Law Times

Law Times • June 9, 2014 Page 11 www.lawtimesnews.com Environmental protection Law on conservation easements evolves as development booms By marg. Bruineman For Law Times s pressures from de- velopment persist in Ontario, observers say there's potential for in- creased use of conser- vation easements. The restrictive easements are a way to preserve parcels of land considered environmentally sig- nificant, a process helped along by improved tax incentives. Often, private property own- ers make an agreement with a land trust to ensure the preserva- tion of their tract of land long after they've died and the property has passed on or changed hands. "They're effective tools in the development of the land" for ensuring the protection of sen- sitive areas, says Chris Barnett, a partner at Davis LLP where he's head of the municipal and land-use practice group in the Toronto office. Controversy arising from a proposed development in Pick- ering, Ont., prompted a change to the Conservation Land Act in 2005, which was then just 15 years old, to introduce an extra layer of protection for land containing a conservation easement. In that situation, a land specu- lator had purchased a property containing easements that pro- tected the land for agriculture purposes. The City of Pickering, which held the easement, agreed to release it in order to make way for development. Outrage prompted the provin- cial government to pass a piece of legislation, the Duffins Rouge Ag- ricultural Preserve Act, specific to that property and amending the Conservation Land Act. As a re- sult of the amendment, approval from the Ontario minister of nat- ural resources is now necessary to release a conservation easement. "Conservation easements are very unique and power- ful tools for conservation," says John Urquhart, a conservation science manager who oversees land trusts for Ontario Nature, a conservation organization that was very active in the Pickering dispute. "It puts all the burden on the conservation organization." Ontario Nature is one of many organizations that can hold a conservation easement on a property. That requires regu- lar inspection and maintenance to uphold the terms of the ease- ment. Fundraising is also part of the process to cover any related costs, including building a legal war chest to ensure the ongoing protection of the property. The conservation organiza- tion is currently in negotiation over a piece of property it owns that could affect a restrictive ease- ment held by another land trust organization. York Region has sought to expropriate a sliver of the Cawthra Mulock nature re- serve to improve Bathurst Street north of Newmarket, Ont., but because of the easement the pro- cess requires the involvement of the minister of natural resources. "The interesting thing about conservation easements is they are a real estate instrument," says Paul Peterson, a lawyer who fo- cuses on municipal planning, land development, and environ- mental issues with a special inter- est in land conservation at HGR Graham Partners LLP. But, he adds, they're private contractual agreements used for planning control that could relate to but not be subject to the Planning Act. As a result, there are no public land-use processes as with the Planning Act and the municipality doesn't necessarily get involved. The strength of conserva- tion easements is that they're not subject to appeals, but that could make them suspect as well. And as Peterson notes, the distinction between a conservation easement as a private contractual tool versus the public planning process arose in the Pickering situation. The upsides of conservation easements include the fact there are infinite possibilities in how people use them and they provide legal security as well as access to the land to a land trust for compli- ance. As for the downsides, there's no template with each agreement tailored to the property. Another complication is the requirement for regular compliance monitor- ing if the owner is seeking tax re- lief through the reduced value of the property resulting from the easement. Mark McMackin sees great potential for the expanded use of conservation easements. Mc- Mackin, a partner and real estate and development lawyer with Brauti Thorning Zibarras LLP, notes that as development pres- sures persist in Ontario, the need to protect at least some portions of the lands in question will grow. "In Northern Ontario, I think that's going to be an issue," he says, pointing to the massive Ring of Fire mining development. McMackin notes the ap- proach has a much longer his- tory in the United States than in Ontario. In this province, the general approach, along with the tax incentives that encour- age the use of conservation ease- ments, remains relatively new and continues to evolve. "They've proven to be super important in the U.S. It's a vital way to protect wild things. You just have to look at Yellowstone National Park as an example," he says, crediting the approach with helping preserve spaces now con- sidered environmental and recre- ational jewels. "It's an evolving law." LT FOCUS 1-888-667-5151 or www.stewart.ca ON The title insurer that puts you front row, centre Putting the legal community front and centre has made us the #1 choice with Canadian lawyers for over a decade. While other title insurers go head to head with you for your business, Stewart Title does not support programs that reduce or eliminate the lawyer's role in real estate transactions. Instead, we focus on what matters to you: • unsurpassed policy coverage • competitive pricing • underwriting expertise At Stewart Title, we keep real estate transactions where they belong – in your office! Untitled-3 1 6/3/11 11:24:18 AM A Conservation easements are one way to protect sensitive lands. Photo: Leah-Anne Thompson/Shutterstock

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