Get the latest
INFORMATION here
Can You Help?
Did you, or are you now
fighting to stop a pit in
your area?
LEGAL UPDATE,
APRIL 24, 2005
TO: VALLEY VOICES RESIDENTS ASSOCIATION
LEGAL OPINION – COUNTY OF WELLINGTON
On April 6, 2005 a letter was sent to the mayor and members of Alnwick/Haldimand Council under my signature on the subject matter of the relationship between the provisions of section 66 of the Aggregate Resources Act under which licenses are issued by the MNR and, section 34 of the Planning Act under which the municipal council zones land.
The purpose of the letter was to make council aware of a legal opinion obtained by the County of Wellington, for the Township of Puslinch where licensed quarries had contravened the zoning by-law which specifically prohibited aggregate extraction below the water table.
Section 66 of the Aggregate Resources Act provides:
66(1) This Act, the regulations and the provisions of licences and site plans apply despite any municipal by-law, official plan or development agreement and, to the extent that a municipal by-law, official plan or development agreement deals with the same subject-matter as this Act, the regulations or the provisions of a licence or site plan, the by-law, official plan or development agreement is inoperative. 1999, c. 12, Sched. N, s. 1(4).
The issue was whether the quarry license once issued by the MNR made the zoning by-law irrelevant.
A/H Council had been made aware of the situation in Puslinch by Valley Voices Residents Association. In February I facilitated a meeting between the Puslinch Councillor, Matthew Bulmer and the mayor and Councillor Holmes at the ROMA conference. The Puslinch Councillor explained to the mayor and Councillor Holmes the apparent inability to control a licensed aggregate producer under the zoning by-law.
The legal opinion prepared for the County of Wellington made it clear that although a municipality under the Planning Act has authority to prohibit aggregate extraction below the water table (it actually could be argued that unless it is specifically permitted it is prohibited) from a practical standpoint, the MNR controls the use once the license is issued. The municipality cannot put on a holding by-law or subject the lands to site plan control.
The purpose of my letter to A/H council was to advise that they must assume the “worst case scenario” when considering whether or not to rezone the land. Council’s only control over the use is to zone or not to permit the zone. A holding by-law or zoning conditions are not alternatives.
The worst case scenario is extraction below the water table. This is particularly important because the hydrology studies provided by Shelter Valley Aggregates is done on the basis of above the water table extraction. Water is a most critical issue. The province has recognized this in legislation as in the Provincial Policy Statement. A/H council would not be acting in the interest of its ratepayers unless it had reports which were peer reviewed showing the effect of extraction below the water table.
LAWRENCE V. BRUCE (COUNTY)
In my letter council was also advised about the decision of the Ontario Municipal Board in April 2004 (Lawrence v. Bruce (County)) which upheld the municipality’s refusal to pass a zoning by-law to permit aggregate extraction. The OMB made its decision on planning evidence. It looked at the entire Provincial Policy Statement not just the portions dealing with aggregate extraction. The Board found “that item 2.2.3.1 does not ‘trump’ other Provincial Policy Statement policy directions”.
Conclusion
The planning issues to be considered by A/H Council include but are not limited to the following: a nearby waste disposal site (proper closure?), severances apparently contrary to the Official Plan, the location of the haul route, potential impact on environmentally sensitive areas (haul route) etc. Until all issues are resolved to the satisfaction of A/H council zoning for Shelter Valley Aggregates should not occur. Shelter Valley Aggregates could appeal to the OMB at any time but in my opinion there are too many outstanding planning and environmental issues to make this a viable alternative.
M Virginia MacLean QC
