Fate of woodlands up to judge

Sat, November 29, 2008 London Free Press

A court ruling could come by Monday on whether the Ontario Municipal Board erred in upholding the city's toughened protections for woodlands

By JONATHAN SHER

The fate of hundreds of hectares of London woodlands could be shaped by a court decision that could come as soon as Monday. Superior Court Justice David Little asked pointed questions yesterday as a lawyer hired by major developers asked for a chance to appeal a previous decision that upheld greatly expanded protections for woodlands. Little won't decide merits of the developers' claims. Instead, he'll determine if the Ontario Municipal Board, which upheld the protections, made a legal error in doing so. If he finds a legal error of significant importance, the developers' appeal would be heard by a panel of judges.

Despite its Forest City moniker, London trails many Ontario municipalities in forest cover, with about 10 per cent compared to Toronto's 20 per cent and Ottawa's 30 per cent, says the non-profit ReForest London. Had the city not toughened woodland protection, it was estimated London's forest cover would have fallen to five per cent. But none of that was relevant to the decision Little has to make, the justice noted -- his task is to decide if the municipal board misapplied the law when it announced its decision earlier this year.

The developers' lawyer, Barry Card, argued the city had created rules that enabled the city's ecologist to protect woodlands using guidelines rather than the formative document on how land can be used -- the city's official plan. Developers aren't seeking to cut down trees, they merely are questioning the legality of the process, he said. "(Our challenge) has often been misinterpreted . . . as an attack on trees," Card said. That's not how city lawyer Janice Page sees it. The argument about process veils the true intent of developers, she said -- to strike down new rules that make it easier for woodlands to be designated worthy of protection. "What Card and his clients are objecting to is the threshold (of protection)," Page said. There's no conflict between the guidelines for woodland protection and the rules of the city's official plan, they're linked, she said. Since that linkage was found as a matter of fact by the municipal board, that finding can't be appealed. The court can only consider mistakes in the law and not question factual findings, she said.