Developers vs Woodlands: The last battle

The following blog is an updated version of one I wrote last January when the development industry asked for leave to appeal an Ontario Court of Appeal decision regarding a 2006 council by-law relating to the protection of woodlands.

“The application for leave to appeal by the LDI has been turned down by the Supreme Court of Canada.”

This was the crisp and concise email I received from Sandy Levin, former city councillor. Sandy is always brief and to the point, the point in this case referring to the outcome of the challenge by developers to the city by-law that protects our woodlands.

I was one of a number of undisclosed recipients of this information. Many environmentally-minded people are interested in this decision, as are members of the development industry, although for different reasons.

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, even with the additional protection, we will continue to lose woodlands.

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, 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 constitute good planning.

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

An 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.

Despite the fact that the court was unanimous in its decision, LDI took advantage of the opportunity to launch a request for leave to appeal to the Supreme Court of Canada. Today, that request was rejected, with costs being awarded to the City of London and Sandy Levin. After nearly five years, the legal wrangling is over and the new by-law in place.

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 protection to larger woodlands. However, since the lands in question are in private ownership, it is still up to the owners to be “good stewards”, as Sandy Levin pointed out, since designations can still be appealed by the land owner to the OMB.

LDI argues that it was not opposed to the by-law; its objection was to the lack of consultation with the industry prior to adoption, according to LDI president, Jim Kennedy.

That surprises me. My understanding is that there was significant consultation. I can certainly attest to the fact that there was a widely advertised public participation meeting at which I, along with many members of the industry, environmental organizations and the general public, spoke.

Some members of the current council are much focussed on assessment growth and not standing in the way of development. That makes by-laws like these even more important to ensure that we can protect our natural heritage.

So now, it is all over but the cheering.

“YIPPEE”, tweeted Council Joni Baechler, who has been a champion of trees and woodlands for the past 10 years, “Supreme Crt of Can Dismissed Developer/Landowner leave to hear Sign Woodland issue. City& Sandy Levin great day for woodlands”.

Cryptic, but apt.