St. Mary's Cement Inc. v. Clarington (Municipality),

• Jurisdiction: Ontario
• Judge: Pepall,Smith,Winkler
• Neutral Citation: 2012 ONCA 884
• Citation: (2012), 299 O.A.C. 357 (CA),2012 ONCA 884,299 OAC 357,(2012), 299 OAC 357 (CA),299 O.A.C. 357
• Date: 20 November 2012
• Court: Court of Appeal (Ontario)

St. Mary's Cement Inc. v. Clarington (2012), 299 O.A.C. 357 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. DE.041

St. Mary's Cement Inc. (Canada) (applicant/appellant) v. Municipality of Clarington (respondent/respondent)

(C53545; 2012 ONCA 884)

Indexed As: St. Mary's Cement Inc. v. Clarington (Municipality)

Ontario Court of Appeal

Winkler, C.J.O., Pepall, J.A. and Smith, J.(ad hoc)

December 17, 2012.

Summary:

The applicant proposed to burn alternative fuel derived from post-composting and post-recycling residual materials in its cement plant. The applicant sought a declaration that a municipal bylaw permitted it to continue the manufacturing process with the new fuel.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 1533, held that the use of the alternative fuel would be an impermissible change in land use. The applicant appealed.

The Ontario Court of Appeal allowed the appeal and set aside the decision below. The court declared that the use of the proposed alternative fuels at the plant did not constitute a new land use and was permissible for the purposes of the bylaw.

Land Regulation - Topic 2662

Land use control - Zoning bylaws - Permitted or discretionary uses - Change of use - The applicant proposed to burn alternative fuel derived from post-composting and post-recycling residual materials in its cement plant - It currently used petroleum coke, a by-product of crude oil refining, as fuel - The applicant sought a declaration that a municipal bylaw permitted it to continue the manufacturing process with the new fuel - The application judge held that the use of waste as fuel brought the plant within the definition of "waste disposal area" as defined in the bylaw and therefore constituted a new and additional use that would be an impermissible change in land use - The Ontario Court of Appeal allowed the applicant's appeal - The use of the proposed alternative fuels at the plant did not constitute a new land use and was permissible for the purposes of the bylaw - The applicant would not be dumping, destroying or storing waste - Therefore, there was no "waste disposal area" within the meaning of the by-law - The alternative fuel would be used productively as part of the permitted use (the manufacturing of cement) - The use of one fuel as opposed to another did not alter the fact that the plant was in essence a cement plant and not a waste disposal area - The burning of fuel was inherent in the production of cement, and the use of alternative fuel did not amount to a separate use of the land.

Land Regulation - Topic 2672.1

Land use control - Zoning bylaws - Permitted or discretionary uses - Waste processing facilities or waste disposal area - [See Land Regulation - Topic 2662 ].

Cases Noticed:

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 17].

Neighbourhoods of Windfields Limited Partnership et al. v. Death et al., [2008] O.T.C. Uned. H69; M.P.L.R.(4th) 183 (Sup. Ct.), affd. [2009] O.A.C. Uned. 187; 2009 ONCA 277, leave to appeal refused (2009), 403 N.R. 389; 263 O.A.C. 399 (S.C.C.), refd to. [para. 17].

Aon Inc. et al. v. Peterborough (City) et al. (1999), 96 O.T.C. 34; 1 M.P.L.R.(3d) 225 (Gen. Div.), refd to. [para. 21].

R. (ex parte Lowther) v. Durham County Council and Lafarge Redland Aggregates Limited, [2001] EWCA Civ. 781, appld. [para. 31].

Counsel:

Harry C.G. Underwood and Brendan Brammall, for the appellant;

Ian Godfrey and Jon Smithen, for the respondent.

This appeal was heard on November 20, 2012, before Winkler, C.J.O., Pepall, J.A. and Smith, J.(ad hoc), of the Ontario Court of Appeal. Winkler, C.J.O., released the following decision for the court on December 17, 2012.