Site alteration bylaw not retroactive in airpark case; council undertakes advocacy role

From City of Burlington press release: On May 24, 2017, the Ontario Court of Appeal released its decision in the most recent round of litigation involving the City of Burlington and the Burlington Airpark Inc. Unfortunately, the Court of Appeal allowed the Airpark’s appeal and overturned the lower court’s decision.

At issue was regulating fill at the airpark. The city asked the court to compel the Burlington Airpark Inc. to file an application for a site alteration permit for fill deposited between 2008 and 2013;  the court agreed, ordering the Airpark to file the required application by Aug. 31, 2017. Airpark appealed.

While the case was before the courts, the city updated our site alteration bylaw.

The decision of the Court of Appeal released May 24, 2017 was decided on the single issue of whether or not the lower court erred by giving the city’s new site alteration by-law retroactive effect, requiring the Airpark to apply for a permit for work done before the new by-law was enacted.

The Court found that the city’s new site alteration by-law was “prospective” in nature, requiring only that a person apply for a permit before work is undertaken and contained no transition provision for dealing with remediating work done without a permit under the repealed 2003 by-law. The construction of the by-law was neither retroactive in nature (intended to operate at a time prior to its enactment), nor was it retrospective (by-law operates forward from enactment but attaches new consequences for the future for events that took place before the by-law was enacted).

The Court of Appeal decision precludes the city from regulating the fill activities that took place on the Airpark site before the new bylaw was enacted in September 2014. However, this decision does not affect the first decision of the Ontario Court of Justice in November 2013 that was upheld by the Court of Appeal in June 2014 that determined that the Airpark is subject to the city’s site alteration by-law for fill activity taking place on the site in respect of any future fill works.

Other regulatory agencies have a continuing interest in the fill and related activities at the Airpark, including Conservation Halton (CH) and the Ministry of the Environment and Climate Change (MOECC).

The Airpark installed sewage works on its site without the required Environmental Compliance Approval (ECA). This issue remains outstanding. Conservation Halton regulates portions of the Airpark property, including the tributary to Bronte Creek that crosses Appleby Line and borders Bell School Line. CH has provided detailed input to the MOECC on the Airpark’s application (since withdrawn) for ECA. MOECC has taken the position that the Airpark must obtain the necessary approvals from the city (now limited by the Court of Appeal decision) and CH before it will proceed with the ECA application.

The Airpark has withdrawn its application. However, the issues remain outstanding and need to be addressed.

 

The city will undertake an advocacy role in urging the other regulators to act in accordance with their respective jurisdiction in addressing the issues present on the Airpark site. The city will also be exercising its regulatory authority in respect of any future works on the site.

Learn more on the city’s website here: Burlington Executive Airport.

My Take: While it is encouraging that the courts affirmed the city’s right to uphold our bylaws regarding fill, it is very disappointing the ruling doesn’t apply to fill deposited before our new bylaw took effect. We must do everything we can for our residents by ensuring any future work at the airpark complies with legislation from all interested agencies including the city, region, Conservation Halton and Ministry of the Environment and Climate Change.