Proponent working since 2014 to fulfill OMB condition of
subdivision approval that requires it to file a Record of Site
Condition (RSC). This, itself, isn't newsworthy. Filing an RSC
can be a long process. What is newsworthy is that based on the
facts of the case, an RSC is not required to comply with
Ontario's brownfields legislation.
The property had been occupied by the North Bay General
Hospital.1 Hospitals are deemed a residential
use under Ontario's primary brownfields legislation, Ontario
Regulation 153/04, made under the Environmental Protection
Act.2 The hospital was demolished and the
property was vacant at the time of the proposed
redevelopment.3 Under the Regulation, if a
property is vacant, it is deemed to have its last
use.4 At the time of the proposed
redevelopment, the property was deemed to have a residential use
under Regulation 153/04.
Where a proponent seeks a building permit to change land to a
more sensitive use, it must file an RSC.5
The proponent, ARG Devco, sought subdivision approval for
detached lots, semi-detached lots, townhouse condominiums and
vacant land condominiums.6 The proposed
development would have the continued the residential use of the
property, and no RSC would have been required for a building permit
under the EPA.7
Notwithstanding there was no EPA requirement, the OMB inserted a
condition of approval that an RSC be filed for the
Property.8 The OMB stated:
As residential development is proposed (i.e. a sensitive land
use) the Board finds that a Record of Site Condition is an
appropriate condition of approval for a brownfield prior to the
The OMB cited the Provincial Policy Statement as its authority
to include this condition.10 The Policy
Statement does not mention RSCs or discuss where filing an RSC
would be appropriate, though it does define "sensitive
use" to include residential homes.
The ARG Devco case raises the following question – when
should the OMB make environmental conditions that go beyond
Ontario's brownfields legislative requirements?
As ARG Devco continues to work towards filing an RSC for the
property, it surely must be asking itself the same thing.
1 2014 CarswellOnt 7683 at para 3 (Ontario
Municipal Board) [ARG Devco].
2 O Reg 153/04, s 1(3); O Reg 170/03, s
3 ARG Devco, supra note 1 at para
4 O Reg 153/04, s 2.
5Environmental Protection Act, RSO
1990, c E.19, s 168.3.1; O Reg 153/04, s 14.
6 ARG Devco, supra note 1 at para
7 O Reg 153/04, s 1(3).
8 ARG Devco, supra note 1 at para 17
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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