|
Municipal - Landfill. Henhoeffer v. Georgian Bay (Township of) [for numbered case cites see the link]
In Henhoeffer v. Georgian Bay (Township of) (Div Court, 2023) the Divisional Court confirms a municipality's jurisdiction to order a 'repair order' regarding landfill:[18] Evidently this indicated “the potential to violate section 27 of the Public Lands Act”:[22]27 (1) Except with the written consent of the Minister or an officer authorized by the Minister, no person shall deposit or cause to be deposited any material, substance or thing,
(a) on public lands, whether or not the lands are covered with water or ice; or
(b) on water or ice covering public lands. ....
The Township’s jurisdiction to issue the Repair Order
[37] The Township was correct in its determination that it had the jurisdiction to issue the Repair Order and to uphold that order as part of the review undertaken by its Council. The Municipal Act authorizes that Township to pass by-laws to prohibit or regulate the placing or dumping of fill, the removal of topsoil, and the alteration of the grading of land.[35]
[38] Pursuant to their authority, the Township has passed Site Alteration By-law No. 2014-72 which regulates the placing or dumping of fill and site alteration within the Township’s geographical boundaries including Shoreline Areas as defined by the By-law. The property owned by Roberta Henhoeffer is located within the area covered by the By-law.[36]
[39] The By-law authorizes the Director of Development Services, Manager of Planning or the Senior Planner for the Township or his or her delegate to regulate the placing dumping of fill through the issuance of a Repair Order requiring a person to rehabilitate the land in such a manner as they consider appropriate.[37]
[40] The Township’s authority to issue the Repair Order does not overlap with the jurisdiction of the Ministry of Natural Resources and Forestry. The Ministry’s regulatory authority, in this matter, is geographically circumscribed as “shore lands” which is defined as “lands covered or seasonally inundated by the water of a lake, river, stream or pond”. Both the By-law and the Repair Order are limited to the lands within areas which are above the high-water mark and therefore outside of the geographic area of Ministry’s regulatory authority.[38]
[41] The courts have recognized and allowed for concurrent municipal and provincial jurisdiction in relation to Crown lands.[39]
|
