Protection of the natural environment | “Property rights are not absolute”

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Supreme Court strikes off developers seeking disguised land grabs


Eric-Pierre Champagne
Faucet

The risk of changing the balance of power between the municipalities of the Montreal Metropolitan Community (CMM) and developers who have construction projects in their natural environment is a recent decision of the Superior Court of Quebec.

In what has been described as a “decisive moment” by an expert in environmental law, Judge Florence Lucas dismissed real estate developers who demanded $ 20 million for “the acquisition of disguised land” of their land housing wetlands in Saint-Bruno in the south. Montreal.

In MWC territory, many wetlands are under extreme pressure from building construction, despite being considered urgent in the face of climate change.

In 2017, businessman Andre Simono and the Monterville Investment Corporation filed a $ 20.2 million lawsuit against the municipality. According to the promoters, a new law regulating the felling of trees in wetlands prevented their subdivision from carrying out projects and therefore introduced the acquisition of disguised land.

“Decisive moment for the continuation of things”

In his decision of September 23, Judge Lucas recalled that “the right to property is not absolute” and that it is “subject to collective requirements”. She rejects the claims of promoters one after the other and concludes that the new rules are not a disguised elimination.

The magistrate in particular underlined that “it is not the municipal regulations that prevent the development of residential real estate, their particularities and wetlands are protected by the LAU. [Loi sur l’aménagement et l’urbanisme], But also by Environment Quality Act, A certificate from the Minister is required to construct a work under it ”.

The 40-page judgment specifies that the new regulations approved by Saint-Bruno are in line with the objectives of the CMM’s Metropolitan Land Use and Development Plan, which has increased protection of the natural environment.

This cannot be denied by SAD [schéma d’aménagement de l’agglomération de Longueuil] And the new regulations have the effect of hampering planned residential and commercial development and affecting the value of developers’ assets. However, this is not enough to ensure their eradication.

Judge Florence Lucas, in her judgment

Judge Lucas said that “the city has not actually and physically acquired possession or use of the disputed land” and that the property will not receive “its basic characteristics, including special use”.

Registered Faucet, promoter Andre Simono said he was shocked at the verdict, but was reluctant to provide further comment. “We are in the period of analysis to determine whether we are going to appeal.”

Photo by Robert Skinner, Law Press

In the territory of the Montreal Metropolitan Community, several wetlands, such as Bois Saborin, are under strong pressure from real estate construction.

“This judgment crystallizes the current state of the law. Municipalities have the necessary powers to protect their natural environment, ”said a lawyer specializing in environmental law.E Jean-François Girard. “This is a game-changer, a decisive moment for the future, especially in the territory of the Montreal metropolitan community.

This decision also follows a number of other decisions on environmental protection in recent years. Judge Lucas also cited the Court of Appeal ruling that “the Supreme Court considers that the protection of the natural environment of the municipal environment is not an illegal objective for a municipal council”.

Importance of wetlands

The Saint-Bruno Conservation Plan specifies that these natural environments “provide many essential goods and services, including air conditioning, improving air quality and controlling runoff”. There is also the endangered species, the western chorus frog.

However, according to a portrait drawn up by the Ministry of the Environment and the Fight against Climate Change in 2013, researcher Stéphanie Pellerin observed that 19% of the wetlands in the interior of the St.Lawrence have disappeared during over the past 20 years. Bleeding continued despite the passage of a wetland law in 2017.

According to Ducks Unlimited Canada, up to 70% of the country’s populated areas are devastated by swamps. However, they are essential in the fight against global warming. “In Quebec, peatlands are terrestrial ecosystems, where the greatest amount of carbon is stored, nine times more than forests,” estimated the Uranos consortium.

“Wetlands are very important in the fight against climate change,” recalls Rafael Ziegler, visiting professor at HEC Montréal, where he teaches a course on sustainable development. “In Germany, many wetlands have been destroyed for agriculture and urbanization. But we now understand that they are very important, especially since they have rendered valuable services.

There is no stone in this case that Judge Lucas has not turned and analyzed.

Jean-François Girard, lawyer specializing in environmental law upon decision of the Superior Court

17% : Minimum percentage of land that the Montreal Metropolitan Community wishes to protect according to its Metropolitan Land Use and Development Plan

10.1% : The proportion of the territory of the Montreal Metropolitan Community is currently protected

Source: Montreal Metropolitan Community


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