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: 
... 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
He therefore ruled the bylaw invalid:
 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.
 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.
 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.
 The enactment of the by-law was not outside the
Township's municipal authority.
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