THE MINING AND LANDS COMMISSIONER

In The Matter Of The CONSERVATION AUTHORITIES ACT

AND IN THE MATTER OF
An appeal against the refusal to issue permission to construct a seasonal residential dwelling on part of Lot K on Plan 633 in the Township of Innisfil in the County of Simcoe.

B E T W E E N:

MILTON A. CHOMYN
Appellant

- and -

SOUTH LAKE SIMCOE CONSERVATION AUTHORITY
Respondent

W.G. Jeffrey, for the appellant.
K.C. Hill, for the respondent.

The appellant appealed to the Minister of Natural Resources from the refusal of the respondent to issue permission to construct a seasonal residential dwelling on part of Lot K on Plan 633 in the Township of Innisfil in the County of Simcoe. By Ontario Regulation 219/81 the power and duty of hearing and determining the appeal were assigned to the Mining and Lands Commissioner. The appeal was heard in Toronto on September 22, 1981.

The subject lands which were purchased by the appellant and his wife in 1968 as the site for a summer cottage measure 140 feet in width and approximately 800 feet in length and front on the west shore of Lake Since. A creek, unnamed in the evidence before this tribunal, flows in an easterly direction into Lake Simcoe. Near its mouth the creek turns in a southerly direction and enters the subject lands at the north limit approximately 300 feet from the shore. It partially traverses the parcel and turns in a southeasterly direction leaving the parcel at a location approximately 200 feet from the shore. It again enters the parcel at a location approximately 75 feet from the shore and outlets into the lake at the centre of the parcel. The front part of the parcel sustains a growth of birch, black walnut, hemlock and cedar approximately 60 feet in height. The remainder of the parcel sustains a virgin growth of white and silver birch, beech and black walnut some 60 to 80 feet in height.

The flood plain of the creek measures approximately 1,000 feet in width at the shore and narrows to a width of 100 feet at a location 1,800 feet westerly therefrom. The frontage along the shore is built up with cottages erected in 1910 to 1920 with the exception of the subject lands and the property to the north on which a cottage burned six or seven years ago. A garage remains on that parcel.

The evidence of the appellant was that after the acquisition of the subject lands, he was financially unable to proceed with the building of a cottage and it was only in 1978 that he took steps to implement the purpose for which the subject lands were acquired. He indicated that at that time he applied for permission to build in the area and the evidence is not clear as to whether he applied for a building permit from the local municipality or a permit from the respondent under the regulation of the respondent. Two letters were filed in connection with the action taken in 1978. The sequence of events that took place at that time is not precisely shown by the evidence. The end result is that the applicant constructed a septic tile bed at the southwest corner of the subject lands which corner is, in part at least, above the regional flood line but wholly below the fill line. In addition a road joining the driveway on the property to the north was constructed from a location approximately midway along the north boundary and following that north boundary until it crossed the creek and from thence almost to the proposed site of the summer cottage. In addition a bridge capable of carrying weights of 30,000 pounds was constructed across the creek with a span of 16 feet. The total expenditures of the appellant to date on the property amount to $10,000.

The appellant submitted in his evidence and in his submissions that the respondent was aware of the expenditure of these amounts and the representative of the respondent did not dispute this matter. However, there was no evidence that the respondent had any input into the issue of the permit for the tile bed or the laying of the two-inch line from the tile bed to the vicinity of the proposed site of the summer cottage. Exhibit 6 was a letter from Brian T. Peterkin, the Planning Technician of the respondent to the planning co-ordinator of the Township of Innisfil indicating that the application on behalf of the appellant has been reviewed and in the letter it was submitted that the entire site was within the flood plain as delineated in the shoreline mapping prepared by Marshall, Macklin, Monaghan Limited, which mapping was filed as Exhibit 1. The letter further points out that the elevation of the subject lands is approximately 720 feet C.G.D. and that the flood elevation as shown in that area on the mapping is 723 feet C.G.D. The letter goes on to suggest that the contour elevation of 720 feet was inaccurate and that the site of the proposed building was in fact higher than a spot elevation of 721.65 feet shown on the property to the north. Accordingly, the writer of the letter concluded that the proposed building site was on the same elevation if not slightly higher than the spot elevation with the result that the amount of flooding during a regional storm would be in the vicinity of 1.4 feet. The letter further stated that it was understood that the appellant was intending to raise the proposed building site above the flood level by undertaking "a modified balanced cut and fill operation" by removing sandy fill from an area at the back of his property and placing it on the proposed building site. In this regard the letter concludes that the proposal was feasible.

However, the letter went on to raise a number of issues such as lot drainage, flood proofing, the amount and type of fill to be used on the building site and the proposed driveway and the construction of the proposed bridge and requested that certain information spelled out therein be filed.

Subsequently, on October 24, 1978 Peterkin again wrote to the Building Department indicating that the applicant had submitted plans to the authority showing the locations of the access road and the bridge. The letter further advised that the structural design plan for the proposed bridge had been reviewed and the letter confirmed that the plans appear to be satisfactory. In passing it may be noted that these plans were not made available to this tribunal.

The proposed location of the cottage is 150 feet westerly from the lake shore. The evidence of the appellant was that this location was four or five feet in elevation above the lake. He indicated that his proposal was to put in footings and a concrete wall to heights above the regional flood line but that he was prepared to amend this approach to provide a series of piers illustrated by a plan filed as Exhibit 8 which would permit the better passage of the flows of a regional flood and would lessen the reduction of the storage capacity of the flood plain. He indicated that he had consulted with consulting engineers and was satisfied that pier construction was a viable alternative to his original proposal and further that it would be cheaper for him. Accordingly, he was prepared to make this amendment in his plans. He was satisfied that either system would be satisfactory as far as the township building requirements were concerned.

On cross-examination the appellant stated that he did not dispute the calculations of the regional flood lines although he saw some inconsistencies in some areas which were not in his experience unusual where contour plans are prepared from aerial photography. He admitted that he has placed two feet of fill on the proposed building site. It was submitted to him that with such fill the regional flood would still exceed the elevation of the fill and the witness indicated that the wall would be built higher than the flood elevation. When it was pointed out to him that the land behind the fill would be flooded with water to a depth of two feet or more and the building would be surrounded on three sides by water namely the lake, the river to the south and the river to the west, he indicated that the property was only surrounded on two sides as part of the peninsula at the southeast corner belonged to a neighbour. In passing it may be noted that the river in effect circles the proposed building site at a radius from approximately 50 to 150 feet from the north limits of the subject lands to its outlet into Lake Simcoe even though it in fact passes in part through the lands of a neighbour. The witness indicated that the bridge that he had built was at the regional flood elevation but that the road leading to the bridge was lower than that elevation.

When cross-examined regarding the existence of plans in 1978 respecting the cottage construction, the witness frankly admitted that no plans had been prepared at that time as the land was still in a wooded condition. However, the whole area was reviewed and walked with the representative of the respondent, Brian T. Peterkin. At the time of writing the letter of September 12, 1978, Peterkin had stood on the proposed site and viewed the property at which time he and the appellant had discussed elevations.

The witness further pointed out that the zoning of the subject lands permitted seasonal residences on the easterly 300 feet of the subject lands but the zoning prohibited the erection of any residential buildings in the westerly 500 feet and, accordingly, it was not possible for him to move the site of the proposed cottage in a westerly direction nor was it desirable to do so because the utility of the subject lands as a site for a seasonal residence would be destroyed.

On re-examination the appellant indicated that his position in the event of a regional storm would be that the residents would be expected to remain in the cottage and if necessary a boat would be available for leaving the property. He did not feel that a regional storm would cause any damages to the building he proposed to erect. Further, he was of the opinion that the duration of the peak of a regional flood would be relatively short and perhaps a matter of two hours. He further pointed out that there would be no downstream obstructions by way of buildings which would cause back water effects as the proposed summer cottage would be the last building on the watershed before the creek enters the lake. He also indicated that he was prepared to execute an indemnity agreement if permission were granted.

On questioning from the Bench, the appellant indicated that there were additional routes from the property over bridges which would provide a method of access to and egress from the subject lands in the event of a regional flood.

The evidence of A.A. Timmins, the regulations officer for the respondent, was that his predecessor, Peterkin, had made an error in establishing the elevation of the building site and from his measurements, which he was well experienced to make, the original elevation of the site was 719 feet above sea level. The filled elevation or 721 feet would be one and one-half feet below the regional storm elevation.

The witness pointed out that the subject lands are within two watersheds. Firstly, they are within the watershed of Lake Simcoe. The regional storm elevation for Lake Simcoe has not yet been established and the only information available is the elevation of the 100 year storm. This elevation is 721.22 feet which would cause the building site to be flooded in a storm of this intensity. In addition the subject lands are in the watershed of the unnamed creek for which the regional storm elevation has been established at between 722.5 feet and 723.4 feet. In addition it was pointed out that a tributary of the creek enters the creek above the building site.

The witness pointed out that the placing of fill in a watershed will effect the control of flooding through the utilization of storage capacity but he had not calculated the effect in the particular case by reason of the fact that he is not qualified to make this study.

The reasons given for the refusal of the application were the effect on the control of flooding from the placing of fill such as the loss of storage capacity and the potential for loss of life arising from the placing of a residence, although it be seasonal, in a flood plain. It was submitted that the area surrounding the proposed building site would be flooded with three feet of water during a regional storm.

The witness also indicated that the respondent had no plans for the subject lands and that no studies were being made that involved the subject property. With reference to the placing of sandy material as fill, the witness expressed the opinion that such fill would be highly susceptible to erosion and easily carried away. When asked if there was any part of the subject lands which would provide a building site without any problems, the witness was of the opinion that no part of the buildings site could be said to be free of concern. The only place that a building would have met the approval of the witness was the area lying above the regional flood line provided a minimal amount of fill was placed therein. However, as indicated above the major part of this area has been utilized for a tile bed and the by-laws do not permit the construction of residential buildings.

When it was suggested to this witness that it was possible to erect a stable building on the subject lands the witness pointed out that even if such were done the building would be surrounded by at least three feet of water with its inherent dangers to life. With reference to the alternative of the use of piers instead of a foundation wall the witness agreed that the piers had a minimal effect on flood storage but did have an ability to catch debris which would be carried downstream in the flows of a regional flood. The witness admitted that there currently are trees in the area measuring at least 16 inches in diameter and when asked if the piers would create greater hazards than such trees, the witness took the position that he was not qualified to comment on the effect of the energy generated by the flows of a regional storm. He also refused to give any opinion on the question of the effect of the flows of a regional storm on the fill that had been placed on the building site plus the concrete foundation and wall that could be erected above the flood line. The witness was also unable to give any evidence as to the peaking of a flood resulting from a regional storm. When asked regarding evidence of erosion the witness indicated that he had observed some siltation at the mouth and he had been advised by the appellant that the appellant cleans out the mouth from time to time. He stated that it was merely a matter of inches. He agreed that if three feet of flood waters passed through the area the siltation would move into the lake. The question was put to the witness whether in the event of a risk of a regional storm the federal authorities would lower Lake Simcoe. His position was that he doubted that there would be sufficient time to achieve any effective reduction of the level of the lake. When asked if the concern related more to flooding from the lake or from the creek, the witness indicated that the greater concern was from the flooding from the creek. It also seemed from his evidence that he may have indicated to the appellant at the time his application was brought in that the application was satisfactory and should have received approval although he could not remember so doing.

On questioning from the Bench the witness indicated that the respondent had no policy of infilling even where requests had been made in municipal areas. He indicated that the maximum length of the watercourse was approximately one and one-half miles because there is a ridge along Highway 11 that causes waters falling to the west thereof to flow in a westerly direction. He suggested that there might be a drainage area which would be larger than the watershed itself although he had no evidence to document such a drainage area. The witness had no evidence of the flows of a regional storm through the subject lands but referred to the drop in elevation along the creek from 737.6 feet some fifteen hundred feet above the proposed site to 722 feet at that site, a drop of some fifteen feet.

The witness also indicated that steps are under way to have the regional flood elevation established for the Lake Simcoe watershed.

The submissions on behalf of the appellant were, firstly, that this matter has been proceeding since 1968 when the appellant and his wife purchased the property and accordingly has been in process for a considerable length of time. At the time of acquisition the mapping of the flood plain was not in effect. In dealing with the subject lands the appellant has sought and complied with the requirements of all regulatory bodies. He proceeded from the back of the lot to the front of the lot and began with the construction of a septic tank at the rear of the lot. He also referred to the approval of the respondent in 1978 in respect of the construction of the access road and the bridge. It was submitted that it was unfortunate that the appellant has proceeded in the fashion in which he has and it was submitted that if he had commenced with the construction of the cottage prior to the construction of the roadway and the septic tank it would have been likely that permission to construct a cottage would have been granted.

Secondly, it was submitted that the respondent cannot be permitted to say that it did not know what was going on in regards to the placing of fill and the building of the roadway to a proposed cottage site. It was submitted that this knowledge raised an argument of estoppel which prevents the respondent from denying the issue of permission. The granting of permission to perform preliminary steps as funds became available is inconsistent with the refusal at the final stage to permit the fulfillment of the original purpose. It was pointed out that the zoning permits the erection of a cottage on the proposed location and prohibits the erection of a cottage on any other part of the subject lands. It was further pointed out that the rear part of the lot was not a desirable location and in addition the tile bed had been located thereon.

Thirdly, it was submitted that there was little precedent in connection with the granting of approval in this case. There are very few other sites which are yet to be built-up in the area. It was submitted that the granting of approval would not affect the other built-up areas.

Fourthly, it was suggested that the purpose in acquiring the subject lands was the erection of a lakefront cottage and that any requirement to move the cottage 600 feet into the bush is inconsistent with the purpose as it would remove the building from any relation to the lake, its view and its amenities.

Fifthly, it was submitted that in the event of a regional storm there would not be a significant amount of flooding such as seven or ten feet. It was pointed out that the depth of flooding would be approximately 2.8 feet. It was submitted that even if the solid wall construction was used there would be little loss of storage capacity which could be reduced if a pier system were used. It was submitted that the real issue was the suitability of the subject lands for the purpose of a seasonal residence and the implications and risks of such proposal and it was submitted that there was little evidence of risk or other implications from either proposal. There was no indication that the proposed building would be subject to damage. There were no downstream properties to be effected. There was no evidence produced of the effect on areas upstream. It was suggested that the denial of the application amounts to virtual expropriation of the property particularly after the retention of the property for a period of 13 years and the expenditure of labour and the costs of the improvements that had been made on the property.

Lastly, it was submitted that the applicant was prepared to sign an indemnity agreement.

Reference was made to the case of Re 261532 Development Corp. Ltd. at al. and City of Toronto et al., 40.R. (2 d) 614 by way of persuasive argument. It was suggested that the case was analogous in that the appellant, similar to the applicant in the quoted case, had done everything that was necessary to comply with the regulatory requirements and should be granted permission. Costs were requested.

It was submitted on behalf of the respondent that the reasons for refusal of the granting of permission should be the danger of erosion of the sandy fill that had been placed on the building site, the risk of damage to the structure itself and the risk of loss of life to future inhabitants. It was submitted that the significant problem was egress and that the potential method of egress during a regional storm was unduly long. The chances of panic and the possibility of flood conditions lasting for some time should be considered as grounds against granting the permission. Reference was made to the effect on storage capacity of the flood plain and the possible interference with future flood control work. It was submitted that the appellant was asking to place a residential building, although seasonal, in a hazardous location where it was subject to flooding from both the lake and the watercourse. It was pointed out that the fact that the site had not been built upon to this date is evidence of the unsuitability of the site for such purpose.

With reference to the argument respecting the present conditions of the land including the maturity of the tree stand, it was submitted that there is no evidence that in the future the subject lands would not be exposed to a regional storm. With reference to an indemnity agreement it was suggested that such an agreement protects a conservation authority but it does not help future owners of the property or other owners adversely affected from the consequential increase of flooding. It was submitted that the general rule of the regulation is that no structure should be erected unless the applicant can bring his case within an established exception and that no exception was established.

It was submitted while one might have sympathy for the expenditures by the appellant, the sympathy should not be sufficient to authorize the construction of a building which would have considerable risk for its future owners. The case referred to was distinguished on the grounds that it referred to municipal matters and not safety matters such as the concerns under the Conservation Authorities Act. In conclusion it was submitted that the main issue is the prevention of flooding and that the present case is not the kind of construction falling within the exceptions approved by the respondent.

At the outset it may be noted that the area of greatest concern to this tribunal is its response to the thrust of the submissions on behalf of the appellant that its role is to chastise or punish the respondent for the conduct or mistakes of its staff in permitting certain developments to proceed or as was suggested to the witness Timmins, indicating to the appellant that his application should be acceptable. The thrust was that the respondent had permitted certain aspects to proceed and had “pulled the rug out from under the appellant” for which this tribunal should exercise its jurisdiction based on this conduct rather than the merits of the case in relation to the standards of the law.

In passing it may be noted that the respondent, as contrasted with its staff, had not according to the evidence produced, considered any of the matters approved by its staff or in respect of which approval was indicated by staff and it is difficult to say that the respondent itself permitted the appellant to become involved to the extent that he proceeded.

With reference to any comments by Timmins, there does not appear to have been any expenditures incurred as a result of his observations if in fact such were made. Needless to say, the permission required is that of the respondent.

The reference to the Toronto case is not helpful to the tribunal. This tribunal has always distinguished between zoning provisions and the controls of land use provided by the Conservation Authorities Act. The reasons for the distinction, including the prohibitive as contrasted with regulatory nature of the controls under the Conservation Authorities Act was recently dealt with in the case of Rashotte v. Moira River Conservation Authority wherein this tribunal said,

“With regard to the issue of whether the common law right of a landowner to use his land in the manner in which he chooses is affected by regulations made under the Conservation Authorities Act this tribunal has on many occasions distinguished between building and zoning by-laws enacted under the Planning Act and regulations made under the Conservation Authorities Act. The former are rules made in the public interest in respect of land that would be suitable for a number of purposes and the law is made in the public interest based on the good of the community generally through the exercise of controls related to orderly planning. Conversely regulations made under the Conservation Authorities Act reflect an inherent incapacity of the land itself for the purposes prohibited by the regulations and in such situations the land itself is of such a character that the widest possible range of uses cannot be justified therefore and in fact in most cases only a limited category of use should be made of the land itself. The former is a restriction on the use of land based on the public good and accordingly, strict rules have been applied in the construction of by-laws. On the other hand the latter reflects the weaknesses and incapacities of the land itself and regulations under the Conservation Authorities Act should not be subject to the same strict rules as are applicable to building and zoning by-laws.

This concept of the nature of the legislative jurisdiction of conservation authorities is founded in subsection 28(1) of the Conservation Authorities Act which reads:

28.-(1) Subject to the approval of the Lieutenant Governor in Council, an authority may make regulations applicable in the area under its jurisdiction,

(a) restricting and regulating the use of water in or from rivers, streams, inland lakes, ponds, swamps, and natural or artificially constructed depressions in rivers or streams;

(b) prohibiting or regulating or requiring the permission of the authority for the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse;

(c) regulating the location of ponds used as a source of water for irrigation;

(d) providing for the appointment of officers to enforce any regulation made under this section or section 29;

(e) prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purposes of such regulations; and

(f) prohibiting or regulating or requiring the permission of the authority for the placing or dumping of fill of any kind in any defined part of the area over which the authority has jurisdiction in which in the opinion of the authority the control of flooding or pollution or the conservation of land may be affected by the placing or dumping of fill.

It will be noted that in clauses a and c the legislative jurisdiction, by way of the making of regulations, is related to regulation. However, clauses b, e and f, which relate to the diversion of streams, the construction of buildings in flood plains and the placing of fill, contain three heads of such jurisdiction, namely, prohibition, regulation and requirement of permission. These broader heads differentiate the legislative jurisdiction of conservation authorities from that of municipalities and usually the first and the third heads are adopted in the regulations made under the Act. This coupling creates the result of prohibition with permission, an administrative act, being the exception rather than a situation where the controls are found in the law which may be administered by the judiciary through the old remedy of mandamus. In these situations, there is an administrative decision with an administrative review by the Minister.”

Accordingly, this tribunal cannot conclude that it follows that, because preliminary approvals were obtained, the final approval should follow. Further it is the view of this tribunal that its role is not to act as the judge of the legal effect, if any, of the conduct of the staff of the respondent. If a remedy exists, it is not the function, of the Minister of Natural Resources or this tribunal acting in the stead of the Minister to determine whether such a remedy exists and if such exists, the sanctions to enforce the remedy. Such jurisdiction, if it exists, does not lie with this tribunal and the role of this tribunal is to determine on its merits whether the permission sought should be granted or refused. In this regard subsection 28(5) of the Act reads,

“28.-(5) An applicant who has been refused permission may, within thirty days of the receipt of the reasons for the decision, appeal to the Minister who may dismiss the appeal or grant the permission.”

In addition with reference to the first submission this tribunal fails to see the relevance of the argument that had the appellant asked for permission to construct the cottage in the beginning it would have been granted. Such is pure speculation and has no relevance to the issue of whether the permission sought at this time should be granted.

With regard to the submission that a septic tank had been installed, the tribunal is of the view that the evidence only establishes that a tile bed has been installed.

In regard to the second submission there is nothing in the Toronto case to suggest that estoppel applies in regard to an administrative decision. Even if it did, the case deals with a ministerial as contrasted with an administrative function and would form no precedent or guidance. The basis of the jurisdiction of the courts in respect of ministerial functions is the containment in the law of the regulatory provisions and the ability of the judicial tribunal to assess whether the express provisions have been complied with. As indicated above the function here is administrative.

Before leaving the issue of zoning, assuming that on a consideration of the merits, it appears that the part of the lands of the appellant on which he proposes to build is not a suitable building site by reason of flood considerations, it would seem that the logical and proper method of dealing with the regulatory bodies, is to apply for a minor variance of the zoning by-law to permit the erection of a building on the part of the lands that does not have the risk related to flooding. In similar vein the suitability of the front part of the lands for building a waterfront cottage is surely equally dependent on its risks related to flooding as to its aesthetics.

With reference to the third submission, there was no evidence given by the appellant or obtained from the respondent's witness to show that the respondent had any policy of permitting any class of residential building in a flood plain. Assuming that such an exception should be created in the case and regarding the precedential implications thereof, there are considerations other than the fact that this site and the adjoining site are the only waterfront lots in the immediate area that do not have a residential building. The risk of the proposed site being subject to flooding from two watersheds and the site being at the mouth of the creek on what is almost a delta would set a very low standard for comparison with any future application in other areas. If permission were granted in this case, there would be no sound basis for refusing similar permission in respect of the lands to the north and this tribunal cannot accept the argument that consideration of precedent should be disregarded in the case.

With reference to the fourth submission, this tribunal has considerable difficulty in adopting the principle suggested which in effect states that the purpose or proposed use of a parcel of land should override the suitability of that land for the purpose. The inquiry in these matters is whether the subject lands are suitable for the purpose mentioned in the application or can, with flood plain management, be made suitable for the purpose and a singularity of purpose, if such is the thrust of the argument, surely does not reflect on the issue of suitability.

The fifth submission deals with, in the opinion of this tribunal, the significant issue in the appeal i.e., whether the proposed site is suitable or can be made suitable for the proposed use although it is situate in a flood plain, particularly a flood plain of two watersheds. In addition there is a tributary of the creek, the effects of which do not appear to have been calculated. The first aspect pointed out by counsel for the appellant was that the flooding in the range of 2.8 feet, three feet for practical purposes, was not as significant as flooding of seven or ten feet. While this may be self-evident the real issue is the effect of such a depth of flooding. Equally important in considering the effect is the velocity of the flows and it may well be that a flow three feet in depth but with high velocities would have serious destructive capabilities. Two areas of concern would be the fill placed on the building site and the supports for the proposed building. There was no evidence of the velocity of the flows but there is a significant drop shown in the flood mapping in a short distance which raises considerable concern in the mind of the tribunal that there would be unusually high velocities. The appellant gave evidence that his proposed pier construction was prepared with the advice of a consultant but there is nothing on the plans or in the evidence to indicate the erosive force against which the piers are designed or that any protective features are incorporated into the design to meet the forces of the flows. There is nothing in the evidence to satisfy this tribunal that adequate plans have or can be prepared to protect against the erosion of the fill or the foundations.

A further aspect of the velocity of the flows is the ability of persons to walk through three feet of a high velocity channel or as suggested by the appellant to escape from the area by boat. Frequently peaks come at night and the hazards of using a boat in the dark, with high flows and any other accompanying hazards cannot be taken lightly.

Dealing with the fill there was a suggestion that the removal of fill from the rear of the lands would constitute an acceptable exception in respect of fill. In the current statement of this approach known as the incremental balance theory the fill should be obtained at the same elevation and from the same cross-section in which it is placed and it does not appear to the tribunal that this principle can be complied with.

Looking at the proposed building site, it is situate in the probable central or main channel of the regional flood. The present channel surrounds the site on three sides and the flood waters would completely inundate the lands on the north and the south of the appellant's land for some distance. In a regional flood there would be three feet of water for a considerable distance from the proposed building. The appellant indicated that access could be obtained over some bridges near the lake but it is not apparent to this tribunal that such bridges would be sufficient for the purpose or even remain in a regional flood. It is not apparent that the bridges could be reached on foot in a regional flood. In addition the evidence clearly indicates that the driveway is below the regional flood elevation and would not provide access, assuming it remains. Accordingly, this tribunal cannot conclude that the risks to the proposed building and the inhabitants thereof are met by the plans of the appellant. No relevance can be attributed to the last item of this submission as the length of time of ownership has no relation to the suitability of the land for the purpose under consideration.

With reference to the last submission, such agreements have never been considered by this tribunal as grounds per se for granting permission. The agreements are only a device to restrict claims and make future purchasers aware of the risks involved with the property. In addition the submission for the respondent indicated that it does not use this device.

In conclusion the appellant has failed to establish before this tribunal that he has been denied permission where permission has been granted by the respondent in equivalent circumstances and has not established that there is any principle of provincial or other public interest that would warrant the construction of a residence, albeit seasonal, on the proposed site.

1. IT IS ORDERED that the appeal in this matter be and is hereby dismissed.

2. AND IT IS FURTHER ORDERED that no costs shall be payable by either of the parties hereto.

DATED the 21st day of January, 1982.

Original signed by

G.H. Ferguson, Q.C.
MINING AND LANDS COMMISSIONER.