Can a Court Keep You from Operating as a Penalty for Environmental Violations?

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SITUATION

Substantial parts of a developer’s 455 acres of land border a river and its watershed, including ponds, floodplains, wetlands, marshes and fish habitats. These sections are regulated by a Conservation Authority, which has the power to require permits for development. The developer does some work without a permit, including dredging a watercourse and digging a trench. When the Authority tells him to stop, he refuses. In fact, he says he’s got more development work planned and has no intention of getting permits for any of it. The Authority asks the court to issue an “injunction” barring the developer from doing any more work on the land without a permit. The developer says that because the Authority knew about other unpermitted work he’d done before and didn’t protest then, it couldn’t object to his unpermitted work now.

QUESTION

Can the court bar the developer from doing work on his land?

A. Yes, because it’s in the public interest to stop unauthorized work that harms the environment.
B. Yes, because the developer indicated that he intends to keep doing illegal work.
C. No, because the developer owns the land.
D. No, because the Authority knew about prior illegal work and didn’t do anything about it.

Answer

A & B. Because the developer made it clear he doesn’t intend to comply with the law, the court may issue the injunction to stop unpermitted work that could harm the environment, which is in the public interest.

EXPLANATION

This situation, which is based on a case from Ontario, illustrates what can happen when you thumb your nose at authorities trying to enforce environmental laws. The court said that it’s in the public interest to ensure that unauthorized work on lands under a Conservation Authority’s jurisdiction stops to protect wetland environments. And the public interest in preserving and maintaining these wetlands trumps the developer’s interest in his land.

In addition, the appeals court, which upheld the injunction, said that this situation was unusual because the developer had a history of developing land without permits. All land owners are required to follow the Authority’s requirements, such as getting permits. And if their application for a permit is denied, they can appeal, noted the court. They can’t just ignore the permit requirement. Thus, the developer’s clearly stated intention to continue such work without getting a permit justified granting a permanent injunction.

WHY WRONG ANSWERS ARE WRONG

C is wrong because ownership of land doesn’t give you the unlimited right to do whatever you want on that property. Sections of the developer’s land were under the jurisdiction of a Conservation Authority. So although these sections are “private property,” the Authority has the power to regulate their use for a public purpose—that is, protection of the environment—by requiring permits for work that could damage the environment.

D is wrong because the fact the Authority dropped the ball as to the prior unpermitted work by the developer doesn’t mean it waived its right to enforce the permit requirement going forward. It’s not in the public’s interest to allow the continued violation of environmental laws simply because the government didn’t enforce these laws in the past.

SHOW YOUR LAWYER

Lakehead Region Conservation Authority v. Demichele, [2009] CanLII 79252 (ON S.C.), Dec. 16, 2009; upheld on appeal [2010] ONCA 480 (CanLII), July 6, 2010