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CONSERVATION - Conservation authorities - Sustainable development

Tuesday, July 04, 2017 @ 8:49 AM  

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Appeal by the Nottawasaga Valley Conservation Authority (NVCA) from a decision allowing the Gilmors’ appeal from a decision of the Mining and Lands Commissioner. The Commissioner found that the Gilmors’ proposed home construction on property partially located on a floodplain was neither appropriate nor safe, and upheld the NVCA’s decision to deny the Gilmors’ application for approval to build on the property. The NVCA’s reasons for denying the respondents application to build included the fact that the location of the proposed development was within a floodway, the development did not comply with the its Planning and Regulation Guidelines, the proposed development was contrary to Natural Hazard policies of its Provincial Policy Statement 2005, the issuance of a permit would set a negative precedent, and the development would have accumulative impact by filling in the floodplain, with negative impacts on flood control and conservation of land. On appeal by the Gilmors, the Commissioner held a trial de novo. She placed the burden on the Gilmors to establish that their development, within wetlands, was appropriate. She found that crossing wetland to secure access to a building was not in the best interests of the land and was not appropriate. She found that building the house elsewhere on the property, off the floodplain, was not an acceptable alternative. She acknowledged that the negative impact of the Gilmors’ proposed development would be minimal, but found that it could set a precedent, encouraging others to propose similar development in floodplains or floodways. The Divisional Court, on further appeal by the Gilmors, characterized the question before the Commissioner as a matter of general importance beyond the Commissioner’s expertise. The Court took issue with the Commissioner’s reliance on safety in rejecting the Gilmors’ application, a matter which overlapped with municipal authority. The Court held that the Commissioner incorrectly interpreted the NVCA’s governing regulation, which did not presumptively prohibit development on the Gilmors’ land. The Court considered the cumulative impact of other development that might be undertaken a minor theoretical impact on flood control. Concluding that the Gilmors’ development would have no impact on flood control, the Court set aside the Commissioner’ decision and granted the Gilmors the permit they sought.

HELD: Appeal allowed. The Court erred in applying a correctness standard to the Commissioner’s decision, where the standard of reasonableness applied. The Conservation Authorities Act was one of the Commissioner’s home acts. The Commissioner’s authority did not overlap with the authority granted to municipalities pursuant to the Building Code Act, which articulated construction standards in the event that development on a floodplain was permitted. The Commissioner’s interpretation of the NVCA’s governing regulation, placing the onus on the Gilmors to convince her to exercise her discretion to permit development on the floodplain, was reasonable. The Gilmors were not entitled to have the Commissioner exercise her discretion in their favour simply because the impacts of their proposed development would be minimal. Safety considerations informed the prohibition on floodplain development. The Commissioner was entitled to take safety considerations into account.

Gilmor v. Nottawasaga Valley Conservation Authority, [2017] O.J. No. 2658, Ontario Court of Appeal, D.H. Doherty, D.M. Brown and G. Huscroft JJ.A., May 23, 2017. Digest No. TLD-July32017003