”) appealed the Director’s Order requiring the Appellants to submit a completed application for a permit to take water (“PTTW”) for an already constructed dam (“Dam”) at Part Lot 10 and Lot 11, Concession 14, South Frontenac.

2At the outset of the hearing, John Sherk advised the Tribunal that the Estate is settled and as such, the Estate is no longer an Appellant. The Rivendell Golf Corporation (“Rivendell”), who was added as a Party, did not attend the hearing nor submit any documentation leading up to the hearing.

BACKGROUND

Martin Pond and the Dam

3The Parties submitted an Agreed Statement of Facts setting out the following background leading up to the hearing:

a) The Dam is located in Martin Pond and the Appellants own the majority of the property surrounding Martin Pond. Martin Pond is estimated to have a surface area of 106,000 square metres (m²)and is largely fed by precipitation both directly and by surface run-off.

b) There are two main outlets to the pond located at the eastern and western edges. There are also a few smaller seasonal outlets, which discharge some water and are beaver-maintained.

c) The water that is discharged at the eastern edge of Martin Pond flows in an easterly direction through a seasonal creek which eventually enters a small pond used by Rivendell as a holding pond. The water exits the small pond through an earthen structure dam.

d) The Dam was built by the father of the Appellants at the eastern outlet in 1997 to replace an existing beaver dam. An approval was issued by the Ministry of Natural Resources (“MNR”) authorizing the construction of the Dam.

e) The Dam does not permit water to flow through it, water can only flow either over the top of the Dam, or through a sluiceway, which is set at a specific elevation. When the water falls below certain levels, no water flows over the Dam nor through the sluiceway and, as a result, there is no water flowing into the creek as described in paragraph c) above.

f) Since the construction of the dam in 1997, the Ministry of the Environment, Conservation and Parks (“MECP”) has not received an application for a PTTW from the Appellants.

4The matter before the Tribunal has been the subject of several pre-hearing conferences / case management conferences (“CMCs”) and has had prior merit hearings scheduled and adjourned on consent.

5On September 3, 2019, the Environmental Review Tribunal (“ERT”) (now the Ontario Land Tribunal (“Tribunal”)) held a Telephone Conference Call (“TCC”) to obtain a status update from the Parties and hear submissions regarding a stay of the Director’s Order. The ERT ordered that the Director’s Order was stayed pending the outcome of the appeal.

6On December 17, 2019, the ERT held a CMC in Sydenham, Ontario, to obtain an overview from the Parties of their positions on the appeal and to hear numerous status requests. The ERT granted Rivendell Party status, granted Robert Sherk Participant status, granted Hannes and Dorina Friedli Presenter status and scheduled the merit hearing for April 7 to 8, 2020.

7On March 3, 2020, the ERT held a TCC to discuss adjournment of the hearing due to the ongoing public health crisis. Rivendell did not participate in the TCC. The ERT adjourned the merit hearing scheduled for April 7 to 8, 2020, to a date to be determined.

8On June 24, 2020, September 9, 2020, and October 8, 2020, the ERT held TCCs to discuss how to move the appeal forward given both the ongoing public health crisis and the preference of the Appellants for an in-person merit hearing. Rivendell did not participate in the TCCs and the ERT confirmed that Hannes and Dorina Friedli had withdrawn their Presenter status and would remain involved as Observers. The ERT ordered an in-person merit hearing to be held December 2 to 4, 2020. The ERT cautioned that given the ongoing public health crisis the ability to host an in-person event may change at the last minute and if that occurred a further TCC would be convened.

9On November 6, 2020, the ERT held a TCC to hear a Motion for Adjournment of the merit hearing scheduled for December 2 to 4, 2020, on consent, with the exception of Rivendell, who did not attend the TCC nor make submissions. The Motion for Adjournment was due to a proposed regulatory change that, if implemented, would remove the legal basis for the Director’s Order that is the subject of the appeal. The ERT granted the adjournment as requested and scheduled a TCC for January 28, 2021, to obtain a status update from the Parties.

10On October 22, 2021, the Tribunal held a Video Hearing to obtain a status update from the Parties. The Tribunal ordered that a merit hearing would be scheduled for May 26 to 27, 2022, by Video Hearing. On May 24, 2022, pursuant to a request from the Director, MECP (Director”) citing medical reasons, the Tribunal granted an adjournment of the merit hearing scheduled for May 26 to 27, 2022. On September 26, 2022, the Tribunal scheduled the merit hearing of the appeal by Video Hearing for December 8 to 9, 2022.

HEARING

11Throughout the course of the hearing, the Tribunal heard oral submissions from the Appellants and Counsel for the Director, all of whom referenced a comprehensive Document Book filed by the Director, which was entered into the record as Exhibit 1.

12Testimony was heard from the following witnesses, none of whom were qualified as experts:

1. For the Appellants:

• John Sherk, Appellant
• Robert Sherk, Participant called by the Appellants

2. For the Director:

• Sarah Dick, MECP Senior Environmental Officer and designated Provincial Officer under the Act
• Greg Faaren, former MECP Supervisor of Water Resources Assessment Unit
• Trevor Dagilis, MECP District Manager at the Kingston District Office and appointed Director under s. 16.4 of the Act.

13Oral opinion evidence was heard from Victor Castro, on behalf of the Director, who was qualified without objection in the areas of water resource management and limnology. Mr. Castro is the Supervisor of the Water Resources Unit and the Main signing Director designated to issue PTTWs under s. 34.1 of the Act.

Issue

14The main issue in the appeal is whether the MECP had the grounds and authority to issue the Director’s Order requiring the Appellants to submit an application for a PTTW for the already constructed Dam in Martin Pond.

15The jurisdiction for the MECP to issue an order is set out in s. 16 of the Act, which states:

s. 16(1) A provincial officer may issue an order to any person that the provincial officer reasonably believes is contravening or has contravened,

(a) a provision of this Act or the regulations.

s. 16(3) The order may require the person to whom it is directed to comply with any directions set out in the order within the time specified relating to,

(i) submitting an application for an approval, licence or permit.

16The relevant provisions of the Act with respect to the taking of water include:

s. 1(7) For the purposes of this Act, a reference to water taking includes water taking by means of,

(c) a structure or works constructed for the diversion or storage of water.

s. 34(1) …a person shall not take more than 50,000 litres of water on any day by any means except in accordance with a permit issued under section 34.1.

Evidence and Submissions

Appellants’ Submissions

17The Appellants were aligned in the position that the appeal should be allowed.

18John Sherk emphasized, throughout his testimony and submissions, that the language used in the Act and in correspondence from MECP over the years was unclear and subject to interpretation. Two examples that he outlined were the words “impound” and “takes”. He noted that the word “impound” in the Act cannot be interpreted to mean “contributes to impounding” and “takes” cannot be interpreted to mean “receives”. He maintained that the Act does not apply because the Dam may contribute to impounding but does not impound water and Martin Pond receives water in the form of precipitation from the sky rather than taking water.

19John Sherk submitted that the Dam does not impound water and as such, a PTTW is not required. The engineered Dam was constructed to replace a beaver dam for the purpose of preventing a “catastrophic flood” downstream should the beaver dam fail. John Sherk testified that the Dam was constructed with a sluiceway so that Martin Pond would be maintained at approximately the same level as it was when the beaver dam existed.

20John Sherk provided the Tribunal with a detailed history of the area and Martin Pond. He contends that when the Dam was constructed it did not change the natural functions of Martin Pond, either environmental or recreational. He further submitted that the MNR authorized construction of the Dam and no PTTW application was required at that time.

21John Sherk also provided the Tribunal with a detailed history of the relationship between the landowners surrounding Martin Pond and Rivendell. Over the years, John Sherk testified that the landowners “permitted” Rivendell to use the water from Martin Pond for irrigation and this was documented annually in the form of letters of permission and / or agreements. The letters and agreements included details such as the amount of water that Rivendell was permitted to take and the time during which they were permitted to take the water.

22Over the years, Martin Pond landowners and Rivendell encountered issues relating to the availability of the water and in 2010, the MECP was approached and asked to assist in arbitrating the interests in Martin Pond water. John Sherk testified that this was the first time that MECP requested that the Appellants apply for a PTTW. At this time, an agreement was reached with Rivendell and the MECP did not pursue the PTTW application request. The request for the application for the PTTW was reiterated in 2017, following complaints to the MECP from Rivendell.

23The Appellants submitted that MECP is requiring the application for the PTTW in order to ensure Rivendell has access to water from Martin Pond. In his witness statement, John Sherk states that the interpretation of the Act “…as requiring a permit for the Sherk dam is a “stretch” of the law. This interpretation requires a questionable application of “impounding”, and an arbitrary use of the >50,000 Litres/day (“l/d”) rule. But this questionable interpretation gives the Ministry the opportunity to attach a provision allowing the golf course to take water from the pond greatly in excess of natural runoff”.

24The Appellants submitted that the current agreement with Rivendell is for a term of ten years and has five years remaining. The current agreement is effective, and the Appellants argued that it does not require MECP approval or interference. In closing submissions, John Sherk submitted that the Director no longer taking a position to require a notarized copy of the agreement with Rivendell be included in the PTTW application (set out in paragraph 43 below) was positive. The Appellants are opposed to including a copy of the notarized agreement with Rivendell with any potential application for a PTTW.

25The Appellants submitted that the PTTW process does not fit their situation for a number of reasons. They argued that previous Officials did not require a PTTW application for the Dam and requiring a PTTW and the documentation associated with the permit will result in further conflict. Robert Sherk also testified that the PTTW application form contains a number of questions that do not apply to this situation, which is evidence that a PTTW is not required.

26The Appellants argued that the cost associated with the PTTW application is excessive. The Appellants testified that if studies were required, the cost would be in excess of $13,000 ($3,000 for the permit and $10,000 for the studies). They argued that it would be the same cost for an industrial operation who would be obtaining the PTTW for profit and this is not appropriate.

27The Appellants also referred to other engineered dams in the area (including but not limited to the Friedli dam and the Rivendell dam) that do not have PTTWs in place. They contend that their Dam should be treated with the same latitude of interpretation as other dams in the area. John Sherk submitted that the MECP is not aware of a number of other dams in the area and the only reason that the MECP is requiring an application for a PTTW for their Dam is because of complaints that they have received and to ensure that Rivendell has adequate access to water from Martin Pond.

28The Appellants argued that Martin Pond provides maximum benefits to both wildlife and the human population and as such, an exemption could be granted on the basis of wetland conservation. In closing submissions, John Sherk submitted that the conservation exemption could apply since the sole purpose of the Dam is for conservation, with other incidental uses.

Director’s Submissions

29The Director’s position is that the appeal should be dismissed, and the Director’s Order upheld. The Director requested that if the appeal is dismissed, the Tribunal impose a new deadline requiring the Appellants to submit a PTTW application within 45 days of the date that the Decision is issued.

30The Director submitted that the appeal before the Tribunal is simple, the Appellants’ Dam is engineered and holds back in excess of 50,000 litres of water per day. The legislation requires a PTTW if there is a holding back of water and the MECP issued a Provincial Order requiring the Appellants to submit an application for a PTTW, which was upheld by the Director’s Order.

31The Director outlined that a water taking is defined in the Act to include a structure or works, which he submitted includes a dam, constructed for diversion or storage of water. Mr. Castro opined that as opposed to a beaver dam, this Dam is engineered so that it alters the natural flow regime and can cause interference with downstream users.

32Mr. Castro testified that he was able to identify the catchment area of Martin Pond by using a tool provided by MNR. In his opinion, the Dam will capture at least 50,000 l/d. In fact, Mr. Castro opined that his analysis concluded that at times, Martin Pond could capture up to 1 million l/d, which far exceeds the threshold that triggers the requirement for a PTTW application.

33In her role, Ms. Dick issued the Provincial Order in July, 2019. Ms. Dick explained to the Tribunal that the Appellants were first advised in 2010, that they were required to apply for a PTTW for the Dam. Over the years, the Appellants and MECP staff had many interactions regarding the Dam and water in Martin Pond. Ms. Dick explained that the lapse in time between the 2010 communication advising the Appellants that a PTTW application was required and her Provincial Order in 2019 was that it was not an enforcement priority. She further explained that over the years, the MECP was attempting to work with the Appellants to make the PTTW application process as simple as possible. However, after many years reiterating the MECP position that a PTTW application is required, Ms. Dick testified that she felt it was appropriate to issue the Provincial Order in 2019 to ensure a fair sharing of water.

34Ms. Dick responded to the Appellants’ contention that MNR did not require a PTTW application when they authorized the construction of the Dam. She noted that the MNR permit only authorized the construction of the Dam, it did not govern its operation as this is the job of MECP. She further noted that the MNR permit specifically noted that other permits may be required. The Director submitted that past non-enforcement does not relieve a person from their obligations to comply with a legal requirement.

35The Director emphasized that the Appellants reaching a resolution with Rivendell is irrelevant to this hearing. Water is a public resource and pursuant to s. 29(1) of the Act, the supervision of water in Ontario is given to the Minister. The Director submitted that one way for the Minister to supervise water is through the issuance of permits. Mr. Castro explained that the PTTW program provides for a fair sharing of a resource and the protection of the natural function of the system. In cross-examination, Mr. Castro explained that the Dam impounds water and meets the definition in the Act. At certain times of the year, Martin Pond will capture a significant amount of water that will be prevented by the Dam from travelling downstream and the PTTW program addresses this situation. Mr. Dagilis agreed and testified that water is a public resource and that the PTTW process exists to allow the Minister to determine the best way to protect the natural environment and allow a fair sharing of a resource. He emphasized that it is not up to the Appellants to allow or deny water access to other users, it is up to the Ministry.

36Ms. Dick testified that whether storage of water is the primary purpose of the Dam or an incidental effect of the Dam is irrelevant. The Dam is an engineered dam that stores water and as such, is subject to the Act. Mr. Faaren and Mr. Dagilis concurred with Ms. Dick and added that there were no available exemptions or mechanisms within the Act, which would allow the MECP to not require the PTTW application from the Appellants.

37In response to the Appellants’ contention that the wetland exemption could apply, the Director argued that the exemption provided for in s. 4.2(5) of Ontario Regulation 387/04 (“Regulation”) does not apply. To fall under this section, the Dam must be constructed “solely” for the conservation, development, restoration or management of a wetland. Although there are some components of a wetland, Martin Pond is just a pond, not a wetland. In addition, the Dam was not constructed solely for the purposes stated in the Regulation. As the Appellants have testified, the Dam was constructed for flood control and is used by Martin Pond landowners for recreation.

38Mr. Dagilis is the designated Director and issued the Director’s Order confirming the Provincial Order. Mr. Dagilis testified that s. 16 of the Act provides him with the authority to review any requests for reviews of a provincial order. He testified that this was a straightforward and simple matter. He noted that he has been with MECP since 2008 and this was the only review that he performed where he confirmed the exact scope, timing and dates for compliance and did not make any changes to the Provincial Order.

39Mr. Dagilis testified that the Appellants’ contention that the Dam is required to prevent a catastrophic flood is incorrect. He noted that there are many ways to remove a beaver dam to avoid a catastrophic flood and removal and maintenance of beaver dams is performed regularly by the MECP. Mr. Dagilis emphasized that the Dam is not necessary for flood control as there are other ways to accomplish this in a controlled fashion.

40During discussions with MECP staff, the Appellants advised that the costs associated with having the required studies completed to meet the requirements of the PTTW application were prohibitive. The MECP understood this difficulty and in 2018, offered the Appellants an option to bring them into compliance with the Act. In an effort to encourage a resolution without having to issue a Provincial Order, the MECP agreed to forego studies that were usually required to be completed and submitted with an application for a PTTW. In lieu of the studies, the Appellants would be required to submit a notarized copy of their agreement with Rivendell, which would be enshrined in the PTTW permit. Mr. Dagilis testified that Ministry staff were “bending over backwards” to make the application process as easy as possible for the Appellants.

41Mr. Faaren testified that he agreed with the approach to forego the studies in order to encourage a resolution with the Appellants. He explained that the MECP has one tool to manage corporations and private citizens, and that is why they are able to use their discretion to offer the Appellants a path forward and not require the expensive studies to be completed as part of the application process. He noted that maintaining the status quo at Martin Pond would ensure no further damage would be incurred and the MECP recognized that the Appellants were private citizens and not a large corporation, so this was a fair and reasonable approach. Mr. Faaren testified that despite the MECP’s offer of assistance, an application for a PTTW was still not submitted by the Appellants.

42Mr. Castro responded to the Appellants’ contention that the PTTW application form does not fit their situation and would contain many unanswered questions. Mr. Castro testified that in his role, he has seen many PTTW applications for dams. He noted that there is one application form for a PTTW and consequently, there will be sections that are not completed by applicants as they do not apply. He testified that the majority, if not all, applications have blank sections due to the fact that there is only one application form for all situations.

43The Provincial Order required the following:

The application shall be prepared in accordance with the Permit to Take Water Manual dated April 2005 and the Guide to Permit to Take Water Application Form dated September 2007, shall be accompanied by the applicable fee and shall include a copy of a signed and notarized agreement between the Property Owners and the Rivendell Golf Club with respect to the outflow of water from the Martin Pond.

44During the course of the hearing, Mr. Dagilis submitted that the MECP would not take a position on whether a notarized copy of the signed agreement with Rivendell should be included in the PTTW application.

45The Director submitted that the Director’s Order should be upheld. The Act requires the Appellants to apply for a PTTW and there has been no evidence presented to demonstrate that an exemption exists or that the law should not be followed.

Analysis and Findings

46The issue before the Tribunal is whether the MECP had the grounds and authority to issue the Director’s Order requiring the Appellants to submit an application for a PTTW. The Appellants had the onus to demonstrate that either the Act does not apply, or they fall under an exemption set out in the Act.

47The purpose of the Act is to provide for the conservation, protection and management of Ontario’s waters and provide for their efficient and sustainable use. Based on the evidence, the Appellants failed to discharge their onus and the Tribunal finds that the Dam constitutes a taking of water and as such, the Appellants are in contravention of the Act. The Tribunal also finds that the Appellants could not point to an exemption in the Act that would apply to the Appellants’ situation.

48There was considerable discussion about the meaning of words used in the legislation and in correspondence between the Parties throughout the years. The Tribunal gives a generous interpretation in reading legislative provisions and reads language and words in the ordinary sense, bearing in mind the intent of the legislative provisions.

49The Act makes it clear in s. 34(1) that “a person shall not take more than 50,000 litres of water on any day by any means except in accordance with a permit issued under s. 34.1”. This provision is subject to exemptions which were considered by the Parties and the Tribunal. Section 34.1 of the Act sets out the Director’s authority to issue or renew a permit and the conditions that may be included in such permit. The MECP is provided with the jurisdiction to issue a contravention order pursuant to s. 16 of the Act when there is non-compliance with s. 34.

50The case presented by the Appellants demonstrated extensive research and effort. Notwithstanding, the Appellants did not proffer any independent and objective evidence to support the conclusion that either the Act does not apply or that their circumstance falls under an exemption.

51The Tribunal agrees with the Director that the evidence demonstrates that s. 34 of the Act applies in this case. The Dam, on the Appellants’ property, has the effect of holding back water. The Tribunal disagrees with the Appellants’ submission that the Dam does not “take” water but rather “receives” water. The Act defines a water taking as including a structure constructed for the storage or diversion of water. In this case, the Tribunal finds that the Dam is a structure that does store water and as such, meets the definition of water taking pursuant to s. 1(7) of the Act.

52The Tribunal accepts the uncontroverted opinion evidence of Mr. Castro that the Dam takes more than 50,000 litres of water per day when there is significant rainfall. The Appellants are not in compliance with s. 34 of the Act and as such, the MECP had the authority pursuant to s. 16 of the Act to issue the Provincial Order. Section 16(3)(i) of the Act specifically contemplates requiring a person to apply for a permit. This is the legal basis of the Provincial Order and this was upheld by the Director’s Order. The Tribunal was not provided with compelling argument or evidence that an exemption could be granted to the Appellants.

53The Tribunal agrees with the Director that water is a public resource, and the supervision of water is granted to the Minister. The Tribunal acknowledges that the Appellants have had various agreements with Rivendell over the years regarding the water in Martin Pond. However, the Tribunal agrees with the Director that the Appellants have no authority to permit or deny others access to the water in Martin Pond. The supervision and fair sharing of water is a power given to the Ministry pursuant to the Act. The Tribunal does not agree with the Appellants that the purpose of requiring the Appellants to apply for a PTTW is so that the Ministry can ensure Rivendell has access to water. Rather, based on the evidence, the Ministry is requiring the Appellants to apply for a PTTW because it is required by law.

54The Appellants continually maintained that the Dam was constructed for flood control. However, in his closing submissions, John Sherk noted that the purpose of the Dam was for the conservation of a wetland with other incidental uses. The Tribunal did not find this persuasive. The Tribunal agrees with the Director that Martin Pond is just that, a pond. The Tribunal notes that through the years, and during the hearing, the Appellants maintained that the Dam was constructed for flood control. There was no evidence or support for the statement that the purpose of the Dam was conservation and as such, the Tribunal finds that the conservation exemption under the Regulation does not apply.

55The responsibility of applying for a PTTW is that of the owner, not the MECP. The Tribunal heard from the Appellants that the PTTW application process is expensive due to the cost of the permit and the associated studies. The Director and the staff at the MECP have made significant efforts and concessions over the years. The Tribunal heard from the Director that MECP staff have attempted to work with the Appellants to make the process as simple as possible. In fact, MECP staff understood the financial difficulty that the application process created and offered to use their discretion to forego studies that would be required under normal circumstances. The Tribunal commends the MECP for their efforts to assist the Appellants and make multiple attempts to help bring the Appellants into compliance with the Act.

56It is significant that, at the beginning of the second day of the hearing, the Director agreed not to take a position on the Provincial Order’s requirement of a notarized copy of the agreement with Rivendell to form part of the application for the PTTW. Despite all of these offers of assistance and mitigation, the Appellants have continuously chosen to ignore the law. The Tribunal does not have discretion to deviate from enforcement of the law.

57The Tribunal heard submissions and argument that were not relevant to the appeal and as such, will not make any findings in that regard. Discussion around the Friedlis dam is not relevant to this appeal. The only issue before the Tribunal is whether the Appellants are required by law to apply for a PTTW for their engineered Dam. Other dams in the vicinity are not relevant to this appeal.

58Throughout the hearing, there was discussion about conditions that might be attached to a PTTW. The Tribunal will not consider this testimony or make any findings on potential conditions. The sole matter before the Tribunal is whether a PTTW application is required. There is currently no permit in place and as such, a discussion about conditions to attach to a potential permit are not relevant for the Tribunal’s consideration.

59Finally, the Tribunal does not attach any significance to the fact that previous Officials did not require the Appellants to submit an application for a PTTW. For the above reasons, the Tribunal has found that the Appellants are required to apply for a PTTW and any past non-enforcement is not relevant.

60The Tribunal prefers the evidence and submissions of the Director. The Tribunal finds that the appeal is dismissed. The Dam holds back and/or stores water, in excess of 50,000 litres on days with significant rainfall. The Tribunal finds that the Appellants are in contravention of s. 34 of the Act and are required by law to apply for a PTTW. The Tribunal finds that the requirement in the Provincial Order for the submission of a notarized copy of the agreement with Rivendell is not required to be part of the application for the PTTW.

ORDER

61THE TRIBUNAL ORDERS that the appeal is allowed in part and directs the Director to amend the Director’s Order No. 4567-BDKPTK-1 to remove the requirement to “include a copy of a signed and notarized agreement between the Property Owners and the Rivendell Golf Club with respect to the outflow of water from the Martin Pond” from Item No. 1. In all other respects, the Tribunal orders that the appeal is dismissed.

62THE TRIBUNAL FURTHER ORDERS that the Appellants are required to submit an application for a Permit To Take Water to the Director within 45 days of the issuance of this Decision.

“C. Hardy”

c. hardy

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.