by Victor Lachance
As we continue the story of how the Province is fighting the Judicial Review case based on its failure to abide by the Provincial Policy Statements (PPS) and the Planning Act, we’ve covered Pretzel Logic, we’ve covered Pretzel Truth, and now we’ll look at Pretzel Planning.
The “pretzel” part of the language is about the ways the Province is twisting itself into a pretzel with arguments that try to avoid answering the question of whether or not they abided by the law. You would think that if they had, they would say so – and provide the evidence. So now we’ll look at how they talk about their obligation to consider the PPS and Planning Act before making the decision to build a prison on prime agricultural land.
The PPS talks about the importance of protecting agricultural land, and the guidelines that come with it talk about how other levels of government are supposed to implement it in their planning. They both note how Official Plans (OP) are the most important way to implement the PPS. In the Kemptville prison situation, there are two tiers of government: the United Counties, which includes Leeds Grenville, and the Municipality of North Grenville. Both of these levels have an Official Plan, which must be consistent with the PPS. Zoning is something that falls under the municipal Official Plan. So that’s the planning order: the PPS, the United Counties OP, the North Grenville OP, and local zoning by-laws. Now let’s look at what the Province is arguing.
As we’ve noted in the previous columns, we don’t get to hear from the Ministry of the Solicitor General (SolGen) directly. Instead, SolGen is hiding behind Infrastructure Ontario (IO) which can’t always speak for SolGen. So what does IO say? Well, the simplest way to express it is that they completely reverse the order. They claim that a local zoning by-law trumps everything. In other words, the order is this: local zoning by-laws, the NG OP, the United Counties OP, and finally the PPS. But just in case that argument doesn’t work, the planning consultants working for IO say that the Province can just claim eminent domain to use the land they want. Only the concept of “eminent domain” is an American concept, not applicable to Canada or Ontario. Expropriation of land applies in Ontario, but doesn’t apply to this property because the Province owns it. So, when a representative of IO sees what the consultant wrote, he tells the consultant that this would be a good thing to put in the consultant’s report about the use of the land. Pretzel planning.
Then the Province argues that the only question here is whether the proposed prison site is farmland, and whether SolGen is allowed to build on farmland. In fact, the JR is about whether they abided by the law when choosing Kemptville. Nevertheless, to answer their question we don’t need the courts. The proposed site is classified by the Canada Lands Inventory as Class 2 and 3 prime agricultural land, and the Province’s own AgMaps system has the same classifications. The PPS has rules about what you can build on such lands, and a prison isn’t one of them. The United Counties OP and the municipal OP follow the same restrictions. Finally, our local zoning by-law has a list of permitted uses on this land, and a prison is not one of them.
That’s what pretzel planning looks like.