The Province of British Columbia has issued an intentions paper
on identifying contaminated sites. Among other things, the Province
proposes to substantially change the role of local governments in
the contaminated site identification process. Comment period on the
intentions paper expires on July 31, 2016. Local
governments should take note of the proposed changes and consider
providing input to the Province.
Currently, if a site has been used for a certain commercial or
industrial activity (listed in Schedule 2 to the Contaminated
Sites Regulation), a site profile form must be submitted to a
local government upon subdivision, development or development
variance permit, zoning, demolition or soil removal. If the site
may be contaminated, the local government approval is
"frozen" until one of the specified triggers occurs (for
example, the Province authorizes the approval). The Regulation
lists various exemptions to the site profile regime and allows
local governments to opt out of the process (in other words, to not
collect site profiles).
The Province proposes to modify (and – in the Ministry of
Environment's view – simplify and clarify) the site
profile process generally. Local governments, in particuar, should
consider the following changes:
Site identification form will be
simplified to remove questions about historical site use (Sections
IV to IX on the current site profile form). However, to improve the
accuracey about Schedule 2 activities (Section III on the current
site profile form), proponents will be required to carry out
specified information searches about historical use of the site
(including historic and current land titles, local government
records, city street directories, information by current and former
owners, environmental and geotechnical reports and spill
Local governments will no longer be
able to opt out of the site identification process;
Soil removal, subdivision and
demolition will no longer trigger site identification process.
Zoning and development permits will continue to trigger site
identification, and building permit will be added as a new trigger
for site identification. In the Ministry's view, the building
permit is the most common local government approval required to
redevelop a site. Adding it as a trigger justifies removing the
triggers described above;
Unless an exemption applies, if a
Schedule 2 activity has occurred, a site investigation will
automatically be required. If contamination is present, remediation
will automatically be required. Annual progress reports must be
submitted for the duration of the project;
Local government approvals will not
be "frozen". A determination that the site is not
contaminated or a certificate of compliance must be obtained prior
to the final building inspection or issuance of an occupancy
permit. In the Ministry's view, the changes will minimize local
government responsibilities and shift them from the planning to the
building stage of development; and
A vendor of real property which has
had a Schedule 2 activity will still be required to provide a site
identification report to the purchaser. However, this site
identification report will be for the purchaser only and will not
need to be submitted to the Ministry. It will also not trigger a
requirement for a site investigation.
The proposed regime will result in significant changes for local
governments. For one, local governments who had opted out of the
contaminated sites regime will be re-involved and will likely
require additional staff (and administrative changes) to oversee
the process. Also, the proposed shift of the remediation from
planning to occupancy may require local governments to be involved
(or at least kept appraised of) the remediation progress throughout
the course of development. Enabling local government legislation
would likely need to be amended to reflect local governments'
revised role and risks of liability.
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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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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