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Tag Archives: Garth Manning

Group files court documents for Judicial Review of wind farm approval

01 Tuesday Dec 2015

Posted by ottawawindconcerns in Ottawa, Renewable energy, Wind power

≈ 1 Comment

Tags

CCSAGE, climate change, endangered species Ontario, environment, Environmental Review Tribunal, Garth Manning, green energy, Green Energy Act, prince Edward County, wind energy, wind farm, wind farm approvals, wind power

South Shore Prince Edward County: how did a power plant get approved for this? [Photo Point 2 Point Foundation]

South Shore Prince Edward County: how did a power plant get approved for this? [Photo Point 2 Point Foundation]

Canada Newswire

Community Group Files Request for Judicial Review of Wind Farm Approval Process

<!– newsBody:PICTON, ON, Nov. 30, 2015 /CNW/ – CCSAGE Naturally Green (CCSAGE-NG) filed notice in Divisional Court at Ottawa today for a Judicial Review of the Renewable Energy Approval process for the White Pines wind power project in Prince Edward County.

The power project was approved by the Ontario Ministry of the Environment and Climate Change in 2015. Part of that approval included a permit issued by the Minister of Natural Resources and Forests to “kill, harm and harass” endangered or threatened wildlife species.

CCSAGE cited institutional bias, lack of evidence-based studies, disallowance of municipal input, and denial of natural justice in its court filing, which is supported by 1,500 pages of evidence showing that the government’s approval process violated the constitutional rights of citizens and communities as well as international treaties and agreements.

Ontario’s Green Energy Act permits appeals of wind power approvals only on grounds of serious harm to humans, or serious and irreversible harm to animal and/or plant life and to the natural environment, but not on other grounds such as a biased approval process, violation of constitutional rights, harm to local economies, harm to heritage features, diminution of property values, or violation of international treaties and agreements.

CCSAGE NG Chair Anne Dumbrille said that because the existing appeal process is biased in favour of the wind power developers, the group’s only choice was court: “The Environmental Review Tribunal is a government-appointed panel that follows government rules with the result that it allows destruction of environmentally sensitive areas.  Our only recourse is to Canada’s courts, where rules of justice prevail,” she said.

CCSAGE NG was aided by research done by five students from the Osgoode Hall Law School at York University.

CCSAGE NG is a federally incorporated not-for-profit corporation working to ensure that “Green Energy” initiatives of governments and industry are safe and appropriate for the citizens, wildlife and the natural and heritage environments of Prince Edward County.

SOURCE Wind Concerns Ontario

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Farm owners’ property used as security for wind farm financing: what property owners need to know

07 Thursday May 2015

Posted by ottawawindconcerns in Renewable energy, Wind power

≈ 4 Comments

Tags

Brinston, Garth Manning, K2, leasing land for wind turbines, Ontario, property values wind farm neighbours, South Branch wind farm, wind farm, wind farm financing, wind farm lawsuits, wind farm leases, wind power, wind turbines

 

Farm owners’ property as security for wind farm financing: what owners need to know

Wind developers can use farm leases as security for financing the power project
Wind developers can use farm leases as security for financing the power project

Ontario Farmer, May 5, 2015

by Garth Manning and Jane Wilson

It came as a surprise to many in Ontario when it was revealed that the multi-national power developers behind the K2 wind power generation project near Goderich had secured $1 B in financing, and that this arrangement is now registered on title for the 100 farm properties involved as lessors.

The arrangement is between K2 Wind Ontario Inc. and Mizuho Bank Ltd. Canada Branch. It secures a revolving credit facility of up to $1 billion at 25% on a number of items, including the contracts between landowners and K2 for land and road agreements with municipalities.

Another, smaller example has also come to light: a wind power project south of Ottawa in Eastern Ontario, where the five landowners leasing land for a 30-megawatt, 10-turbine project now have charges on their properties for $70 million.

Immediately, questions arise as to what would happen if the power developers were to default on their loans: would the lender then own the farm properties? How would that affect road use agreements with municipalities?

The fact is, this is a common practice. Property owners can refer to the leases imposed by the developers to review this potential situation, and many others that may affect operation and ownership of their land while leasing land for the power projects.

In an Invenergy standard contract, for example, is this clause: “In connection with the Lessee’s financing of the Project, the Lessee….is hereby given the right by the Lessor…to mortgage its interests in the Lease…and to assign this Lease, or any part of parts thereof, and any subleases as collateral security…”

The proper term for this is a “Charge of Lease” but may also be referred to as a “Demand Debenture.” What it means is, the present value of the wind power contract (i.e., the Feed In Tariff or FIT contract with the Ontario government) is greater than the present value of the lease amount. The difference between those two amounts is security for the loan to the power developer. It is a charge against all contracts favourable to the wind power developer, which may also include road use agreements.

It is like a line of credit for the developer and typically, advances against the amount are tied to certain milestones such as stages of construction.

The critical factor, however, is what it means for the lessors, in other words the farm owners who have leased their land for wind turbines, access roads, substations, transmission lines, etc. The importance lies not so much that the farmer lessors might on default lose their land (the farm land itself is not mortgaged, just the turbine contract on that land) but the damage it does to that property owner if he/she wants to sell, or to renew an existing mortgage, or place a new one, or in any way borrow money for which the lender would want security on his/her land.

Let’s assume a farm owner wants financing for farm operations or improvements. That might now pose difficulty: lenders do not like to be second in line, as they would be where a charge of lease is in place.

If the farm owner wishes to sell, similar difficulties arise: the lawyer for a purchaser in the case of an agreement to purchase will do a title search and discover the Charge of Lease on title, then immediately advise his or her client that the client is entitled to get out of the deal unless the registration of the Charge is removed from title. A purchaser is not expected to assume any risk of this nature.

In the case of renewing an existing mortgage or placing a new one, the lawyer for the bank or other lending institution would take the same position — no renewal or new mortgage unless the customer sees that the Charge disappears from title.

This is one of several important characteristics of signing a lease to have wind turbines, and needs to be thoroughly considered. Other legal issues to be carefully considered may include potential liability for the substantial cost of “decommissioning” turbines at the end of the lease, difficulty obtaining insurance on property with wind turbines, loss of autonomy over building on the property and carrying out regular farming practices, and, last, the potential for nuisance suits from neighbours affected by noise or property value loss.

Property owners should consult with a lawyer before signing any agreement.

Garth Manning is a retired lawyer and former president of the Ontario Bar Association, who lives in Prince Edward County. Jane Wilson is president of Wind Concerns Ontario; she lives in North Gower.

What’s in that wind farm lease? You could lose rights to your land for longer than you will be alive

01 Sunday Dec 2013

Posted by ottawawindconcerns in Health, Renewable energy, Wind power

≈ 3 Comments

Tags

CCSAGE, Farmers Forum, Garth Manning, health effects wind farms, health effects wind turbine noise, insurance coverage wind farms, legal action wind farms, legal advice wind farm lease, legal liability wind farm leases, North Gower wind power project, property value loss wind farm neighbours, shadow flicker, signing wind farm lease

This is an advance copy of an article prepared by Garth Manning of Prince Edward County, and chair of the County Coalition for Safe Appropriate Green Energy (CCSAGE). The article will be appearing in the December edition of Farmer’s Forum, with a circulation of 40,000 in the agricultural community of Ontario.
For more information on Farmers Forum, go to www.farmersforum.com

WHAT’S IN THAT WIND TURBINE CONTRACT?

you could be giving up the right to your land for longer than you are alive.

 Wind companies operating in Ontario are frequently owned outside Canada, and are not interested in “saving the planet for our grandchildren” or “curing climate change” as those weary clichés would have you believe. Rather, they’re only after the biggest possible profits guaranteed over a period of from 21 to 40 years by our provincial government using the proceeds of Ontario residents’ constantly increasing hydro bills and taxes.
So what do you do when the wind company wants you to sign a contract? The land owner must first decide for him/herself whether there’s any truth in the now widely accepted beliefs that industrial machines, taller than the Ottawa Peace Tower and as tall as the London Eye, can cause health problems, reduce property values, adversely affect local economies, provide few jobs, kill birds and bats in unacceptable numbers, devastate rural Ontario and disrupt communities.  If you can get past that, you have to accept that wind power is not even required at all in an economy with an excess of electricity, some of which is virtually given away to neighbouring provinces and states on a regular basis.
The “gifts” the wind company salesmen bear while dangling the sugar plum of additional (taxable) income, include more than 30 pages of legal documents, which they urge you to sign.  In a word…DON’T. They are prepared by large, expensive, law firms to protect wind companies, not you. Have them reviewed by your own lawyer and insist that the wind company reimburse you for the legal fee.  Then make your own informed decisions.
There is no such thing as a standard form of contract used by wind companies – they’re all different in detail but usually consist of an option agreement and a stringent form of lease (which you will have to sign without change if the wind company decides to go ahead).
To protect yourself, your lawyer and you should consider and discuss a long list of valid concerns. Here are some examples.
You could be virtually handing over control of your property and the way you normally use it for a period of time extending beyond your own life expectancy. The wind company can get out of the contract but you can’t. Turbine(s) can be sited where they, not you, want it or them.  Ditto for the access roads to the turbine(s). You should discuss how your mortgage and insurance coverages might be affected. The period of construction will entail the presence of heavy machinery and considerable upheaval to your normal daily life. This could be repeated after about 21 years if the wind company decides to build bigger turbines to replace the old ones. You may find it difficult to sell, or raise money on, your property. There’s no guarantee that the wind company will follow up on its promise to make good all damage caused by construction, for which you should require a major cash deposit, irrevocable letter of credit or bond.  Ditto for its promise to remove the turbine(s) and make good your land.
There’s more…the wind company can escape its obligations by assigning the contract to anyone,   including an anonymous numbered company, without assets, which could avoid removing the turbines(s) and making good the land. Without the proper financial protection, you might find yourself responsible 20 or 40 years from now for demolishing the turbine(s) at immense personal cost.
You might also be asked to sign a non-disclosure agreement restricting your right to communicate publicly what you have learned from your dealings with the wind company. You could be required to give legal permission for the turbine(s) to cause flicker, noise, turbulence and general unpleasantness, thus giving up any right to sue should you or your family suffer any health or financial problems from the turbine(s). You could be sued by neighbours for knowingly contributing to diminished value or unsaleability of their property because of the presence of the turbine(s) on your land. You may be left with massive concrete foundations and other sub-surface installations on your lands.
You owe it to yourself, your family and your community to consider and act on these concerns before you sign a contract.
Garth Manning
Mr Manning is a retired lawyer living in Prince Edward County.
This article is for informational purposes only, and does not constitute legal advice.

Safe setbacks for environment, health demanded now

31 Thursday Jan 2013

Posted by ottawawindconcerns in Health, Renewable energy, Wind power

≈ 1 Comment

Tags

CCSAGE, County Coalition for Safe and Appropriate Green Energy, environmental impact wind power, Garth Manning, Gilead Power, health impacts wind power, Jane Wilson, Kathleen Wynne, Ontario Green Energy Act, Ontario Liberal government, Ontario wind power, Ostrander Point, Ottawa wind concerns, Wind Concerns Ontario

A community group located in Prince Edward County is calling upon Premier-Designate Kathleen Wynne to institute safe setbacks from wind power generation facilities in order to protect the environment and human health. The County Coalition for Safe and Appropriate Green Energy or CCSAGE, released its open letter and a news release today.

The letter is from CCSAGE Chair Garth Manning QC, who says it is abundantly clear that the current setbacks are not adequate and were not based on any scientific evidence. Manning referred to the Auditor-General’s report of 2011, which was critical of the haste and lack of study behind Ontario’s Green Energy Act.

Jane Wilson, President of Wind Concerns Ontario (and Chair of Ottawa Wind Concerns) agrees:  “We’re seeing dead birds by the thousand already, and hundreds of people exposed to the environmental noise from wind turbines in this province are now ill.  It’s time for the government to step up, admit mistakes have been made, and act to protect the health and safety of people, and the future of the environment.”

Two wind power projects are currently proposed for Prince Edward County, one at Ostrander Point, a “globally significant” Important Bird Area, which is currently under appeal by community and naturalist groups. Hundreds of thousands of birds migrate through the area twice a year. Bird deaths at nearby Wolfe Island are higher than the wind developer there predicted.

The Open letter from CCSAGE may be viewed here: http://ccsage.files.wordpress.com/2013/01/open-letter-jan31-lh-1.pdf

A Backgrounder document is also available on their website for media and others.

Contact us at ottawawindconcerns@yahoo.ca

Wind Concerns Ontario is at http://www.windconcernsontario.ca and windconcerns@gmail.com

 

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