Things to consider: Under the Municipal Act, 2001, and with some exemptions, a local municipality has the authority to:
  1. prohibit or regulate the placing or dumping of fill;
  2. prohibit or regulate the removal of topsoil;
  3. prohibit or regulate the alteration of the grade of the land;
  4. require that a permit be obtained for the placing or dumping of fill, the removal of topsoil or the alteration of the grade of the land; and
  5. impose conditions to a permit, including requiring the preparation of plans acceptable to the municipality relating to grading, filling or dumping, the removal of topsoil and the rehabilitation of the site. 2006, c. 32, Sched. A, s. 76 (1).”1
For a municipality to pursue a mandatory order to remove illegal fill and impose full remediation, it can seek injunction through the Superior Court of Justice as outlined in section 440 of the Municipal Act, 20012:

“440. If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.”3

Enforcement in smaller municipalities can be limited by resources, such as budget, city staff and by-law knowledge. Municipalities should explore opportunities to share enforcement responsibilities with each other and/or with local conservation authorities. These joint undertakings can be organized through Memorandums of Understanding (MOU) or protocols or informally. There are also enforcement issues with understanding all operations that are regulated under municipal jurisdiction.

Example:
Burlington Airpark Inc. v. City of Burlington
The Burlington Airpark began fill operations in 2008 for the stated purpose of building a new heliport and terminal building. The City first received complaints from residents in fall 2008 and began meeting with the Airpark after then. The Airpark claimed it was not subject to the City site alteration by-law because it was under federal jurisdiction. However, in 2013, the City discovered the Airpark had been conducting fill operations exceeding the duration and volume previously provided to the City and had not built the airport expansion. The City concluded the Airpark was being used as a fill site and received the following guidance from Transport Canada:
    “Where the quality of fill has properties that might affect aviation then the quality of fill is integral to aviation. Otherwise, the quality of fill being brought onto a site is not regulated under the Aeronautics Act and where other jurisdictions have authority they may wish to exercise that authority.”
The City issued an Order to Comply for the Airpark to adhere to the municipal site alteration by-law. Following the Airpark’s failure to comply, specifically with the soil quality requirements, fill operations were suspended pending the Court’s decision. It was found that the Airpark’s soil operations were in municipal jurisdiction due to the fact that the quality of the fill does not and will not affect any aeronautic activity on the site and therefore does not fall under federal jurisdiction. The Airpark failed to comply with the by-law from 2008-2013 and was ordered to pay the City’s legal fees. 4

Based on CUI’s stakeholder consultation, the following are some of the common enforcement issues municipalities encounter related to site alteration and fill by-laws:
  • the issuance of stop-work orders; and
  • the requirements for access.
Ways of addressing these issues through municipal by-laws are presented in this section.

DEFINITIONS

See the Definitions Page for additional terms relevant to any site alteration or fill by-law.

INSPECTION, ADMINISTRATION & ENFORCEMENT

Things to consider: By-law enforcement provisions typically name the party responsible for administering the by-law (e.g. Director or Chief Building Official), prescribe the conditions under which an inspector may enter the site, require the owner to advise the municipality upon completion of the work covered by the permit and may also require access to on-site documentation. Based on the by-laws reviewed, it is a best practice to include these provisions in any site alteration or fill by-law.

Access to the site
Ensuring access to the site for the purposes of inspection is often a key concern for municipalities. An example of a detailed provision related to access is provided below:

“l) The Chief Building Official and Officers may, at any reasonable time, enter and inspect any land to determine whether this by-law, an Order to Comply, a Stop Work Order or an Order for Removal, a condition to a permit issued pursuant to this by-law, or a Court Order relating to this by-law is being complied with.
2) For purposes of an inspection under (1), the Chief Building Official and Officer may;
  1. require the production for inspection of documents or things relevant to the inspection;
  2. inspection and remove documents or things relevant to the inspection for the purpose of making copies or extracts;
  3. require information from any person concerning a matter related to the inspection; and
  4. Alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests, samples or photographs necessary for the purpose of the inspection.”4

NOTICES & ORDERS

Things to consider:
Stop Work Orders

In some cases, the small fines or penalties that operators of major fill sites may incur for by-law infractions are not large enough to incite compliance. Including a Stop Work Order provision in site alteration or fill by-laws can give municipalities greater control of fill operations.

An example of a provision which sets out the process by which the municipality may issue an order requiring the owner of the site to discontinue activities is provided below.

“8.0 If an Enforcement Officer has reasonable or probable grounds to believe that a contravention of this By-law has occurred, the Enforcement Officer may make an order requiring the owner of the land and Person who caused the Site Alteration to discontinue all activities on the Site.

An order issued under Section 8.0 shall set out:

8.1.1 The reasonable particulars of the contravention;
8.1.2 What the Owner must do to rectify the contravention;
8.1.3 The date and time by which the order must be complied with;
8.1.4 A statement that if the work is not done in compliance with the order within the specified time period, the City may have the work done at the expense of the Owner;
8.1.5 Information regarding the City’s contact Person; and
8.1.6 The name of the Owner, municipal address and the legal description of the Site that is the subject of the contravention.”6

The second example below is a more detailed provision and gives the municipality authority to require additional remedial action by the site operator if there is a contravention of the by-law.

“10.01 If after inspection, an inspector is satisfied that a contravention of this By-law has occurred, the inspector shall notify the owner and the permit holder of the particulars with a ‘Stop Work Order’ and an ‘Order to Comply’, pursuant to Section 444(1) or 445(1) of the Municipal Act, 2001, and provide all occupants with copies of the ‘Stop Work Order’ and ‘Order to Comply’ and such orders shall contain:
    10.01.01 the municipal address and legal description of the land;
    10.01.02 reasonable particulars of the contravention(s);
    10.01.03 the period within which there must be compliance.
10.02 The orders issued pursuant to Section 10.01 of this By-law may require any person who has altered the grade of land, caused or permitted the grade to be altered contrary to the provisions of this By-law, placed, dumped, cut or removed fill, caused or permitted fill to be placed, dumped, cut or removed, or caused or permitted any other form of site alteration contrary to the provisions of this By- law to:
    10.02.01 cease all work in respect of the site alteration;
    10.02.02 remove the fill;
    10.02.03 fill in any excavations or ponds; and/or
    10.02.04 complete all the work necessary to:
    10.02.04.01 eliminate any hazard resulting from the alteration of the grade or the placing, dumping, cutting or removal of fill and to restore the land to a condition of safety and/or its original environmental condition, to the satisfaction of the Director;
    ;10.02.04.02 preserve the land pending any hearing of an appeal in respect of an application;
    10.02.04.03 restore the land to its former condition prior to the alteration of the grade of the land or to the placing, dumping, cutting or removal of the fill on the land or other site alteration to the satisfaction of the Director.
10.03 The Order and/or Notice referred to in Sections 10.01 and 10.02 of this By-law shall also contain:
    10.03.01 the time frame in which the work contained in the Order must be carried out;
    10.03.02 a notice stating that if the work is not done in compliance with the order within the period it specifies, the City will issue a ‘Notice of Violation’;
10.04 An Order and/or Notice issued pursuant to Section 10.01, 10.02 or 10.03 of this By-law shall be served personally or by prepaid registered mail or in accordance with Section 10.07 of this By-law.
10.05 An Order and/or Notice issued pursuant to Section 10.01, 10.02 or 10.03 of this By-law, sent by prepaid registered mail, shall be sent to the last known address of the owner of the land and permit holder.
10.06 An inspector who is unable to effect service pursuant to Section 10.05 of this By-law shall place a placard containing the terms of said Order and/or Notice in a conspicuous place on the property and the placing of the placard shall be deemed to be sufficient service of the Order and/or Notice on the Owner and permit holder.
10.07 If the owner or permit holder fails to do the work required by an ‘Order to Comply’ and ‘Notice of Violation’ issued pursuant to Sections 10.01-10.03 of this By-law within the period specified, the City, in addition to all other remedies it may have, may do the work and for this purpose may enter on the land with its employees and agents. The costs incurred by the City in so doing shall be paid by the owner of the land and may be recovered by the City in like manner as taxes or drawing on financial securities provided.7

PENALTY

Things to consider: Under the Municipal Act, 2001, contravention of a by-law is liable to a minimum fine of $500 and a maximum fine of $100,000, with total daily fines not limited to $100,000. Special fines may also be ordered if the offender received economic advantage or gain from the contravention, and can exceed $100,000.8

See Fees, Cost Recovery and Financial Assurance for for more information on penalties.