Decision Date: October 7, 1999

Panel: Toby Vigod

Keywords: Sewage Disposal Regulation – ss. 3, 7, Schedule 3 – ss. 11, 12, 16, 17; sewage disposal system; absorption field; permit; excessive slope; breakout; public health; fettering of discretion; hearing de novo.

This was an appeal of the March 3, 1999 decision of the Environmental Health Officer (“EHO”) to deny the issuance of a permit for a sewage disposal system for two residential lots on the shore of Cowichan Bay. The Appellants sought an order that a permit be issued to allow installation of either one or two package treatment plants connecting to an existing sewage disposal field, so that the sewage disposal system could serve an existing home on one of the lots and a new home proposed for the other. In addition to making arguments on the technical merits, the Appellants submitted that the EHO had fettered his discretion by failing to consider all the technical merits of their application.

The EHO submitted that he refused to issue a permit because he found that the proposed system did not contain appropriate safeguards to protect public health. He found that the slope of the site was excessive, that the additional sewage flow from a second home could jeopardize the continued operation of the system and cause a malfunction, and that there was a lack of space for a separate reserve absorption field on either of the lots. He also found that the existing system did not meet the requirement for a 30 meter setback from the high tide line.

The Panel found that the EHO did consider the technical information available to him at the time and that he had not fettered his discretion. The Panel also found, however, that the question of whether of not the EHO’s decision was reasonable based on the information available at that time was not decisive. An appeal before the Board is a hearing de novo and it has the power to grant or deny a permit based on all available information, including information that becomes available after the time the decision being appealed was made.

The Panel found that the Appellants did not establish that the proposed sewage disposal system would adequately protect public health. In particular, the Panel found that on a balance of probabilities, the doubling of the effluent load contemplated in the permit application presented too great a potential risk of breakout. The Board upheld the EHO’s decision to refuse to issue a permit and dismissed the appeal.