Developers vs Woodlands: Round four

Land use is at the heart of municipal politics: who owns it, what you can do with it, how much money you can make on it.


London, in the midst of what remains of the Carolinian Forest, is blessed with natural heritage, wetlands and woodlands, which is the envy of much of the world. But 80% of the Carolinian Forest has been lost, first to agriculture and then to development. Drive around London and you will see subdivisions replacing farmland which itself was cut out of the forest.

Economically, you can’t get much money for land that you can’t build on. Open space land sells for about $5,500 per acre. But if the land is developable as industrial, commercial or residential, its value quickly increases 10 or 20 or 30 or more times.

Not surprisingly then, those who are in the development business were not happy when, late in the summer of 2006, the council of the day passed an Amendment to the Official Plan, OPA 403, that made it easier to protect woodlands of 4 hectares or more from falling prey to the developer’s axe.

Using criteria including the age, size, location and composition of the woodland, the diversity of life it harbours and its connection to a broader ecosystem, the city ecologist would classify the characteristics as high, medium or low. Under the previous rules, three highs were required to label a lot as significant; under the new system, a single high is sufficient to protect the property. Estimates are that the new threshold will potentially protect about 800 hectares in London, although we will continue to lose woodlands even with the additional protection.

I was elected to the Board of Control a month and a half later. Throughout my four year tenure, the London Development Institute (LDI), representing most of London’s developers, has continued to fight OPA 403. Not because they have a problem with trees, mind you. The development lobby just doesn’t like the process, suggesting that it is too restrictive and doesn’t serve the best interests of the community nor does it constitute good planning.

The developers appealed to the Ontario Municipal Board (OMB). Council sent its planning and legal staff to defend Council’s decision.

Former councillor and ardent environmentalist, Sandy Levin went into action, putting up his own money, garnering support from the broader community and hiring a legal specialist to represent the interests of the community whose support for for OPA 403 had been clear at public participation meetings.

Fortunately, the OMB , in its 2008 decision, agreed. The appeal was dismissed.

But that was not the end of it. LDI appealed the decision to the Ontario Superior Court of Justice, Divisional Court. It too dismissed the appeal and awarded $10,000 in costs to the City and $7,000 to Sandy Levin. Small change when millions were at stake for the industry.

Next, LDI approached the Ontario Court of Appeal. No better luck there. This time the City and Sandy were each awarded $7,500, a long way from the approximately $80,000 that Sandy and the community had to shell out. And a long way from the time investment and costs incurred by the City.

That decision came on November 12, 2010. LDI had 60 days to file an appeal to the Supreme Court of Canada. Yesterday, they did so.

“It is disappointing but not surprising that the LDI and others are asking for leave to appeal the lower court's unanimous decision,” said Sandy Levin. “From a business perspective it makes sense to them.

“This four year fight demonstrates how just a small change to protect London's dwindling woodland cover can face a big battle,” he continued, noting that London's woodland cover is just under 8% while the provincial guidelines recommend 30%.

The City of London's current laws protect only woodlands that are 4 hectares or larger; smaller woodlands have no protection at all unless they are within an Environmentally Significant Area. This change in the law makes it easier to give larger woodlands protection. However, as the court decisions point out, even if a woodland is designated by Council as significant, that decision can be appealed by the land owner to the OMB.

Some members of the current council are much focussed on assessment growth and not standing in the way of development. That makes it even more important that there be protections in place for our natural heritage.

The industry is prepared to do battle on the national stage. For them, land is money and trees get in the way.

But for councillors like Joni Baechler, who has fought for the environment throughout her 10 years on Council, “woodlands are the lungs of the planet”.