• John Story; Jozica Kolarich v. Assistant Water Manager

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    Decision Date: October 29, 2019

    Panel: Susan E. Ross

    Keywords: Water Sustainability Act – ss. 11, 16; change approval; lake shore; riparian zone; aquatic habitat; mitigation

    Glen Lake is a small lake surrounded by urban development on southern Vancouver Island. John Story and Jozica Kolarich (the “Appellants”) purchased property on the shore of Glen Lake, with plans to tear down an old house on the property and build a new one. They also wanted to put in a sand beach for their grandchildren, and they sought authorization to do so under the Water Sustainability Act (“WSA”).

    In June 2017, the Appellants applied for a “change approval” under the WSA to remove concrete walls and abutments on the shore of their property, and to place sand on the shore to create a small beach. The application was submitted through an environmental biologist, who prepared an environmental protection plan (the “Corvidae Report”) in support.

    In June 2017, the Appellants also sent their proposal to Fisheries and Oceans Canada (“DFO”), which administers the federal Fisheries Act. In a July 2017, DFO advised that the proposal did not require authorization under the Fisheries Act because serious harm to fish could be avoided by following standard measures.

    The application under the WSA was initially reviewed by a Water Officer at the Ministry of Forests, Lands, Natural Resource Operations and rural Development (the “Ministry”). The Water Officer consulted with an Ecosystem Biologist in the Ministry, who recommended against allowing sand to be placed on the shore below the high water mark, due to adverse impacts on the lake’s riparian and aquatic habitat. The Water Officer exchanged numerous communications with the Appellants and their consultant regarding the concerns about the placement of sand. Ultimately, the Appellants chose to proceed with their application. The Water Officer then prepared a Technical Report containing a summary of concerns, referrals/consultations, and recommendations to approve the removal of the concrete structures on the foreshore, but not approve the deposition of sand below the high water mark.

    After reviewing the application, the Corvidae Report, and the Technical Report, the Ministry’s Assistant Water Manager (the “Water Manager”) decided to grant an approval authorizing the Appellants to remove the concrete walls and abutments, but denying permission to place sand below the high water mark. The Water Manager’s decision contained a list of conditions, but did not refer to the Technical Report or give reasons for denying the placement of sand.

    The Appellants appealed the Water Manager’s decision on a number of grounds. The Board conducted an oral hearing, and then issued a decision addressing each of the Appellants’ grounds of appeal.

    The Board found that the Water Manager’s decision contained no reasons, and the Technical Report was not disclosed to the Appellants until months later. However, section 105(2) of the WSA authorizes the Board to conduct an appeal by way of a new hearing. The parties had the opportunity to present new evidence and arguments at the appeal hearing, and the Board considered the matter afresh and issued detailed reasons for its decision. Consequently, the appeal process rectified the lack of reasons in the Water Manager’s decision.

    The Board also found that a Ministry policy stating that the infilling of lakes to accommodate development is “not favoured for approval” was properly applied by the Water Manager. Before the Water Manager made her decision, the Water Officer was forthright about concerns regarding the placement of sand, and the need to mitigate its adverse impact by doing more than simply removing the concrete structures. The Appellants could have addressed those issues in their application or with evidence at the appeal hearing, but they did not. The Appellants failed to establish that the Ministry policy was inapplicable, unfair, or improperly applied by the Water Manager.

    Further, the Board rejected the Appellants’ argument that it was discriminatory to deny their application. The Appellants thought the existing private beaches around the lake were approved, but there was no evidence that the Ministry had approved any sand beaches on private property around Glen Lake. The existence of unapproved private beaches did not oblige the Water Manager to approve the Appellants’ application. There was expert evidence that the Appellants’ proposed placement of sand would have adverse environmental impacts on Glen Lake. There was no evidence that the Appellants were treated unfairly or differently than any other landowner.

    The Board also rejected the Appellants argument that there was a “miscarriage of justice” due to the Water Manager treating the Corvidae Report with “total disregard” and dismissing it without doing a site visit. The Board found that this was not an accurate characterization of the facts, specifically given the Water Officer’s communication with the Appellants regarding the concerns about placing sand below the high water mark. Moreover, the Board found that there was insufficient evidence to support the Appellants’ argument that the Water Manager was biased against them.

    In addition, the Board found that there was insufficient evidence to support the Appellants’ argument that there is no harm in adding sand to establish a beach because sand is in the lake bottom adjacent to their property. The Board accepted the Ministry’s expert evidence that homogenous sand is not natural in the lake bottom, and its introduction would harm the lake habitat. Furthermore, using clean sand would not compensate for the negative impact on fish, aquatic habitat, and water quality from the placement of the sand.

    Regarding the Appellants’ argument that it was unfair to expect them to incur the cost of removing the concrete structures without giving them something in return, the Board found that the Appellants sought to use the removal of the concrete structures as leverage to gain permission to place the sand. Under section 16 of the WSA, if a proposed approval is likely to have a significant adverse impact on the water quality, water quantity or aquatic ecosystem of a stream, the Water Manager may require the applicant to address mitigation measures. The Technical Report concluded that the replacement of the concrete structures with native plantings would be a net benefit, but the placement of sand would damage the riparian habitat and the Appellants had not suggested any mitigation measures for lost habitat or alternatives to sand placement. The Board found that the Appellants could have provided evidence at the appeal hearing to address those issues, but did not.

    Finally, regarding the Appellants’ argument that DFO “approved” of the placement of sand and this was inconsistent with the Water Manager’s decision to deny it, the Board found that there was no evidence that DFO either approved of the Appellants’ application or disagreed with the Water Manager’s decision.

    For all of those reasons, the appeal was dismissed.