Decision Date: January 6, 1999

Panel: Toby Vigod

David and Katherine Wallis appealed an Environmental Health Officer (“EHO”) decision refusing to issue a permit for a sewage disposal system on their property on the grounds that the proposed absorption field would be less than 30 metres from the “high water mark” of a body of non-tidal water on the property, contrary to the Sewage Disposal Regulation. The Appellants submitted that the surface water in question was not a registered watercourse – it was an “occasional ditch” that appeared only after the Ministry of Transportation and Highways installed a culvert beyond the property boundary. They also argued that the watercourse did not meet the definition of watercourse in the Ministry of Environment, Lands and Parks’ (“MELP”) Environmental Protection Compendium.

The Panel considered the Ministry of Health’s On-Site Sewage Disposal Policy guideline on identifying a non-tidal water body to be of more assistance than MELP’s Compendium. Applying the Policy, the Panel found that while the flow of water below the culvert may not have been flowing within its original channel, this was not determinative of whether it was a non-tidal body of water under the Policy. The Panel found that the relevant consideration was whether the source water above the culvert was a natural watercourse that existed before the culvert was installed. The Panel found that the water flowing across the property was a diversion of a stream that existed before the culvert was installed, had an identifiable shoreline and high-water mark, and was thus a body of non-tidal water. Since the nearest edge of the proposed field was less than 30 metres from the water channel, and the EHO had no discretion to vary the setback requirement, the Panel upheld the decision of the EHO.

The Panel also found that whether a watercourse is “registered” or “occasional” is not relevant for the purposes of the Regulation. Further, the Panel noted that the flow proceeds directly into Pinantan Lake, which is a source for drinking water for some residents of the area, and which also has problems associated with receiving concentrations of fecal bacteria and organic nutrients in surface water flowing into it.

Appeal dismissed.