Decision Date: November 28, 1997

Panel: Carol Martin

Keywords: Sewage Disposal Regulation – ss. 2(2), 3(1), 3(3), 6, 7(1), Schedule 1, Schedule 3; On-site Sewage Disposal Policy – ss. 4.4, 6.1; Non-conforming Land Parcel Guidelines; package treatment plant; sand-mound absorption field; pressure distribution; high water table; drainage; breakout point setback; fettering discretion; mandatory wording.

The Appellant, Mr. Ellenwood, appealed a decision of the Environmental Health Officer (“EHO”) denying a permit for a sewage disposal system for a low-lying 1.98 ha. (4.95 acres) lot in Surrey, B.C. The EHO’s decision was based on his observations that the seasonal ground water table was too high and the configuration of the lot did not allow for adequate setback distances from the disposal mound to the breakout points, water courses or property lines. The Appellant argued that he could correct the high groundwater table and drainage problems through ditching and other means in the course of installing the system, and that the EHO could have issued a “provisional” permit to allow him to do this. The Appellant also alleged that the EHO’s discretion was fettered by applying the set back requirements in the Health Unit’s Policy on “Non-conforming Land Parcel Guidelines” too rigidly.

The Board found that the EHO’s findings that the proposal did not meet regulatory setback requirements to a creek or the property lines were unsupported by the evidence. However, the Board agreed with the EHO that the site could not meet the requirements of the Sewage Disposal Regulation because the drainage and high ground water problems on the site were not adequately addressed. There were two potential breakout points, a ditch and a wetland area, located on either side of the proposed field. Having breakout points within 50 feet on both sides of the field created a health risk. The Board also found that the EHO was correct in not issuing a “provisional” permit, because there is no such thing mentioned in the Act or the Regulation. No permit should be issued until an EHO can be satisfied that the ultimate use of the system would not contravene the Act or the Regulation.

The Board was also satisfied that the EHO did not rigidly apply the “Non-conforming Parcel Guidelines” when considering the permit and therefore did not “fetter his discretion”. He considered other matters besides that policy, including the regulations and possible public health risk through contamination of ground and surface water. While the several “musts” in the Guidelines appeared to fetter his discretion, the Board found that it is “how” an EHO applies the policy that is the main issue, not what the policy says. However, the Board did suggest that the word “must” in the policy be deleted to avoid confusion about whether the policy was mandatory when in fact it was not.

The Board upheld the EHO’s decision to refuse to issue a permit, and dismissed the appeal.