Decision Date: January 22, 1999

Panel: Toby Vigod

Raymond Kerr appealed an Engineer’s Order requiring him to breach a dam on his property and drain the reservoir. The Order stated that the dam was not authorized, not constructed to any known standards, and the dam and reservoir posed a severe threat to downstream property and developments. Mr. Kerr requested a stay of the Order pending a decision on the appeal.

The Panel found that there were serious issues to be tried in the appeal but there was no specific evidence of irreparable harm to Mr. Kerr or Harper Ranch if a stay was not granted. On the evidence presented, the Panel found that the dam was structurally unsound may completely fail. The uncontrolled release of stored water posed a threat to drinking water quality and the environment downstream. Accordingly, the Panel found that the balance of convenience favoured denying the stay.

Although Mr. Kerr also asked that the Order be stayed on the condition that he perform certain repairs, the Panel found that Mr. Kerr was implicitly asking the Board to grant a temporary licence for the dam which is properly a matter for the Water Branch. The stay was denied.