Decision Date: September 10, 1998

Panel: Don Cummings

Keywords: Sewage Disposal Regulation – s. 3(1)(4)(a), 7, 9(b); Environment Management Act – s. 11(14.2).

An Environmental Health Officer (“EHO”) issued a permit for a package treatment plant system on property adjacent to Ms. Malone’s property. He added conditions to upgrade the system, i.e. a pressure distribution system and infiltrator chambers. Historically, there had been a concern about breakout at the northern boundary of the subject property which led to an engineering report on breakout potential. Based on that report, a previous permit had been issued with four additional conditions, but that developer did not proceed. The EHO considered the report prior to issuing the new permit.

Ms. Malone appealed the new permit. She alleged that the engineering report contained errors, the report did not state definitively that breakout to her property would not occur, there was no contingency plan should breakout occur, and there were untrue statements in the permit application contrary to section 3(4)(a) of the Regulation.

The Panel noted that there were errors in the engineer’s report (which were subsequently corrected), but they were minor and did not affect its technical findings. The Panel also found that the probability of effluent breakout is minimal, and that even if a breakout occurred there would be adequate safeguards in place. It noted that geotechnical engineering is not a precise science and that it was not unusual for words such as “not likely to breakout” to be used. The Panel found that the system complies with the Act, Regulation and Ministry Policy, and has additional safeguards such as a driveway interceptor ditch, pressure distribution and infiltrator chambers to ensure the public health will be safeguarded. The errors in the application did not affect the approval of the system and were not designed to mislead. Therefore, the EHO was correct in issuing the permit, subject to the Panel’s direction to add or consider adding conditions which were set out in the previous permit. The Panel rejected the Permit Holder’s request for costs.