2017 Soybean Harvest

2017 Soybean Harvest

Tuesday, August 5, 2014

Court orders berm removed, says landowner "appears to like to act first and seek required permission later"

The Regional Municipality of York (the "Region") went to court for an injunction requiring the removal of a berm that was installed by a local landowner.  The Region alleged that the berm, which was constructed in August, 2012 and measured approximately 3.5 metres high by 157 metres long, caused pooling in the ditches along neighbouring roads.  The berm cut off the flow of an intermittent watercourse that ran over the subject property from a culvert running beneath one of the roads into a wetland.

In 2012, the landowner applied retroactively to the local conservation authority for a permit to construct the berm.  The permit was not granted and the conservation authority issued a Notice of Violation with respect to the "unauthorized development, interference or alteration in or on a wetland setback".  The prosecution of that violation was the subject of a separate court proceeding.

The defendant landowner contended that there never was a watercourse on his property and denied that the berm was within a provincially significant wetland (PSW) or within the 120 metre PSW setback.  Also, the defendant claimed that the culvert from which the water was to flow was not operational before July, 2012 - he installed the berm only to deal with the new water flow created by work done on the culvert by the Region.  The Region denied this, saying that work done in July, 2012 was only to remove some sediment build up; the culvert had been in place for 35 years.

The Court rejected the evidence of the landowner and granted the injunction requested by the Region.  The Court found the landowner's evidence to be "unreliable": "I accept that his motives for building the berm may not be as altruistic as he wishes this court to see them.  As such, where [the landowner's] evidence and that of the Region conflict, I prefer the evidence of the Region."  The Court's decision also reads: "I find that [the landowner's] argument that the berm is not within the setback area to be disingenuous in the face of the evidence presented.  It appears that he does not like to be told what to do when it comes to his property.  He applied for permission to construct the berm only after he had already constructed it. ... [He] appears to like to act first and seek required permission later."

The injunction was granted based on the test applicable to the power to grant an injunction under the Municipal Act, 2001 where a by-law has been violated.  However, the Court would also have granted an injunction in this case on the basis of the berm constituting a public nuisance. 

Reading the Court's decision, one cannot help but conclude that this was the case of a rogue landowner cutting off an established watercourse to a wetland.  However, situations like these are not always so simple.  It is often the case that a wetland is created artificially through development of neighbouring properties - a road is installed or a residential subdivision is created with the result that drainage patterns are changed and a previously dry area becomes intermittently or permanently wet.  Local conservation authorities will take charge of the new wetland and prevent the affected landowner from remedying the drainage problem.

Landowners should be vigilant when it comes to drainage problems and the potential creation of wetlands on their properties.  It's one thing to want to create a new wetland - it is an entirely different thing to have the conservation authority tell you that you must have a wetland.  Drainage problems should be addressed sooner rather than later.

Read the decision at: Regional Municipality of York v. DiBlasi.