Ontario Superior Court Of Justice Denies A Municipality’s Attempt To Effectively Prohibit Wind Turbines

In Wainfleet Wind Energy Inc. v. Township of Wainfleet,1 the Ontario Superior Court of Justice struck down the Township of Wainfleet's municipal by-law requiring industrial wind turbines to have a minimum two-kilometre setback from "property." Wainfleet Wind Energy, the proponent of a five-turbine renewable power facility, which has yet to receive a renewable energy approval (REA), challenged the Township's by-law. The Court struck down the by-law for vagueness and uncertainty, and also found that the by-law would, once an REA is granted, conflict with the Ontario Green Energy and Green Economy Act, 2009 (GEA).2

Background

Wainfleet Wind Energy completed an application to the Ontario Ministry of the Environment (MOE) for an REA of its industrial wind turbine (IWT) wind farm project. It has yet to receive its REA. Meanwhile, the Township of Wainfleet passed a by-law under the Municipal Act, 20013 requiring (i) IWTs to be constructed at least two kilometres "from any property measured from the tip of the rotor blade in horizontal position" and (ii) any noise emitted by an IWT not to exceed 32 decibels (dB) at the nearest property.4 The by-law, if valid and enforceable, would have blocked Wainfleet Wind Energy's IWT project.

In contrast to the municipal by-law, Ontario Regulation 359/09, which was passed under the Environmental Protection Act, requires IWTs to be constructed at least 550 metres from noise receptors and to produce a maximum of 40 dBA (i.e., the relative decibels of sound in air as perceived by the human ear) at the nearest noise receptor.

Under the Municipal Act, municipalities have the jurisdiction to pass by-laws concerning the health, safety and well-being of persons.5 Municipalities may also pass environmental by-laws to control nuisances.6 However, these by-laws are only valid and enforceable to the extent that they do not conflict with provincial legislation.7

The Definition of "Property" in the By-law Was "Unintelligible"

The Court found the by-law invalid for vagueness and uncertainty. The Court noted that, for the setback distance in the by-law to have any meaning, the two points from which the setback is measured must be clear. Although the measuring point of the IWT was clear, the second measuring point of "property" was not. The by-law defined property as "property line, vacant land, dwelling or structure and their inhabitants of all species used for private or business or public purposes."8 This definition raised...