Developers are increasingly faced with requirements from local
governments to incorporate sustainable features into their
developments. Provided that sustainable features do not cost
substantially more than a comparable, non-green technology, they
are generally embraced by condominium purchasers in the Lower
One of the most effective sustainability strategies is to
improve storm water management. Proper storm water management
reduces both the quantity of storm water runoff released into
municipal drainage systems and water consumption by reusing storm
water for other purposes on site.
What Is Storm Water Management?
A typical storm water management plan calls for the developer to
install a filtration facility that collects and stores storm water.
The filtration process removes sediments and other impurities from
the storm water so that it may then be reused for non-potable
purposes. In some developments, the water is released as irrigation
water on site, while in others it is incorporated into design
features, such as fountains or pools. Treated storm water may also
be used for flushing toilets.
Storm water management is a relatively cost-effective way for
developers to score points and achieve desired levels under the
Leadership in Energy and Environmental Design (LEED) Green Building
Rating System®. Whether or not the developer is
following LEED or other rating systems, storm water management is a
frequently used tool in sustainable construction.
Once installed, the storm water management facility is
relatively easy to maintain and generally requires only occasional
servicing and upkeep.
Legal Mechanisms and Other Considerations
Local governments may require developers to enter into the
following legal instruments to ensure that storm water management
obligations in respect of a development are satisfied:
Section 219 Covenant (Covenant): The Covenant will set out the
developer's obligation to install the storm water management
facility in accordance with a plan approved by the local
government's engineering department. To ensure that the
facility functions properly over the initial operating period, the
developer may have certain monitoring and reporting obligations
(often fulfilled by an engineer or another qualified
Statutory right of way: The local government may also require a
statutory right of way allowing it to access the land, as well as
operate and maintain the storm water management facility if the
developer fails to do so.
To ensure that the strata corporation complies with the Covenant
and that the obligations under the Covenant are performed properly
and to the local government's satisfaction, the developer, on
behalf of the strata corporation, should contract with the
professional who will carry out the maintenance, monitoring and
reporting obligations before turning over the strata
corporation's affairs to the purchasers. In addition, the
developer could determine the maintenance costs to be inserted in
the strata corporation's budget forming part of the disclosure
Disclosure Obligations for Strata
In the case of a strata development, monitoring and reporting
obligations relating to the storm water management facility will
generally be assumed by the strata corporation, as the obligations
typically continue after the filing of the strata plan.
Under the Real Estate Development Marketing Act
(British Columbia), the developer must plainly and fully disclose
all material facts in the disclosure statement. Accordingly, the
developer should disclose at a minimum:
any expense associated with the maintenance, monitoring and
reporting obligations with respect to the storm water management
any encumbrance to be registered on title to the lands, such as
the Covenant and statutory right of way required by the local
any contract with the professional carrying out the
maintenance, monitoring and reporting obligations with respect to
the storm water management facility.
The developer may also consider adding a section in the strata
corporation's bylaws reflecting its obligations with respect to
the storm water management facility.
In terms of sustainable features, installing a storm water
management system is low-hanging fruit. With relatively low
incremental construction and operation costs, a developer can
afford to include such a system and still make sense of the pro
forma budget. A storm water management system may also pay
dividends, given the ever-increasing scrutiny of the environmental
footprints of new developments.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Alberta Court of Appeal's decision in Bokenfohr v Pembina Pipeline Corporation, 2016 ABCA 382 provides an important reflection on admissibility of evidence in the permission stage of an appeal in the oil and gas context.
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