In order to receive approval for a subdivision Mr. Miller agreed to a no building restrictive covenant on a lot which had problems with percolation. However, the Municipality stated in the covenant that it could be released if the Ministry of Health issued a sewage disposal permit for the land. Two years later Mr. Miller applied for such a permit and was turned down because the land did not meet the required 18 inches of permeable native soil. He appealed.
The Board agreed that the Health Officer had broad discretionary powers to authorize a sewage disposal system, and that these powers should not be fettered. However, the act requires that a permit shall not be issued unless certain criteria are met; these criteria may be set in the form of guiding policy. It found no evidence that the Health Officers discretion was exercised improperly and dismissed the appeal.
