Decision Date: August 20, 1999

Panel: Katherine Hough

Keywords: Water Act s. 16(1); water licence; diversion; assessment of hydraulic capacity of works; necessity of upgrading certain works; appurtenance

This was an appeal against directions contained in the March 30, 1998 order of the Deputy Comptroller of Water Rights setting aside the Regional Water Manager’s order requiring Cadillac Fairview Corporation Ltd. (“the Appellant”) to construct a permanent channel for Joseph Creek in Cranbrook, B.C. The Deputy Comptroller had directed both the Appellant and the City of Cranbrook to provide an assessment of the hydraulic capacity of a temporary channel constructed in 1976 under a Conditional Water Licence. After the assessments had been received, the Regional Water Manager was ordered to reconsider the necessity of upgrading the existing channel and to direct the parties accordingly.

The Appellant sought to have these directions rescinded on the grounds that it believed that the City’s purpose in seeking the realignment of Joseph Creek was not to address a flooding potential, but was due to the potential development of an adjacent property. The Appellant also alleged that the Regional Water Manager was biased and should not be permitted to review any assessment that might be undertaken. The Appellant also submitted that it should not be liable for the production of the assessment, as the land on which the existing channel was situated did not belong to the Appellant.

The Panel found that, whether or not the issue of flooding was revisited after a lapse of 23 years due to potential development on an adjacent property, there was a potential hazard for flooding along the existing channel. The Panel therefore found that the assessment directed by the Deputy Comptroller was warranted. The Panel also found that the issue of bias on the part of the Regional Water Manager was rendered moot by his retirement and that his successor was capable of conducting the review in an unbiased manner. The Panel also noted that if the new Manager was unacceptable to the Appellant, then it could apply to the Deputy Comptroller for an independent assessment by a Regional Manager from a different region. Finally, the Panel found that the Conditional Water Licence was appurtenant to land owned by both the Appellant and the City, that therefore the Appellant and the City were both licensees, and that both were the proper parties to undertake the assessment. The decision of the Deputy Comptroller was affirmed. The appeal was dismissed.