AgriLaw July 2003

AgriLaw
by Paul Vogel

July 2003

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP. Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law. Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice. Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330. If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

Competing Land Use - Environmental Standards

With increasing urban expansion into rural areas and the resulting competition for land use, issues often arise with respect to the appropriate consideration to be given to environmentally sensitive areas. From a municipal perspective, what consideration should be given to environmental impacts when considering competing land uses?

The Supreme Court of Ontario recently considered this issue upon an application by landowners for an injunction restraining development of a snowmobile trail along unopened municipal road allowances. While the municipality had passed a resolution permitting development of the snowmobile trail, the applicant landowners asserted that the municipality had not properly considered potential impacts on environmentally sensitive areas along the road allowance. The municipality’s official plan identified at least five such "Environmental Protection Areas" adjacent to the proposed snowmobile trail. No environmental assessment of potential impacts on these areas had been conducted.

In granting the landowners request for an injunction, the Court reviewed the municipality’s official plan and determined that the "environmental protection" designation applied to lands which could sustain severe property damage arising from adjacent land use. The Court stated:

"The Applicants allege that (the municipality) acted contrary to its own Official Plan… by not considering what impact, if any, the snowmobile trail would have on environmentally sensitive areas along the road allowance…There are at least five areas along the road allowance which bear the letters E.P. which means "environmental protection". This designation applies to lands which possess physical characteristics which could cause severe property damage. Outdoor recreational activities (i.e. snowmobiling) can be developed however it must be done so without adverse environmental impacts."

The Court held that the municipality had failed to prescribe appropriate environmental standards to protect the sensitive areas identified in the official plan and concluded:

"I am satisfied if an interim injunction were not granted, there is a real potential that irreparable harm would be done. This proposed trail is not a small undertaking. Construction will require alteration of the landscape and vegetation. Creeks or rivers will be crossed and bridges will be installed. If what is proposed causes damage, it would in my view be irreparable."

Municipalities confronted with competing land uses must ensure the development and application of appropriate standards to protect identified environmentally sensitive areas. Failure to do so may result in the restriction or prevention of proposed development.