West Grey has been ordered by the Divisional Court to stop trying to delay the East Durham Wind energy project.
Two bylaws which were standing in the way of the development are “inoperative to the extent that they frustrate the purposes of East Durham Wind’s REA (Renewal Energy Approval),” Justice Edward J. Then said in a written decision.
The court also ordered West Grey to pay East Durham Wind $15,000 in court costs.
Earlier this year, East Durham Wind Inc., which is owned by NextEra Energy Canada, applied for a judicial review of the bylaws.
The case was heard on June 14 before three judges of the Ontario Superior Court’s Divisional Court in Toronto. The court delivered its ruling Aug. 14.
The court ordered West Grey to reconsider applications by East Durham Wind for entrance permits and permits for oversize/overweight vehicles that the municipality rejected on Jan. 23.
“The entrance permit bylaw cannot prohibit the access required to build the renewable energy projects on private land . . . Similarly the oversize/overweight haulage law cannot prohibit the hauls necessary to get construction materials to these private lands via public roads,” Then wrote.
The East Durham Wind project is to conisist of 14 turbine near Priceville.
Then’s decision noted the long history of the municipality’s opposition to wind energy projects in its jurisdiction.
On Oct. 12, 2012 West Grey council passed a resolution declaring itself to be a non-willing host of industrial turbines.
In March 2013 the municipality amended a bylaw requiring, among other fees, a $100,000 performance bond for each new wind turbine constructed in the municipality.
East Durham Wind brought an application for judicial review challenging the amendments in June 2013. A month later the municipality rescinded the bylaw.
In anticipation of receiving Ministry of Environment approval for its project, East Durham applied for entrance permits on Aug. 8 and Oct. 7, 2013.
Council took the position the applications were for industrial use and had to be approved by motion, rather than under the entrance permit policy.
Council had amended that policy on July 15, 2013, to make council responsible for approving entrance permits intended for “industrial” use.
On Nov. 21, 2013, council informed East Durham Wind it did not have to decide on the applications until the company received its REA approval.
East Durham Wind resubmitted the permit applications on Jan. 23, 2014, after receiving notice of approval from the MOE.
Council rejected the revised applications on Feb. 17 on technical grounds.
The same day West Grey council passed a new bylaw regulating entrance permits. It said the new bylaw remedied deficiencies in the old policy.
East Durham Wind submitted eight applications for oversized/overweight haulage permits on Jan. 31 of this year.
On March 3, council said it needed a security contract before the permit applications could be considered.
Shortly after that East Durham Wind applied for a judicial review of the two bylaws claiming it would suffer a financial penalty of $3,450 per day under its FIT contract with the Ontario Power Authority if the project was not operational by July 13, 2014.
East Durham Wind argued before the Divisional Court the West Grey bylaws are in conflict with the purpose of the REA, a legislative instrument issued by the province to further the goals of the Green Energy Act.
That act places restrictions on municipal authority under the Planning Act and the Municipal Act when applied to renewable energy projects.
“We find that the permitting bylaws frustrate the purpose of East Durham Wind’s REA and must be held inoperable, but only to the extent of their conflict with East Durham Wind’s REA,” wrote Then.
“Most of the hauls required for East Durham Wind to construct its project would be caught by this prohibition and it therefore frustrates the purposed of East Durham Wind’s REA,” Then said.
The court, however, rejected East Durham Wind’s claim that West Grey had acted in bad faith.
However, the court warned that failure by West Grey to reasonably consider applications by East Durham for entrance permits or oversize/overweight haulage permits could be grounds for a finding of acting in bad faith.
Any alteration of the bylaws that amount to an attempt to circumvent the court ruling would also constitute bad faith.
West Grey mayor Kevin Eccles said the municipality’s lawyers are still mulling over the ruling and he will have more to say at the council meeting today (Wednesday).
But his understanding is “we must enter into negotiations with NextEra and come up with some type of road use agreement.”
Eccles said he couldn’t guarantee how long it would take to conclude such an agreement, noting it took eight months for NextEra to come to a similar agreement with Grey County.
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