Decision Date: July 30, 1999

Panel: Judith Lee, Bob Radloff, Carol Quin

Keywords: Sewage Disposal Regulation ss. 7,14, 21; high water mark; setback; curtain drain; On-Site Disposal Policy; jurisdiction of Board; different circumstances.

This was an appeal against a decision of the Environmental Health Officer (“EHO”) to issue a permit for a sewage disposal system on a property owned by Frances Walker, near Deep Cove in North Saanich, B.C. The appellant resided down slope from the property at issue. One of the conditions of the Permit was that the perforated drainage cap along the south side of the municipal storm drain be capped. The appellant claimed that the perforated pipe was placed by the District of North Saanich to control flooding on her property, that North Saanich was unwilling to seal it, and that the conditions of the Permit could therefore not be met. The appellant further claimed that the Board had already dealt with this matter in a previous decision, and asked the Board to rescind the EHO’s decision to issue the Permit.

The Panel found that although a previous Board decision conclusively dealt with the facts and issues in that appeal, different circumstances and issues were raised in the new appeal and therefore the Panel had jurisdiction to hear this appeal. The Panel found that the EHO exercised her discretion appropriately in the circumstances, and approved the Permit in due consideration of the 30 metre setback requirement.

With respect to the perforated pipe, the Panel found that, on a balance of probabilities, the perforated pipe functioned as a drain carrying excess ground water away from the appellant’s property to prevent flooding. The Panel found that the capping of the pipe could pose a risk of harm to the appellant’s property. The Panel further found that in the absence of a curtain drain, there was a risk of effluent seeping down slope from the proposed absorption field and towards the perforated pipe. Therefore, the point where the perforated pipe enters the Benes Creek culvert constituted a potential breakout point where the effluent could reach the creek.

Based on the evidence presented, the Panel found that the proposed field would be approximately 25 feet from the point where the perforated pipe entered the culvert. The Panel accepted testimony that systems such as the one proposed produce highly treated effluent and that fecal coliform could be reduced to virtually zero if a sand layer were laid over the soil in the trenches of the absorption field. Further, the Panel accepted that the addition of a curtain drain to intercept any surface water flowing down slop towards the absorption field would reduce the risk of treated effluent seeping towards the perforated pipe, and therefore reduce the possibility of a breakout.

Based on these findings, the Panel found that it was appropriate for the EHO to exercise her discretion to reduce the 50-foot setback from a breakout point. The Panel also concluded that it was appropriate to rescind the condition in the Permit that the perforated pipe be capped, provided that certain conditions be added to the Permit. In particular, the Panel ordered that conditions be added requiring the installation of a sand layer in the absorption field and a curtain drain between the absorption field and higher elevations.

The Panel declined to award costs in this case. The appeal was dismissed and the Permit was upheld subject to the conditions.