Mr. Clowes owns a piece of property on Lake Windermere. He decided to build a new house on the property which had the same number of rooms as his old dwelling. He applied to repair or upgrade his existing sewage disposal system which was within 100 feet of the lake. His application under section 7(1) of the Sewage Disposal Regulation was rejected on the grounds that he could not comply with the 100 feet set back requirement of the Regulation.
The Board upheld the Environmental Health Officers refusal to issue the permit. The Board found that the Environmental Health Officer had correctly decided that he had no discretion under the Regulation. However, the Board ordered the Environmental Health Officer to reconsider the Appellants case under section 7(2) of the Regulation which gives complete discretion to the Environmental Health Officer when considering an alteration to a disposal system which was built before December 20, 1985 when the Regulation came into force.