The Rural Voice, 2003-06, Page 57Agrilaw
Water taking - provincial or municipal responsibilitg?
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
The Planning Act grants to
municipalities authority to determine
appropriate land use through their
official plans and zoning by-laws.
The Ontario Water Resources Act
requires the issue of a provincial
permit for commercial water taking
from underground aquifers. Where
the province has issued a permit to
take water, must the municipality
nevertheless determine whether
commercial water taking is an
appropriate land use?
The Ontario Division Court has
recently considered an appeal from a
decision of the Ontario Municipal
Board which had determined that
issue of a provincial water taking
permit precluded further
consideration by the municipality (or
the Ontario Municipal Board) of the
suitability of the site in question for
the taking of water. The Ontario
Municipal Board held that upon issue
of the provincial permit taking of
water at the site was legally permitted
provided that the water taking was in
accordance with the permit.
The Divisional Court disagreed. In
setting aside the decision of the
Ontario Municipal Board, the Court
stated:
"In approaching the matter in the
way that it did, the Board was
clearly in error...The important
issue in the present appeal is not
whether the Board approached the
question in the right way but
whether it answered the question
correctly. It is the opinion of this
court that the Board did not, and
that the taking of water as
proposed by the present
respondents was a use of land
within the meaning of the
Planning Act and properly the
subject matter of the appeal
hearing the Board was to hold."
The Court concluded that, despite
the issue of the provincial permit, the
municipality (and the Ontario
Municipal board) were required to
consider whether the commercial
water taking was an appropriate land
use and could not limit their
consideration simply to storage and
loading of water on the site. The
Court stated:
"The operation that was before the
Board, and which was previously
before the municipalities, was the
taking, storage and loading of
water on a particular piece of land.
The entire operation constituted a
single use (Aland and the question
before the Board was whether the
entire operation, including the
taking of water, should be
permitted use. In deciding that the
taking of water was not a use of
land and in confining the
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subsequent hearing to issues
relating to the storage and loading
of water. the Board was refusing
to consider an essential, if not the
most essential, aspect of the
appeal before it. In so doing, it
denied those opposed to the appeal
the right to adduce evidence and
argument relevant to the question
of whether the proposed operation
should be a permitted use under
the official plan and zoning by-
law."
Concerning the respective
authority of the province and the
municipality, the Court held:
"There is no necessary conflict
between the provisions of the
Ontario Resources Act and the
Planning Act. Both acts govern the
activities of the respondents but
each does so from a different
perspective and for different
purposes. It will be for the Board
on the whole of the evidence and
argument before it at the new
hearing to decide whether
amendments to the official plans
and by-law should be directed and,
if so, what those amendments
should be."
The issue of a provincial water
taking permit authorizes the water
taking. However, the issue of whether
a commercial water taking operation
should be located on a particular site
remains within the authority of the
municipality.0
Agrilaw is a syndicated column
produced by the full sen,ice 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.
JUNE 2003 53