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Renewable Energy

  1. Township of Muskoka Lakes v. Ontario (Natural Resources)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Heritage Conservation, Judicial Review, Renewable Energy, Shoreline Development


    Court:

    Court of Appeal


    Application/issue:

    The Township of Muskoka Lakes appeals the order of the Divisional Court dismissing its application for judicial review of the decision of the Minister of Natural Resources to prohibit access to certain Crown lands adjacent to Bala Falls under section 28(1) of the Public Lands Act, and for orders: (1) declaring that a portage protected by section 65(4) of the Public Lands Act passes over the site; (2) prohibiting the Minister or any other person from interfering with that portage; (3) setting aside the water frontage at the Site for recreational purposes and access purposes pursuant to section 3 of the Public Lands Act; and (4) prohibiting any interference with that frontage.


    Held:

    Appeal dismissed


    Reasons:

    The Court sees no basis for interfering with the Divisional Court’s decision, as they believe that the Divisional Court identified the appropriate standard of judicial review and applied it correctly. Given the safety concerns, the Minister’s decision was reasonable, even if a portage protected by section 65(4) existed, or section 3 applied to the site. The Minister’s decision fell within a range of possible, acceptable outcomes, which are defensible in respect of the facts and law. Further, subject to any aboriginal and treaty rights, the Minister has the right to make an order under section 28(1) that has the effect of prohibiting passage over portages and Transport Canada has also provisionally concluded that navigation would not be substantially impacted by the proposed waterpower generation facility. The Court of Appeal agrees with the Divisional Court that the Minister’s decision was reasonable without having to make findings on the existence of the alleged portage and the sufficiency of the frontage.


    Document(s):



  2. Township of Muskoka Lakes v. Ontario (Minister of Natural Resources)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Heritage Conservation, Judicial Review, Renewable Energy, Shoreline Development


    Court:

    Ontario Superior Court of Justice – Divisional Court


    Application/issue:

    The Township sought judicial review of the Minister of Natural Resource’s decision to issue a section 28 order prohibiting the use by the public of Crown land adjacent to the Bala Falls. The MNR was prepared to lease the lands to Swift River Energy Ltd. to develop the site for hydroelectric power. The Township sought the following declarations, orders and relief: (1) declaring that a portage protected by section 65(4) of the Public Lands Act passes over the site; (2) prohibiting the Minister or any other person from interfering with that portage; (3) setting aside the water frontage at the Site for recreational purposes and access purposes pursuant to section 3 of the Public Lands Act; and (4) prohibiting any interference with that frontage.


    Held:

    Application dismissed


    Reasons:

    The Township has failed to establish that the Ministry’s decision to issue a Notice under s. 28 was unreasonable such that it could invoke our right to interfere with it under the court’s judicial review authority. There can be no reasonable dispute that there are safety issues concerning these lands that include rapids, waterfalls and dams among other hazards. It may be that there were other alternatives to address those safety concerns but the fact that the Ministry chose between different options does not constitute their decision to adopt one option over another as unreasonable.


    Document(s):



  3. Township of Muskoka Lakes Heritage Designation

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Heritage Conservation, Recreational Development, Renewable Energy, Shoreline Development


    Court:

    Conservation Review Board


    Application/issue:

    Intention to designate three properties known as Township Dock at Lake Muskoka; Portage Landing at Moon River; and Shield Parking Lot, in the Town of Bala under the Ontario Heritage Act R.S.O. 1990, Chapter O.18, amended to 2009.


    Held:

    Properties designated


    Reasons:

    The Board found that under s. 29 of the Act, the Township had conducted a reasonable and fair process and the properties hold cultural heritage value and interest to the community. The Board finds that the Township met the requirement of s. 29(3) and s. 29(4); and finds that Swift River Energy’s argument is redundant. Since the Township is not in violation of the Act and the properties are identified as holding cultural heritage value, the Board finds that the Township can proceed with designating the three properties.


    Document(s):



  4. Solaris Energy Partners Inc. v. Township of East Hawkesbury

    Location:

    Eastern Ontario


    Subject:

    Agricultural, Renewable Energy, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal to an Interim Control By-law under Section 38 of the Planning Act, in which the applicant proposed a solar farm in the Township of East Hawkesbury. The solar farm consists of a substantial array of solar panels to generate electricity and relies on access to Ontario’s power grid. However, because it is on Prime Agricultural land, neighbours have raised concerns about that land-use and apprehensions about side effects. The applicant appealed the ICB pertaining to its proposed rezoning and site plan.


    Held:

    Appeal allowed


    Reasons:

    While rezoning and site plan approval remain to be addressed, for this hearing the Board draws its decision specifically on the ICB appeal. The Board finds that whatever constructive purposes Interim Control and the ICB may have had in the past, Interim Control By-Law No. 288-58 of the Township of Easy Hawkesbury has no further practical purpose.


    Document(s):



  5. Brookfield Power Wind Corp. v. Town of Kingsville

    Location:

    Southwestern Ontario


    Subject:

    Official Plan Amendments, Renewable Energy, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    Brookfield Power Wind Corp. has appealed to the Board under subsections 22(7) and 34(11) of the Planning Act, as amended, from Council’s refusal or neglect to enact a proposed amendment to the Official plan for the Town of Kingsville as well as a proposed amendment to Zoning By-law 59-1998 and Zoning By-law 1988-15 of the Town of Kingsville, to redesignate lands within the municipality, add definitions, regulation and setbacks to evaluate and permit application for Wind Energy Conservation Systems.


    Held:

    Appeal allowed


    Reasons:

    The Board recognized that the safeguards itemized as preconditions for the wind farm, the assessments and reports and the locational rules on frontage, area and setback, were are consistent with the principles of sound planning. The Board also agreed that the amendments to the Official Plans and the Zoning By-law advanced the stated objectives of the Provincial Policy Statement.


    Document(s):



  6. SkyPower Corp. v. Norfolk County

    Location:

    Southwestern Ontario


    Subject:

    Agricultural, Official Plan Amendments, Renewable Energy, Zoning By-law Amendments


    Court:

    Ontario Municipal Board


    Application/issue:

    SkyPower Corp. proposes to construct 150,000 solar panels on an 86 acre farm located at 336 Port Ryerse Road, Simcoe, Ontario in the County of Norfolk to produce 10 MWe of solar power. SkyPower has entered into an agreement of purchase and sale to purchase this farm from David Ryerse. SkyPower has received all other regulatory approvals required from federal and provincial governments and has entered into contracts to sell the solar power from this location. SkyPower requires Official Plan Amendments and a Zoning Amendment to construct the nearly 11 foot high angular solar panels here in this agricultural area. The proposal calls for three quarters of the land to remain in agriculture and be used for nursery and other horticultural purposes. Kelly Harris and Weselan Farms Limited, the owners of abutting properties, appealed these approvals. The main motion was to dismiss the Appeals of Harris and Weselan Farms.


    Held:

    Appeals dismissed


    Reasons:

    The Board finds, upon reading the Provincial Policy Statement that the relevant locational criteria relating to alternative and renewable energy systems are found within the Policy Statement. The Board does not find that the reasons for appeal could affect the outcome of an ultimate hearing of this matter, nor do they take an issue worthy of adjudication. In summary, the Board finds that the reasons for the Appeals set out by Mr. Harris fail to meet the statutory tests set out in the Planning Act and hereby dismisses the appeals.


    Document(s):