No Golf Course in Marshfield Woods
In March 2001, the Ministry of Municipal Affairs and Housing denied approval of a proposal to build a golf course in an important natural area in Essex County – the Marshfield Woods.
A proposed Official Plan Amendment (OPA) would have redesignated approximately 79 hectares of land from “Agricultural” to a new designation called “Natural Environment/Golf Course,” to permit the development of a golf course. The Council of the Town of Essex had adopted the proposed OPA in November 2000, and then applied to MMAH for approval.
MMAH said in its decision notice posted on the Registry that it denied approval because the proposal did not have appropriate regard to the policies of the Provincial Policy Statement (PPS), and that the proposed golf course would be located within a Provincially Significant Wetland (PSW). No further information about its reasons was provided by the ministry in its decision notice, but MMAH provided its written explanation for the refusal to the ECO upon request. In that document, MMAH indicated the ministry denied the application because it did not have appropriate regard to a number of the PPS policies, including those related to significant woodlands, significant wildlife habitat, and the diversity of natural features and connections.
The PPS sets out matters of provincial interest that planning authorities such as municipalities, MMAH and the Ontario Municipal Board (OMB) must “have regard to” when making decisions under the Planning Act. Section 2.3 of the PPS states that natural heritage features and areas will be protected from incompatible development. It says that:
- development and site alteration will not be permitted in significant wetlands south and east of the Canadian Shield (wetlands designated as PSW by MNR).
- development and site alteration may be permitted in other types of significant natural heritage areas, such as woodlands, wildlife habitat and areas of natural and scientific interest (ANSIs), if it has been demonstrated that there will be no negative impacts on the natural features or the ecological functions for which the area is identified.
The lands subject to the development proposal cover a large portion of the Marshfield Woods, located just north of Harrow. It is one of the largest remaining natural areas of its kind in southwestern Ontario. MNR says that the site is located in the extreme southwestern portion of Ontario in the Carolinian Canada zone, an area which has lost over 90 per cent of its wetlands and contains only 3 per cent forest. The environmental significance of Marshfield Woods has been recognized for many years, but it was first formally designated as an Environmentally Significant Area by the Essex Region Conservation Authority (ERCA) in 1994. The Ministry of Natural Resources identified Marshfield Woods as a Provincially Significant Wetland in May 2000. MNR's comments on the proposal concluded that development of a golf course on the site would result in:
- the loss of 47 hectares of provincially significant wetland
- the loss of more than 47 hectares of interior forest bird habitat
- an impact on, or the loss of, up to 12 provincially significant plant species, three locally significant plant species and two provincially significant animal species
- an impact on hydrological functions.
An earlier application for a golf course on the property was initiated in 1998 by the landowner, the Hearn Group. Construction activities, including logging of trees for the fairways, began in early 2000, even though the landowner did not have approval to build a golf course. The OMB was asked by objectors to halt the logging until a decision was made on the golf course application. The Board said its hands were tied, because there were no legal means to prevent tree-clearing on agricultural lands, and stopping it “would be infringing on the Hearn Group's property rights.” After the PSW designation was made by MNR in May 2000, the first application was withdrawn.
In August 2000, the proponent submitted a new application to the Town of Essex. Town Council said that they had no choice but to approve the proposed golf course, because the Hearn Group had threatened to cut every last tree if denied approval. The town’s decision was sent to MMAH for approval in November 2000. MMAH circulated the application to several ministries and the ERCA for comment, and posted it on the Registry for public comment.
The ministry’s description of the proposal and the decision in the Registry notices were lacking in detail, but the ministry did provide a contact name and phone number so that the public could request more information. The ministry contact person was very cooperative with requests for information from the public and the ECO. MMAH posted the decision notice immediately after the decision was made to notify the public of the appeal period under the Planning Act. The main weakness of MMAH's decision notice is that it did not provide a description of the public comments and their effect on the decision as required by the EBR. The decision notice simply stated that 76 comments were received and that “All comments were reviewed and considered.”
ECO’s review of the public comments found there was no middle ground expressed. All comments were either strongly supportive or strongly opposed to the proposal. Most opposed the OPA proposal on environmental grounds. Some supported the proposal, primarily because of the issue of property rights. Those opposed to the OPA described the environmental significance of the Marshfield Woods and asked that it be protected. They stressed that Essex County has 3 per cent tree cover, but more than 20 golf courses. They referred to the PPS policies regarding provincially significant wetlands, significant woodlands, significant wildlife habitat, diversity and connectivity, and the quality and quantity of groundwater, surface water and recharge areas.
Many commenters alleged that the Town of Essex failed to have regard to the PPS and the advice of experts such as staff of the ERCA and MNR. They also stated that the town did not carry out adequate public consultation. MMAH confirmed that Essex did not consult with the ministry as required by the Planning Act prior to the adoption of the OPA, and that advice provided by MNR and MMAH to Town Council was not followed. The commenters also raised the concern that this OPA was just the first stage of a larger project contemplated by the Hearn Group and another developer to expand the golf course and build estate housing on a large area of contiguous forest and surrounding agricultural lands.
Commenters supporting the proposed OPA were not all necessarily in favour of the proposed golf course, but were strongly opposed to the idea of designating privately owned lands as environ- mentally sensitive. They argued that property rights should be paramount, and if any level of gov- ernment were going to remove landowners’ rights to develop their lands, that the landowners should be compensated. This was an issue in the area at the time, because Essex County (the upper- tier municipality) was also carrying out consultation on its draft Official Plan and its proposal to designate some lands as Environmentally Significant Areas.
The comments contained opposing views on a number of topics:
- how environmentally significant Marshfield Woods is
- whether the town had carried out adequate public consultation on their consideration of the application
- whether provincial interests such as natural heritage should take precedence over a Town Council decision and individual property rights
- whether golf courses are protective or destructive of the environment
The ministry’s decision means that the landowner cannot develop a golf course on the lands, pending a final decision by the OMB and any possible court appeals. Several parties, including local residents, The Friends of Marshfield Woods and the Essex Region Conservation Authority objected to the municipality’s adoption of the OPA to the OMB. After the ministry’s decision to deny approval of the OPA, both the Town of Essex and the proponent appealed the ministry’s decision to the OMB. A hearing is pending.
Unfortunately, considerable environmental damage has already occurred as a result of the Hearn Group’s clearing trees to create the fairways, and constructing culverts and ponds to drain the wetlands. The interior forest of Marshfield Woods has been significantly degraded and will not recover for a long period of time. For example, the introduction of forest edges throughout this former interior woodlot will change the habitat used by migrating songbirds and other species of concern. One of the most disturbing aspects of this case is that it appears the landowner deliberately attempted to degrade the natural heritage values of the property. In March 2001, the Essex Region Conservation Authority laid charges against the Hearn Group for contraventions of the Conservation Authorities Act related to unapproved construction of ponds and other drainage activities and was investigating possible contraventions of the federal Fisheries Act related to destruction of fish habitat.
The fact that a landowner was able to deforest such an important natural heritage area points to weaknesses in the current land-use planning system and gaps in Ontario’s environmental legislation. For example, there is no requirement for municipalities to designate environmentally significant lands as off-limits to development, and they only need to “have regard to” the PPS policies. There is also no requirement for tree-cutting by-laws, or any provincial law prohibiting or limiting tree-cut- ting in provincially significant ANSIs, wetlands, woodlands or significant wildlife habitat.
Municipalities may pass tree-cutting by-laws, but they are not required to, and these types of by-laws are often appealed to the OMB and the courts. MMAH and other ministries should consider these issues and this example in the five-year review of the PPS required to be undertaken in 2001. Many commenters on both sides of the debate called for the provincial government to purchase the lands from the proponent. Those interested in property rights said that compensation was required if the province wanted to prevent a landowner from developing his or her property. Those interest- ed in protection of the Marshfield Woods suggested that the lands were as ecologically significant as others included in the province's land acquisition programs, and that permanent protection was necessary to prevent any more destruction.
This case illustrates the need for the government to reconsider the geographic scope of its land acquisition programs to include the remaining fragments of woodlands and wetlands, especially in the extreme southwest of the province. (The ECO review of Ontario's land acquisition programs is found in A Review of Ontario’s Land Acquisition Programs.)
The ECO commends the Ministry of Municipal Affairs and Housing for upholding the natural heritage policies of the Provincial Policy Statement. It appears that comments by MNR and the Conservation Authority were given considerable weight by MMAH in making its decision. MNR described the importance of Marshfield Woods as a provincially significant wetland, woodland and wildlife habitat. The ERCA recommended that the application be denied. MMAH’s decision to deny approval for this proposed development is consistent with the purposes of the EBR, especially the protection and conservation of ecological systems and ecologically sensitive areas.
This decision may set an important precedent, and may influence municipalities and the OMB in making decisions on similar development applications affecting significant natural areas in other areas of the province. Regardless of the ministry's decision or the outcome of the OMB appeal hearing, Marshfield Woods will not necessarily be protected, since the land is currently designated “Agricultural,” a designation which permits forestry and tree-cutting, and remains at risk of being completely cleared and drained.
Few municipal planning decisions are placed on the Environmental Registry for public comment, because the minister’s approval authority for most decisions has been delegated to upper-tier municipalities. The only planning approvals posted on the Environmental Registry are those where the province still remains the approval authority. Essex County does not have an official plan, so it is one of the few areas of the province where the ministry is still the approval authority for lower-tier OPAs, and where public comment opportunity through the EBR still exists. This proposal received 76 comments, quite a few of them from outside the local planning area. This case reinforces the value of and need for provincial oversight of municipalities’ planning decisions. It also illustrates why broad public consultation on all Official Plan Amendments and many other planning decisions is important.
The ECO will monitor the outcome of the OMB hearings on this case, as well as MMAH’s five-year review of the Provincial Policy Statement.
The ECO recommends that MMAH and other ministries consider, as part of the five-year review of the Provincial Policy Statement, the need for clearer provincial requirements for municipalities regarding the protection of environmentally significant lands.
|This is an article from the 2000/01 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article
Environmental Commissioner of Ontario. 2001. "Marshfield Woods." Having Regard, ECO Annual Report, 2000-01. Toronto, ON : Environmental Commissioner of Ontario. 116-120.