How a Forest Falls

Some people may have been following the Quixotic struggle to save a 35 hectare (60 acre) woodlot in Beeton that includes a number of butternut trees, which happen to be a protected species in Ontario. Unfortunately, this particular forest is falling to the axe. There are some lessons here for Innisfil and other communities.

I’m coming to this news late. The facts are that a 241 acre tract has been owned by Tecumseth Estates since 1991.   Of that, 181 acres are class 1, 2 and 3 lands designated for agricultural use and the remaining 60 acres is a mixed woodlot containing butternut trees, which are a protected species in Ontario.

Illegal Cutting; Stop Work Order; Special Permit

November 2008 – The property is not included in revised settlement boundaries established in 2008. “Tecumseth Estates does intend to develop its lands and when the next review of Beeton Community boundary occurs, it will want its lands to be included within any future boundary expansion.”

January 2012 – Simcoe County “issued a ‘stop work order’ as tree clearing was occurring without a permit. As the apparent tree clearing had included butternut, a protected species under the Endangered Species Act, the Ministry of Natural Resources (MNR) was also contacted.”

January, 2015 – Simcoe County grants Special Permit to clear 30 acres (12 hectares) to Tecumseth Estates as an ‘expansion’ of agricultural uses 

Effectively Avoid Obligations

April 8, 2015 – New Tecumseth objects that “planning applications for Official Plan and Zoning Bylaw amendments, which if ever approved, would include the lands within the Beeton settlement area, [open] it to residential subdivision development … At the earliest stages and before initiating grading or other site alteration works on the property, the Town would require a Tree Preservation Report and archeological assessment… As well, the Town requires compensation for trees lost in the development process. In subdivision applications of this size, the value attached to tree preservation and compensation for tree loss is very substantial. As a result, the permit to remove trees under the County By-Law would allow the owner to effectively avoid obligations under its current development applications with the Town. The Town has issues both with tree preservation and compensation which would be defeated if the County permit is allowed to go through.

April 14, 2015 – Tecumseth Estates appeals Stop Work Order

April 29, 2015 – Tecumseth Estates withdraws Application for Official Plan Amendment & Rezoning Bylaw – significant because the Town of New Tecumseth objected to the permit due to “the failure to disclose the nature of the owner’s interest in this property as having active development application before the Town of New Tecumseth.”

May 12, 2015 – Simcoe County Council lifts Stop Work Order; Special Permit is confirmed by a vote of 18 to 9 (Innisfil Mayor & Deputy Mayor voted in favour), in consideration of:

  • the Ministry of Natural Resources provided confirmation that the appellant has complied with the Endangered Species Act, and undertook butternut and companion tree planting in accordance with their agreement with the Ministry of Natural Resources;
  • The appellant undertook an Environmental Impact Study (EIS), to examine any potential impacts to steep slopes and watercourses on the property and surrounding area;
  • Based on the findings and recommendations of the EIS there is no significant impacts to the watershed anticipated;
Confirmation was received that the NVCA, County and New Tecumseth Planning Departments accepted the conclusions of the EIS;
The appellant (Tecumseth Estates Inc.) has instructed the Town of New Tecumseth to withdraw her applications for official plan amendment and rezoning by-law …

August 19, 2015 – Divisional Court Hearing: motion by activist group, Aware Simcoe, to stay Council’s decision pending completion of a Judicial Review

August 26, 2015 – Ontario Justice denies the motion

Not Representative of the Public Interest

Among the Judges rulings:

  • “the public does not have an interest in every tree. At least not directly.”
  • “the Applicant departs from the abstract of denial of natural justice and invokes the merits… So, simply put, the harm is to the trees.” [not to the public?]
  • “There is no indication of the extent to which the Applicant’s views are representative of the public interest. No elected local representatives join in their Application. There is no evidence of any expert assessment that the trees or the woods are significant.”
  • “an injunction granted in circumstances of a procedural mistake to the Applicant with no interest in the property, no evidence or special expertise in the significance of the trees, no irreparable damage to any legal interest, would compromise the County in exercising its authority …”

$27,000 in Costs Awarded to Developer

The Judge ordered that Aware Simcoe pay Tecumseth Estates $27,000 in costs and an additional $5,000 to Simcoe County.

“In this instance of a fully compliant landowner who had met the public interest concerns put forth by the County over several years; and a group of publicly minded citizens who were never able to elevate their views to the level of evidence of a public importance ; I find that the landowner is not “trumped”

Further, “I find it irresponsible, perhaps even disingenuous, for an unsuccessful litigant to hide behind lack of funds as grounds for denying an order for costs having earlier asserted that it could meet undertaking requirements.”

Address This Loophole

In 2011, the Ontario Environmental Commissioner noted, “Natural heritage features are being destroyed as farmlands are being prepped for subdivisions and aggregate operations under the guise of  ‘normal farm practices’” and said it’s high time the provincial government address this loophole, that … is allowing developers to circumvent protection of countless woodlands and wetlands across Ontario.