Decision Date: June 24, 2005

Panel: David H. Searle, Q.C.

Keywords: Water Act – ss. 5, 7, 10-12, 15; conditional water licence; consumptive use

The Clarkes and the Middletons (the “Appellants”) appealed the issuance of a Conditional Water Licence (the “Licence”) to Wanda Gorski by the Assistant Regional Water Manager (the “Assistant Manager”).  The Licence authorized the diversion of water for land improvement purposes.  It also authorized certain pre-existing works on Ms. Gorski’s property, including pipes, ponds and ditches.  The Appellants asked the Board to quash the Licence on the grounds that there is insufficient water available.

The Board found that evaporation from the works would not be significant, and that evapotranspiration is not an issue in this case because the ponds are lined.  The Board also found that the efficiency of Ms. Gorski’s works in carrying water through the property, and the addition of water to a pond from the drain tiles on the perimeter of her property, off set the water loss following a dry spell.  The Board held that the Appellants did not prove, on a balance of probabilities, that Ms. Gorski’s works represent a consumptive use that materially impacts the Appellants as downstream licensees with prior rights to water.

Accordingly, the appeal is dismissed.