Conservation Authority Decisions On Development Proposals Owed Deference, Court Of Appeal Holds

The Court of Appeal for Ontario recently released a decision clarifying the appropriate standards of review applicable on appeal from a decision of the Mining and Lands Commissioner (the "Commissioner") reviewing a decision of a Conservation Authority pursuant to the Conservation Authorities Act, R.S.O. 1990, c. C.27 ("CAA").

In Gilmor v. Nottawasaga Valley Conservation Authority, 2017 ONCA 414, released May 23, 2017, the Court of Appeal reversed the Divisional Court's judgment (2015 ONSC 5327 (Div. Ct.)) overturning the Commissioner's decision not to approve one family's proposal to build a home on property they had purchased for that purpose. The Court of Appeal's decision not only clarifies the standards of review applicable to the Commissioner's decisions in relation to the CAA, but it also has significant implications for landowner rights and proposed projects or developments on or near conservation lands.

BACKGROUND

Alex and Tania Gilmor bought land in a developed area and, in 2009, began building a home on that land. Unfortunately for the Gilmors, developing their dream home wasn't a simple matter of construction and their decision to build spawned almost a decade of litigation.

The complicating factor for the Gilmors is that part of their lot is situated on a floodplain subject to the control of the Nottawasaga Valley Conservation Authority ("NVCA") pursuant to the CAA, as "hazardous land" which "could be unsafe for development". As a result, the Gilmors' property was subject to s. 28 of the CAA and its regulations. Section 28 states:

28(1)(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development.

28(3) A regulation made under clause (1) (b) or (c) may provide for permission to be granted subject to conditions and for the cancellation of the permission if conditions are not met.

Pursuant to s. 28(3), NVCA passed O. Reg. 172/06, Nottawasaga Valley Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses, in compliance with O. Reg. 97/04 and with Ministerial approval. Sections 2 and 3 of O. Reg. 172/06 regulate development on certain areas within the jurisdiction of the Authority:

2. (1) Subject to section 3, no person shall undertake development or permit another person to undertake development in or on the areas within the jurisdiction of the Authority that are, ...

   (b) river or stream valleys that have depressional features associated with a river or stream, whether or not they contain a watercourse...

   (c) hazardous lands

   ...

3. (1) The Authority may grant permission for development in or on the areas described in subsection 2(1) if, in its opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development.

   Accordingly, on realizing the home they were building was in the area of "hazardous lands" (i.e. within a floodplain) within the jurisdiction of NVCA, the Gilmors were required to and did apply for permission to proceed with their development.

   The Gilmor house itself was not on floodplain. Rather, only part of the Gilmor's lot behind the house sat along the fringe of the floodplain. Storm analysis showed that part of the Gilmor property was at risk of relatively...