Decision Date: August 28, 2008

Panel: Alan Andison

Keywords:  Water Act – s. 92(1); jurisdiction; standing; stream diversion

Murray Wood appealed a decision of an Engineer, Ministry of Environment, to issue an approval under the Water Act.  The approval was issued to Sandhill Developments Ltd. (“Sandhill”), which owns property adjacent to Mr. Wood.  The approval authorized Sandhill to divert and create a new channel for Jeffries Brook where it flows through Sandhill’s property.  The new channel would be located as close as one metre away from Mr. Wood’s property.

Sandhill filed an application challenging Mr. Wood’s standing to appeal the approval.  It submitted that he had no standing to appeal under section 92(1)(b) of the Water Act because his property will not be physically affected by the changes authorized in the approval.

The Board requested submissions from the parties on Mr. Wood’s standing to appeal the approval.

The Board noted that section 92(1)(b) requires Mr. Wood to show that his property “is or is likely to be physically affected by” the approval.  The Board found that there were reasonable grounds to believe that Mr. Wood’s property was likely to be physically affected by the approval.  Specifically, the Board found, on a balance of probabilities, that his property was likely to be affected by the effects of flooding, saturation, and/or erosion as a result of the location and design of the new channel.

Although the parties provided expert reports regarding the adequacy of the works authorized in the approval, much of that evidence was conflicting, and the Board decided that it would be inappropriate in a preliminary hearing to make findings about the merits of the approval.  Rather, the Board found that Mr. Wood’s property was likely to be affected based on certain evidence that was not in dispute; namely, the proximity of the new channel relative to Mr. Wood’s property, and the existence of inconsistencies between the approved design and the actual construction which showed that minor deviations from the approved design could result in flooding or other impacts on Mr. Wood’s property.  In summary, the Board found that there appeared to be some legitimate basis for Mr. Wood’s concerns about his property, and that he should not be denied his right to appeal.

Accordingly, the Board concluded that Mr. Wood had standing to appeal the approval.

The application to dismiss the appeal was denied.