Condo installs private well it cannot use

stencil-default-13I don’t often write about municipal law decisions involving condominiums, but a recent decision of the Ontario Municipal Board (OMB) should remind condominiums that they need to rely on their professionals. A condominium had a private well drilled on the property to use for landscaping purposes. The condominium applied for a minor variance to the zoning by-law that prohibited private wells where municipal water was available (with a few exceptions). The application was denied so the condominium appealed to the OMB. Both the City and the Region opposed the condominium.  

One of the condominium’s directors acted as the condominium’s representative and witness at the hearing. The City and Region presented expert evidence on the risks and consequences of digging private wells in urban areas, like the condominium.

The OMB reviewed the evidence in light of the legal questions or tests that apply to minor variance applications:

  1. Was the requested variance minor?  The condominium did not provide any expert evidence on the adverse impacts of the private well. Both the City and Region presented expert evidence to suggest that there were adverse impacts. The Board found the expert evidence credible.
  2. Did the proposed variance maintain the general intent and purpose of the Region’s and City’s Official Plans (OPs)? The Board found that private wells were prohibited in urban areas, like the condominium. The aim of the OPs is to protect public health; control water quality and quantity; and mitigate risks.
  3. Did the proposed variance maintain the general intent and purpose of the zoning by-law? Again, the Board found that the evidence of the Region and City was uncontroverted – the private well did not meet any of the exceptions to the prohibition on private wells in the by-law.
  4. Was the proposed variance desirable for the appropriate development of the land? The condominium’s reasons for wanting the private well were to reduce its costs for water consumption and not waste public resources. The Board determined that these reasons were not sufficient when weighed against the greater public interest in protecting the water supply.

A minor variance application under the Planning Act will fail when any one of the above tests is not met. In this case, the Board found that none of the tests had been satisfied and the minor variance was not authorized.

I wrote about this case today for two reasons: 1) I’m occasionally asked about minor variance applications so I thought I’d take the opportunity to set out the basic test for those interested in it; and, 2) as a reminder that condominiums should discuss changes to the property with their lawyer and other professionals before implementing them. Even a quick call to the City or Region to inquire about the installation of a private well on the property should have prevented this issue.