Decision Date: February 10, 2009

Panel: Alan Andison

Keywords:  Water Act – s. 1 – definition of “changes in and about a stream”, 9, 88(1)(d) & (e); engineer’s order; unauthorized water diversion

Vann Chrysanthous appealed an order issued on January 31, 2008, by an Engineer under the Water Act (the “Engineer”), Water Stewardship Division, Ministry of Environment (the “Ministry”).  The order amended a previous order that required Mr. Chrysanthous to stop diverting water from an unnamed stream.  The Engineer’s order amended the previous order by extending the deadline for Mr. Chrysanthous to stop diverting water from the stream.  Mr. Chrtysanthous requested that the Board reverse the Engineer’s order.

A long history of events led to this appeal.  The unnamed stream flows through Mr. Chrysanthous’ property to the boundary of his neighbour’s property.  In or about July 1997, Mr. Chrysanthous’ neighbour diverted the stream without authorization under the Water Act.  During late 1997 through 1998, Mr. Chrysanthous contacted certain government agencies, including the Ministry, regarding the unauthorized diversion, and expressed concern about damage to his fence, the potential for flooding on his property, and possible damage to an adjacent road as a result of the diversion.  Those agencies, including the Ministry, requested that the neighbour return the stream and road bed to their prior state, but the neighbour did not comply, and the agencies did not follow up.

In May 2007, acting in response to a complaint from the neighbour that Mr. Chrysanthous had unlawfully diverted the stream, Ministry staff attended at Mr. Chrysanthous’ residence with law enforcement officers and verbally requested that he return the flow of the stream to its previous state.  The present Ministry staff were unaware, at that time, of the events that had occurred in the 1990’s.  Mr. Chrysanthous did not comply with the verbal request.

On July 5, 2007, the Engineer issued an order requiring Mr. Chrysanthous to cease his diversion of the unnamed stream, and return the water to where it flowed prior to his unauthorized diversion.  Between July 2007 and January 2008, Mr. Chrysanthous discussed the matter numerous times with the Engineer.

On January 31, 2008, the Engineer issued his order amending the July 5, 2007 order.  In or about February 2008, the Engineer became aware of Ministry photographs and documents from the 1990’s which indicated that there had been an unauthorized diversion by Mr. Chrysanthous’ neighbour.

The Board held that the present situation arose due to unlawful diversions undertaken by both Mr. Chrysanthous and his neighbour.  In the circumstances, the Board found that the fairest solution, and the best solution for the environment, would be to restore the stream to a channel that is as close as possible to the one it had before those unauthorized diversions.  However, the Board found that its powers were limited due to the nature of the order under appeal.  Specifically, the order under appeal only amended the order issued on July 5, 2007 by extending the deadline for returning the stream to where it had flowed before.  The July 5, 2007 order is a separate order and Mr. Chrysanthous did not appeal that order.  Consequently, the Board could only address the deadline set out in the January 31, 2008 order.  The Board could not make a decision that would address the July 5, 2007 order.

In addition, the Board noted that confirming the January 31, 2008 order would not adequately address either of the parties’ concerns, whereas reversing the order would place Mr. Chrysanthous in immediate non-compliance with the July 5, 2007 order, such that he may be subject to enforcement action.  Also, confirming the January 31, 2008 order, with a short extension of time to account for the appeal process, would result in Mr. Chrysanthous being required to return the stream to the channel that was created by his neighbour’s unauthorized diversion.

Under the circumstances, the Board concluded that the January 31, 2008 order should be returned to the Engineer with directions to extend the deadline to March 31, 2010, in order to allow the Engineer and Mr. Chrysanthous time to consider and comply with a number of other directions from the Board.  Specifically, the Board directed the Engineer to consider granting Mr. Chrysanthous an approval under the Water Act to divert the stream along the course that has been designed by Mr. Chrysanthous, or to an alternate acceptable channel on Mr. Chrysanthous’ property.  The Board directed that such an approval should contain requirements to prevent future flood events and ensure that Mr. Chrysanthous’ property is protected.

Accordingly, the appeal was allowed.