Posted on January 13, 2010 (updated: January 13, 2010)

Citizens Groups Ask Court to ‘Have Regard’ to Oak Ridges Moraine

Today, four citizens groups announced that they are seeking leave to appeal a recent court decision allowing development on the Oak Ridges Moraine. The groups, King City Preserve the Village, Concerned Citizens of King Township, Nobleton Alert Residents Association, and Save the Oak Ridges MoraineSierra Legal Defence Fund’s legal team.

Earlier this week, Ontario’s Environmental Commissioner Gord Miller, presented his 2000-2001 annual report entitled “Having Regard”. The report states that land-use decisions must take the environment into account and describes in detail the difficulties faced in protecting the Oak Ridges Moraine. Ironically, the recent court decision the groups want to appeal was an opportunity to give some teeth to the phrase “shall have regard to” in connection with land use planning policies that are supposed to protect the Moraine from development.

Last summer, Justice Archie Campbell of the Divisional Court was the first judge to hear any court proceeding regarding the Moraine. He gave a strong decision questioning whether the Ontario Municipal Board (OMB) had made six errors of law when it approved the King City Township’s Official Plan Amendment (OPA 54) which allows further development of lands on the Moraine, including the doubling of the population of King City over the next 15 years to accommodate the “Big Pipe” (an extension of the massive York-Durham Sewage System).

Astonishingly, and in direct conflict with the decision of the first judge of the Divisional Court, the three judges selected to hear the appeal last week did not even find that OPA 54 proposes development and refused all the grounds of appeal. As it now stands, the result is that there will be more development on the Oak Ridges Moraine.

However, the appeal court did agree with Mr. Justice Campbell that the approval authority and the OMB must do more than pay lip service to the policies of the Provincial Policy Statement and the Oak Ridges Moraine.

This concern was echoed in the Environmental Commissioner’s ‘Having Regard’ report which asserts that all provincial ministries and agencies involved in land-use planning must “have regard to” existing provincial policy statements and recognize the limits to growth and development that can be placed on Ontario’s essential but fragile ecosystems, such as the Implementation Guidelines. Oak Ridges Moraine.

“We are asking the Court of Appeal to take another look at the legal interpretation and application of public instruments designed to protect the ecological integrity of the Oak Ridges Moraine and ensure that the OMB does not in fact simply pay lip service to them” says Sierra Legal lawyer Robert Wright. “The appeal would be an opportunity to require the OMB to take a comprehensive approach and focus on overall regional land use planning concerns, including environmental concerns.”

The appeal court also found that “decisions as to appropriate planning must be made in the first instance by the duly elected Council.” The new Township of King Council has decided to reconsider local sewage options that will not require the development that the Big Pipe will trigger. Even so, the lawyer acting for York Region at the appeal disclosed that the Region will try to force the Big Pipe on King City no matter what the elected township Council decides.

“This process underscores the need for clear, strong provincial legislation to guide future land-use on the moraine,” says Bruce Craig of King City Preserve the Village. “It is our hope that the Ontario government will establish clear legislative policies in the Oak Ridges Moraine Act that will eliminate the need for OMB hearings in addressing future planning concerns.”

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