Ruling puts tree cover in peril.

Lodon Free Press Sat, December 6, 2008

Developers win the right to challenge city rules on protecting woodlands

By JONATHAN SHER

London's tenuous claim to being the Forest City has taken a hit after developers won a round in a court fight over the protection of trees, activists say. Developers have won the right to legally challenge changes at city hall that greatly enhanced protections for hundreds of hectares of woodlands. "Londoners ought to be concerned -- it's a threat," George Sinclair of the Urban League said yesterday. "The forest of the 'Forest City' is under continuous assault, and this would be a major setback." If developers win their court appeal, enough trees to cover 1,000 football fields would become vulnerable to chainsaws and bulldozers. "It would be a sad loss for Londoners," said Sandy Levin, a former city councillor who hired a lawyer to defend enhanced protections for trees against challenges by major London developers and the lobby group that represents them, the London Development Institute.

Despite its Forest City moniker, London trails many Ontario cities in forest cover, with about 10 per cent cover compared to Toronto's 20 and Ottawa's 30, 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.

Facing that threat and a pending civic election in 2006, city council was nearly unanimous in passing greater protections for trees. Under the old rules, a woodland wasn't protected unless a city ecologist rated it high in at least three of several categories that included size, composition, age, history and location. That left two of every three woodlands of at least four hectares defenceless against development. The new rules require only a single high rating and protect an additional 800 hectares of woodlands. Developers challenged those new rules, first to a provincially-appointed tribunal that adjudicates how land can be used, the Ontario Municipal Board (OMB). When a member of that board sided with the city earlier this year, developers went to court, asking Superior Court Justice David Little to allow them to appeal the OMB's decision. Little has now ruled developers can appeal, writing there's "good reason to doubt" the municipal board's decision. At a hearing last week, Little said his task wasn't to decide whether the added protections for woodlands is good or bad. Instead, it was to decide if the OMB made a significant error in how it applied the law. The board may have erred by not considering whether the changes enable the city ecologist to use guidelines to determine which woodlands are protected, replacing, rather than augmenting, the city's blueprint for growth, called its official plan. "The concern is that in this particular case, the amendment utilized the guidelines only in determining 'significance'," Little wrote. Neither developers nor their lawyer could be reached for comment yesterday.