Decision Date: January 16, 2001

Panel: Jane Luke

Keywords: Sewage Disposal Regulation – ss. 3(3), 6; “package treatment plant system”; “conventional septic tank system”; sand filter; sewage disposal permit; soil depth; zoning requirements.

The Abbeyfield of Denman Society appealed a decision of the Environmental Health Officer (“EHO”) to refuse to issue a permit to construct a sewage disposal system on a property located on Denman Island. The Appellant sought an order that a permit be issued to allow the construction of a sewage disposal system. The EHO had rejected the application on the basis that the public health would not be safeguarded with the proposed design due to possible groundwater contamination.

The Board found that the proposed low rate intermittent sand filter system could not be reasonably characterized as a “package treatment plant system” or “conventional septic tank system” under section 6 of the Sewage Disposal Regulation (“Regulation“). While schedules 2 and 3 of the Regulation therefore do not apply to the proposed system, the EHO retains the discretion to approve such systems under section 3(3) of the Regulation, if the system does not pose a threat to public health. In assessing the safety of the proposed system, the EHO may consider relevant provisions of those schedules when deciding whether to issue a permit. The Board found that the EHO raised reasonable concerns regarding the depth of the available soil, the type of soil present and the variability of site measurements. This combination of factors created an unacceptable risk to the public health.

The Board also found it reasonable for the EHO to require, on the basis of insufficient depth of treatable soils and other factors, larger setbacks than had been proposed. The Board further found that it was unreasonable to require a strata corporation to accept responsibility for operation and maintenance of the system when no strata corporation was yet in existence. The Board also found that the EHO was unreasonable in refusing to issue a sewage disposal permit on the basis of zoning considerations. The only relevant factors to take into account are those associated with whether the proposed system complies with Health Act, the Regulation, and, more specifically, whether a threat is posed to the public health.

The Appeal was dismissed.