The ruling has come down on the Wainfleet Setback By-law Case. The Judge has ruled the By-law to be Invalid and without Force and Effect. The reasoning for the Decision hangs primarily on the “Vaguenness” of the definition of “Property” as found in the By-law. Nevertheless, the ruling sets a precedent for other Councils.Read theSetback By-law where there is a link to Decision.Invalid does not mean, illegal. The argument that the by-law was illegal, would be illegal, and so on, is the one put forth to various Councils by Wind company lawyers. They were and are wrong. As the Decision states, the Wainfleet Council acted within its legal rights in passing the By-law; but because of vagueness, the by-law is unclear and therefore is invalid (defective). This means that any Council ready to enact a setback by-law should do so with a clear definition of, Property.
Finally, the court also found the Council did not act in bad faith (Councillors, therefore, cannot be sued for damages), and it would not consider the Charter argument because there was no need to, given the decision.
Please donate to Wainfleet Legal Fund – the Township needs your tangible support!
(I hope I smell an Appeal coming …)
ACTION: Amend By-law definitions. No appeal. By-law will apply to new proposed Turbine projects.
[being an argument against the, “it’s illegal”, lie spread by wind proponents with respect to the Wainfleet Setback By-law: the Lie consists of an attempt to dupe elected officials and citizens into thinking a lawyers’ opinion has the force of law –my argument here is not a legal opinion but a personal opinion on legislation pertaining to Green energy in Ontario, and Wainfleet in particular]
Wind company lawyers appear before town councils and slap down all attempts to control the placement (siting), erection, operation and maintenance of Industrial Wind Turbines (industrial because they change land use de facto from agricultural or rural to industrial) in order to protect their tax-subsidized investments in Wind Power. To do so, they rely on the, Green Energy Act, 2009; S.O 2009, Chapter 12, Schedule A. And more specifically, they rely on section 5 of the GEA.
5. (1) The Lieutenant Governor in Council may, by regulation, designate renewable energy projects, renewable energy sources or renewable energy testing projects for the following purposes:
1. To assist in the removal of barriers to and to promote opportunities for the use of renewable energy sources.
2. To promote access to transmission systems and distribution systems for proponents of renewable energy projects. 2009, c. 12, Sched. A, s. 5 (1).
Effect of designation
(2) A person is permitted to engage in activities with respect to a designated renewable energy project, a designated renewable energy source or a designated renewable energy testing project in such circumstances as may be prescribed, despite any restriction imposed at law that would otherwise prevent or restrict the activity, including a restriction established by a municipal by-law, a condominium by-law, an encumbrance on real property or an agreement. 2009, c. 12, Sched. A, s. 5 (2).
(3) A restriction imposed at law that would otherwise prevent or restrict an activity with respect to a designated renewable energy project, a designated renewable energy source or a designated renewable energy testing project is inoperative to the extent that it would otherwise prevent or restrict the activity. 2009, c. 12, Sched. A, s. 5 (3).
(4) Subsections (2) and (3) do not apply,
(a) with respect to a restriction imposed by an Act or regulation; or
(b) with respect to prescribed by-laws, instruments or other restrictions or prescribed classes of by-laws, instruments or other restrictions. 2009, c. 12, Sched. A, s. 5 (4).
Wind company lawyers rely on s.5(2) for the basis of their opinion, “it’s illegal”, especially the words, “…despite any restriction imposed at law that would otherwise prevent or restrict the activity, including a restriction established by a municipal by-law…”. Section 5(3) does the same but specifies any such restriction is inoperative only to the extend it offends s.5(2). Section 5(4) identifies the exceptions to the GEA as are prescribed by regulation to the GEA, in O.Regulation 15/10, Designations Re Section 5 of the Act which lists numerous Acts that are not affected by s.5; however, this Reg. applies only to Solar projects and projects that involve the use of ground source energy (heat pumps). One could stretch an argument to say that Turbines should have been included, given the specific nature of the Acts enumerated by the Reg.:
1. The Apprenticeship and Certification Act, 1998.
2. The Building Code Act, 1992.
3. The Clean Water Act, 2006.
4. The Conservation Authorities Act.
5. The Crown Forest Sustainability Act, 1994.
6. The Electricity Act, 1998.
7. The Endangered Species Act, 2007.
8. The Environmental Assessment Act.
9. The Environmental Protection Act.
10. The Fire Protection and Prevention Act, 1997.
11. The Fish and Wildlife Conservation Act, 1997.
12. The Forest Fires Prevention Act.
13. The Niagara Escarpment Planning and Development Act.
14. The Occupational Health and Safety Act.
15. The Oil, Gas and Salt Resources Act.
16. The Ontario Energy Board Act, 1998.
17. The Ontario Heritage Act.
18. The Ontario Water Resources Act.
19. The Pesticides Act.
20. The Provincial Parks and Conservation Reserves Act, 2006.
21. The Public Lands Act.
22. The Safe Drinking Water Act, 2002.
23. The Technical Standards and Safety Act, 2000.
24. The Trades Qualification and Apprenticeship Act. O. Reg. 15/10, s. 4.
How could the first 10 Acts in the list not be relevant to the construction, operation and maintenance of IWTs?
What empowers a Municipal Council to enact by-laws or regulations to deal with alternative energy projects within their boundaries? And how can such by-laws and regulations offend the GEA? The answer to this second question is obvious: to the extend that the by-laws and regulations oppose the purpose of the GEA, that being alternate means of power generation. So, if your by-law/regulation contains a prohibition that there shall be no Turbines/Solar panels in township x, y or z, then it offends the GEA and a court would mostly probably declare it unenforceable (ultra vires).
The answer to the first question is, The Municipal Act, 2001, SO 2001, c 25, in particular ss.8 & 9 and s.11.
Scope of powers
8. (1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality’s ability to respond to municipal issues. 2006, c. 32, Sched. A, s. 8.
(2) In the event of ambiguity in whether or not a municipality has the authority under this or any other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include, rather than exclude, powers the municipality had on the day before this Act came into force. 2006, c. 32, Sched. A, s. 8.
Scope of by-law making power
(3) Without limiting the generality of subsections (1) and (2), a by-law under sections 10 and 11 respecting a matter may,
(a) regulate or prohibit respecting the matter;
(b) require persons to do things respecting the matter;
(c) provide for a system of licences respecting the matter. 2006, c. 32, Sched. A, s. 8.
Scope of by-laws generally
(4) Without limiting the generality of subsections (1), (2) and (3) and except as otherwise provided, a by-law under this Act may be general or specific in its application and may differentiate in any way and on any basis a municipality considers appropriate. 2006, c. 32, Sched. A, s. 8.
(5) Subsection (4) does not apply with respect to a by-law made under Parts VII, VIII, IX, X, XI and XIII. 2006, c. 32, Sched. A, s. 8.
Powers of a natural person
9. A municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act. 2006, c 32, Sched. A, s. 8.
Broad authority, lower-tier and upper-tier municipalities
11. (1) A lower-tier municipality and an upper-tier municipality may provide any service or thing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4). 2006, c. 32, Sched. A, s. 8.
(2) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting the following matters:
1. Governance structure of the municipality and its local boards.
2. Accountability and transparency of the municipality and its operations and of its local boards and their operations.
3. Financial management of the municipality and its local boards.
4. Public assets of the municipality acquired for the purpose of exercising its authority under this or any other Act.
5. Economic, social and environmental well-being of the municipality.
6. Health, safety and well-being of persons.
7. Services and things that the municipality is authorized to provide under subsection (1).
8. Protection of persons and property, including consumer protection. 2006, c. 32, Sched. A, s. 8.
[sec.10 deasl with Single-tier municipalities, Wainfleet is a two tier municipality]
By-laws re: matters within spheres of jurisdiction
(3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction:
1. Highways, including parking and traffic on highways.
2. Transportation systems, other than highways.
3. Waste management.
4. Public utilities.
5. Culture, parks, recreation and heritage.
6. Drainage and flood control, except storm sewers.
7. Structures, including fences and signs.
8. Parking, except on highways.
10. Economic development services.
11. Business licensing. 2006, c. 32, Sched. A, s. 8.
Section 11 contains 8 more subsections and a section 11.1.