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POWERS OF MUNICIPALITY - Regulation of property and activities - Environmental - Hazardous waste

Friday, July 16, 2021 @ 5:36 AM  

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Appeal by the Municipality from a decision quashing its Disposal of Hazardous Substances By-law and Policy and granting the respondent’s application for a permit to accept asbestos at its disposal facility. The respondent operated a disposal facility for construction and demolition materials. It wanted to expand its operation to accept waste materials containing asbestos. Under the authority of the By-law, the Municipality adopted a Policy that identified an existing disposal facility as the only permitted site for the disposal of hazardous waste in the county and thus refused to grant the respondent’s permit application. On judicial review, the application judge held that a municipality could regulate the site requirements for a solid waste disposal location under its authority to deal with the management of solid waste but if it limited the available sites to certain geographic areas, it engaged in land-use regulation. He thus found the Disposal of Hazardous Substances By-law and the Disposal of Hazardous Substances Policy regulated land-use and were not passed using the process required by the Municipal Government Act and were thus illegal under s. 189 of the Act.

HELD: Appeal allowed. The application judge erred in his application of the reasonableness standard in determining whether the By-law and Policy were illegal pursuant to the Municipal Government Act. Sections 170 and 171 of the Act were capable of a reasonable interpretation that afforded a municipality the general power to pass a by-law that targeted a particular geographic area outside its land-use planning powers. If given the power to regulate an activity, this could include the power to restrict it. Having specifically conferred the power to regulate the disposal of solid-waste, s. 170(2) contemplated a municipality having the power to pass by-laws incidental or conducive thereto. When the Municipality passed the challenged By-law and Policy, the implementation of a municipal planning strategy, and the resulting processes for land-use planning, was at the discretion of a municipality. The Municipality had not adopted a Municipal Planning Strategy that governed land-use planning in the applicable area. There was no obligation on it to do so. Given a broader view of the statutory regime, the Municipality’s use of its solid-waste authority, as opposed to its land-use planning powers, to pass the challenged By-law and Policy was not an unreasonable interpretation of its delegated authority under the Act.

Colchester (County) v. Colchester Containers Ltd., [2021] N.S.J. No. 270, Nova Scotia Court of Appeal, P. Bryson, J.E. Scanlan and C.A. Bourgeois JJ.A., June 24, 2021. Digest No. TLD-July122021009