“Chances of any success are very small’, re appeal of Beeton woods decision, Feehely

New Tecumseth Free Press Online

New Tecumseth councillors are under pressure from a group of Beeton residents to launch a court action appeal of Simcoe County council’s May 12 verdict that lifted a stop work order and reinstated the terms of a special permit issued to Tecumseth Estates in January to clear-cut approximately 30 acres of woodlot on its 9th Line property.

But in a legal memorandum to council dated May 13, by Town solicitor Jay Feehely and Colleen Butler, marked “privileged and confidential” (though it’s included on the public agenda of tonight’s committee meeting) their opinion is that an appeal would require the Town to establish the “Tribunal (County council) erred in making its decisions.” The appeal period is 30 days following the decision.

“The Tribunal gave consideration to submissions made at the hearing, the confirmations by the Ministry of Natural Resources and the Nottawasaga Valley Conservation Authority. It also reviewed and considered the Environmental Impact Study. The Tribunal’s decision can be supported by the evidence even though it is not the preferred decision. Additionally, the Tribunal had the authority to make the decision it did,” according to the memorandum. “The County has exclusive jurisdiction under its Forest Conversation By-law to permit the cutting down of trees, if the treed area is larger than 1 hectare. In our opinion, an appeal will have the temporary effect of staying the decision. However, it will not likely be successful and will only delay the eventual result of the Stop Work Order being lifted. An appeal will further invite cost consequences. In the event that we are unsuccessful, the Town may be ordered to pay part or all of the legal costs of the County and Tecumseth Estates. This cost, which could be as high as $50,000, would be in addition to the Town’s legal fees, which would be approximately $25,000.”

A more probable avenue for success, according to Mr. Feehely and Ms. Butler is the judicial review route, “on the basis that there was an error in the procedure that resulted in procedural unfairness.” But the best result “could but would not necessarily order a new hearing.”

The focus of a review request would be that Tecumseth Estates submitted new evidence after the close of the April 15th hearing, announcing they had withdrawn the development applicantion still attached at the time to the 9th Line property, without opportunity for rebuttal from the other participants, including the Town.

“One tribunal member stated that the Appellant had withdrawn its development application and, as such, it was no longer a concern that the tree cutting was to further a development application. This comment suggests that the new evidence was considered by at least one tribunal member in reaching a decision. Further, the Final Decision issued by the County confirms that it considered the withdrawal of the development application in reaching its decision,” according to the Feehely memorandum.

“As such, its decision could possibly be reviewed on a judicial review application. However, if we are correct in this position, this may not advance the case much further. Should Divisional Court agree that the Tribunal breached the principals of procedural fairness, it could but would not necessarily order a new hearing. Even if a new hearing is ordered, we will unlikely be successful before the Tribunal. Our principal argument before the Tribunal focussed on the fact that the Tecumseth Estates had a development application submitted to the Town and that the tree cutting was nothing more than an effort to get around the Town’s bylaws and further their development application. Now that the development application was been withdrawn, the Town does not have an argument to support its position that the stop work order should continue. Thus, while we might be successful on a judicial review application, we do not believe there is any reasonable chance of success before the Tribunal. The decision was overwhelmingly in favour of permitting the Tecumseth Estates to resume its tree cutting. The Town has no substantive position to advance in the absence of the development application as the lands are designated and zoned agricultural and are being used for that purpose. No distinction can be made on the basis of ownership. You do not have to be a farmer to have active farmland. The cost to bring a judicial review application would be approximately $30,000 to $40,000, and in our opinion, an unreasonably amount to spend when chances of any success are very small.”