Keywords: Water Act – s. 39, 16; res judicata; functus officio; issue estoppel; privy; privies; Raymond Creek v. Deputy Comptroller of Water Rights (Environmental Appeal Board Appeal No. 97-WAT-05), orders that attach to the person versus orders that run with the land, purpose of the Water Act
Raymond Glen Creed and Gordon Frank Creed appealed an Engineer’s Order requiring them to remove a concrete retaining wall and fill material from their property, and restore the bank of Shawnigan Lake. They maintained that the Order was inaccurate and improperly named them. Before the appeal was accepted, the Board received submissions on whether it had jurisdiction to accept the appeal given that the Board had upheld an Engineer’s Order containing the same substantive provisions which had been issued to the previous owner of the property. Consideration was given to whether the Board was barred from hearing the appeal on the basis of functus officio, res judicata, issue estoppel, or on any other ground.
The Panel concluded that the appeal was not barred on the basis of functus officio, res judicata, or issue estoppel. It found that the Appellants had not been named in the previous Engineer’s Order, they were not challenging the Board’s findings on the factual and legal issues in the decision made against the previous owner, they may have raised a fresh issue regarding the Engineer’s authority to name them in the new Order, and it was uncertain whether the Appellants were “privies” with the previous owner. However, the Panel found that the remediation requirements of the previous Order ran with the land and therefore applied to the new owners of the property. The Panel found that the new Order simply confirmed what was already required by law. As there was no dispute left for the Panel to decide, the Order was upheld against the Appellants. The appeal was dismissed.