Burlington Airpark wins right to appeal permit ruling
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.