Decision Date: December 21, 1998

Panel: Toby Vigod, Jackie Hamilton, Robert Cameron

Keywords: Sewage Disposal Regulation – s. 7(1)(b), Schedule 3 – s. 14(e); Walker v. Environmental Health Officer (Environmental Appeal Board, Appeal No. 98-HEA-02, June 22, 1998); high water mark; stream; controlled lake.

Mr. Truswell appealed a decision of the Environmental Health Officer (“EHO”) refusing to issue a sewage disposal permit for Mr. Truswell’s property on the grounds that the proposed absorption field would not meet the 30 metre setback requirement from the high water mark of a non-tidal water body. Mr. Truswell argued that there is no body of non-tidal water near his property. Rather, there is a municipal drainage system consisting of concrete culverts and a concrete-walled pond, with no natural shoreline from which to measure a high water mark. He also argued that approval of the proposed system posed no risk to public health.

The Panel found that there was once a non-tidal water body named Benes Creek near the Appellant’s property. However, as the creek now flows into a concrete-walled pond and through an enclosed culvert on or near the original route of the creek, the Panel found that the creek no longer has all the characteristics associated with a natural watercourse. The Panel did not have to decide whether the culverted portion of the creek constitutes a non-tidal water body for the purposes of the Regulation, as it concluded that the proposed field was within 30 metres of the concrete-walled pond, the only open portion of Benes Creek. The Panel found the pond to be a non-tidal water body, with a “shoreline” on its concrete walls, and a measurable high water mark. It concluded that a shoreline need not be a boundary between water and natural land for the purposes of determining setback. The Panel also noted that the pond may be more susceptible to contamination. The Panel upheld the EHO’s decision refusing the permit. The appeal was dismissed.