Permit violation generates flood of problems

Wednesday, November 25, 2015

by BETTER FARMING STAFF

Farmer Don Smale, Mossley, had already invested more than $200,000, including $25,000 in permits, into a retirement home beside his Thames Centre elevator when the municipality issued an order to halt construction in August.

The reason? Smale applied for and received permits from the local municipality but never received a crucial permit from the Upper Thames River Conservation Authority. A regulations inspector driving by the Smale farm in August saw the construction, checked the flood plain maps, and informed the municipality which ordered him to cease construction. The partially built house and farmstead is near a waterway known alternatively as Reynolds Creek or Reynolds Drain, in the south end of Thames Centre where the counties of Middlesex, Elgin and Oxford meet.

“We are working with (the landowner) on this issue,” says Ian Wilcox, general manager of Upper Thames. “We’ve provided some information and he’s retained a consultant, as far as we know, to try to clarify some of the flood elevations for his property to try to see if there’s anything we can do jointly to try to resolve the issues.”

Smale says it may cost him as much as $50,000 in consulting fees to prove that the house site is high enough to be clear of the flood plain, like the nearby farm site with houses, drive sheds and elevator.

Wilcox says the conservation authority spotted the unpermitted construction but is “not the bad guy.” The municipality issued a building permit without first following what Wilcox describes as the “normal practice” of circulating the application to the conservation authority.

“Every conservation authority (in Ontario) has flood plain regulations and every chief building official has to have regard for applicable law,” Wilcox says. “Somewhere there was a gap in the process and we were never circulated.

“The regulations limits have been there for years and the circulation rules have been there for years.”

Wilcox allows there have been changes in regulations, which the province attempted to standardize in 2006. The flood lines were updated, but Wilcox insists the update “was not an attempt to expand our powers. It was an attempt to use more current information, based on experience with flooding, way more accurate elevation information than we have had in the past, and to make sure that the information was as accurate as was possible.”

The Smale situation was on the minds of the Middlesex Federation when it introduced a resolution calling for better communication between municipal councils, conservation authorities, and “work(ing) to ensure reasonable regulations and implementation” at the annual convention of the Ontario Federation of Agriculture earlier this week. “They (conservation authorities) can sterilize all the farmland, or a great deal of it,” said Middlesex farmer Steve Palmer. The resolution passed easily.

Wilcox disagrees with Palmer’s summation. This is “a permissive regulation,” Wilcox stresses. “All it means is if you have interest in constructing something in that area you have to come and talk to us . . . It’s a check to make sure that any type of development is not going to be at risk . . . This is about protecting property and people.”

Wilcox says UTRCA bases its flood plain lines on “an observed flood,” in 1937, a one in 250 year event. Other conservation authorities may base their flood plain lines on modeling, or if they are nearer to Toronto, on the Hurricane Hazel flood in October 1954 that took 81 lives in Canada.

Conservation authority staff doesn’t have final say; landowners have the right to have their cases heard before a committee which is made up of the authority’s board of directors. That’s where Smale hopes to present his consultant’s report.

“I am not sure we will come to a satisfactory resolution,” Wilcox allows.

“I see where his frustration is for sure.”

“Sometimes the answer is still ‘no.’”

Despite the stop work order, Smale continued with construction on advice from his lawyer to protect his investment. BF