Decision Date: May 17, 2004

Panel: Alan Andison

Keywords:  Health Act, s. 8; Sewage Disposal Regulation ss. 3(3)(a), 3.2, 3.3, 6(a), Schedule 2, s. 18(a); Sanitary Regulation s. 42;sewage disposal system; setbacks; innovative system; posting public notice, Mark de Goutiere and Cynara de Goutiere v. Environmental Appeal Board and Albaco Industries [1995] B.C.J. No. 2513 (“de Goutiere”)

Shelia Condratow appealed the decision of the Environmental Health Officer (“EHO”) to issue a permit for a sewage disposal system on a parcel of land on Savary Island (the “Property”).  The Appellant sought an order canceling the permit.

The issues in this appeal were whether the proposed sewage disposal system would meet setback requirements from a source of water and a high water mark, whether erosion of the bank of the Property would result in contamination of tidal waters, whether the Third Party failed to post notice of the permit, and whether the system would protect public health.  The Appellant also argued, based on the BC Supreme Court decision in Mark de Goutiere and Cynara de Goutiere v. Environmental Appeal Board and Albaco Industries, [1995] B.C.J. No. 2513, that the EHO had failed to take account of a neighbour’s intention to relocate a water well when issuing the permit.

The Board found that the only water well within the 100-foot setback distance from the system was one that a neighbouring property owner had installed after the issuance of the permit and in contravention of section 42 of the Sanitary Regulation.  The neighbour installed the well within a prohibited distance from his own sewage system.  The Board also found that regulatory requirements for a high water mark setback do not apply to tidal water.  The Board accepted the evidence of the EHO and an engineer that, given the high level of treatment in the innovative system, the 60-foot distance to the ocean would be more than adequate to protect against contamination.

The Board found that the oral and photographic evidence of the Third Party established that he posted the public notice of the permit as required by the and the Board found that the notice had been posted as required by the Sewage Disposal Regulation.  The Board distinguished the facts in this appeal from those in de Goutiere.  In the latter case, the Court found that an EHO had failed to consider a neighbour’s intentions to place a well in a setback area.  The Board found that, in this case, the EHO had only preliminary information that a neighbour might re-locate a well and had no information that the new location could affect the permit and, as it turned out, be located in a prohibited area.

The Board found that, based on all the evidence, the sewage disposal system would protect public health.

The appeal was dismissed.