Canada: Is There A "Right To Light?"

Last Updated: September 7 2016
Article by Kirsten Mikadze

In urban environments, land and resources are finite and are, as a result, often faced with conflicts over the appropriate development and use of land. Such conflicts are particularly bitter when they concern proposed condominium development and "big box" store developments in the downtown core.

Communities are often resistant to new condos developments, which can contribute to an increase in rental rates and property prices, displace poorer citizens, and change the character of a neighbourhood. In contrast to other urban projects such as park lands—which are far less frequently undertaken—condominium developments often entirely preclude public access to, and use of, precious urban land resources.

These battles are increasingly focusing on whether condo developments interfere with a different kind of resource: sunshine. With more and more frequency, opponents to proposed high-rise condo developments are advancing the argument that these towering structures block access to sunlight.

For example, the Toronto District School Board ("TDSB") and the City of Toronto are fighting a proposed development near the intersection of Church and Wood streets in the Church-Wellesley Village on the basis that it is blocking access to sunlight. In proceedings before the Ontario Municipal Board ("OMB"), the TDSB and the City are arguing that the 38-story condo would, if built, cast a shadow over a nearby elementary school, thereby depriving the young students of access to sunshine at the school. The City is suggesting the proposed condo's height be reduced to 25 storeys.

Not long ago, the OMB was faced with the question of whether a proposed condo development could be allowed to proceed because it would cast a shadow large enough to obstruct a neighbour's solar panel array. In that instance, the OMB rejected the proposed development on that very basis.

These sorts of battles are hardly new, but as condo developments continue to proliferate in urban areas, questions of whether sunlight is a public right and, if so, how we value and share it, have become more urgent.

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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