Posted on: November 3, 2016

BC Court of Appeal Overturns BC Supreme Court Regarding Landfill Facility

BC Court of Appeal Overturns BC Supreme Court Regarding Landfill Facility

Duncan, BC – The BC Court of Appeal allowed the appeals of Cobble Hill Holdings (CHH), South Island Aggregates (SIA) and South Island Resource Management (SIRM) finding that the Province has exclusive jurisdiction to regulate the operation of a quarry and its site reclamation. The Court found that the “on-site facility for backfilling the quarry” reclaims the quarry and is outside the jurisdiction of the Cowichan Valley Regional District (CVRD) to regulate under its zoning power. The Court therefore overturned the BC Supreme Court’s orders with respect to the landfill facility.

The Court did find that with respect to an on-site facility for treating contaminated soil, which is not in operation, local government jurisdiction is engaged as the facility is independent of, and not integral to restoring the landform. The CVRD’s zoning bylaw does not permit the facility. The Court therefore upheld the BC Supreme Court’s order preventing CHH, SIA and SIRM from operating the soil treatment facility.

“I am deeply disappointed and saddened by the Court of Appeal ruling,” says CVRD Director Sonia Furstenau. “For four and a half years, our community has been abundantly clear that we do not accept the risk of a contaminated landfill in our watershed. It is disheartening that the Court of Appeal has denied the CVRD's ability to determine land use in our region.”

During the week of August 15, 2016 the appeals by CHH/SIA were heard by the BC Court of Appeal.

On March 21, the BC Supreme Court declared the contaminated soil landfill facility and a contaminated soil treatment facility located at 640 Stebbings Road in Shawnigan Lake to be a non-permitted use on the property under the CVRD’s zoning bylaw. The court also ordered an injunction to cease importing onto the property any waste material including contaminated soil that is required to be permanently encapsulated in engineered cells in the landfill facility.

CHH, SIA and SIRM filed appeals of the BC Supreme Court decision in the BC Court of Appeal and also applied for a stay of certain BC Supreme Court orders to cease importing and landfilling waste material at the landfill facility. The BC Court of Appeal granted a limited stay of the orders which allowed CHH, SIA and SIRM to continue to operate the landfill facility to honor existing contracts committed to as of March 21 until the BC Court of Appeal hearing of the matter the week of August 15. The limited stay was granted on the condition that CHH, SIA and SIRM file an undertaking that they will remove any waste material imported after March 21 to the property, unless otherwise ordered, if they are not successful on their appeals.

In April, the CVRD applied to the BC Court of Appeal to discharge or vary the stay order. The application was dismissed, following a hearing of the matter on May 9 in Vancouver.

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