Brownfield Progress
09/05/2005
by -- Janet Bobechko
While the provinces have started to embrace brownfield redevelopment, much more remains to be accomplished.
A few years ago, the term "brownfield development" was not widely known. Today, the terminology is slowing slipping into mainstream discussion. The public is beginning to recognize that we need to control our sprawling development and start looking at our underutilized old industrial lands in urban areas with existing infrastructure in place. The drawback is their contamination and how to deal with it from a liability perspective.
Most provinces have recognized and are beginning to embrace brownfield development but are struggling with how to implement policies to convince the development and financial community that brownfields are worthwhile endeavours.
In Ontario, there has been a substantial push over the last three years to get brownfield development up and running. Ontario's Brownfields Statute Law Amendment Act, (Brownfields Statute) made substantial amendments to Ontario's Environmental Protection Act (CEPA). Part XV.2 of the Brownfields Statute (Special Provisions Applicable to Municipalities, Secured Creditors, Receivers, Trustees in Bankruptcy, Fiduciaries and Property Investigators) came into force in December 2002. While this was heralded by the government as a great step forward, there was no "rush" to start developing Ontario's brownfields. Concerns from both the development community over liability and lack of funding from the financial sector have contributed to the trickle of development.
Record of Site Condition
Other portions of the Brownfields Statute have been phased in over the past three years, with the final mandatory provision of a Record of Site Condition (RSC) to come into force on October 1, 2005. An RSC must be filed on the Environmental Site Registry (ESR) before a property use can change from an industrial, commercial, or community use to a residential, institutional, parkland or agricultural use. In order to file the RSC, the property must have been appropriately assessed and shown to meet the soil, sediment, and groundwater standards appropriate for the use proposed to take place on the property.
Ontario now requires a "qualified professional" to certify the condition of the site. The qualified person standards has brought a new level of professionalism to the environmental consulting field, however, only strict auditing by the MOE will enforce the standards qualifications. The MOE should vigorously audit the RSCs submitted to the ESR to ensure all parties involved in brownfield development including the public can gain confidence in the process.
For the first time, the Brownfields Statute and its regulations have set regulatory standards for contaminated site cleanups and have provided access to environmental information through a public ESR. The act and regulations also exempt developers and purchasers from specified Ministry of Environment (MOE) orders after a property is cleaned up in accordance with the new regime and a RSC is filed. However, there is still no protection for third party liability or CEPA charges.
Greenbelt and Places to Grow Acts
Earlier this year, the Ontario government passed the Greenbelt Act enabling the creation of the Greenbelt Plan, which protects about one million acres of environmentally sensitive and agricultural land in the Golden Horseshow from urban development and sprawl. It includes and builds on about 800,000 acres of land within the Niagara Escarpment Plan and the Oak Ridges Moraine Conservation Plan. The legislation authorizes the government to designate a Greenbelt Area and establish a Greenbelt Plan. Land use planning must conform to the Greenbelt Plan. Under this plan, the Minister has set policies that prohibit, restrict or regulate the use of land or the erection of buildings but also encourage the reuse of underutilized property and promote brownfield development under provincial policy statements.
On June 13, 2005, the government passed the Places To Grow Act, which provides a legal framework for growth planning in Ontario. Cabinet may, by regulation, designate an area of land as a growth plan area. The Minister of Public Infrastructure Renewal then prepares a proposed growth plan for all or parts of the designated area. The Minister must give notice to the public and provide an opportunity for stakeholders to submit comments. Once a growth plan is approved for a designated area, all decisions made under the Planning Act by local decision-making bodies must conform to the plan.
Love it or hate it, the end result of both the Greenbelt Act and the Places to Grow Act is to ensure that brownfield development will become part of the nomenclature of developers.
While much is happening in the area of brownfields redevelopment legislation and regulation, more work is needed. For brownfield development to ultimately succeed, professionals involved in brownfield development need more opportunities to interact with one another. We must also strive to bring brownfield development opportunities to professionals and the public that might not otherwise be introduced to the subject.
Janet L. Bobechko is a partner and Head of the Environmental Law Group at Goodman and Carr LLP. She is a Certified Specialist in Environmental Law by the Law Society of Upper Canada and is a member of the CBN Advisory Panel. Jbobechko@goodmancarr.com.
|
|
