The Rural Voice, 2003-07, Page 48Agrilaw
Competing land use - environmental standards
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
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.0
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,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance.
The opinions expressed are not
intended as legal advice. Before
acting on any information contained
in this column, readers should obtain
legal advice with respect to their own
particular circumstances and
geographical area.
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