In this case, the Ontario Court of Appeal considered whether substituting alternative fuel for a traditional fuel source at a cement manufacturing plant would give rise to a new land use. St. Mary’s Cement Inc. (SMC) proposed to substitute alternative fuel recovered from post-recycling and post-composting materials, for the use of petcoke at its cement manufacturing plant in Clarington. The Municipality submitted that this would give rise to a new land use, that is, use of the site as a “waste disposal area” which is not permitted under the by-law. Winkler C.J.O held that the fuel substitution would not give rise to a new land use.
The Court concluded that the alternative fuel falls within the definition of “waste”, however the proposed plan does not constitute a “waste disposal area” within the meaning of the by-law. The by-law defines “waste disposal area” as “a place where garbage, refuse or domestic or industrial waste is dumped, destroyed, or stored in suitable containers.” The Court rejected the argument that the waste is “destroyed” when it is burned as fuel, stating, “SMC’s use of the alternative fuel would not be considered ‘destruction of waste’, just as the use of petcoke fuel would not be characterized as the destruction of petcoke. In both cases, fuel is being used productively as part of the permitted use – the manufacturing of cement.” The Court concluded that the by-law does not bar SMC’s alternative fuel use.
Rebecca Crangle
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