Lindsay Rauccio, Jennifer Fairfax, Daniel Kirby, Jack Coop
June 12, 2013
In Wainfleet Wind Energy Inc. v. Township of Wainfleet,1 the Ontario Superior Court of Justice struck down the Township of Wainfleet’s municipal by-law requiring industrial wind turbines to have a minimum two-kilometre setback from “property.” Wainfleet Wind Energy, the proponent of a five-turbine renewable power facility, which has yet to receive a renewable energy approval (REA), challenged the Township’s by-law. The Court struck down the by-law for vagueness and uncertainty, and also found that the by-law would, once an REA is granted, conflict with the Ontario Green Energy and Green Economy Act, 2009 (GEA).2
Wainfleet Wind Energy completed an application to the Ontario Ministry of the Environment (MOE) for an REA of its industrial wind turbine (IWT) wind farm project. It has yet to receive its REA. Meanwhile, the Township of Wainfleet passed a by-law under the Municipal Act, 20013 requiring (i) IWTs to be constructed at least two kilometres “from any property measured from the tip of the rotor blade in horizontal position” and (ii) any noise emitted by an IWT not to exceed 32 decibels (dB) at the nearest property.4 The by-law, if valid and enforceable, would have blocked Wainfleet Wind Energy’s IWT project.
In contrast to the municipal by-law, Ontario Regulation 359/09, which was passed under the Environmental Protection Act, requires IWTs to be constructed at least 550 metres from noise receptors and to produce a maximum of 40 dBA (i.e., the relative decibels of sound in air as perceived by the human ear) at the nearest noise receptor.
Under the Municipal Act, municipalities have the jurisdiction to pass by-laws concerning the health, safety and well-being of persons.5 Municipalities may also pass environmental by-laws to control nuisances.6 However, these by-laws are only valid and enforceable to the extent that they do not conflict with provincial legislation.7
The Definition of “Property” in the By-law Was “Unintelligible”
The Court found the by-law invalid for vagueness and uncertainty. The Court noted that, for the setback distance in the by-law to have any meaning, the two points from which the setback is measured must be clear. Although the measuring point of the IWT was clear, the second measuring point of “property” was not. The by-law defined property as “property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes.”8 This definition raised numerous questions of interpretation. As a result, the Court held that the definition could not provide a basis for legal debate and reasoned analysis: “The definition is unintelligible. No developer could reasonably measure its risk in building an IWT on any particular site.”
The By-law Potentially Conflicts with the GEA
The test for a conflict between provisions generally involves an analysis of
- whether a person can simultaneously comply with both provisions; and
- whether the impugned provision frustrates the provincial government’s purpose in enacting the act or regulation.9
In this case, the by-law’s conditions were significantly more restrictive than the provincial standards.10 Without explicitly considering whether it would be possible to comply with both the municipal and provincial conditions, the Court found that, until the Director of the MOE approves an application under the REA process, there is only a potential for conflict. However, the Court held that there would be a direct conflict if the Director (who can add terms and conditions to an REA that are more stringent than the provincial standards) approved a project that contravened the municipal by-law. The Court noted that in such a case the municipal by-law would be of no effect under section 14(1) of the Municipal Act, since the by-law would conflict with an approval issued under a provincial act.
Regarding the second prong of the conflict test, the Court commented that it would have no difficulty finding that the by-law frustrated the purpose of the GEA if the evidence had established that the effect of the by-law was to prevent the construction of IWTs anywhere within the Township of Wainfleet.
However, the Court declined to find that the by-law falls outside the Township’s municipal authority since the Municipal Act clearly permits municipalities to control nuisances, noise and health and safety matters. Unlike the Planning Act, the GEA did not amend the Municipal Act to prevent municipal by-laws from applying to renewable energy undertakings, subject to the conflict provisions contained in the Municipal Act.
This decision has two important implications. First, it indicates that a conflict will exist for the purposes of section 14(1) of the Municipal Act whenever the Director authorizes a permit under provincial legislation that imposes conditions addressing the same issue addressed in a municipal by-law but the permitted condition is less stringent than the requirement in the by-law. In such circumstances, the by-law would be trumped by the provincial legislation.
Second, although the Court ruled against the Township, the decision highlights the continuing role of municipalities in renewable energy projects. Generally speaking, municipal by-laws do not apply if they would prevent or restrict a designated class of renewable energy projects under the GEA. However, wind energy is not one of the classes of renewable energy projects designated under the legislation. As a result, except for the prohibition against by-laws and other municipal controls over renewable energy projects under the Planning Act, there is no legislated prohibition to the continued application of other municipal by-laws to wind farms. Therefore, if the province wishes to pre-empt municipalities’ ability to pass by-laws under legislation other than the Planning Act with respect to wind farm projects, an amendment to the legislation will be required.
The authors would like to thank Rebecca Hall-McGuire, summer student-at-law, for her contributions to this article.
1 2013 ONSC 2194 (Sup. Ct. J.) [Wainfleet].
2 S.O. 2009, c. 12, Sched. A. The GEA incorporates amendments to the Ontario Environmental Protection Act, as well as the Planning Act.
3 S.O. 2001, c. 25 [Municipal Act].
4 The by-law also required that developers provide 100% indemnification for any loss of property value or adverse health effect directly or indirectly caused by an IWT. At the hearing, this indemnification provision was acknowledged to be an invalid exercise of a municipal power.
5 Supra note 4 at s. 10(2).
6 Ibid. at ss. 128-29.
7 Ibid. at s. 14.
8 Wainfleet, supra note 2 at para. 37.
9 Rothmans, Benson & Hedges Inc. v. Saskatchewan,  1 S.C.R. 188 at para. 15.
10 The Court noted the difficulty in comparing the two standards, given the differing measuring points and sound measurement scales (i.e., dB in the municipal by-law and dBA in the provincial standards).
Authored by Daniel Kirby, Jack Coop, Jennifer Fairfax, Lindsay Rauccio