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Municipalities may not exercise their powers to frustrate projects granted Renewable Energy Approvals
Credit: Aird & Berlis LLP - Zoë Thoms | August 31 2015 | www.lexology.com ~~
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In a recent decision by the Ontario Superior Court of Justice, the court found that the City of Kawartha Lakes had acted outside its jurisdiction and in bad faith when it passed a resolution denying use of a roadway by a wind turbine developer.
Wpd Sumac Ridge Wind Inc. (wpd) obtained a Renewable Energy Approval (REA) for the construction of five industrial wind turbines and associated infrastructure in the City. The roadway was the “spine” of the project. Wpd brought an application for judicial review the City’s resolution arguing that the City’s conduct of the previous few years, culminating in and evidenced by the resolution, left no doubt of the City’s opposition to and intention to prevent the construction of the project. Wpd claimed that the City had deliberately frustrated the REA and acted in bad faith in denying wpd the use of a roadway.
The City had participated throughout the REA process, vocalizing its position against the project. Despite the City’s knowledge regarding the project’s reliance on the road, the City did not raise issue with its use until after the Province approved the project.
The court determined that the City’s refusal was not a “legitimate exercise of municipal jurisdiction over roadways”, and amounted to a collateral attack on the project. Effectively, the City’s refusal was intended to “accomplish indirectly that which the City had been unable to achieve directly through the [project approval] process”. As a result, the court quashed the City’s decision, and ordered the City to reconsider, in good faith, wpd’s application to use the road, as well as any future applications for municipal permits that may arise relating to the project.
Municipalities have a right to voice the concerns of their residents with regards to wind turbine projects, but they may not frustrate approved projects when exercising their powers.
*With assistance from Michael McDonald, an articling student at Aird & Berlis LLP
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