Wainfleet Wind Energy Inc. v. The Corporation of the Township of Wainfleet

[Indexed as: Wainfleet Wind Energy Inc. v. Wainfleet (Township)]

Ontario Reports

Ontario Superior Court of Justice,

Reid J.

April 12, 2013

115 O.R. (3d) 64 | 2013 ONSC 2194

Case Summary

Municipal law — By-laws — Validity — Municipal by-law requiring industrial wind turbines to have minimum two-kilometre setback from "property" as defined in by-law — By-law defining "property" to mean "property line, vacant land, dwelling or structure and their inhabitants, of all species, used for private or business or public purposes" — By-law invalid on basis of vagueness and uncertainty.

The applicant was in the process of developing a five-turbine renewable power facility. The municipality in which the facility was to be located enacted a by-law requiring industrial wind turbines to have a minimum two-kilometre setback from "property" as defined in the by-law. The by-law defined "property" to mean "property line, vacant land, dwelling or structure and their inhabitants, of all species, used for private or business or public purposes". The applicant brought an application to quash the by-law.

Held, the application should be granted.

The by-law was invalid on the basis of vagueness and uncertainty. The definition of "property" was unintelligible. No developer could reasonably measure its risk in building an industrial wind turbine on any particular site. If the by-law was otherwise valid, and if the applicant was successful in securing approval for its wind power generating facility on terms that were in conflict with the by-law, the by-law would be without effect pursuant to s. 14(1) of the Municipal Act, 2001, R.S.O. 1990, c. P.13. If the by-law was otherwise valid, there would have been a conflict between the by-law and provincial legislation if evidence established that the effect of the by-law was to prohibit industrial wind turbine development anywhere within the municipality. In that event, the by-law would be without effect pursuant to s. 14(2) of the Municipal Act, 2001.

Cases referred to

Hanna v. Ontario (Attorney General) (2011), 105 O.R. (3d) 111, [2011] O.J. No. 944, 2011 ONSC 609, 280 O.A.C. 96, 57 C.E.L.R. (3d) 249 (Div. Ct.); Neighbourhoods of Windfields Limited Partnership v. Death, [2007] O.J. No. 5081, 48 M.P.L.R. (4th) 169 (S.C.J.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7

Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11

Electricity Act, 1998, S.O. 1998, c. 15, Sch. A, s. 2(1) [as am.]

Environmental Protection Act, R.S.O. 1990, c. E.19 [as am.], Part V.0.1 [as am.], s. 179

Green Energy Act, 2009, S.O. 2009, c. 12, Sch. A, Preamble, ss. 1(1), 5

Municipal Act, 2001, S.O. 2001, c. 25 [as am.], ss. 8(1), 11(2), 14(1), 14(2) [as am.], 128, (1), 129 [as am.]

Planning Act, R.S.O. 1990, c. P.13 [as am.], Part V [as am.] s. 62.0.2(6) [page65 ]

Rules and regulations referred to

O. Reg. 15/10 (Green Energy Act, 2009)

Renewable Energy Approvals under Part V.0.1 of the Act, O. Reg. 359/09, ss. 53 [as am.], 54 [as am.], 55 [as am.]

Authorities referred to

Ministry of the Environment, Noise Guidelines for Wind Farms (Toronto: Queen's Printer of Ontario, 2008)

APPLICATION to quash a by-law.

C. Williams, J. Johnson and S. Stoll, for applicant.

D. DeLorenzo and S. Draper, for respondent.

M. Horner, for intervenor Attorney General for Ontario.

[1] REID J.: — Wainfleet Wind Energy is in the process of developing a five-turbine renewable power facility in Wainfleet, Ontario. It seeks a declaration that a municipal by-law enacted by the township relating to wind turbine development should either be quashed or does not apply to its project.

[2] The township defends its by-law, and argues that if the by-law is unenforceable or ultra vires, certain provisions of O. Reg. 359/09¹ made under the Environmental Protection Act² ("EPA") and certain provisions of the Planning Act³ are contrary to s. 7 of the Canadian Charter of Rights and Freedoms⁴ and as a result are invalid.

[3] Because of the constitutional challenge, the Attorney General for Ontario has intervened, defending the constitutional validity of the legislation.

Conclusion

[4] For the reasons set out below, there will be a declaration that the by-law is invalid and without effect.

Background Facts

[5] Wainfleet Wind Energy has completed an application to the Ontario Ministry of the Environment for approval of its wind farm project. [page66 ]

[6] The province's regulations provide that industrial wind turbines ("IWTs") must be constructed at least 550 metres from identified noise receptors⁵ and that applicants for approval must provide detailed information concerning noise to be generated by the project.⁶

[7] The township passed a by-law pursuant to the Municipal Act, 2001 (the "Act")⁷ requiring IWTs to have a minimum two-kilometre setback from "property" as defined in the by-law. According to the evidence of the township's mayor, the by-law was enacted to protect health, safety and well-being, to protect persons and property, to deal with public nuisances, and to deal with noise and vibrations.

Issues

[8] This application raises the following issues:

-- Is the by-law void for vagueness and uncertainty?

-- Is the by-law in conflict with provincial law?

-- Is the by-law outside the township's municipal authority?

-- Is the by-law applicable to Wainfleet Wind Energy's project?

If the by-law is unenforceable or ultra vires because of inconsistency with provincial law or regulation, is the law or regulation in violation of s. 7 of the Charter?

The By-Law

[9] The township, through its council, is on record as opposing wind turbine projects pending further scientific research as to how such facilities might affect residents' health. In March 2011, a resolution was passed requesting that the province place a moratorium on any new IWT development.

[10] At its January 24, 2012 meeting, township council heard a presentation from the Wainfleet Ratepayers Association requesting that council enact a by-law creating a minimum setback for IWTs of two kilometres from residences and requiring 100 per cent restitution from IWT developers for any loss in property value arising from IWT construction. As a result, the [page67 ]Council directed its staff to work with the association to create a draft by-law implementing the requested restrictions.

[11] A draft by-law was produced. It received first and second readings on March 27 and third reading on April 10, 2012, following which it was enacted.

[12] The by-law applies to all property in the township and sets out three prohibitions related to IWTs of a certain size as follows:

For the Construction, erection or operation of any IWT inside the Municipality, there shall be a minimum Setback of a distance of 2 km from any property measured from the tip of the rotor blade in horizontal position;
In any case, noise emitted by the IWT shall not exceed 32 dB at the nearest property;
The Developer shall provide an indemnification of 100% for any loss of property value or adverse health effect directly or indirectly caused by an IWT.

[13] The by-law defines "property" to mean "property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes".

[14] The parties acknowledge that the by-law, if valid and enforceable, will block Wainfleet Wind Energy's project as presently constituted.

[15] Wainfleet Wind Energy submits that no IWTs could be located anywhere within the township under the by-law, but this is disputed by the township. The minimum area around an IWT within which no "property" could be located pursuant to the by-law appears to be a circular area of 13.2 km. The township is comprised of a total land area of approximately 217.4 km. No detailed analysis was conducted by either party to demonstrate whether the by-law would allow for an IWT project somewhere in the township. The only evidence on this point is the opinion of township planning staff in a report to council that, "[b]ased on a preliminary analysis, the effect of this by-law would be to eliminate the potential for wind turbines in Wainfleet."

[16] There is no allegation of bad faith on the part of township council. In fact, it appears that the by-law was produced and enacted as a direct result of participatory democracy by township ratepayers. It was motivated by concern about public health arising primarily from the noise generated by IWTs.

[17] At the hearing of this application, the indemnification provision of the by-law was acknowledged to be an invalid exercise of municipal power. The township proposed that it be severed from the balance of the by-law. [page68 ]

Provincial Green Energy Legislation

[18] In 2009, the province enacted the Green Energy Act, 2009⁸ ("GEA"), which amended several statutes, including the Planning Act⁹ and the EPA.

[19] In the Preamble to Schedule A of the GEA, its purposes are identified:

The Government of Ontario is committed to fostering the growth of renewable energy projects, which use cleaner sources of energy, and to removing barriers to and promoting opportunities for renewable energy projects and to promoting a green economy.

[20] A "renewable energy project" is defined in s. 1(1) of Sch. A as the construction, installation, use, operation, changing or retiring of a renewable energy generation facility. A "renewable energy generation facility" is defined (as in the Electricity Act, 1998)¹⁰ to mean a generation facility that generates electricity from a renewable energy source. A "renewable energy source" is defined to include an energy source that is renewed by natural processes and includes wind.

[21] Normally, zoning by-laws may be passed by the councils of local municipalities under the provisions of Part V of the Planning Act. Those powers include controls on the use of land and on the erection of structures. However, s. 62.0.2(6) specifically provides that a by-law passed under Part V does not apply to a renewable energy undertaking (which includes a renewable energy project and a renewable energy generation facility).

[22] The provincial requirements for approval of a renewable energy project are set out in Part V.0.1 of the EPA, as detailed in O. Reg. 359/09. That comprehensive process includes requirements for consultation with the public and local authorities and posting of applications on the Environmental Registry website. It provides for public input prior to a decision by the director. An appeal may be taken from the director's decision to the Environmental Review Tribunal, and a further appeal could be made to the Divisional Court or to the minister.

[23] Wind facilities are specifically included in O. Reg. 359/09. In s. 54, wind turbines of the nature proposed in Wainfleet Wind Energy's project application must be located at least 550 metres from the nearest noise receptor. A "noise receptor" is, in effect, a [page69 ]place which provides overnight accommodation or is an educational facility, day nursery or place of worship, or vacant land zoned for such a use.

[24] If there is a conflict between any provision of the EPA or its regulations and any other Act or regulation, s. 179 of the EPA sets out that its provisions or regulations prevail.

Municipal Act, 2001 Provisions

[25] Municipalities may exercise both broad and specific powers pursuant to the Municipal Act, 2001.

[26] In general, s. 8(1) of the Act requires municipal powers to be interpreted broadly "so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues".

[27] Subsection 11(2) states that a municipality is empowered to pass by-laws concerning its economic, social and environmental well-being and the health, safety and well-being of persons.

[28] Subsection 128(1) provides that a municipality may prohibit and regulate matters that in the opinion of council are or could become or cause public nuisances. As well, s. 129 entitles a municipality to prohibit or regulate noise and vibration.

[29] Subsection 14(1) states that "[a] by-law is without effect to the extent of any conflict with, a provincial . . . Act or a regulation made under such an Act; or an instrument of a legislative nature . . . made or issued under a provincial . . . Act or regulation".

[30] Further, s. 14(2) sets out that "there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in [subsection 14(1)], if the by-law frustrates the purpose of the Act, regulation or instrument".

Is the by-law void for vagueness and uncertainty?

[31] A by-law is invalid for vagueness and uncertainty if (a) it is not sufficiently intelligible to provide an adequate basis for legal debate and reasoned analysis; (b) it fails to sufficiently delineate any area of risk; and (c) it offers "no grasp" for courts to perform their interpretive function.¹¹ This standard is exacting, and the onus is on the applicant to establish that the by-law should be declared invalid. [page70 ]

[32] After a full contextual analysis, including a consideration of the by-law's purpose, the court's role is to determine whether the by-law must be declared invalid. For the reasons that follow, I am persuaded that this by-law must be declared invalid on the basis of vagueness and uncertainty.

[33] The purpose and context of this by-law is clear: to provide protection from the effect of noise emitted from IWTs.

[34] The purpose of the by-law derives from the township council's concern for the health, safety, quality of life and well-being of its citizens and their properties. This is clear from the by-law's preamble and the uncontested evidence of the mayor. These are legitimate matters for municipal control as listed in s. 11(2) of the Municipal Act, 2001. Related concerns about noise and nuisance are identified in the preamble to the by-law and are also listed in ss. 128 and 129 of the Act.

[35] The crux of the by-law is the minimum setback distance for all IWTs. This is obvious from the title of the by-law after deleting (by agreement of the parties) the reference to indemnification for loss of property value. In its attempt to prevent negative impact arising from noise, the by-law requires that IWTs are to be located at a minimum distance of two kilometres from any "property", and prescribes the maximum level of sound in decibels at the property.

[36] For the setback distance to have any meaning, the two points from which the setback is measured must be clear. The first point is the proposed site of the IWT and the second is the nearest property. The site, as a measuring point, is clear; the property is not.

[37] As noted, property is defined in the by-law to mean "property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes". The by-law is said to apply to all property within the territory of the township and, perhaps redundantly, to all property owned by the township.

[38] Based on this definition, property could be a property line. Property lines are known, and described in municipal surveys. However, the balance of the definition is not at all clear. How is vacant land defined? Who is an inhabitant? Can the inhabitants live on the vacant land, or only in a dwelling or structure? If the inhabitants are "all species", does that include animals, birds, insects and plants? Can inhabitants be regular but transitory, such as migratory birds? What is the object of the phrase "used for private or business or public purposes"? Could it be the land or dwellings or structures, the inhabitants, or both? [page71 ]

[39] One interpretation of the definition is that it relates to all vacant (as it says) or occupied (by implication) land in the township. If one accepts the township's position that the by-law was not contrived to prevent IWT development anywhere within the township, that interpretation is not available. Otherwise, the by-law would be clearly invalid based on conflict, as discussed below.

[40] The uncertainties arising from the definition of property are beyond those that could provide a basis for legal debate and reasoned analysis. The definition is unintelligible. No developer could reasonably measure its risk in building an IWT on any particular site. There is simply no logical and reasoned way that a court can grasp the definition sufficiently to perform its required interpretive function.¹²

Is the by-law in conflict with provincial law?

[41] Although it is not critical to the outcome of this application based on my finding as to vagueness and uncertainty, I wish to deal briefly with the other submissions raised by the parties.

[42] Wainfleet Wind Energy submits that the minimum setback and noise level requirements in the by-law are in conflict with the provincial regulation.

[43] The by-law contains a prohibition of IWT construction within two kilometres from property with a 32 dB maximum for noise at the nearest property. The provincial standards require a 550 metre minimum setback and maximum 40 dBA at the nearest noise receptor. Since there are different measuring points -- i.e., property and noise receptors -- it is difficult to make a direct comparison. Similarly, the sound measurement scale is different as between the by-law and the regulation. The provincial standard is based on a measurement which relates to the way humans perceive sounds whereas the municipal by-law uses an unadjusted measurement.

[44] The provincial standards are part of a comprehensive regulatory scheme pursuant to which an applicant must seek approval for its project. Based on submissions received, the director can accept or reject an application for IWT construction relying on a variety of criteria, and can change the 550 metre minimum setback.

[45] Until the director approves an application, there is only a potential for conflict. However, there would be a direct conflict once there is an approved project containing an IWT location [page72 ]that appears to contravene the municipal by-law. In that case, the provincial standard would apply based on s. 14(1) of the Municipal Act, 2001 and the by-law would be of no effect.

[46] The substance of the by-law deals with setback and noise. These same matters are part of the provincial application process with standards set out in the regulations and guidelines. One might ask what good is the by-law (even if the definitions were drafted more carefully) if it will always be trumped by the provincial legislation in the event of conflict?

[47] The province has relied on significant scientific evidence and public consultation in arriving at the 550 metre minimum setback distance. Its process for establishing the setback requirements in O. Reg. 359/09 has been reviewed and approved by the Divisional Court¹³ and the court noted that if anyone wishes to challenge a proposed project based on health concerns, he or she can do so as part of the provincial application process.

[48] The township apparently intended to submit the by-law to the director for his consideration as part of the approval process. Even if the by-law was valid, I fail to see how the director could find it relevant to the approval process since it was devised based on general ratepayer concerns about potential harm from noise, rather than any direct evidence. Of course, the possible relevance of the by-law to his consideration is a decision for the director to make.

[49] Wainfleet Wind Energy submitted that the by-law should be declared of no force and effect pursuant to s. 14(2) of the Municipal Act, 2001 because it frustrates the purpose of the GEA and that therefore a conflict exists. I am not prepared to go that far. The Municipal Act, 2001 clearly contains provisions to allow control of nuisance and noise as well as health and safety matters, as I have already noted. The Planning Act was specifically amended to prevent any zoning by-law from applying to renewable energy undertakings¹⁴ but no similar amendment was made to the Municipal Act, 2001. I am not satisfied that the fact that both the EPA (as amended by the GEA) and the by-law relate to IWTs and apply different standards means that the latter frustrates the purpose of the former, despite the fact that the Preamble of the GEA refers to, [page73 ]among other purposes, the removal of barriers to renewable energy projects.

[50] I would have had no difficulty in finding that the by-law frustrated the purpose of the GEA if there had been evidence to establish that the effect of the by-law was actually to prevent entirely the construction of IWTs anywhere in the township.

Is the by-law outside the township's municipal authority?

[51] As I have noted, the Municipal Act, 2001 gives power to a municipality to regulate, amongst other things, matters of nuisance, noise, health and safety. Despite that legislative mandate, Wainfleet Wind Energy submits that as regards renewable energy projects, the province has fully occupied the field through the GEA and the EPA, thereby precluding municipal legislation on the subject. As such, the applicant argues that the by-law is ultra vires the township's authority.

[52] I have already commented on the lack of legislated prohibition concerning renewable energy projects in the Municipal Act, 2001 as compared with those in the Planning Act.

[53] The applicant submits that the by-law is in effect a zoning by-law masquerading as one focused on health, safety, noise and nuisance. As such, the Planning Act prohibition should apply.

[54] Although setback distances and control over the construction of structures is often a zoning matter, there is no reason why parallel jurisdiction cannot exist between the Planning Act and the Municipal Act, 2001 when different considerations are engaged.

[55] I agree with the position of the township that the municipality has a continuing role to play in renewable energy projects as appears from s. 5 of the GEA and O. Reg. 15/ 10. Those provisions indicate that most municipal by-laws no longer apply to the extent that they would prevent or restrict a designated project with certain exceptions relating to health, safety, heritage and the environment. However, wind energy is not one of the designated renewable energy projects and as a result there is no legislated prohibition to the continued application of municipal by-laws. If the province wishes to add wind energy to the list of designated renewable energy projects, it obviously has the power to do so.

Other Issues

[56] Based on my decision that the by-law is without force and effect, it is not necessary for me to determine whether it is specifically applicable to the Wainfleet Wind Energy project. [page74 ]

[57] Similarly, as to the constitutional issue, it is not necessary to determine whether the provincial enactments under the GEA and EPA deprive the residents of Wainfleet of various protections afforded under the Charter, since I have not relied on those legislative provisions in making this decision. It is well established that constitutional issues should not be decided where it is not necessary to do so.

Summary

[58] For the reasons noted above, By-law 013--2012 enacted by the council of the Corporation of the Township of Wainfleet is invalid and without force and effect as a result of vagueness and uncertainty. This determination arises from the definition of "property" contained in the by-law and on the agreement of the parties that the indemnification provisions of the by-law were an invalid exercise of municipal power.

[59] If the by-law was otherwise valid, and if the applicant is successful in securing approval for its wind power generating facility on terms that are in conflict with the by-law, the by-law would be without effect pursuant to s. 14(1) of the Municipal Act, 2001.

[60] If the by-law was otherwise valid, there would have been a conflict between the by-law and provincial legislation if evidence established that the effect of the by-law was to prohibit IWT development anywhere within the township. In that event, the by-law would be without effect pursuant to s. 14(2) of the Municipal Act, 2001.

[61] The enactment of the by-law was not outside the township's municipal authority.

Costs

[62] If the parties are unable to resolve the issue of costs consensually, I am prepared to receive written submissions according to the following timetable: the applicant is to provide to the respondent and the intervenor its bill of costs together with brief written submissions within two weeks of this date. The respondent is to deliver its response to the other parties within a further week. The intervenor is to deliver its response to the other parties within a further week. The submissions by all parties and any reply submissions by the applicant and the respondent (as to the intervenor's submissions) are then to be filed with the court by no later than May 17, 2013.

Application granted.