Burling­ton Air­park wins right to ap­peal per­mit rul­ing

The Hamilton Spectator - - BUSINESS - JOHN BKILA Burling­ton Post

The Burling­ton Air­park can ap­peal a court rul­ing that re­quired it to get a per­mit for fill de­posits made be­fore a city by­law was passed to reg­u­late the process.

In June 2016, the Ontario Su­pe­rior Court of Jus­tice backed a City of Burling­ton ap­pli­ca­tion to force the air­park to ap­ply for a per­mit for work it did from 2008 to 2013.

The 2014 city by­law reg­u­lates the dump­ing, plac­ing and re­moval of fill. It also cov­ers al­ter­ing drainage or grades. Such work re­quires an ap­pli­ca­tion to the city for a site al­ter­ation per­mit.

On Wed­nes­day, an Ontario Court of Ap­peal judge ruled in favour of the Burling­ton Ex­ec­u­tive Air­park, mean­ing it can now ap­peal the de­ci­sion re­quir­ing it to ap­ply for a per­mit. The case was heard be­fore three jus­tices in Toronto on March 28.

The local air­port has been truck­ing in fill to raise a part of its prop­erty in or­der to ex­pand.

In a writ­ten de­ci­sion, Jus­tice Robert J. Sharpe said he rec­og­nizes the im­por­tance of en­forc­ing stan­dards de­signed to pro­tect the pub­lic from en­vi­ron­men­tal harm, but noted the task in the ap­peal was lim­ited to de­ter­min­ing if the city’s 2014 by­law ap­plied.

“In car­ry­ing out that task, we must re­spect im­por­tant prin­ci­ples of our le­gal or­der, one of which is that, in the ab­sence of clear leg­isla­tive in­ten­tion, to in­ter­pret an en­act­ment as ‘reach­ing into the past and declar­ing the law to be dif­fer­ent from what it was is a se­ri­ous vi­o­la­tion of the rule of law,’” Sharpe wrote in the de­ci­sion.

“For these rea­sons, I would al­low the ap­peal, set aside the or­der of the ap­pli­ca­tion judge and dis­miss Burling­ton’s ap­pli­ca­tion ...”

The city said it was “dis­ap­pointed” with the de­ci­sion. Blake Hur­ley, as­sis­tant city so­lic­i­tor, said le­gal coun­sel and staff will re­view the de­ci­sion and work with coun­cil “to de­ter­mine how the city will pro­ceed for­ward in this mat­ter.”

Air­park owner Vince Rossi said he is will­ing to work with the city.

“My hope is that we can move for­ward away from lit­i­ga­tion and build con­struc­tively with the City of Burling­ton’s bless­ings.”

Sharpe’s writ­ten de­ci­sion states he saw no lan­guage in the city’s 2014 by­law to sug­gest it was meant to op­er­ate retroac­tively. “The pur­pose and ef­fect of the 2014 by­law is to re­quire a per­mit based upon stan­dards set in 2014 for the dump­ing of fill or al­ter­ation of the grade of land,” he wrote.

“To re­quire (the Air­park) to ob­tain a per­mit in 2014 based upon stan­dards set in 2014 for work al­ready con­ducted years ago in 2008 and 2009 is plainly to change the law from what it was at the time the work was un­der­taken.”

To view the de­ci­sion on­line: www.on­tar­i­o­courts.ca/de­ci­sions/2017/2017ONCA0420.htm.

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