Decision Date: October 15, 2002

Panel: Don Cummings

Keywords: Sewage Disposal Regulation – ss. 3, 7(1)(a), Schedule 1 – s. 2(c), Schedule 2 – ss. 1, 22; geodetic elevation; building permit; floodplain mapping; fettering of discretion

Henry Davidson appealed the decision of the EHO to refuse his application for a sewage disposal permit for his property near Elkford.

Mr. Davidson argued that the EHO erred by relying on a 1980 floodplain map that indicated that the property was within the 20-year floodplain for the Elk River, as the sole reason for denying the permit. He also argued that the Board should consider the fact that he was issued a building permit, without first being required to obtain a sewage permit, and that the construction of his house was now almost complete.

The Board found that the elevations shown on the 1980 floodplain map may be inaccurate because discrepancies in geodetic elevations were discovered in 1992, and geomorphological changes may have occurred after the 1980 map was completed. Also, the Board heard evidence from long-time Elkford residents who stated that the Appellant’s property was not flooded during a severe flood on the Elk River in 1995. The Board also found there was no indication that the EHO conducted any other investigations to determine the probability of flooding on the Appellant’s property, and that the EHO had fettered his discretion by interpreting a policy rigidly in deciding to reject the permit.

The Board found that it was not within the scope of the appeal to consider issues regarding building permit procedures. The Board found that it could not issue a permit on the basis that the Appellant had been issued a building permit before he had a sewage disposal permit.

The Board decided to rescind the EHO’s refusal of the permit, and to order that the permit application be reconsidered based on more complete information and investigations.

The appeal was allowed.