Superior Court defers to conservation authority’s decision on wall built contrary to permit

The Ontario Superior Court of Justice has refused to interfere with the Long Point Region Conservation Authority’s (LPRCA) decision declining to take enforcement action for the construction of a retaining wall contrary to a permit it issued. 

In Husack v Long Point Conservation, 2026 ONSC 60, two non-parties to the present proceeding owned a property at Ordnance Avenue in Norfolk County, bordered by the applicant’s property. 

Both properties fell within the jurisdiction of the LPRCA – constituted under Ontario’s Conservation Authorities Act, 1990 (CAA) – due to their proximity to Lake Erie and location within a provincial flood hazard zone. 

The LPRCA, the respondent in this case, issued a permit for the non-parties to develop their property. The applicant took issue with the non-parties’ construction of a wall, contrary to the permit and the originally submitted grading plan. 

The applicant applied for an order compelling the LPRCA to direct the non-parties to comply with the permit. The LPRCA opposed the application for a lack of legal basis. 

Decision found reasonable

The Ontario Superior Court of Justice dismissed the application upon finding the LPRCA’s decision not to take enforcement steps reasonable and entitled to deference. 

First, the court acknowledged that a conservation authority had the discretion over whether to pursue charges under the CAA, which lacked a mandatory provision compelling an authority to charge those engaging in activities constituting a CAA offence. 

After reviewing the relevant legislation and jurisprudence, the court determined that the LPRCA had the authority to enforce compliance with permits it issued by making orders and taking enforcement measures. 

In this case, the court accepted that the non-parties failed to meet the permit’s conditions, which was an offence under s. 30.5(1)(c) of the CAA, when it constructed a retaining wall not included in the original grading plan. 

However, the court noted that: 

• While the LPRCA would have had the authority to issue a stop-work order if it had learned of a breach before or during construction at the non-parties’ property, the completion of the construction rendered that power moot 
• Although the LPRCA had the authority to charge the non-parties with the offence of failing to comply with the permit’s conditions, it did not exercise its discretion to lay a CAA charge 

The court saw no support for the assertion that a conservation authority should take steps to enforce compliance with a permit in certain circumstances. 

Next, the court addressed the issue of whether the applicant – as an interested third party, not someone directly impacted by or involved in the decision-making for the permit’s issuance or enforcement – had standing to apply for a review of the LPRCA decision.

The court noted that the applicant, as someone who did not apply for a permit: 

• could not access the CAA’s mechanism, available to a person seeking a permit from a conservation authority, to pursue a review of the authority’s decision regarding the issuance of a permit 
• would likely not have standing to seek a CAA review in connection with the permit governing the non-parties’ property 

Ultimately, the court left the question of whether it could grant the applicant’s requested remedy for a future matter in which the court considered the LPRCA’s decision unreasonable.