• Roderick and Frances Walker v. Environmental Health Officer

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    Decision Date: June 22, 1998

    Panel: Don Cummings

    Keywords: Sewage Disposal Regulation—s. 3(1), 7 (1)(2); Schedule 3—s. 14(c)(e)(f); Mountain Pacific Investments Ltd. v. Environmental Health Officer; definition of high water mark; Water Act definition of stream; works.

    This was an appeal against the decision of the EHO to refuse issuance of a sewage disposal permit for construction of a package treatment plant and low rate sand filter on a waterfront in North Saanich, B.C. The proposed field was to be located within three metres of the culverted Benes Creek. The EHO refused to issue a permit primarily on the ground that the absorption field was within 30 metres of the high water mark in Benes Creek.

    The Appellants argued that since Benes Creek had been culverted, it should be considered an interceptor drain, pipeline or ditch with only a three-metre setback required to an absorption field.

    The Board found that the culverted creek was not a pipeline because a water pipeline is designed to convey flow under pressure, whereas a culvert is designed to convey flow under gravity. The Board found that it was possible that sewage effluent could infiltrate the culvert if the integrity of the culvert was breached near the absorption field. In addition, the Board found that Benes Creek was not a ditch, but a stream, as defined by the Water Act. The Board found that constructing a culvert to convey a stream’s water did not change the fact that it was a stream in this case. The Board also rejected the argument that because the culverted stream had no shoreline, it did not have a high water mark and therefore was an interceptor drain. The Board found that the uppermost point on the inside of the culvert, assuming the culvert was full, was the high water mark. If it was never full, then the high water mark was at some point below the uppermost point. The Board concluded that the Appellants’ absorption field did not meet the 30-metre setback requirement of the Sewage Disposal Regulation and that neither the EHO, nor the Board, had the discretion to reduce this setback. The appeal was dismissed.