In Wainfleet Wind Energy Inc. v. Township of Wainfleet (2013 ONSC 2194), Ontario’s Superior Court of Justice found the Township’s anti-wind by-law invalid for vagueness and uncertainty. Wainfleet Wind Energy (WWE) applied to the MOE for approval of its 5-turbine wind farm project in the Township. The province requires wind turbines (IWT) to be set back at least 550 metres from noise receptors and sets a maximum for noise of 40 dBA at the nearest noise receptor.
Under the Municipal Act, 2001, a municipality may pass by-laws concerning the health, safety and well-being of persons. As well, it can prohibit and regulate matters that are or could become or cause public nuisances, and prohibit or regulate noise or vibration. The Township passed a by-law requiring a minimum 2 kilometre setback from any “property” (as defined in that by-law) for turbines, with a 32 dB maximum noise at the nearest property. If enforceable, the by-law would have blocked WWE’s project. WWE sought a declaration that the by-law be quashed or does not apply to the project.
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.
Judge Reid noted that none of these definitions were clear: how vacant land was defined; who was an inhabitant, and whether an inhabitant could live on the vacant land, or only in a dwelling or structure. Also, he pondered whether an “inhabitant” would include animals, birds, insects, and plants…and what about migratory birds? Finally, he concluded: [40]
… 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.
He therefore ruled the bylaw invalid:
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 subsection 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 subsection 14(2) of the Municipal Act, 2001.
[61] The enactment of the by-law was not outside the Township’s municipal authority.
By Jackie Campbell and Dianne Saxe