Conservation Authorities Cannot Make Exceptions to Regulations

Spencer Putnam
Posted August 23, 2021 Category: News & Updates

In a rare move, the Divisional Court revoked a development permit issued under the Conservation Authorities Act. The decision underscores that conservation authorities cannot make exceptions to their governing regulations, even if motivated by the public interest.

Good Intentions

The decision in Laforme v. The Corporation of the Town of Bruce Peninsula concerned a road along Sauble Beach. The Town wanted to build a retaining wall to protect roadside parking against sand that was swallowing parking spots and forcing users to walk on the road.

Sauble Beach is a “dynamic beach”. The Town needed permission from the local Conservation Authority to build near it.

The Authority’s regulation prohibited development that would “affect” a dynamic beach. The Authority’s internal policies interpreted this as “negatively affect.” Reviewing the proposed wall, the Authority determined that it would negatively affect the beach, but a permit should be issued anyway because the wall was important for public safety.

Permit Quashed

A resident applied to the Divisional Court to quash the permit, arguing it conflicted with the regulation.

The court agreed. There was no reasonable interpretation of the regulation that permitted ecologically harmful development in the interest of public safety. Nothing in the Authority’s own policies permitted this either.

The court cautioned that it was not second-guessing the Authority’s opinion on whether the proposal would create a negative impact. But having found that it would, the Authority was bound by its regulation to refuse the permit. The court summarized:

[49]        … O. Reg. 151/06 does not grant the Authority the power to make an exception because it forms the view that the project is desirable or in the public interest. The Authority is directed to form an opinion that the project would have no negative impact on the Beach, which it failed to do in this case.

Authority should have considered Provincial Policy Statement

The court also noted that as a “local board” under the Planning Act, the Authority was required to consider if the development was consistent with Ontario’s Provincial Policy Statement. The Authority had failed to do so, which was another reason to quash the permit.

The court ordered that the Authority reconsider the proposal in accordance with the court’s reasons. It also ordered the Authority to pay $75,000.00 of the resident’s legal costs because he was successful.

Takeaway

This decision is a reminder that despite their broad discretion, conservation authorities must abide by their governing law. Their decisions must be reasonable within the limits of these laws or risk being subject to costly judicial intervention.

If you have any questions about the Conservation Authorities Act, our team would be pleased to assist you.

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Spencer Putnam
Posted August 23, 2021 Category: News & Updates

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