By Chad Ingram
Published May 3 2016
A court ruling requiring Ministry of Natural Resources and Forestry approval for docks and boathouses in the province is causing considerable concern for local politicians.
Last year the Ontario Superior Court handed down a decision in a lawsuit in the municipality of North Kawartha where a waterfront resident had constructed a floating boathouse to the chagrin of a neighbour.
The ruling in that case included an order that MNRF approval under the Public Lands Act be required for any new or replacement docks or boathouses larger than 15 square metres in “shore land” areas.
“Shore lands” the ministry told the paper “means lands covered or seasonally inundated by the water of a lake river stream or pond.”
The authorization can be required basically anywhere there is water including in cases of privately owned shoreline road allowances.
“Yes works that occur on private shoreline road allowances may also be regulated under the Public Lands Act depending on the nature of the work” an email from the ministry’s media relations department to the paper reads. “It is best to contact your local MNRF office in such instances to confirm if an authorization is required.”
Previously ministry approval was only required for two-storey boathouses.
Local politicians say the new approval framework presents a boatload of complications.
Chief among those complications for Algonquin Highlands Reeve and County Warden Carol Moffatt are discrepancies between municipal and provincial requirements as well as potential jurisdictional conflict.
“There is overwhelming concern with the disconnect among this new process municipal interests and existing policy” Moffatt wrote in an email. “Requirements for docks boathouses zoning setbacks and shore road allowance ownership differ across many municipalities and there does not appear to be any way to accommodate differing requirements. For example in Algonquin Highlands the side setback for a dock [from a neighbouring property] is 4.5 metres but the new ministry requirement is only three metres. This kind of gap is highly problematic and could lead to confusion and conflict over whose jurisdiction ‘trumps’ whose.”
Moffatt noted Algonquin Highlands dealt with similar jurisdictional gaps recently when the Ministry of Environment and Climate Change approved a septage spreading field near Maple Lake that required no municipal approval and left the township powerless to enforce its own zoning bylaws.
“Also of concern is that the [Ontario] Building Code requires a building permit for structures occupying 10 square metres of land but the ministry requires a permit for buildings occupying 15 square metres of land” Moffatt wrote. “This has the potential to create a problem. The county has a shoreline tree preservation bylaw and there needs to be some way to incorporate or acknowledge this very important bylaw into the ministry’s permitting process.”
Dysart et al Reeve Murray Fearrey also pointed to discrepancies between municipal and provincial regulations. In Dysart et al the setback for docks from neighbouring properties is some seven metres.
“How does that work in a court where a three-metre setback in some cases allows you to extend a dock in front of your neighbour’s property?” Fearrey wrote in an email to the paper.
The Dysart reeve also questioned the MNRF’s staff capacity and its ability to handle situations that will arise as a result of new regulations.
“MNRF barely has enough resources for timely responses to shorelines violations” Fearrey wrote. “How could a decision of such magnitude be accepted by the MNRF on the Trent Severn Waterway system with lake levels fluctuating six feet and more? This is going to be virtually unenforceable unless the MNRF staff is going to increase staff.”
Moffatt too questioned the ministry’s ability to handle the volume of work that would be created.
“While it’s understood that the ministry is unable to ascertain how many applications it might receive or how long it will take to process them it’s generally understood . . . that the ministry’s limited resources will be insufficient in managing the workload thereby leading to public frustration and increased illegal building” she wrote. “Along the same lines there is concern that the ministry’s limited resources will be overtaxed in the complaint-based follow-up.”
Fearrey suggested the ministry should have appealed the court ruling.
“The next course of action after the court decision might have been to appeal an opportunity to get it enforceable and reasonable” he wrote.
Fearrey Moffatt and Minden Hills Reeve Brent Devolin believe there should have been extended dialogue between the ministry and the province’s municipalities before the regulations in Devolin’s words “were dropped out of the sky.”
Devolin told the paper he didn’t think the ministry truly grasped the far-reaching implications of the changes for waterfront communities.
“They had no idea how deep the water they were stepping into was” he said. “This is the first chapter in a many-chapter book.”
Devolin said he expected a “version 2.0” of the regulations to come from the ministry eventually.
There is no fee associated with the provincial approval.
A version of the approval application form that had been on the ministry’s website had been taken down at press time. That application form had self-attestation components that is spaces where applicants could simply check off boxes saying their applications were in compliance.
“There is also concern with the self-attestation aspect of the application” Moffatt wrote. “An applicant could easily tick off the compliance boxes without ever having consulted any of the agencies noted and there is no method or intent on the ministry’s part to verify the compliance. This means someone could get ministry approval for a dock or boathouse that wouldn’t otherwise be permitted by a municipality.”
While it was the construction of a floating boathouse that led to the regulation changes Moffatt noted the regulations don’t speak to the structures themselves. While floating boathouses are permitted in some municipalities such as the neighbouring District of Muskoka they are not permitted in Haliburton County.
“We were certainly watching the court case with interest however without any integration with municipal regulations it appears that the ministry could easily approve another structure without needing to have regard whether it’s permitted like in Muskoka or not permitted like in Haliburton” she wrote. “It’s difficult enough for a municipality to manage monitor and enforce its own bylaws and having a superior jurisdiction enter the ring will make that job even more challenging especially where legal action or forced removal may become an issue. Zoning bylaws may differ slightly among our four lower tiers in Haliburton County but they are current and reflective of our communities’ desires. This overarching process appears ill-informed and not considerate our of existing governance structure under the Planning Act.”
Haliburton County council discussed the issue at an April 27 council meeting and the chief building officials of the four lower-tier municipalities will be meeting regarding the regulations. Moffatt has said she plans to take the issue to the Eastern Ontario Wardens’ Caucus.