Excerpt from: File No. CA 003-05, L. Kamerman, Mining and Lands Commissioner, Friday, the 9th day of March, 2007, pages 9-11.
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Adverse Economic Impact
The issue in Mr. Russell’s appeal is whether his proposal will adversely affect the conservation of land. For purposes of the section 28 application and appeals, the issues are technical, not social or economic.
Economic and social interests come into play in the planning process which precedes any application under section 28 of the Conservation Authorities Act. All municipalities and conservation authorities implement the new Provincial Planning Policy Statement, (2005) and before that, the Provincial Floodplain Planning Policy Statement. Both Policy Statements involve establishing locally the manner in which floodplain planning will be carried out. In this regard, decisions are made as to whether a one-zone, two-zone or special policy area will be implemented within certain areas. This is a pure planning exercise which, “provides for appropriate development while protecting resources of provincial interest, public health and safety, and the quality of the natural environment.” The 2005 version has as its objectives “integrated and long-term planning that supports and integrates the principles of strong communities, a clean and healthy environment and economic growth, for the long term.” [See Part I: Preamble]. The earlier Provincial Flood Plain Planning Policy Statement, OIC 1946/88, August 11, 1988, sets out as its objectives the prevention of loss of life, the minimization of property damage and social disruption and the encouragement of a coordinated approach to the use of land and the management of water. There are five principles enumerated, but for purposes of this discussion it is the second which is relevant:
“(2) local conditions (physical, environmental, economic, and social characteristics) vary from watershed to watershed and, accordingly, must be taken into account for the planning and managing of flood plain lands”.
When planning is undertaken, involving official plans or zoning, local flooding conditions must be incorporated to identify flood prone lands within the affected watersheds. Policies will be implemented to address special development concerns for these lands. The Provincial Policy Statements do offer a degree of latitude, however. Without going into the details of how each is established, there are three possibilities on the ground. The one-zone policy area can be described as the most restrictive in terms of the development and land use throughout the flood plain. The two-zone policy is somewhat less restrictive in that its highly restrictive implementation is limited to the more treacherous floodway area, while some degree of limited development is permissible in the less risk-prone flood fringe. The special policy area concept may be established by special procedures. Special policy areas may permit degrees of development which might otherwise not be permissible, with corresponding flood protection works established to ensure safety.
Economic and social factors will be considered at this planning phase. They must, as the capacity within the watershed is a resource which must be rationed and accounted for, with dire consequences for failure to do so. Community viability may be at issue. Protection and enhancement of a historic old town may be vital to a community’s economic viability. Values associated with increasing density through infill in a residential area with good access, services and amenities may be offset against the total capacity for encroachment into the flood plain by maintaining other areas as sparsely populated. Upstream and downstream effects of proposed encroachment will be offset against areas where development will be severely curtailed.
Once established for official plan or zoning purposes, the one-, two-zone and special policy areas provide the floodplain management standard for the lands involved. [There was also an earlier Wetlands policy which, like the Flood Plain Planning Policy, has been superseded by the new general Provincial Policy.] It is pursuant to this standard that the conservation authorities and the Commissioner make decisions when considering section 28 applications and appeals. It is not open for either to determine that local values require that another standard be applied. Not only would doing so run afoul of the planning process which had been completed, but it would also upset the underlying balance of the watershed as a resource which has been allocated through that prior planning process.
By the time a section 28 application is made, the focus is on technical watershed considerations. The statutory test is whether the proposed development will affect “control of flooding, erosion, dynamic beaches or pollution or the conservation of land” which is in no way balanced with the adverse economic impact on the applicant if the permission is refused. For a conservation authority or the Commissioner to take economic impact into consideration would encroach on the statutory authority of the planning process and is outside of their statutory jurisdiction.
Moreover, any consideration of economic interests would serve to shift the focus away from technical considerations which are at the heart of the statutory jurisdiction. This cannot be stated emphatically enough. It has always been irrelevant in a section 28 matter that the applicant/appellant could be left holding property that cannot be developed and is rendered virtually worthless from a development perspective as a result. The tests revolve around the question of the innate capacity of the land to withstand the proposed encroachment. It is of fundamental importance to the nature of the inquiry that potential adverse economic impact plays no role in the deliberation. This statement seems inadequate to the importance of this principle.
To allow the Neighbours to introduce elements of their own adverse economic impact in opposition to the proposed development would introduce a level of unfairness which cannot be justified. Economic impact which is irrelevant for an appellant must be equally irrelevant for those in opposition. Not only does this go beyond what is contemplated by the constituent legislation, but would put the whole of the conservation authority regulating and permitting process in severe jeopardy. The decision to be made does not involve balancing economic interests with watershed concerns. It has not been allowed as an issue by the Commissioner for over thirty years for very good reason. Control of flooding, pollution and conservation of land are technical.