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.