Decision Date: March 19, 2009

Panel: Alan Andison, Robert Cameron, Gary Robinson

Keywords:  Water Act – ss. 1 – definitions of “changes in and about a stream”, “divert”, “land improvement purpose”; 4, 5(d), 7(a), 9; Water Regulation – s. 37(4); stream channel; realignment; approval; licence

Murray Wood appealed an approval issued by an Engineer under the Water Act (the “Engineer”), Ministry of Environment (the “Ministry”).  The approval was issued under section 9 of the Water Act, and authorized Sandhill Developments Ltd. (“Sandhill”) to make changes in and about Jeffrey Brook, a stream that passes through property owned by Sandhill in Langley, BC.  Specifically, the approval authorized Sandhill to realign part of Jeffrey Brook’s channel where it passed through Sandhill’s property.  Sandhill planned to develop its property for mixed commercial and residential use.

Mr. Wood owns property adjacent to Sandhill’s.  The plans submitted with Sandhill’s application for the approval indicated that the new channel for Jeffrey Brook would be approximately 1 metre from the boundary of Mr. Wood’s property.  Mr. Wood argued that the approval unlawfully authorized Sandhill to divert a stream, because a stream diversion can only be authorized by a water licence.  He also argued that the approval was issued for a purpose that is prohibited under the Water Act, and that the approval violated section 37(4) of the Water Regulation.  Mr. Wood requested that the Board set aside the approval, or alternatively, send the matter back to the Engineer with directions.

The Board considered the regulatory scheme created by the Water Act, and the statutory provisions that relate to approvals and water licences.  The Board found that approvals and licences serve different but somewhat overlapping purposes.  Specifically, the Board found that section 9 approvals are limited to authorizing “changes in and about a stream” as defined in the Water Act.  Section 9 approvals cannot authorize the beneficial use of water.  Water licences may authorize changes in and about a stream, but they may also grant the right to “divert” and “use” water.  One of the main functions of water licences is to control and regulate the beneficial use of water.  Although the Water Act’s definitions of “divert” and “changes in and about a stream” overlap to some degree, “divert” involves “taking” water from a stream in order to exercise possession and control of the water, whereas “changes in and about a stream” need not involve exercising control or possession of water in a stream.

Applying those findings to the evidence in this case, the Board found that the approval authorizes building a new section of channel for Jeffrey Brook that would be substituted for part of the pre-existing channel.  The approval did not authorize beneficial use of the water, or diversion on the stream in order to take possession and control of the water.  The Board held, therefore, that the realignment of Jeffrey Brook did not require a water licence, and involved changes in and about a stream that were properly authorized by the approval.

The Board found that the issue of whether the approval was for a prohibited purpose was moot, because the prohibition in the Water Act against using water for purposes other than those defined in section 1 only applies to the diversion, extraction, use or storage of water, and the approval authorized none of those things.  However, the Board addressed this issue for clarity.  The Board found that the Water Act does not require that section 9 approvals be issued only for one of the purposes defined in section 1 of the Water Act.  Moreover, the Board found that, even if the changes to Jeffrey Brook constituted a water diversion, which they do not, the approval was granted for a purpose defined in section 1 of the Water Act; namely, a “land improvement purpose.”

Finally, the Board found that Mr. Wood failed to establish that the approval was contrary to section 37(4) of the Water Regulation.  Specifically, there was insufficient evidence of a contravention of section 37(4)(a) because there was prima facie evidence, in the form of an authorization issued by the federal Department of Fisheries and Oceans, that the approval complied with federal fisheries enactments.  The Board also noted that the approval appeared to comply with Langley’s bylaws, but the Board made no findings in that regard because the parties did not fully address this question.  Regarding section 37(4)(b), the Board found that the approval authorized no changes or works on Mr. Wood’s property, nor any setbacks or encroachments onto his property.

Accordingly, the Board confirmed the Engineer’s decision to grant the approval.

The appeal was dismissed.