Decision Date: May 23, 1995

Panel: Ben van Drimmelen, Carol Martin, Johnder Basran

Mr. Howard and Ms. Madill purchased property on which they hoped to build a septic tank, unaware that a similar application by previous owners had been turned down, due to the thin layer of percable soil on the property. After learning of this the appellants were told by a 3rd party that if they added fill to the site, thereby increasing the percable soil on the site, a permit for a septic tank might be granted. They did so, but the permit was refused on two occasions, the second of which they appealed.

The Board found that while it was possible that a safe system could be designed for the property, no such design had been produced and the lot was a “difficult site”. It was not unreasonable of the Ministry to refuse to issue a permit. The appellants also alleged that the decision had been arbitrary, as similar nearby lots had been granted permits. However, the Board found that this was the result of a change in government policy. Finally, the Board agreed that the Environmental Health Officer had fettered his discretion by depending upon the Capital Regional District Health Committee’s “On-Site Sewage Disposal Guidelines”. However, they found that this deference to the guidelines was not unfair or unreasonable, given the input by elected and health officials into them. Also, the distinction between “native” soil and fill is not just found in the guidelines, but in the regulations as well. The Board upheld the decision.