Surplus land By-law and Municipal Act are not linked says reader

Dear Editor

Re. Surplus Land, Port Elgin Beach

I am troubled by Town Council’s recent resolution to declare some of the Port Elgin beach lands surplus and by the notice which has recently appeared indicating that it was proposed that Council would enact a by-law confirming its decision to declare the land surplus.

The notice states the following: “Pursuant to the Municipal Act, 2001, S.O. 2001, c. 25 and the Town of Saugeen Shore’s By-Law 28-99, take notice that Council proposes to pass a By-law at the October 11, 2022 Council Meeting to confirm the declaration of surplus of the land identified as………”. The notice may be seen to link the current Municipal Act and the Town’s By-law. But they are NOT linked as the by-law was enacted under the Municipal Act 1990 which is no longer in force.

The 1999 by-law which dealt with the sale of surplus property was enacted under the 1990 statute which in turn indicated that the word “sale” included leases of municipal property of more than 21 years. The statute required that municipalities adopt policies for the sale of land and the Town thus adopted By-Law 28-99. Among the requirements of the statute also was that, before selling land, the land was to be declared surplus. The By-law reflects this.

What does surplus mean? The terms “surplus”, “surplus land” and surplus property” are not directly defined in the 1990 or current municipal statutes. The common sense definition of “surplus” found in dictionaries is that surplus is an amount over that which is needed or is more than needed to accomplish something (more than is required for municipal needs is sometimes stated in the municipal context). There is a lack of case law on municipal land surpluses. “Surplus” is sometimes seen in the context of assessment and tax cases and it sometimes means what is in excess of operational needs.

So what is the problem? Councils are still required to adopt policies regarding the sale and other disposition of land (Municipal Act, s.270(1)) BUT, with respect to Town Council and the administration, there is no requirement in the current Municipal Act which requires that land be declared surplus prior to disposition. So why do it? More particularly, why do it with respect to land which is so obviously cherished by the public? Councillors and the administration have said the land would never be sold and that the land being declared surplus did not mean it would be sold…fine but what does the declaration mean? Confirmation of the declaration for administrative reasons, in the absence of a compelling legal argument requiring it, seems problematic.

Is it within council’s power to enact similar requirements regarding leased lands that are now in the by-law? Yes, s.270(1) is broad enough for this and, to be fair, numerous municipalities have done this….to which one can only ask why? One answer to the question of why is that for all intents and purposes land really is surplus if a municipality is willing to let it be held and used by someone with a leasehold interest for more than 21 years – in short, the municipality obviously does not need it if it can part with it for that length of time.

Will enacting a new by-law more consistent with the current Municipal Act change the lease or arrangements made for the development of part of the beach? Not likely, but by not seeing the land as surplus or extraneous and by publicly being seen to value the land, some solace might be brought to those who fear that the beach will ultimately be lost to the municipality.

Greg Levine*

*Greg Levine has worked on a range of municipal matters in various capacities since 1988 and has updated, revised and suggested editing for Roger’s Law of Canadian Municipal Corporations since 2008 and for Rogers and Butler’s Canadian Law of Planning and Zoning since 2010. The comments above are the author’s alone and ought not to be attributed to any client or any publisher with whom he has worked.


Editor’s Note:

Gregory J. Levine is a barrister and solicitor, practising law in Ontario. He is a member of the Law Societies of British Columbia and Upper Canada, with an LL.B. from the University of Toronto, as well as a Ph.D. in cultural geography from Queen’s University in Kingston. He is also a member of the Canadian Academy of Independent Scholars based in Vancouver.

Greg has taught courses on Governmental Ethics Law in the Faculty of Law at the University of British Columbia and in the Political Science Department at the University of Western Ontario. He has also co-presented a course on equity and ethics at King’s University College in London, Ontario.

Greg Levine’s practice focuses on government ethics law, municipal law and administrative law. Formerly an Integrity Commissioner for six Ontario municipalities he now advises and consults on ethics matters on a case by case and select basis. Similarly, having been a solicitor in a municipal legal department as well as a counsel to provincial, municipal and university ombudsmen, he offers advisory services in municipal law also on a case by case and select basis.

Author of  The Law of Government Ethics: Federal, Ontario 
and British Columbia, Greg has written and published papers in the access, privacy and administrative justice areas, has made submissions to provincial and municipal governments on ethics matters, and has given lectures and speeches on a variety of topics within the broad area of governmental ethics law.