Sartorio (Sarto) Provenzano v. Central Lake Ontario Conservation Authority, 2024 CanLII 102751

Sartorio (Sarto) Provenzano v. Central Lake Ontario Conservation Authority

ISSUE DATE: October 16, 2024

CASE NO(S).: OLT-21-001262

PROCEEDING COMMENCED UNDER subsection 28.1(20) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: Sartorio (Sarto) Provenzano

Respondent: Central Lake Ontario Conservation Authority

Subject: Appeal of refusal to grant permission for development activity

Property Address: 46 West Beach Road, Bowmanville

Municipality: Municipality of Clarington

OLT Case No.: OLT-21-001262

OLT Case Name: Provenzano v. Central Lake Ontario Conservation Authority

Heard: June 21, 2023, June 25, 2024 to June 28, 2024, July 2, 2024 to July 5, 2024, August 7, 2024 to August 9, 2024 and September 10, 2024 by Video Hearing

Parties	Counsel
Sartorio (Sarto) Provenzano	Conner Harris, Leah Cummings
Central Lake Ontario Conservation Authority	Kenneth Jull, Daria Risteska

DECISION DELIVERED BY ASTRID J. CLOS AND N. EISAZADEH AND ORDER OF THE TRIBUNAL

Link to the Order

1The Tribunal convened a Merit Hearing in relation to an appeal by Sartorio (Sarto) Provenzano (“Appellant”) pursuant to s. 28.1(20) of the Conservation Authorities Act (“Act”) of the refusal of the Central Lake Ontario Conservation Authority (“CLOCA”) to issue a Permit for the property municipally addressed as 46 West Beach Road (“Subject Property”), in the Municipality of Clarington (“Municipality”).

2The Merit Hearing, which commenced on June 21, 2023, was adjourned at the request of the Parties who indicated that they had reached a settlement. Unfortunately, the settlement was not realized. The Hearing was then scheduled to recommence on April 2, 2024.

3On February 16, 2024, the Province announced that pending amendments to the Act, along with new regulations, would come into effect on April 1, 2024.

4On April 2, 2024, the Tribunal heard arguments from the Parties and determined that the amendments to the Act and its regulations, which had come into force the day before, would be applied in determining this Appeal. The Hearing was again adjourned to give the experts sufficient time to consider the impact of these amendments.

5The Hearing commenced on June 21, 2023, and concluded with final oral argument on September 10, 2024. This Decision disposes of the Hearing of the Merits.

SUBJECT PROPERTY

6The Subject Property has a lot area of approximately 0.03 hectares and contains an existing residential dwelling serviced by a private well and septic system. The Subject Property obtains access through West Beach Road, which bisects the property and is a forced road maintained by the Municipality. The Subject Property extends onto the north side of West Beach Road but lies primarily to the south of the road. The Subject Property does not abut Lake Ontario. The abutting lot located between the Subject Property and Lake Ontario was purchased by the Municipality and the dwelling was demolished.

7The Subject Property is located on a barrier beach with the Soper Creek and Bowmanville Creek confluence located on one side, and Lake Ontario on the other side.

SURROUNDING AREA

8The Subject Property is located south of Highway 401 and is approximately a five to seven minute drive from downtown Bowmanville. West Beach Road is the only access road for the residents of West Beach Road and for the residents of Cove Road and Cedar Crest Beach Road, apart from an emergency exit through the previous St. Mary’s Cement property located to the west of these three communities.

9Bowmanville Harbour, located to the east of the Subject Property, has been in operation since approximately 1878. It was first operated primarily for commercial purposes but has shifted to recreational uses. Bowmanville Harbour is located at the confluence of Soper Creek and Bowmanville Creek, which outlet into Lake Ontario. Jetties on either side of the harbour channel access have been in place since approximately 1863 and extend approximately 200 metres from the shoreline into Lake Ontario.

10On West Beach Road to the east and west of the Subject Property are 12 privately-owned residential dwellings. At the end of West Beach Road, further to the east, is a public beach, a public parking lot and several residences owned by the Municipality which are leased to private individuals. The municipally owned public beach runs along the entirety of the Lake Ontario frontage along West Beach Road.

11The Municipality did not attend or participate in the hearing for this matter.

12Mr. Provenzano purchased the Subject Property in June 2019.

13On July 26, 2019, Mr. Provenzano engaged in pre-consultation meetings with the Municipality and CLOCA as summarized by the meeting notes found in Exhibit 1 – Tab 72 and outlined as follows.

a. CLOCA:

• Property is within the Conservation Authority Regulated Area and the floodplain;
• Confirmed that proposal is considered development;
• Conservation Authority permit would be needed, including drawings;
• Reviewed the natural hazards affecting the property;
• Lack of safe access as a result of riverine flooding is an important consideration;
• The existing private residential use of the property acknowledged;
• CLOCA will permit the property owner to maintain what is there (existing footprint and shell);
• Second storey addition is not supported by Staff; and,
• CLOCA can work with property owner on reconstruction plans for work within the main floor floorplate and the proposed foundation enhancements.

14Mr. Provenzano applied for CLOCA File No. RPRG5870 (“Permit Application”) to CLOCA on April 13, 2021, for approval to undertake development activity on the Subject Property.

15The Appellant then amended and resubmitted the Permit Application twice between May 2020 and April 2021 to address the comments received.

16On April 28, 2021, CLOCA informed Mr. Provenzano that his application had been refused. (Exhibit 1 – Tab 20)

17The Applicant then sought a hearing before CLOCA’s board of directors, which took place on May 18, 2021. CLOCA provided notice of its decision refusing Mr. Provenzano’s application on May 25, 2021 as found in Exhibit 1 -Tabs 89 and 90. Excerpts from the CLOCA Board decision are below:

Significant Risks Present to People and Property

Significant regulatory flood depths from both coastal and riverine systems pose severe risk to both people and property on the subject lands and the surrounding community along West Beach Road. These flood depths would prevent personal vehicle access or egress to the site during a flood emergency, and would also make emergency vehicle access extremely difficult, which would put first responders at risk. Flood depths associated with the Bowmanville Soper Creek floodplain also pose a severe safety risk to people and risk of people being swept away.

Specifically, flood waters in the event of a regulatory storm event in the Bowmanville/ Soper Creeks watersheds would fully engulf and overtop the entirety of West Beach Road of a depth of about 1.8 m extending along the barrier beach eastward from the Cove Road intersection, which is an over 325 m distance from 46 West Beach Road. This level of depth and distance combined with the movement of flood waters prevents the save evacuation or rescue of people that would be stranded at 46 West Beach. This same stretch of road is also vulnerable to flooding events due to Lake Ontario based flood events. Further both riverine and lake-based flood waters have the potential to rapidly erode the barrier beach dynamic beach, which is composed of highly erodible lake sediments, potentially further compromising the ability to access the lands in the event of an emergency situation.

The West Beach community is located on a sand spit separating Lake Ontario from the Bowmanville Marsh. This landform would have been created by the gradual movement of shoreline sediments moving along the shoreline and accumulating over a long period of time. As noted in the Lake Ontario Shoreline Management Plan, the site and West Beach community is located on a dynamic beach. These sediments are very erodible, and there is a likelihood that severe erosion of the sand spit would occur during a flood event of regulatory magnitude.

The well and septic system on the property would be inundated during a major flood. Where wells and septic tanks and beds are relied upon for water and wastewater, flood water can inundate septic systems and contaminate wells, leading to failure of these systems and possible resident health impacts.

Conclusion

With respect to the existing development at 46 West Beach Road, CLOCA’s policies may permit repairs, maintenance and interior alterations provided they do not result in additional dwelling units or an increase in floor area, which would be a reasonable course of action for the applicant to modernize and continue the use of the property despite the inherent hazardous nature of the lands. Further, it would be possible to raise the existing structure to provide for a level of flood protection, as proposed by the applicant in the most recent submission, without doubling the habitable area and risk associated with the property.

Given the severe flooding and erosion natural hazards at this site and CLOCA’s obligation to make decisions that seek to avoid damage to property and risks to people, including first responders, CLOCA’s policies should be properly applied. The current application should be refused. The applicant will retain the right of further appeal or to re-apply with a proposal that would provide for repairs, maintenance and interior alterations, including flood protection, which would provide an acceptable level of development given the risk context.

RECOMMENDATION

THAT The Application for Development at 46 West Beach Road, Municipality of Clarington (File No. RPRG5870) be Refused.

18Mr. Provenzano filed an Appeal of CLOCA’s decision to the Tribunal on June 17, 2021.

LEGISLATIVE, REGULATORY AND POLICY FRAMEWORK

19Pursuant to s. 28.1(20) of the Act, the Tribunal may refuse the Permit Application or order the Authority to issue the Permit, with or without conditions.

Powers of the Tribunal

28.1 (26) The Ontario Land Tribunal has authority to take evidence, to refuse the permit or to order the authority to issue the permit, with or without conditions.

s. 1.1 of Ontario Regulation 41/24 made under the Act defines “development activity” and “hazardous land”,

Definitions

1. (1) In section 28 of the Act and in this Regulation,

“development activity” means,

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,

(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,

(c) site grading, or

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere;

“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;

20Pursuant to s. 28.1(1) of the Act a Permit may be issued if in the opinion of the authority certain criteria are all met,

Permits

28.1 (1) An authority may issue a permit to a person to engage in an activity specified in the permit that would otherwise be prohibited by section 28, if, in the opinion of the authority,

(a) the activity is not likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock;

(b) the activity is not likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property; and

(c) any other requirements that may be prescribed by the regulations are met.

21A decision of the Tribunal, in respect of any Authority, that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) as set out in s. 3(5) of the Planning Act.

LIST OF WITNESSES

22During the Merit Hearing, a total of eighteen witnesses provided testimony under oath. 75 Exhibits were entered into the record as evidence.

Appellant

23Counsel for the Appellant called the following witnesses:

• Sartorio (Sarto) Provenzano, the owner of 46 West Beach Road and Applicant for the CLOCA Permit, the Appellant in this matter. He testified as a fact witness.
• Nova Hardcastle, the previous owner of 46 West Beach Road who testified as a fact witness under summons.
• Joe Da Silva, lives on West Beach Road and testified as a fact witness.
• Cynthia Strike is a retired Planner previously employed by the Municipality who testified as a fact witness under summons.
• John Dungavell, employed by the Ministry of Natural Resources (“MNR”) testified as a fact witness under summons. Mr. Dungavell did not provide evidence on behalf of MNR.
• Peter Zuzek, a professional geoscientist and principal of Zuzek Inc., who testified as a fact witness under summons.
• Tim Rupert, a professional engineer qualified by the Tribunal to provide expert opinion in civil and structural engineering.
• Steve Edwards, a professional land use planner qualified by the Tribunal to provided expert opinion in land use planning.
• Milo Sturm, a professional engineer qualified by the Tribunal to provide expert opinion in coastal engineering.
• Dr. Bahar SM, a professional engineer qualified by the Tribunal to provide expert opinion in coastal engineering and fluvial geomorphology. With his permission, he will be referenced as Dr. Bahar, in this Decision.

CLOCA

24Counsel for CLOCA called the following witnesses:

• Dr. Paul Villard, a geoscientist qualified by the Tribunal to provide expert opinion in riverine, coastal and estuary systems.
• Dr. Qimiao Lu, a scientist qualified by the Tribunal to provided expert opinion in river modelling.
• Chris Jones, a professional planner employed by CLOCA, qualified by the Tribunal to provide expert opinion in land use planning.
• Gord Weir, a retired fire chief previously employed by the Municipality, qualified by the Tribunal to provide expert opinion in emergency services.
• Judy Sullivan, a professional engineer qualified by the Tribunal to provide expert opinion in natural hazards, coastal and river policies.
• Perry Sisson, a professional engineer employed by CLOCA, qualified by the Tribunal to provide expert opinion in water resources engineering.
• Seth Logan, a professional engineer qualified by the Tribunal to provide expert opinion in coastal engineering with particular focus in natural hazards, barrier beaches, dynamic beaches, flood hazards, and riverine flooding.
• Fiona Duckett, a professional engineer qualified by the Tribunal to provide expert opinion in coastal engineering with expertise in natural hazards.

EVIDENCE FROM FACT WITNESSES

25Mr. Provenzano provided factual evidence under oath. He advised that he purchased the property in June 2019. Under cross-examination, Mr. Provenzano acknowledged that he did not consult with CLOCA until after he owned the Subject Property. Mr. Provenzano stated that he had outbid the Municipality who was also attempting to purchase the Subject Property.

26Mr. Provenzano stated that he had received an email on February 13, 2020, from Faye Langmaid, Acting Director, Planning Services Department, Municipality of Clarington, suggesting that he purchase the next door property at 48 West Beach Road, a two-storey renovated home, which was for sale, and sell the Subject Property to the Municipality. Mr. Provenzano testified that he was contacted by the Municipality via telephone on other occasions, again attempting to pressure him into selling his property.

27Mr. Provenzano reviewed information that he had prepared where he summarized information regarding thirteen permit applications approved by CLOCA between 2013 and 2022. When questioned by Kenneth Jull, Counsel for CLOCA, Mr. Provenzano could not recall which maps he had referenced to determine the hazards that he noted exist on each parcel where a permit had been issued.

28Mr. Provenzano stated that it is his view that the Municipality has intentionally contributed to the delay of this application as it has always been their intention to acquire 46 West Beach Road as part of the Municipal Land Acquisition Strategy. Mr. Provenzano alleges that CLOCA’s objections to the issuance of the Permit are not about safety but are instead to assist the Municipality in acquiring the Subject Property.

29Mr. Provenzano expressed his frustration that his permit application was submitted based on the mapping available on the CLOCA website only to be advised in a letter dated April 28, 2021 from John Hetherington that his permit application will be recommended for refusal by CLOCA staff and that, during their review of the submitted materials, they discovered an error with respect to the boundary of the Dynamic Beach Hazard Limit on Map 33 of the Lake Ontario Shoreline Management Plan Hazard Maps. (Exhibit 1 – Tab 20) The corrected map was changed to include his property within the Dynamic Beach Hazard Limit.

30Mr. Provenzano acknowledged under cross-examination that he had received a letter dated June 29, 2020 from John Hetherington, CLOCA, which identified the hazards on the Subject Property. (Exhibit 1 – Tab 16)

31John Dungavell was accepted by the Panel as a fact witness and was not tendered to provide his professional opinion nor represent the Ministry of Natural Resources (“MNR”) in his evidence which was provided under oath. Mr. Dungavell advised that he is a long-time employee of MNR and, in his role, he provides advice related to hazard policy to Conservation Authorities including CLOCA. Mr. Dungavell stated that when there is a conflict between hazard mapping and the relevant regulation, the regulation prevails. Mr. Dungavell explained that this principle remains the same in the applicable regulations both before and after the changes that occurred on April 1, 2024.

32Nova Hardcastle provided factual evidence and testified under oath. Her family was the previous owner of the Subject Property and sold the property to the Appellant. Ms. Hardcastle lived with her family in the current dwelling on the Subject Property since the early 1970’s until she moved out but continued to visit her mother there on a weekly basis. During the time when Ms. Hardcastle lived in the house, there were three bedrooms on the main level, for her mother, sister and herself. Her brother also occupied a bedroom in the attic of the home, which he accessed through a ladder located in the interior of the home. Ms. Hardcastle referenced a photo (Exhibit 9) of the second level of the home being used as a bedroom by her brother. Ms. Hardcastle testified that four people lived in the house when she was growing up.

33Ms. Hardcastle indicated that her brother had his bedroom in the upper level of the house. She indicated that once her brother moved out of the house, her niece used this same space as a bedroom. She described the upper floor as having at least 6 feet in height at its centre with one bedroom and additional space for storage.

34Ms. Hardcastle described the existing two-bedroom house on the Subject Property as relatively small, being approximately 20 feet by 40 feet. She said that there is one existing bedroom on the main floor and one bedroom on the upper floor. She indicated that there is one bathroom, a living room, small dining room, furnace, and a kitchen all on the main floor. She confirmed that the house has a hydro service, a furnace, water service by a sandpoint well, and a septic system. She testified that a piece of wood had been placed over the opening to the upper bedroom to retain heat within the main level of the house.

35Ms. Hardcastle testified that the Municipality had also submitted an offer to purchase the Subject Property, but the Appellant was the successful purchaser. Ms. Hardcastle advised that the Municipality has purchased other cottages on West Beach Road, which they lease out and some homes have been purchased by the Municipality and demolished. Ms. Hardcastle explained that there used to be a second house (46A), located between the existing dwelling and Lake Ontario. These dwellings shared a well and a driveway. The Municipality purchased this house closer to the lake and disabled the well when they demolished the house. Ms. Hardcastle’s mother was left without a source of water for her home and had to have a sand point well drilled. Ms. Hardcastle advised that she was never prevented from driving to visit her mother at the Subject Property even if there was some water on the road. Ms. Hardcastle’s mother passed away in November 2018, which then led to the Subject Property being sold to the Appellant in 2019.

36Ms. Hardcastle’s understanding was that the Municipality wanted to purchase the Subject Property in order to tear down the house and incorporate it into parkland.

37Joe DaSilva provided factual evidence and testified under oath. Mr. DaSilva advised that he used to live at 45 West Beach Road, next door to the Subject Property. He explained that he had submitted an application for a Permit to allow the construction of a new one-and-a-half storey detached garage with an attic/loft, which was denied by CLOCA. Under cross-examination, Mr. Jull took Mr. DaSilva to the minutes of the hearing of the CLOCA Board entered as Exhibit 14, which indicate that on June 15, 2004 Mr. DaSilva’s Permit was denied for the following reasons,

1. The approval of this application would set an unacceptable precedent for this area and would be contrary to previous Board decisions.

2. Engineering support has not been provided to affirm that the structure can be adequately flood protected as required under Section 2.1.1.13 “Building in Flood Plains” of the Ontario Building Code.

3. The proposed structure appears impractical to flood proof.

4. This application is viewed as new major construction in an area where flooding represents a major risk to safety and property damage.

38Mr. DaSilva confirmed that he did not appeal the refusal of the Permit by CLOCA but advised that he then moved to 54 West Beach Road. Mr. DaSilva described the area as conveniently located to Highway 401, the hospital as well as other amenities and is an area that “speaks to your soul”, and that he would never move away. Mr. DaSilva stated that for years he complained about West Beach Road being poorly maintained with many potholes. Mr. DaSilva advised that West Beach Road had recently been rebuilt, elevated and paved which now makes it a speedway.

39Mr. DaSilva has resided just down the road from the Subject Property, at 54 West Beach Road, for 18 years. He stated that he has lived on West Beach Road for more than 25 years. His evidence demonstrated a passion for the neighbourhood, his knowledge of the area and the tight-knit nature of the community.

40Cynthia Strike provided factual evidence and testified under oath. Ms. Strike was employed by the Municipality for 33 years. Her last position was as the Manager of Development Review before her retirement in 2021. Ms. Strike advised that she was involved in the pre-consultation process for the permit application for the Subject Property. Ms. Strike referenced Exhibit 1 - Tab 7, which are notes from a meeting with the Appellant, the Municipality and CLOCA on July 26, 2019. Ms. Strike had provided the comment that, “No planning application is required if the proposed re-construction is within the existing footprint.” Ms. Strike clarified under cross-examination by Mr. Jull that her comment from the meeting was based on the existing footprint and building shell not being enlarged. (emphasis added)

41Peter Zuzek provided factual evidence and testified under oath. Mr. Zuzek advised that he is a geoscientist and that his firm, Zuzek Inc., along with Seth Logan of SKL Engineering were the authors of a report entitled the “Lake Ontario Shoreline Management Plan” (“LOSMP”) dated November 5, 2020 (Exhibit 1 – Tab 61). Mr. Zuzek advised that Map 33 of the LOSMP mapped the Dynamic Beach for the portion of the Lake Ontario shoreline that includes the Subject Property. Mr. Zuzek advised that in April 2021, Perry Sisson, from CLOCA questioned why this portion of the shoreline had been mapped using a different methodology than the rest of the shoreline resulting in the Subject Property not being identified as a Dynamic Beach on Map 33. Mr. Zuzek explained that the mapping was reviewed for a potential error and agreed that Map 33 should be revised and re-issued. The corrected version of Map 33, dated June 11, 2021, which now identifies the Subject Property as Dynamic Beach, was reissued.

PERMIT APPLICATION

Appellant

42Tim Rupert was qualified by the Panel to provide expert evidence in civil and structural engineering and testified under oath. Mr. Jull objected to Mr. Rupert providing land use planning or Ontario Building Code (“OBC”) evidence. The Panel heard the argument regarding this objection while the witness was absent from the hearing room on a Voire Dire. Upon the return of Mr. Rupert, the Panel provided its ruling that there seemed to be agreement between Counsel that the witness would not be providing planning evidence and that the Panel would hear evidence from this witness with respect to the OBC, where it intersects with his experience as a structural engineer.

43Mr. Rupert testified that he was responsible for the preparation of the building design drawings for the Permit Application. Mr. Rupert explained that the design anticipated keeping the living room, dining room, and kitchen on the main floor. He outlined that the second floor would have a bedroom, (the only bedroom in the house) and the bathroom would be relocated to the second floor. He added that the second floor would also have a media room.

44Mr. Rupert indicated that to accommodate the second storey proposed in the application, the existing wall would be raised to a height consistent with a second storey. He opined that, taking into account the existing second storey area, the proposed design would result in approximately 20% more habitable space in the home (excluding the stair space).

45Mr. Rupert indicated that the designs also included floodproofing the home (including lifting the foundation) – a feature which he advised is not present in the current home.

46Mr. Rupert explained that the Permit Application is for permission to raise and replace the foundation of the house and to raise the walls of the second floor to meet the OBC requirements for a two-storey building. He advised that the proposed development would be within the footprint of the existing dwelling and that the house would be raised so that the foundation wall would be 5’7” above the existing grade. He testified that new concrete foundations would be installed to double the footing in order to accommodate additional forces and higher water levels as part of floodproofing the building.

47Mr. Rupert testified that, to his knowledge, there was no groundwater data available to him when he prepared the design of the proposed foundation for the Subject Property. Mr. Rupert explained that for this site he prepared the foundation design based on the assumption that there is a high groundwater level. Mr. Rupert stated that in his design he doubled the footing width to accommodate the possibility of a high groundwater level. While under cross-examination by Mr. Jull, Mr. Rupert confirmed that no borehole or geotechnical information was available to him when he prepared his foundation design and acknowledged that “the design of the foundation could have to change if the soils are not as good as you thought.”

48Mr. Rupert explained that the proposal is to lift the existing dwelling off the current foundation, construct the new elevated foundation, place the dwelling onto the new foundation, renovate the half storey to extend the knee walls to full height and add a new attic and roof to the dwelling. Mr. Rupert estimated that this would increase the livable floor space on the second floor by approximately 20% excluding the stair space, but he did not have his calculations available to rely on and could not be sure. Mr. Rupert testified that the intent would be to raise the existing building above the highest flood elevation plus an allowance as shown on his drawings. Mr. Rupert’s testimony was that during a flood event the dwelling could be surrounded by five feet of water.

49Under cross-examination by Mr. Jull, Mr. Rupert confirmed that his foundation design was based on the building site not being a Dynamic Beach. Mr. Rupert agreed that the foundation design would need to be changed to piles or another solution if the site is a Dynamic Beach.

50In re-examination by Mr. Harris, Mr. Rupert confirmed that the size of the proposed foundation was the same width and length as the existing foundation of the dwelling. Mr. Rupert also testified that the proposed changes to the dwelling would make it taller since the foundation would be designed to lift the house to a higher elevation and the roof would be higher to accommodate the extension of the knee walls to full height walls plus an attic and a roof.

51Steven Edwards, a land use planner, provided evidence that the second floor does not meet the definition of a half storey as included in the Municipality’s Zoning By-law No. 84-63 (Exhibit 1 – Tab 24). He stated that the total area, which exceeds 2.1 m in height, does not cover at least 50% of the floor area of the second floor. He stated that the dwelling predates the by-law. He provided viva voce evidence that, in his opinion, the Permit Application would result in an approximately 45% increase in the habitable floor area of the current dwelling on the Subject Property.

CLOCA

52Chris Jones, a professional planner employed by CLOCA, qualified by the Tribunal to provide expert evidence in land use planning, provided evidence that the Permit Application proposes development activity subject to the prohibition at s. 28(1) of the Act. Mr. Jones provided his opinion that the existing building is a 68.2 square metres (734 square feet) single-storey wood frame cottage. Mr. Jones stated that, within the single-storey home is a bedroom, a washroom, a kitchen, dining, living and entry spaces. He explained that the attic is framed by a knee wall structure and is accessed by a ladder. He provided his opinion that an attic space accessed by a ladder is not recognized by CLOCA as a living space, as a residential floor space or as a separate storey for assessing existing conditions in the context of proposals for further development activity.

53Mr. Jones indicated that the Permit Application proposes to reconstruct and replace the current cottage with a two-storey dwelling with a floor area of 133 square metres (1,440 square feet) plus a terrace of 10.3 square metres (111 square feet). Mr. Jones opined that excluding the terrace, this represents an increase of 64.8 square metres (698 square feet) or a 95% increase over the existing cottage.

54Mr. Jones advised that the proposed second floor plan shows a new bedroom and a media room built with its own attic on top of the existing first floor. He stated that the drawings show that the new second floor will have details such as a new window and door openings.

55Mr. Jones explained that the proposal, in this case, would reconstruct and replace the current cottage with a two-storey dwelling, thereby adding a second storey and would almost double the space (95% increase), which can be occupied by residents and their guests.

56Mr. Jones opined that the addition of a second storey allows for more people to either reside at or occupy the dwelling, and significantly increases the risk to safety of persons during a regulatory flood event.

57Mr. Jones stated that while the Permit Application does not involve increasing the number of bedrooms and rather reduces the number of bedrooms, a future owner is not bound by this. Mr. Jones indicated that the second-floor media room could be converted into a bedroom and a pull-out sleeping couch could be placed on the first floor living room. He indicated that there is a large space adjacent to the front entrance that is not marked for any purpose which could be made into a bedroom.

FINDINGS

58The Panel considered the various calculations and opinions of the experts characterizing the Permit Application. The experts for CLOCA and the Appellant all varied in how they defined the current upper floor of the dwelling and how they then calculated the percentage of the increase in size of the building. There was, however, consensus among the experts that the Permit Application would increase the size of the current upper level of the dwelling with the extension of the knee walls, new attic and new roof to be constructed.

DEVELOPMENT ACTIVITY [O.REG. 41/24](https://www.canlii.org/en/on/laws/regu/o-reg-41-24/latest/o-reg-41-24.html)

59Section 1.(1) of O. Reg. 41/24 made under the Act defines “development activity”,

Definitions

(1) In section 28 of the Act and in this Regulation,

“development activity” means,

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,

(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,

(c) site grading, or

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere;

(emphasis added)

60There is no dispute between the Parties that the Permit Application meets the definition of development activity as defined under the Act and regulations. The Appellant does not dispute that the Permit Application proposes to raise the height of the existing dwelling at 46 West Beach Road, which would increase of the size of the building.

61The Panel, upon reviewing the evidence provided, finds that the Permit Application meets the definition of development activity as defined under the Act and regulations.

HAZARDOUS LAND [O.REG. 41/24](https://www.canlii.org/en/on/laws/regu/o-reg-41-24/latest/o-reg-41-24.html)

62Section 1.(1) of O. Reg. 41/24 made under the Act defines “hazardous land”,

Definitions

1. (1) In section 28 of the Act and in this Regulation,

“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;

RIVERINE FLOODPLAIN

63The Parties are in agreement that the Subject Property is within the Bowmanville Creek and Soper Creek Flooding Hazard or what was referenced during the Hearing as the Riverine Floodplain.

64Chris Jones provided his evidence that flood waters, in the event of a regulatory storm event, in the Bowmanville/Soper Creek watersheds would fully engulf and overtop the entirety of West Beach Road to a depth of about 1.8 m (Exhibit 44).

65Perry Sisson, a professional engineer employed by CLOCA, located the site at 46 West Beach Road as being within the regulatory flood hazard of the Bowmanville and Soper Creeks floodplain. He explained that the Technical Guidelines require that the regulatory flood event is the greater of the 100-year return period flood or Hurricane Hazel storm. He advised that, at the location of the Subject Property, the Hurricane Hazel rainfall produces the greatest flooding and is the regulatory event. Mr. Sisson stated that the Bowmanville/Soper Creeks regulatory floodplain fully engulfs the West Beach community. He stated that the flood depth at the proposed building is approximately 1.5 metres. He explained that the depth of flooding over West Beach Road at the driveway to 46 West Beach Road is about 1.8 m (Exhibit 61).

66Dr. Paul Villard, a geoscientist qualified by the Tribunal to provide expert evidence in riverine systems, surveyed the numerous flooding studies that have been completed along Bowmanville/Soper Creeks. Dr. Villard concluded that the entire West Beach barrier system, including 46 West Beach Road, would be under water during the regulatory flood event (Exhibit 1 – Tabs 35, 36, 37 and 38).

67Dr. Bahar was qualified by the Panel to provide expert evidence in Coastal Engineering and Fluvial Geomorphology. Dr. Bahar (as he was addressed in the hearing with his permission) referred to reports that he prepared entered as Exhibit 31 - Coastal Hazard Limit Analysis dated June 16, 2023, and Exhibit 32 - Hydraulic and Hydrodynamic Study for Bowmanville and Soper Creek Watersheds and Flood Hazard Assessment dated June 2024, when providing his evidence.

68Mr. Harris submitted that the Tribunal should consider both scenarios, which were presented by Dr. Bahar: one in which the harbour channel is not dredged, and another in which the harbour channel is regularly dredged. He submitted that this should inform the Tribunal’s analysis of the nature of the flooding hazard at the Subject Property.

69Mr. Harris argued that Dr. Bahar is the only expert that the Tribunal has heard from who gave an independent assessment of the riverine flood hazard. Dr. Bahar concluded that the existing dwelling would be within the riverine flood hazard.

70Dr. Bahar found that the flooding risk is reduced in Scenario 2 (with dredging). He stated that Scenario 2 resulted in maximum flood depths near 46 West Beach Road between 0.02 and 0.60 metres in the Hurricane Hazel flood event but with an average depth of 1.15 metres along West Beach Road near the Subject Property. He advised that the velocity of water around the Subject Property ranged between 0-0.5 metres per second.

71Dr. Bahar provided his conclusion that while the Subject Property and surrounding area was subject to flooding, his analysis demonstrated that it was not so severe as to make development unreasonable. He noted that it is only during the Hurricane Hazel regional storm event that the Subject Property experiences flooding from the marsh.

72Dr. Bahar prepared a model with the option of dredging the channel access to the Bowmanville Marina (Scenario 2), which showed that the high flood depths will last only a few hours during which access to the Subject Property may be restricted.

73During the cross-examination of Dr. Bahar by Mr. Jull, on the issue of water levels on the access road, Dr. Bahar stated that under his model the water runs only a few hours and then it goes away. Mr. Jull then asked Dr. Bahar, “Would you not agree that a person can die in a couple of hours?” Dr. Bahar’s response was that it depends on the situation.

74Mr. Jull submitted that Dr. Bahar was dogmatic and prone to advocacy in his evidence, which should go to the weight that the Tribunal provides his evidence.

75Mr. Jull argues that the definition in O.Reg. 41/24 of hazardous land uses the word “or” which imports a disjunctive test: “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. He submitted that applying the disjunctive test, “hazardous land” means land that could be unsafe for development because of naturally occurring processes associated with flooding, or erosion, or dynamic beaches or unstable soil or bedrock. (emphasis added)

76Mr. Jull further argues that once it is determined that the land could be unsafe for development because of naturally occurring processes associated with flooding, this will qualify as hazardous. He states that the next step is the exercise of discretion under the permitting scheme in section 28.1. He concludes that if a permit is denied under this section in relation to hazardous lands, the Tribunal need not consider the next tests of whether the land could be unsafe due to erosion, or dynamic beaches or unstable soil or bedrock.

FINDINGS

77The Panel agrees with and accepts the undisputed evidence provided that the Subject Property is located within the Riverine Floodplain. The Panel prefers the evidence of Mr. Jones, Mr. Sisson and Dr. Villard that the Subject Property could be unsafe for development because of naturally occurring processes associated with flooding and meets the definition of hazardous land.

78The Panel agrees with the argument of Counsel for CLOCA. Due to the disjunctive test of the definition of hazardous land, no further tests need be considered. The Panel does not interpret the Act to intend that any property in Ontario must have flooding and erosion and dynamic beaches all occurring to be considered hazardous land (emphasis added). The Panel finds that the Subject Property meets the definition of hazardous land as per s. 1.(1) of O. Reg. 41/24 made under the Act.

PROVINCIAL POLICY STATEMENT 2020

Appellant

79Mr. Edwards, qualified by the Panel to provide expert opinion evidence in land use planning, provided his evidence that the Provincial Policy Statement 2020 (“PPS”) prohibits development and site alteration within areas subject to flooding hazards, erosion hazards and dynamic beach hazards. Mr. Edwards provided his opinion that the reconstruction of an existing dwelling is not defined in the PPS as development. Mr. Edwards testified that the PPS does not speak to the specific case here, which would involve redevelopment of an existing structure within a location having a flooding hazard. Mr. Edwards concludes that lacking a prohibition to the specific case and since the original development predates the policy, redevelopment of the dwelling is not prohibited by the PPS.

80Mr. Edwards provided his interpretation that the zoning of the Subject Property is Residential Shoreline Exception 1 (RS-1) Zone. Mr. Edwards does not agree with Mr. Jones that section 26.3 f) of the Clarington Municipal Zoning By-law No. 84-63 should be applied when interpreting the limit of the Environmental Protection (EP) Zone as may be applicable to the Subject Property. He stated that, in this case, the boundary of the zone is not uncertain and, therefore, does not require that the interpretation provision in the zoning be considered.

81In his direct testimony, Mr. Edwards stated that the Permit Application would be an approximately 45% increase in the size of the existing building on the Subject Property. Under cross-examination by Mr. Jull, Mr. Edwards conceded that an enlargement, extension, reconstruction or structural alteration of the current building on the Subject Property as proposed by the Permit application would require a planning application in accordance with s. 3.6 b) of the Municipality Zoning By-law No. 84-63. Mr. Edwards confirmed that the Appellant has not applied for a zone change or minor variance application to his knowledge.

82Mr. Harris submitted that CLOCA’s witnesses claimed that during a regional storm event there would be no safe access to the Subject Property which they claim creates a risk to public safety.

83Mr. Harris argues that assuming this is true, the lack of safe access is a feature of the Subject Property’s current condition. He further submitted that improving the house does not negatively affect the access along West Beach Road due to flooding conditions. He stated that safe access is not something made or brought into existence by the Permit Application.

84Mr. Harris referred to the testimony of Mr. Jones who took the Tribunal on a hypothetical drive along West Beach Road, starting from just south of Highway 401 noting that in a storm event, there would be flooding on West Beach Road starting just south of Highway 401 becoming progressively deeper, such that it would be ill-advised, according to Mr. Jones, to use the road well before it branches off between Cove Road and West Beach Road.

85Mr. Harris submitted that Mr. Jones’ hypothetical drive along West Beach Road was based on CLOCA’s own floodplain mapping. He noted that the floodplain from Bowmanville Creek, per that mapping, covers all of West Beach Road. He stated that West Beach Road is the only access road not only to the Subject Property, but to all properties along Cedar Crest Beach Road, Cove Road, and West Beach Road. He argued that if safe access is a concern for the Permit Application for the Subject Property (sufficient to deny the application), it should similarly be sufficient to deny development applications for all properties in those other areas as well.

86Mr. Harris noted that Mr. Jones’ evidence is consistent with Dr. Lu’s evidence that a portion of Highway 401 and the train tracks in the area would be under water in a riverine flood hazard event. Mr. Harris stated as an aside - if critical transportation infrastructure like Highway 401 and a rail corridor are flooded in a regional storm event, this goes far beyond what an individual property owner could conceivably expect to impact through a development application. He stated that it would be absurd to interpret the Act so broadly to allow for such conditions to thwart an application for development activity like Mr. Provenzano’s.

87Mr. Harris submitted that this is not the way CLOCA has treated development applications along Cedar Crest Beach Road, Cove Road, and West Beach Road in the recent past. He submits that precedents are useful in this appeal, in examining the issue of safe access because it is one that applies more broadly than to just the Subject Property. He argued that CLOCA’s concern regarding a lack of safe access to 46 West Beach Road applies equally to the permit applications it has approved on Cedar Crest Beach Road, Cove Road, and West Beach Road since 2009.

88Mr. Harris referenced 51 West Beach Road, which received approval from CLOCA in 2013, and would suffer from identical access issues as 46 West Beach Road (Exhibit 30). He noted that 51 West Beach Road is only a few houses away from the Subject Property and the building design for the Permit Application was based on that neighbouring home.

89Mr. Harris submitted that West Beach Road’s state of repair and elevation are outside of Mr. Provenzano’s control. He stated that it is a pre-existing condition that will not be created, or even affected, if the Permit Application is approved for the Subject Property. He submitted that the Permit Application does not create a new access, remove existing access, or change access to the Subject Property in any way. He stated that this is different from a situation where a new house is being built on vacant land, which creates a need for access to a property which did not previously exist. He noted that such a scenario would not be permitted under the Act as it would offend the provisions regarding public health and safety, since it would create a condition that did not exist previously.

90Mr. Harris continued that, CLOCA’s argument on this point is further undermined by its willingness to accept redevelopment of half the floor area above the main storey.

91Mr. Harris argues that CLOCA and its witnesses repeatedly referenced a hypothetical situation of someone experiencing a heart attack at 46 West Beach Road during a regional storm event. He stated in that situation, emergency vehicles would not be able to reach them in time to help. He submitted that this is something that could already happen at any of the existing homes along West Beach Road, Cove Road, or Cedar Crest Beach Road – including the Subject Property.

CLOCA

92Mr. Jones stated that the PPS provides the policy foundation for land use planning and regulating the use of land in Ontario. He explained that the PPS provides direction with respect to natural hazards at Section 3 of the document by setting out an imperative for planning and development decisions to have the effect of reducing the potential for public cost or risk to Ontario’s residents from natural hazards. He testified that development is to be directed away from areas containing natural hazards where there are unacceptable risks to public health or safety or of property damage.

93Mr. Jones stated that the PPS at s. 3 directs that “development shall be directed away from areas of natural … hazards where there is an unacceptable risk to public health or safety or of property damage…” He opined that further development on the Subject Property would represent development where there is an unacceptable risk to public safety, and of property damage due to the severity of the existing natural hazards and lack of safe access. Mr. Jones opined that the application is contrary to this direction and is, therefore, inconsistent with the PPS.

94Mr. Jones stated that, with respect to Policy 3.1.1 b), the PPS provides that development shall generally be directed to areas outside of hazardous lands. He opined that the Permit Application seeks to direct further development to hazardous land in a manner inconsistent with the PPS.

95Mr. Jones outlined that Policy 3.1.3 directs that “planning authorities shall prepare for the impacts of a changing climate that may increase the risk associated with natural hazards.” He stated that approval of further development on the Subject Property would set aside natural hazard risk management directions as well as the increased natural hazard risks that are projected into the future in a manner that is not consistent with, but rather contrary to, the PPS Policy 3.1.3.

96Mr. Jones stated that the Permit Application would fall within the definition of “development” pursuant to the PPS. As defined in the PPS, “Development: means … the construction of buildings and structures requiring approval under the Planning Act.” [emphasis added]

97Mr. Jones testified that (Exhibit 45) the zoning for the Subject Property is the Environmental Protection (EP) Zone based on s. 26.3.f. of Municipality By-law 84-63 No. which states that:

f. Where an Environmental Protection (EP) zone boundary is indicated as approximately following the floodline of a watercourse as designated on floodplain mapping prepared by a Conservation Authority having jurisdiction within the Town of Newcastle, then for the purposes of this By-law, the boundary shall follow such flood line as may be adjusted from time to time by the Conservation Authority having jurisdiction for same.

(emphasis added)

98Mr. Jones testified that the CLOCA floodplain mapping shows the Subject Property associated within the floodplain of both the Bowmanville and Soper Creeks. He interpreted that based on this the Subject Property it is zoned EP. He further stated that all residential uses are prohibited within the EP Zone.

99Mr. Jones referenced s. 3.6 b. of the Municipality Comprehensive Zoning By-law No. 84-63 which states,

b. Permitted Exterior Extension

Any building or structure, which at the date of passing of this By-law was lawfully used for a purpose not permissible within the Zone in which it is located, shall not be enlarged, extended, reconstructed or otherwise structurally altered without the approval of the Committee of Adjustment…

[emphasis added]

100Mr. Jones opined that the proposal for the Subject Property requires approval under the Planning Act to enlarge or extend the current building. He opined that the proposal meets the definition of development, as defined by the PPS.

101Former Fire Chief Gord Weir was asked by Mr. Jull to explain the challenges facing first responders driving fire trucks during a regulatory flood event at West Beach Road with over 1.6 metres of water over the road. Chief Weir stated that a fire truck could drive through about 0.3 m (12 inches) of water, but he would not really want them to except in a life-or-death scenario. Chief Weir opined that a major concern is that the driver cannot see debris under the water, see the bottom of the road or whether the road has been eroded during a flood event.

102Former Fire Chief Weir explained that although the Municipal Fire Department has a Zodiac boat, this assists typically with water rescues. He clarified that the Municipal Fire Department is not responsible for Lake Ontario. He explained that if the Department has to rescue someone in conditions where flooding water level is 12-14 inches, they cannot use the Zodiac with a motor as it is not possible to see debris beneath the water. Chief Weir described how firefighters in waterproof suits would have to pull the Zodiac and load them with people and then pull them out, commenting that this would take a long time especially if numerous trips were required.

103Former Fire Chief Weir provided his opinion with respect to the Permit Application to increase the size of the building. He stated, “if you increased the size, it would allow more people to live in it.”

104Former Fire Chief Weir explained that fire trucks do not have the capacity to carry passengers to safety, but rather are designed to carry two to five firefighters with equipment to get to an emergency.

105Mr. Sisson, a professional engineer employed by CLOCA, was qualified to provide expert opinion in water resources engineering. (Exhibits 61 and 62) Mr. Sisson summarized the key concerns with access being cut off in a flood event:

At the subject site the access road, West Beach Road, is subject to about 1.8 m of flood depth during the regulatory (regional) storm. School age children become buoyant at about 1 m of water depth and 1.4 m flood depth is the threshold of stability for teenage children and adults. With the flood depths at the site, the risk of loss of life with people being swept away is high.

106Judy Sullivan, a professional engineer, was qualified to provide expert opinion in the field of natural hazards, coastal and river policy. (Exhibits 54, 55, 56 and 57) Ms. Sullivan stated that the maximum water levels that heavy emergency vehicles and regular emergency vehicles can pass through, are both exceeded during the regulatory flood event.

107Seth Logan, a professional engineer, was qualified as a coastal engineer with expertise in fields of natural hazards, barrier beaches, dynamic beaches, and flood hazard (Exhibits 67 and 68). In his expert report, Mr. Logan found that in a regulatory flood there would be overwash of the West Beach barrier, including West Beach Road.

108Mr. Logan opined that the safe access requirements outlined in the PPS are not met for the property at 46 West Beach Road under the riverine flooding condition.

109Mr. Jull stated that CLOCA’s position, in this hearing, is that other properties in the vicinity of 46 West Beach Road are not relevant to the Tribunal’s decision, for a number of reasons. First, none of the experts called by the Appellant provided reports that specifically addressed properties other than the property at 46 West Beach Road.

110Secondly, Mr. Jull argued that in the decision of Peebles v. Toronto and Region Conservation Authority, 2024 CanLII 28386 (ON LT), the Tribunal ruled as follows, in para. [115], on the issue of relevance of comparable properties:

While much evidence was received during the course of the Hearing by the Applicant’s witnesses in this regard, including from, namely, Mr. Cortese, an architect, Mr. Medhurst, a fact witness, and Mr. Moskaliuk, an architect, ultimately, these issues are not relevant to the requisite analysis for a permit application which is governed by the CA Act and the O Reg 166/06. There is no concurrent Planning Act application that would require an examination of the natural heritage features of the property or surrounding community, including whether the site falls within an area of historical interest or the significance of the Proposed Development to its surrounding natural heritage area. Additionally, evidence tendered respecting alleged precedent of comparable developments or similar architecturally designed properties is of no use or weight given that each permit application must be decided on its own merits with no weight to be afforded to proffered precedent, even of the kind that was truly analogous, which the Panel finds was not the case here. The comparable developments raised here regarded different jurisdictions, different conservation authorities, each with different policies informing their respective governing areas, and incomparable developments utilizing approaches distinct from the case at bar, such as cut-and-fill or remapping of the floodplain. Such evidence is of no use in the case at bar on the core issues that required determination.

(emphasis added)

111Mr. Jones testified that the Permit Application at 51 West Beach Road approved in 2013, to allow a second storey addition, would not have been approved under the 2014 and subsequent policies.

FINDINGS

112The Panel is bound by the Divisional Court ruling in Laforme v. The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287 (“Laforme”) that development activity permits require consistency with the PPS.

113In reviewing the issue of safe access, the Panel references s. 3.1.7 b) of the PPS 2020.

3.1.7 Further to policy 3.1.6, and except as prohibited in policies 3.1.2 and 3.1.5, development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where all of the following are demonstrated and achieved:

a) development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards;

b) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;

c) new hazards are not created and existing hazards are not aggravated; and

d) no adverse environmental impacts will result.

(emphasis added)

114With respect to the argument by Counsel for the Appellant, if no change to the building was proposed, which would have the effect of increasing the size of the building, then his statement that the Permit Application has no impact on safe access would be correct. However, given that an increase in the size of the building is proposed, the Panel finds that there is a direct correlation between increasing the size of the building and increasing the risk to personal health and safety of both occupants and emergency personnel. The Permit Application proposing development activity by increasing the size of the building within hazardous land and without safe access is likely to create conditions or circumstances that in the event of a natural hazard, the health or safety of persons might be jeopardized.

115The Panel agrees that the access route is outside the control of the Appellant and that mitigation of the municipal road to create safe access is not a viable option.

116The Panel is not bound by decisions of the CLOCA Board for the Subject Property or for past decisions for surrounding properties. The Tribunal must consider the facts of the Permit Application before it and apply the current legislative, regulation and policy framework in making a determination.

117The Panel prefers the evidence presented by the witnesses on behalf of CLOCA and accordingly, finds that the proposal is likely to create conditions or circumstances that in the event of a natural hazard, might jeopardize the health or safety of people and that vehicles and people do not have a way of safely entering and exiting the area during times of flooding.

118The Panel finds that the Permit Application for the Subject Property to increase the size of the building is not consistent with the PPS.

CLOCA POLICY AND PROCEDURAL DOCUMENT

119CLOCA Policy and Procedural Document for Land use Planning and Regulation (“2024 PPD”) dated March 19, 2024 (Exhibit 1 - Tab 29) pursuant to s. 12 of O.Reg. 41/24, includes policies related to proposals within a riverine flooding hazard.

APPELLANT

120Mr. Edwards, a land use planner, reviewed the definitions in the PPD. He opined that Mr. Provenzano’s application would not constitute “development” within the definition used in the 2024 PPD. Mr. Edwards confirmed there was already an existing “dwelling unit” on 46 West Beach Road within the definition of that term in the 2024 PPD.

121Mr. Edwards testified that the Permit Application is consistent with the requirements of the 2024 PPD. He stated that the existence of a dwelling unit on the Subject Property is important because the 2024 PPD allows “minor additions” that do not result in an increase in the percentage greater than the habitable floor area that will be permitted in the shoreline flood hazard or in the riverine flood hazard.

122Mr. Harris submitted that “Habitable” is defined in the 2024 PPD as

that portion of a building or structure containing rooms or spaces required and intended for overnight occupancy and associated living space and includes those portions which contain facilities for storage, heating, air-conditioning, electrical, hot water supplies, etc., which are necessary to maintain the habitable condition.

123Mr. Harris argued that the definition of habitable is plainly broad enough to include the existing second floor of the dwelling at 46 West Beach Road. He submitted that Ms. Hardcastle gave uncontroverted evidence that the second floor has historically been used as a bedroom and has been inhabited.

124Mr. Rupert, who prepared the designs for the Application, stated that the increase in habitable floor area was approximately 20%.

125Mr. Harris argued that this is within the 30% maximum increase in habitable floor area that is allowed in riverine and shoreline erosion hazards under the 2024 PPD as a minor addition.

CLOCA

126Mr. Jones reviewed his analysis and conclusion that the tests, as set out in the 2024 PPD, cannot be met at 46 West Beach Road. He provided his opinion that the Subject Property contains an unacceptable risk to the safety of persons and property damage with the severe hazard associated with the Bowmanville Creek/Soper Creek watershed. He provided his opinion that the Appellant has not demonstrated that there is no increase in risk to the safety of persons associated with the Permit Application. He stated that the replacement of the current single storey cottage with a two-storey dwelling would double the amount of habitable space in a hazardous area, subject to extreme flooding risk for persons who may be living in the dwelling and for first responders who might be attempting to perform a rescue.

127Mr. Jones stated that the Permit Application fails to meet the general policy direction of the 2024 PPD, which seeks to prohibit development in areas where there is unacceptable risk and where there is no safe access.

CHAPTER 2 – GENERAL POLICY

2.1 General Policies

Applications related to existing development that is susceptible to natural hazards must demonstrate that there is no increase in risk to public safety or property damage and no new hazards are created by prohibiting additional development in the form of additional habitable floor space, and/or additional units and/or a larger building envelope in areas where CLOCA has determined that there is no safe access.

(emphasis added)

128Mr. Jones testified that the Permit Application fails to meet the specific policies of the 2024 PPD in Policy 5.4.1 Riverine Flooding Hazard, which prohibits the development of additional habitable development in areas without safe access.

Flooding Hazard

5.4.1 Policies for One-zone Floodplain - River or Stream Valleys

The following outlines the specific policies for implementing the Conservation Authorities Act and Ontario Regulation 41/24 with respect to flooding hazards associated with a river and stream valleys.

1. Development is prohibited within the regulatory floodplain except where the requirements under policies 5.4.1.2) – 5.4.1.16) and the General Policies have been addressed to the satisfaction of CLOCA;

2. Minor addition to an existing building/structure and reconstruction of existing building/structure may be permitted if it has been demonstrated to the satisfaction of CLOCA that:

a. the development is not likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property;

b. there is safe access, as determined to the satisfaction of CLOCA, to the lot;

129Mr. Sisson, a professional engineer employed by CLOCA, provided his opinion that he is in agreement with Mr. Jones that the Permit Application is within a regulatory floodplain and area of high risk due to riverine flooding and is prohibited as per policy 5.4.1 of the 2024 PPD.

130Mr. Sisson stated that the proposed development beyond the existing habitable area provides the opportunity for greater occupancy and, therefore, creates a greater risk to the health or safety of persons. He testified that the site does not meet the policies of the 2024 PPD in that it does not have safe access.

5.6 Safe Access (and Egress)

The ability for the public and emergency operations personnel (police, firefighters, ambulance, etc.) to safely access the floodplain during regulatory flood events is a paramount consideration in any application for development within the riverine floodplain.

Ingress and egress must be "safe" pursuant to provincial floodproofing guidelines (MNR, 2002a). Depths and velocities should be such that pedestrian and vehicular emergency evacuations are possible on a municipal roadway or private right-of-way. Access/egress shall remain dry at all times for institutional buildings servicing the sick, the elderly, the disabled or the young and in buildings utilized for public safety (i.e. police, fire, ambulance and other emergency measures) purposes.

Safe Access for New Development

Safe access to and from a site may only be achieved where the following depth and velocity criteria for pedestrians and automobiles are met:

a. For depths up to and including 0.2 metres, the velocity must be less than or equal to 4.5 metres/second (based on the flood hazard); and,

b. For depths greater than 0.2 metres and less than or equal to 0.3 metres, the velocity must be less than 3.0 metres/second and for depths between 0.3 and 0.4 metres, the velocity must be less than or equal to 0.6 metres/second (based on the flood hazard).

For existing development, safety risks are a function of the occupancy of the structure, the flood susceptibility of the structure and the access routes to the structure. For minor additions or reconstruction of an existing structure, the following factors will be considered:

• the degree of risk with the use of the existing access;

• the ability to modify the existing access or construct a new safe access;

• the ability to find and use the access during an emergency; and,

• the ability and willingness of emergency vehicles to use the access.

FINDINGS

131The Panel is bound by the Divisional Court ruling in Laforme v. The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287 at para. 40 (“Laforme”) that a development permit decision should be consistent with a conservation authority’s policies.

132The Panel prefers the evidence of Mr. Jones and Mr. Sisson that the Permit Application for the Subject Property proposes to increase the size of the building beyond the current habitable area, which in the event of a natural hazard, i.e. riverine flooding, might jeopardize the health or safety of persons contrary to the PPD. In addition, the increased size of the building beyond the current habitable area does not have safe access, and the Panel finds that it would not have sufficient regard for the relevant policies of the PPD aforementioned.

AUTHORITY OF THE TRIBUNAL

133S. 28.1(26) of the Conservation Authorities Act (“Act”) states that the Tribunal has authority to refuse the permit or to order the authority to issue the permit, with or without conditions.

134Mr. Harris requests that the Tribunal grant the Appeal and Order that CLOCA issue the Permit Application for the Subject Property without conditions.

135Mr. Jull requests that the Tribunal refuse the Permit Application for the Subject Property.

136Mr. Jull confirmed that CLOCA endorses a with prejudice settlement, which has not been accepted by the Appellant. Mr. Jull submitted that CLOCA proposes a reasonable and supportable development proposal under the current set of Act tests, which could certainly include raising and improving the foundation of the existing structure and elevating the existing structure on top of a new raised foundation.

137Mr. Jull pointed out that the Tribunal only has jurisdiction under the Act to either allow or deny the appeal presently before it. He indicated that change or modification to the Permit application would require that a new Permit application be submitted for the Subject Property.

FINAL ANALYSIS AND FINDINGS

138The Panel acknowledges that this is a hearing de novo and that pursuant to the authority provided by the Act, the Tribunal steps into the shoes of the CLOCA Board in making a decision and is not bound by the decision of the CLOCA Board.

139The Panel acknowledges that, in this case, there is an existing dwelling on the property and that the Subject Property is not a vacant parcel and the analysis has been applied accordingly.

140The Panel is mindful of Mr. Jull’s submission that the test within s. 28.1(1)(b) of the Act contains the words “not likely to” and “might”, and is a precautionary ex ante regulation designed to prevent harm to people. Mr. Jull submits that the Ontario Court of Appeal has provided guidance in relation to the ex ante model in R. v. Michaud 2015, ONCA 585, leave to appeal refused 2016 CanLII 24866 (SCC).

There is good reason to favour ex ante rules where human life or safety is at stake and where there is scientific uncertainty as to the precise nature or magnitude of the possible harms. In such cases, regulators utilize a “precautionary principle,” which the authors of Risk Management note, “tackles the problem of an absence of scientific certainty in certain areas of risk and directs that this absence of certainty should not bar the taking of precautionary measures in the face of possible irreversible harm.

141Based on the evidence, the Panel agrees that the Permit Application for the Subject Property:

• is development activity as defined within O. Reg. 41/24;
• is located within hazardous land as defined within O. Reg. 41/24;
• proposes an increase to the size of the existing building;
• does not provide safe access consistent with the PPS;
• does not provide safe access consistent with the PPD; and,
• the Appellant did not demonstrate that the proposed development activity, which is an increase in the size of the existing building, was not likely to create conditions or circumstances that, in the event of a natural hazard might jeopardize the health or safety or persons or result in the damage or destruction of property and should, therefore, be prohibited in accordance with s. 28.1 b) of the Act.

142Based on the evidence and submissions before it, the Tribunal finds that the Permit Application on the Subject Property does not comply with O. Reg. 41/24, is not consistent with the PPS, and is not consistent with the CLOCA Policy and Procedural Document for Land Use Planning and Regulation, in the opinion of the Panel it does not meet the required test to issue a Permit in accordance with s. 28.1 of the Act.

143For the reasons stated herein, the Panel dismisses the appeal and upholds the CLOCA Board decision refusing the Permit.

ORDER

144THE TRIBUNAL ORDERS THAT the appeal is dismissed.

“Astrid J. Clos”

ASTRID J. CLOS

MEMBER

“N. Eisazadeh”

N. EISAZADEH

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.