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Wainfleet Wind Energy Inc. v. Township Of Wainfleet: Case Comment  

Credit:  Article by Thomas J. Timmins and Gatlin Smeijers, Gowling Lafleur Henderson LLP | July 16 2013 | www.mondaq.com ~~

On April 10, 2012, the Township of Wainfleet (the
“Township”) enacted a municipal by-law pursuant to the
Municipal Act, 2001, that was intended to restrict the
construction of wind energy projects within its municipal limits.
The by-law expressly applied to all property located within the
Township, and was premised on three core provisions:

  • All industrial wind turbines within the Township were subject
    to a minimum setback distance of 2 km from any
    “property”;
  • Noise emitted from any industrial wind turbine within the
    Township was not to exceed 32 dB at the nearest
    “property”; and
  • The Developer of a wind energy project within the Township was
    to provide a 100 per cent indemnification for any loss of property
    value or adverse health effect caused by an industrial wind
    turbine. 

Wainfleet Wind Energy Inc. (“WWE”), a proponent of a
proposed wind energy project in the Township and the applicant in
Wainfleet Wind Energy Inc. v. Township of 
Wainfleet),
sought to challenge the validity of the by-law in
Superior Court, as WWE’s proposed project would have been
entirely prohibited by the by-law’s setback requirements. WWE
based its application on several grounds, including:

  • The by-law was void for vagueness and uncertainty;
  • The by-law was in conflict with provincial law; and
  • The by-law was outside of the Township’s municipal
    authority.

In concluding that the by-law was invalid and without effect,
Superior Court Justice Reid found that the definition of
“property” incorporated into the core provisions was
sufficiently unintelligible to render the by-law void on the basis
of vagueness and uncertainty. Specifically, the by-law incorporated
undefined terms such as “inhabitants of all species used for
private or business or public purposes” into the definition of
“property”. As the term “property” could not be
interpreted in any logical or reasoned way that would allow Courts
to apply the core provisions, the by-law could have no legal
effect.

While the Wainfleet decision might be seen as an
excellent example of how not to draft a municipal by-law
intended to control wind energy projects, the most interesting
aspects of the decision do not speak to this point. Given that the
Court found the by-law to be of no effect due to the drafting
deficiencies, its analysis of whether the by-law was in conflict
with provincial law was provided on a gratuitous basis (i.e., in
obiter). 

On this issue, the Court concluded that, while the by-law may
have created a “potential” for conflict with the
Green Energy and Green Economy Act, 2009(the Green
Energy Act
), it did not in and of itself create an actual
conflict which would render the by-law of no effect. However, the
Court did identify two scenarios where such a by-law would
frustrate the Green Energy Act‘s purpose of removing
barriers to and fostering the growth of renewable energy projects,
specifically:

  • Where a Renewable Energy Approval (REA) has been issued for a
    project authorizing wind turbine locations that contravene the
    municipal by-law; and
  • Where the effect of the municipal by-law was to entirely
    prevent the construction of wind energy projects anywhere within
    the municipality.

Based on the foregoing, the Wainfleet decision has some
inherent uncertainty. On one hand, municipalities have legal
authority to enact by-laws that establish setbacks and noise limits
applicable to wind energy projects, and such by-laws are not
necessarily in actual conflict with provincial law. On the other
hand, where a REA has been issued for a project that contravenes
such a by-law, the by-law is of no effect.

Therefore, from a practical perspective the question remains: do
Ontario municipalities have any actual ability to restrict
renewable energy projects?

The answer is yet to be seen given the vast array of
restrictions that could be placed on projects in the interests of
protecting human health and mitigating nuisance. What is clear,
however, is that municipalities seeking to control (stop) renewable
energy projects, will need to resort to more sophisticated controls
than setbacks and noise limits. How the Courts will view such
municipal restrictions in other contexts, and whether they will be
perceived as frustrating the purposes of the Green Energy
Act
, will need to be judged on a case-by-case basis.

Special thanks to Joshua Zhang and Megan Strachan for their
assistance.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Source:  Article by Thomas J. Timmins and Gatlin Smeijers, Gowling Lafleur Henderson LLP | July 16 2013 | www.mondaq.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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