view of a close neighbour's home from the proposed pit site
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Our Lawyer's Interpretation
of Legal Opinion regarding County of Wellington
(Would you like to read the original document? Please contact us)
Summary of Legal Opinion from Mccarthy Tetrault to County of Wellington – Township of Puslinch Aggregate Issues
The legal opinion presented in an open meeting of Wellington County Council addressed the relationship between the Planning Act and the Aggregate Resources Act as it related to a site specific zoning by-law to permit aggregate extraction by Puslinch Quality Aggregates (PQA). The by-law provided that “the extraction of aggregate resources shall not occur below any point which is 1.0 metre above the high water table”. The PQA excavated below the water table contrary to the by-law and the legal questions were whether the by-law was legally enforceable and if it was how could it be enforced and in considering the matter what was the effect of s. 66 of the Aggregate Resources Act. In the opinion it was concluded that under s. 34 of the Planning Act the municipality could zone the use of the lands vertically but, the municipality cannot control in its zoning by-law the regulatory aspects of the use i.e. set backs, berming, pit face etc. The opinion states that because of s. 66 of the Aggregate Resources Act the regulatory provisions are matters that are set out in the license and site plans approved under the Aggregate Resources Act and the Planning Act provisions are overridden. It was also the opinion that the Township of Puslinch could prosecute for contravention of the site specific zoning by-law under the Planning Act.
The opinion addresses the operation of the site contrary to the MNR approval and concludes that if the license owner wished to amend its license under the Aggregate Resources Act there is no opportunity for the municipality to oppose that request by the aggregate producer. “On an application for an amendment, the Aggregate Resources Act (the “Act”) only provides that the persons or bodies who receive notice can submit their comments without any requirement the Minister have regard for the comments”. It also states that “If the Minister approves of a site plan amendment and, the municipality objects because of a contravention of its zoning by-law, but the matter is not sent to a hearing before the Board, the municipality can make an application for judicial review of the Minister’s decision”. Although there is a remedy it is neither certain nor cheap. The opinion addressed whether or not a municipality can have policies in its Official Plan prohibiting extraction below a specific depth as was the case in Caledon’s new Official Plan Amendment 161. The opinion indicates “The adoption of such policies is unlikely to go unchallenged by the MNR. Stewart Thatcher, Senior Policy Advisor Aggregates, has advised us that the aggregates policy section of the MNR did not comment on or approve of the Caledon OPA. He advised that the OPA was processed by a different branch of the MNR and “slipped by” the aggregates policy section. The aggregates policy section currently opposes the Caledon OPA and would oppose any attempt by any other municipality to adopt a similar policy.”
The opinion continues to discuss the role of the municipality if the MNR is right in considering zoning the permits extraction in a defined area as authorizing extraction above and below the water table. If that is the case, the opinion states that “The township would be justified in requiring the evaluation of below water table impacts, because of the real nature of the zoning change requested”. “If the township cannot control the depth of aggregate extraction, then every zone that permits extraction permits it to be unrestricted depth.” In support of this conclusion is the municipality’s and OMB’s duty under the Planning Act to consider environmental issues and both the municipality and the OMB have clear jurisdiction to consider the issues related to aggregate excavation even if they are considered on the aggregate license application.
view of a close neighbour's home from the proposed pit site
