A homeowner (“Mortensen”) appealed the decision of the Interior Health Authority charging him with a violation of s. 42 of the Sanitary Regulations, B.C. Reg. 142/59 for drilling a water well in his front yard. The court dismissed the appeal, finding that the health inspector had no discretion under the regulations once it was determined the well was within 100 feet of a septic tank and field.

Administrative law – Environmental issues – Water wells location – Judicial review – Compliance with legislation – Discretion of delegated authority

Mortensen v. Interior Health Authority, [2004] B.C.J. No. 2283, British Columbia Supreme Court, November 3, 2004, Bauman J.

Mortensen lived on the shore of Okanagan Lake in a community called Fintry. Mortensen and others in the community did not trust the reliability of supply by the water utility. To assure water supply for at least irrigation and firefighting, Mortensen had a well drilled in his front yard. Mortensen admitted that the well was within 100 feet of his septic tank and field. A health inspector from the Interior Health Authority reviewed the site and charged Mortensen under s. 42 of the Sanitary Regulations. Mortensen appealed this decision, seeking to vary or rescind the order made.

42 of the Sanitary Regulations read, in part:

Every well hereafter sunk or dug shall be located at least 100 feet from any probable source of contamination, such as a privy vault, cesspool, manure heap, stable or pigsty, and at least 20 feet from any dwelling house …

Counsel for Mortensen argued that, in a case like that at bar, the inspector must, through appropriate scientific inquiry, first determine that Mortensen’s septic tank and field were a “probable source of contamination” before finding a breach of s. 42. The court rejected this argument, noting that a proper interpretation of the regulation effectively deemed a septic tank and field to be a probable source of contamination. The court stated that having a strict, objectionably discernible standard for the location of wells in relation to obvious sources of probable contamination served the scheme of the Regulation and allowed owners and health inspectors to know the rules with certainty. The court concluded that the health inspector had no discretion to exercise with respect to analysis of “probable contamination” once it was shown that the well in question was within 100 feet of the septic tank and field.

In the result, Mortensen’s appeal was dismissed.