In a ruling praised by Ontario Energy minister Brad Duguid and representatives of the wind industry, on March 3, 2011 a panel of three divisional court judges concluded that the province’s wind turbine setback regulation should not be overturned.
The regulation, which requires turbines to be setback at least 550 metres from dwellings, had been challenged by Ian Hanna, an Ontario resident with backing from anti-wind power groups. Hanna challenged the regulation on the basis that the minister who recommended the regulation had failed to apply a "precautionary science-based approach" in approving the setback distance and requested a court ordered halt to further wind power developments until sufficient evidence to justify a setback distance could be produced. However, the panel ruled that the minister had followed the appropriate process in establishing the regulation and that it was not open to the court to evaluate the wisdom or reasonableness of his decision. In reaching this conclusion, the court emphasized the amount of consultation and balancing of principles that had occurred: "The health concerns for persons living in proximity to wind turbines cannot be denigrated, but they do not trump all other considerations," and also noted "the absence of clear evidence the 550 metre setback requirement is necessarily insufficient."
In light of the moratorium that was recently placed on offshore wind power developments in Ontario (see Feb. 16 post), the wind power industry was watching this case closely and was quick to hail it as a victory. However, while the court rejected Hanna’s challenge, it did make it clear that Ontario residents will be able to apply to the Environmental Review Tribunal for a case-by-case determination of the adequacy of turbine placement.
The relevance of this decision for other jurisdictions which do not have similar regulations respecting setback distances or Environmental Review Tribunals which are specifically tasked with assessing and adjudicating these issues on a case by case basis remains to be seen, nevertheless some important principles have emerged which may be expected to favour developers.