Summary of Issue
Things to Consider
Under the Municipal Act, 2001, and with some exemptions, a local municipality has the authority to:
“(a) prohibit or regulate the placing or dumping of fill;
(b) prohibit or regulate the removal of topsoil;
(c) prohibit or regulate the alteration of the grade of the land;
(d) require that a permit be obtained for the placing or dumping of fill, the removal of topsoil or the alteration of the grade of the land; and
(e) impose conditions to a permit, including requiring the preparation of plans acceptable to the municipality relating to grading, filling or dumping, the removal of topsoil and the rehabilitation of the site. 2006, c. 32, Sched. A, s. 76 (1).” [1]
For a municipality to pursue a mandatory order to remove illegal fill and impose full remediation, it can seek injunction through the Superior Court of Justice as outlined in section 440 of the Municipal Act, 2001 [2]:
“440. If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.” [3]
Enforcement in smaller municipalities can be limited by resources, such as budget, city staff and by-law knowledge. Municipalities should explore opportunities to share enforcement responsibilities with each other and/or with local conservation authorities. These joint undertakings can be organized through Memorandums of Understanding (MOU) or protocols or informally. There are also enforcement issues with understanding all operations that are regulated under municipal jurisdiction.
Short Form References
This page makes reference to:
The “Excess Soil Regulation” which is the short form for the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.
The “Rules document” which is the short form the reference document to the regulation entitled Rules for Soil Management and Excess Soil Quality Standards
Key Takeaways
It is the municipality’s responsibility to manage oversight of and compliance with the municipality’s by-law(s) and any associated agreements entered into with the project owner, once the soil has been placed in a reuse site, and by-laws (including permits) have been used to justify that placement. See Permits section for tools available to municipalities to provide oversight. Oversight can also vary depending on if the by-law addresses quality and/or quantity of the excess soil, see box below.
The key to the Excess Soil Regulation is the designation of waste. The Excess Soil Regulation clarifies when excess soil is and is not designated a waste. Where excess soil is being reused at a reuse site for final placement, it is important to ensure that the rules are complied with for excess soil to not be designated as a waste. These rules are found in sections 3, 4 and 5 of the Excess Soil Regulation, which then refer to other key sections of the regulation and both parts of the Rules document.
If excess soil is inappropriately deposited for final placement at a reuse site, this means that the soil is designated waste and will be governed under Part V of the Environmental Protection Act which includes the authority for the Ministry to require any person who has caused, permitted or arranged for the unlawful deposit of the waste to remove it and properly dispose of it.
Overall, the Excess Soil Regulation sets requirements to prevent excess soil from becoming waste. This focusses on ensuring excess soil from a project is reused for a beneficial purpose, or disposed of, and that the quality and quantity of excess soil being received at reuse sites align with that needed for the beneficial purpose. Some generic excess soil management rules are set in the Regulation, but it does not give site-specific operational requirements for management of soil or fill at a reuse site. Similarly, it does not determine whether a specific beneficial purposes is appropriate for a specific site. Site-specific site alteration or fill operations management oversight remain the responsibility of municipalities, as does any determination of appropriate beneficial purposes in conjunction with land use planning, and transport activities on municipal roads. Municipal by-laws would reflect the unique conditions and expectations of their respective communities and it remains a municipality’s decision whether or not to institute a by-law.
The Township of King has a draft Site Alteration By-law (slated for adoption in early 2021) that is written to apply to all site alterations and filling activities within the Township regardless of size except where legally overruled by a higher-level regulatory authority such as York Region, Province of Ontario, and Government of Canada. The proposed By-law includes exemptions from needing a Permit (such as for Minor Site Alterations) but does not exempt anyone anywhere in the Township that is conducting site alteration and fill activities from the requirements of the By-law, except when overruled by a higher regulatory authority.
The universal applicability of the By-law (except when overruled by a higher regulatory authority) often provides concerns for municipalities due to the perception of taking on liability to oversee and administer every potential issue related to site alteration and filling regardless of size. The primary concern is the cost to the Township’s resources by being drawn into small civil disagreements between neighbors. Although the By-law may have some applicability in the case of a small civil disagreement, the powers of the By-law are discretionary so the Township can decide what action it may or may not want to take on a case by case basis. This approach was deemed more suitable for the Township than defining vague thresholds beneath which the Township would abrogate responsibility. Such a situation was deemed more of a liability to the Township than having the By-law apply in all situations, beyond those administered by a higher regulatory authority. [4]
Things to Consider
If a by-law provides oversight of a site, then the municipality is responsible for compliance of those elements the by-law covers. Additionally, the following applies:
• Where the municipal instrument references quality, then related requirements of the Excess Soil Regulation will defer to it, when excess soil is going to a reuse site.
• Where the municipal instrument references quantity, then related requirements of the Excess Soil Regulation will defer to it, when excess soil is going to a reuse site. This includes the case where quantity is not specifically/numerically identified but the beneficial reuse purpose is identified and describes a condition that would become the upper limit on quantity.
• Note that the way the Excess Soil Regulation refers to beneficial reuse it can be tied to how much excess soil is really needed for a given beneficial reuse.
The following are some of the common enforcement issues municipalities encounter related to site alteration and fill by-laws:
m) the need to halt activities that are in contravention of a by-law and n) requirements for access.
Ways of addressing these issues through municipal by-laws are presented in this section.
By-Law Sections
Inspection, Administration, and Enforcement
Things to Consider
By-law enforcement provisions typically name the party responsible for administering the by-law (e.g. Director or Chief Building Official), prescribe the conditions under which an inspector may enter the site, require the owner to advise the municipality upon completion of the work covered by the permit and may also require access to on-site documentation. Based on the by-laws reviewed, it is a best practice to include these provisions in any site alteration or fill by-law. An example of a provision is given below.
Access to The Site
Ensuring access to the site for the purposes of inspection is often a key concern for municipalities. (On occasion, it may be appropriate to ask for police escort to a site for the purposes of keeping the peace.) An example of a detailed provision related to access is provided below:
Sample Language
This by-law may be enforced by Officers and/or the Director, without limiting/restricting any other power, duty of function granted by this by-law. Officer(s) and/or the Director may give direction, issue Order(s) to discontinue or to perform work and further give verbal or written direction and may enter Property and/or carry out and direct whatever inspections, are reasonably required to determine compliance with this By-law.[5]
“l)The Chief Building Official and Officers may, at any reasonable time, enter and inspect any land to determine whether this by-law, an Order to Comply, a Stop Work Order or an Order for Removal, a condition to a permit issued pursuant to this by-law, or a Court Order relating to this by-law is being complied with.
2) For purposes of an inspection under (1), the Chief Building Official and Officer may;
i. require the production for inspection of documents or things relevant to the inspection;
ii. inspection and remove documents or things relevant to the inspection for the purpose of making copies or extracts;
iii. require information from any person concerning a matter related to the inspection; and
iv. Alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purpose of the inspection.”[6]
Notices and Orders
Things to Consider
In some cases, the fines or penalties that operators of large fill sites may incur for by-law infractions are not considered large enough to incite compliance. Including a Stop Work Order provision in site alteration or fill by-laws can give municipalities greater control of fill operations.
An example of a provision which sets out the process by which the municipality may issue an order requiring the owner of the site to discontinue activities is provided below.
“8.0 If an Enforcement Officer has reasonable or probable grounds to believe that a contravention of this By-law has occurred, the Enforcement Officer may make an order requiring the owner of the land and Person who caused the Site Alteration to discontinue all activities on the Site.
An order issued under Section 8.0 shall set out:
8.1.1 The reasonable particulars of the contravention;
8.1.2 What the Owner must do to rectify the contravention;
8.1.3 The date and time by which the order must be complied with;
8.1.4 A statement that if the work is not done in compliance with the order within the specified time period, the City may have the work done at the expense of the Owner;
8.1.5 Information regarding the City’s contact Person; and
8.1.6 The name of the Owner, municipal address and the legal description of the Site that is the subject of the contravention.”[7]
Things to Consider
A local government practitioner recommends integrating flexibility and the principle of ‘continuous improvement” into agreements with reuse sites out of acknowledgement that the practice of excess soil management benefits from the inevitable ‘lessons learned’ and will require incremental adjustments in response to evolving aspects of the Excess Soil Regulation and other regulatory requirements. For large commercial sites, this can be integrated into the Fill Management Plan (FMP) that is an appendix to the agreement that Council endorses. The FMP, as an appending document can be amended as needed reflecting corrective measures, without going back to an approval process. This “living document” approach acknowledges the partnership and collaboration required in best management practices and encourages transparency and honesty in reporting incidents or unforeseen issues, rather than “burying” them to avoid penalties. It also requires the operator to upgrade its operations on an ongoing basis.
The example below is a more detailed provision and gives the municipality authority to require additional remedial action by the site operator if there is a contravention of the by-law.
Sample Language
“10.01 If after inspection, an inspector is satisfied that a contravention of this By-law has occurred, the inspector shall notify the owner and the permit holder of the particulars with a ‘Stop Work Order’ and an ‘Order to Comply’, pursuant to Section 444(1) or 445(1) of the Municipal Act, 2001, and provide all occupants with copies of the ‘Stop Work Order’ and ‘Order to Comply’ and such orders shall contain:
10.01.01 the municipal address and legal description of the land;
10.01.02 reasonable particulars of the contravention(s);
10.01.03 the period within which there must be compliance.
10.02 The orders issued pursuant to Section 10.01 of this By-law may require any person who has altered the grade of land, caused or permitted the grade to be altered contrary to the provisions of this By-law, placed, dumped, cut or removed fill, caused or permitted fill to be placed, dumped, cut or removed, or caused or permitted any other form of site alteration contrary to the provisions of this By- law to:
10.02.01 cease all work in respect of the site alteration;
10.02.02 remove the fill;
10.02.03 fill in any excavations or ponds; and/or
10.02.04 complete all the work necessary to:
10.02.04.01 eliminate any hazard resulting from the alteration of the grade or the placing, dumping, cutting or removal of fill and to restore the land to a condition of safety and/or its original environmental condition, to the satisfaction of the Director;
10.02.04.02 preserve the land pending any hearing of an appeal in respect of an application;
10.02.04.03 restore the land to its former condition prior to the alteration of the grade of the land or to the placing, dumping, cutting or removal of the fill on the land or other site alteration to the satisfaction of the Director.
10.03 The Order and/or Notice referred to in Sections 10.01 and 10.02 of this By-law shall also contain:
10.03.01 the time frame in which the work contained in the Order must be carried out;
10.03.02 a notice stating that if the work is not done in compliance with the order within the period it specifies, the City will issue a ‘Notice of Violation’;
10.04 An Order and/or Notice issued pursuant to Section 10.01, 10.02 or 10.03 of this By-law shall be served personally or by prepaid registered mail or in accordance with Section 10.07 of this By-law.
10.05 An Order and/or Notice issued pursuant to Section 10.01, 10.02 or 10.03 of this By-law, sent by prepaid registered mail, shall be sent to the last known address of the owner of the land and permit holder.
10.06 An inspector who is unable to effect service pursuant to Section 10.05 of this By-law shall place a placard containing the terms of said Order and/or Notice in a conspicuous place on the property and the placing of the placard shall be deemed to be sufficient service of the Order and/or Notice on the Owner and permit holder.
10.07 If the owner or permit holder fails to do the work required by an ‘Order to Comply’ and ‘Notice of Violation’ issued pursuant to Sections 10.01-10.03 of this By-law within the period specified, the City, in addition to all other remedies it may have, may do the work and for this purpose may enter on the land with its employees and agents. The costs incurred by the City in so doing shall be paid by the owner of the land and may be recovered by the City in like manner as taxes or drawing on financial securities provided.[8]
Penalty
Things to Consider
Under the Municipal Act, 2001, contravention of a by-law is liable to a minimum fine of $500 and a maximum fine of $100,000, with total daily fines not limited to $100,000. Special fines may also be ordered if the offender received economic advantage or gain from the contravention, and can exceed $100,000. [9]
[See Fees, Cost Recovery and Financial Assurance Issue page for more on penalties]
References
[1] Municipal Act, 2001, S.O. 2001, c. 25 (https://www.ontario.ca/laws/statute/01m25)
[2] Loopstra, C. (2014). Site Alteration By-laws and the Dirty Business of “Clean” Fill. Loopstra Nixon LLP. http://www.loopstranixon.com/files/Site_Alteration_By-Laws.pdf
[3] Municipal Act, 2001, S.O. 2001, c. 25 (https://www.ontario.ca/laws/statute/01m25)
[4] Reference: Township of King Staff Report December 14, 2020 Section 6.5 LINK: *COW _1 - JR-2020-06 (1).pdf
[5] Town of Mono - By-law 2020-XXXX, a By-law to Regulate Site Alteration and Movement of Fill within the Town of Mono.
[6] Town of Erin 16-30 (http://www.erin.ca/file.ashx?id=c54d2c84-40cf-4eaf-8fab-3f4b051401b0)
[7] Barrie By-law 2014-100 (http://www.barrie.ca/City%20Hall/By-laws/By-lawDocs/By-law%202014-100%20Bill%20106.pdf) Disclaimer: “The following consolidation is an electronic reproduction made available for information only. It is not an official version of the By-law. The format may be different, and plans, pictures, other graphics or text may be missing or altered. The City of Barrie does not warrant the accuracy of this electronic version. This consolidation cannot be distributed or used for commercial purposes. It may be used for other purposes, only if this disclaimer is repeated as well as the notice of copyright. Official versions of all By-laws can be obtained from the City Clerk’s Office by calling (705) 739-4204.”
[8] The Corporation of the City of Burlington By-law 64-2014 (http://www.burlington.ca/en/modules/by-laws/by-law/details/3a5b5a42-0ea3-4126-b273-e850afb82198)
[9] Municipal Act, 2001, S.O. 2001, c. 25 (https://www.ontario.ca/laws/statute/01m25)