Decision Date: June 15, 1998

Panel: Bob Radloff

Keywords: Sewage Disposal Regulation— ss. 3.01, 6, 7; Schedule 3—s. 14(d) Code of Good Practice; Class A fish-bearing stream; Boundary Health Unit policy guideline; vertical separation; Land Title Act—s. 219; fettering discretion.

This was an appeal against the decision of the EHO refusing to issue a permit for a sewage disposal system, consisting of a package treatment plant, and a chlorination/dechlorination unit with a raised mound field, for a lot in Langley, B.C. The EHO rejected the permit on the basis that it did not meet the current Boundary Health Unit (“B.H.U.”) guidelines for “non conforming lots,” i.e., that the disposal field did not meet the required 30.5 m setback from the boundary lines. In addition, the EHO was concerned that the lot was very wet, making the potential for breakout high, and that there was a Class A fish bearing stream flowing through the proposed field.

The Board found that the watercourse was not a Class A stream, but was a man-made ditch. In addition, the Board found that the proposed treatment and disposal system met or exceeded the standards intended to be met by the Sewage Disposal Regulation. Further, the Board found that the B.H.U. guideline requiring a 30.5 m setback from property lines was not consistent with the Regulation or studies presented by the EHO, and the application of the Code of Good Practice requirements were not relevant to the lot. The Board found that the guideline was applied inflexibly and unreasonably in this case. The Board accepted the Appellant’s evidence that the travel time to potential breakout points was acceptable to protect public health and found that the permit should be issued, subject to the conditions that an ozonator be used, and that the Appellant comply with specified maintenance reporting requirements, and that a professional engineer certify that the proposed treatment levels would be achieved. The Board indicated that the EHO could require the reporting requirement to be placed in a covenant registerable under the Land Title Act. The appeal was allowed.