Decision Date: March 30, 1998

Panel: Carol Martin

Keywords: Health Act – s. 25; Sewage Disposal Regulation – ss. 2(1), 3(3), 3(4), 6, 7, 8, Schedule 1, Schedule 3; ocean frontage; setback from high water mark, variance of Union Board of Health setback from tidal water; interpretation of the Regulation, restrictive covenant.

This was an appeal against the decision of the EHO to refuse to issue a permit for a sewage disposal system for a 0.49 hectare ocean front residential lot in Pender Harbour. After an earlier rejection of a proposed septic tank and absorption field system, the Appellant re-applied for a system consisting of a “Klargester” package treatment plant with a private ocean outfall. The EHO refused the application on various grounds: the Appellant had failed to obtain approval from the Union Board of Health to vary its 100 ft. setback to tidal water; the EHO believed that, under the regulation, he could only permit systems utilizing ground disposal of effluent, not ocean outfall; he not satisfied that a health hazard would not be created by the system; and the Appellant had not obtained a Crown foreshore lease or license for the ocean discharge pipe.

The Panel found that it did not need to decide whether the regulation precluded the EHO from approving an ocean outfall, as the ultimate test is whether the EHO is satisfied that the system will not present a risk to public health. In this case, the Panel found that there was insufficient evidence to show that the system would adequately safeguard the public health and prevent human pathogens from entering public waters and become a risk to public health. While the Panel found that the Union Board of Health’s setback requirement did not apply to this application, it found that the site investigation tests under schedule 1 were required. The Panel noted that there was no back-up system available in the event of system failure and that a restrictive covenant would not ensure that adequate treatment, monitoring and maintenance standards would be met if the system were allowed. The Panel also stated that access to the Crown foreshore should have been arranged prior to the consideration of the application by the EHO. The Panel upheld the decision of the EHO and the appeal was dismissed.