Developers’ Notes: Perfect Profile – Development and Site Profile Process

07. June 2019 0

The site profile process is designed to screen for contaminated sites and to ensure that remediation of a site is completed (or at least managed) before redevelopment.  Although often considered a routine step, submitting a site profile can have significant implications for the owner of property planning redevelopment, including unexpected investigation, remediation, and construction delays.  Therefore, it is critical that consultants retained to assist with this process be fully apprised of the various issues that may arise.

Triggering Site Profiles

A person seeking municipal approval for zoning or development of land that the person knows, or reasonably should know, is or was used for “industrial or commercial activity” must provide a site profile to the applicable municipality.  A site profile must also be provided on an application for a permit to remove soil, and on an application for a demolition permit respecting any structure that the person knows, or reasonably should know, was used for industrial or commercial activity.

The requirement to provide a site profile is determined based on the owner’s knowledge of the past historical use/activities at the site.  The test is both subjective and objective — it is based on the owner’s actual knowledge, but also on what a reasonable person ought to know, requiring some due diligence to be performed by the owner.  If it is determined that a site profile was required but not submitted, this may result in the revocation of past municipal permits issued for redevelopment, which could have serious consequences for the property owner, including the imposition of penalties.

The “Freeze” and “Release” Provisions

The submission of a site profile triggers a “freeze” on the permit application process, requiring the owner to take steps to obtain a “release.”  This, in some circumstances, can result in significant investigation and remediation costs, along with the pursuit of an instrument from the Ministry.  In the circumstances in which an innocent owner of property impacted by neighbouring contamination is required to take such steps at its expense, the owner will have a cause of action against the polluter under the cost recovery provisions of the Environmental Management Act.

If the director determines that a site investigation is required as a condition of the release of the permit, it is then up to the consultant, in conjunction with the owner, to obtain the “release.”  While further guidance is provided as to when a release is likely to be obtained under different scenarios, these are far from exhaustive and few circumstances fit neatly into the factual parameters of each.  This can result in further uncertainty for the owner of the site and, potentially, further delay in redevelopment.  Therefore, it is important to ensure site profiles are properly prepared and submitted, lest there be potentially significant delays and additional costs.

 

Questions? Comments? Please contact Adam Way at away@harpergrey.com or anyone else from our team listed on the Authors page.

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