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June 02, 2005

Brownfields Mandatory RSC Filing Takes Effect October 1, 2005

Effective October 1, 2005, Ontario's Brownfields law will require the filing of a Record of Site Condition (RSC) on the Environmental Site Registry for a wide range of land use changes. This affects land use changes from industrial or commercial use to residential or parkland use, and other changes prescribed in the Brownfields RSC regulation (O. Reg. 153/04).

This change will affect properties whether they are contaminated or not - an RSC will have to be filed on the Environmental Site Registry (ESR), signed by the owner and by a "qualified person". The RSC must state that the property is clean enough to meet the regulated standards for the proposed use.

Where a property is subject to a Certificate of Property Use (CPU), municipalities are prohibited from issuing building permits for buildings that would not comply with the restrictions in the CPU.

In effect, this new regime will force owners to remediate many redevelopment properties, and to register RSCs on the public registry. Some developers have been avoiding the RSC process, either because of delays and red-tape requirements, or to avoid the public disclosure of an RSC filing. In most cases that option will be gone by October 1, 2005.

The changes are effected by the proclamation of Environmental Protection Actsections 168.3.1 and subsections (5) and (6) of s. 168.6. Part V (Change of Property Use) of O. Reg. 153/04 will take effect on the same date. (See EPA sections reproduced below).

Prohibition on certain changes of use

168.3.1 (1)

 Subject to subsection (2), a person shall not,

(a) change the use of a property from industrial or commercial use to residential or parkland use;
(b) change the use of a property in a manner prescribed by the regulations; or
(c) construct a building if the building will be used in connection with a change of use that is prohibited by clause (a) or (b).

Exception

168.3.1 

(2)

 Subsection (1) does not apply if,

(a) a record of site condition has been filed in the Registry in respect of the property under section 168.4; and
(b) the use specified under paragraph 3 of subsection 168.4 (2) in the record of site condition is the use to which the property is changed under clause (1) 
(a) or (b). 

...

Notice to prescribed persons

168.6 

(5)

 If a certificate of property use is issued, altered or revoked under this section, the Director shall give notice of the certificate, alteration or revocation to the persons prescribed by the regulations.

Prohibition on construction or use

168.6 

(6)

 Despite any other Act, if a certificate of property use contains a provision requiring the owner of property to refrain from using the property for a specified use or from constructing a specified building on the property, no permit, licence, approval or other instrument shall be issued to any person, under any provision prescribed by the regulations, that would authorize the person to use the property for the specified use, to construct the specified building or to construct a building that will be used for the specified use.

For legal advice on how this significant change to the law will affect your business or municipality, call one of our environmental lawyers: