Province ofBritish Columbia

Ministry ofEnvironment

ENVIRONMENTAL APPEAL BOARDVictoriaBritish ColumbiaV8V 1X5

APPEAL NO: 85/15 WAT

J U D GEM ENT

Appeal against the decision of the Comptroller of waterRights, dated May 14th, 1985, heard under Section 38(1)of the Water Act and Section 11 of the EnvironmentManagement Act, relative to the confirmation of a Con-ditional Water Licence and a Permit to Construct Works.

APPELLANT:

Mr. Peter J. Ranger, Powell River

APPEAL NO. 85/15 WAT PAGE 1

HEARING DETAILS:

The hearings were held in Powell River on September 11th,1985 and on September 26th, 1985.

The Panel of the Board in attendance were:

Mr. H.D.C. HunterMr. J.O. MooreMr. R. Knight

ChairmanMemberMember

Miss Shirley Mitchell, Secretary to the Board, acted asRecorder of the Proceedings.

APPELLANT:

Mr. Peter J. Ranger, represented by Mr. D. Garling,Counsel.

Mr. Ranger gave evidence.

RESPONDENT:

The Comptroller of Water Rights, represented by Mr. J.E.Farrell, Deputy Comptroller of Water Rights

Mr. Farrell gave evidence.

OTHER:

Mr. A.J. Phillips. invited by the Panel under Section11(lO)(b) of the Environment Management Act to participate,was represented by Mr. L.G. Roberts, Counsel. Mr. Phillipsgave evidence.

APPEAL NO. 85/15 WAT PAGE 2

THE EVIDENCE:

At the opening of the hearing on September 11th, 1985,Mr. Farrell produced an Appeal Book containing copies of docu-ments on the Branch files. This book was marked Exhibit 1.

These documents include a copy of an application for awater licence by a Mr. S.B. Hollinshead and a copy of a letterfrom Mr. and Mrs. Hinds, predecessors in title to Mr. Ranger,acknowledging receipt of a copy of the applicationj a copy ofConditional Water Licence 41269 issued to Mr. Hollinshead for500 gallons per day for domestic use, to be appurtenant to Lot1, of Lot 4735, Group 1, New Westminster District, Plan 14174,the land now owned and occupied by Mr. & Mrs. Phillipsj acopy of a document dated September 11, 1972, apparently signedby Mr. Ivan Stride and Mr. Peter Ranger, expressing willing-ness to grant an easement to Mr. Hollinshead on statedconditions.

Mr. Ranger then gave evidence that he did not know of Mr.Hollinshead's licence and always considered he had taken waterfrom the joint spring by courtesYj the pipe had burst underhis driveway causing damage and problems. He was not willingto permit Mr. Phillips to enter onto his property, either torepair the pipe or to put in a new one.

The route chosen by Mr. Phillips and authorized by theComptroller would inconvenience him and would be difficult toconstruct because of the nature of the ground.

He admitted that the signature on the document of Sept-ember 11th, 1972, was his, but he had no recollection ofsigning it. He produced a file of photographs marked Exhibit2.

At an adjournment, before any further evidence or cross-examination occurred, the Chairman invited Counsel to see ifany agreement was possible as to the routing of the easementfor Mr. Phillips, on the assumption that he held a validlicence and was, therefore, entitled at law to rights toconvey the water from the spring to his property.

APPEAL NO. 85/15 WAT PAGE 3

Counsel reported back that an agreement appeared possiblebut one point at issue was the point of diversion. Theyrequested assistance from Water Management Branch on thispoint, which Mr. Farrell agreed to provide.

The hearing was then adjourned to September 26th, 1985.

On September 26, 1985, the Board met with all parties onthe ground and walked over the route chosen by Mr. Phillipsand authorized by the Comptroller. The Board also walked overthe alternate routes selected by Mr. Ranger, as well as theroute of the original pipeline constructed by Mr. Hollins-head.

There was much discussion and evidence between theparties and the Board which was not recorded, but whichhas been taken into account by the Board.

Unfortunately, no agreement as to the route seemed to bepossible.

The hearing was adjourned back to the hearing room inPowell River for final submission of the parties.

DECISION:The Board must express its regret that the parties seem

unable to agree on any subject and must lay the blame mostheavily on Mr. Ranger. The best route for the pipe is mostobviously the original route: it is the shortest, it involvesthe least outlay for work, and if the new pipe is properlylaid, the risk to Mr. Ranger would be minimal. The onlymatter, however, on which there seemed to be any agreement wasthat neither Mr. Phillips nor Mr. Ranger wanted this.

APPEAL NO. 85/15 WAT PAGE 4

While the Board has the jurisdiction to order the Comp-troller to change his permit to construct works to show thisoriginal route, it appears that to do so would only aggravatethe present unfortunate situation.

The Appellant provided no convincing evidence that hisproposal would be better for Mr. Phillips: indeed, in view ofthe unauthorized diversions found on the site, Mr. Phillipsmight not receive the water his licence entitles him to.

Accordingly, the Board dismisses the appeal and confirmsthe Comptroller's decision both as to the validity of Con-ditional Water Licence 41269 and as to the route chosen forthe pipeline in the Authority to Construct Works.

!(9~H. D. C. Hunter,Panel Chairman,Environmental Appeal Board

Victoria, B.C.October 31st, 1985.