Decision Date: February 12, 1997

Panel: David Perry

Keywords: Sewage Disposal Regulation – s.2(2), s.3(3)(a), 4(3), s.7, Schedule 2 – s.18(e); Health Act – s.25, s.66, s.68, fettering of discretion, Land Title Act – s.215

Mr. O’Leary is appealing a decision of the Environmental Health Officer (‘EHO’) refusing a permit for a sewage disposal system on Mr. O’Leary’s property on Indian Arm. The proposed system consists of a septic tank, dosing pump station, intermittent sand filter and a marine outfall pipe. The EHO considered the permit under section 2 of the Regulation governing alternate methods of sewage disposal, but refused the permit on the grounds that it does not satisfy ministry policy regarding innovative technologies. Also, the Ministry of Health adopted an embargo on applications for marine outfalls along Indian Arm because of the danger of a future cumulative impact if there is a proliferation of similar discharges.

The Board found that the application for an innovative technology does not fall under section 7 of the Regulation, but section 3. Thus, the test in this case is whether the ultimate use of the proposed system will contravenes the Health Act or the regulation; ie. is a hazard to the public health. On the evidence presented, the Board held that the proposed system will not contravene the Act or be a risk to public health and so additional requirements under the innovation policy are not applicable. The Board also found that the policy of not allowing marine outfalls in Indian Arm is beyond the Ministry of Health’s statutory authority because the legislation requires each sewage disposal system to be considered on its merits, and not on whether the system may aggravate any possible future cumulative effects. The EHO did not freely exercise his discretion but bound himself by this policy. The appeal was allowed.