May 2013

The certificate of authorization required under the environment quality act is not mandatory for residential buildings

By Mathieu Quenneville Lawyer, Geneviève Arsenault

Recently, the Court of Appeal (6169970 Canada inc. v. Québec (Procureur général), 2013 QCCA 696 (CanLII)) ruled on the interpretation of article 22 of the Environment Quality Act (L.R.Q., c. Q-2.), which prohibits all construction projects that could impact the environment without the prior authorization of the Ministère du Développement durable, de l'Environnement et des Parcs (MDDEP).

In the above-mentioned case, a developer acquired a vacant lot in a flood-prone area on which he intended to construct a ten-story building with 70 residential condominium units.

After issuing certificates to authorize the backfilling of the land and construction, the municipality recommended that the developer contact the MDDEP regarding the environmental requirements.

The Ministère advised the developer that since the condo project was to be built on a flood-prone lot, a certificate of authorization was required under article 22 of the Environment Quality Act. (L.R.Q., c. Q-2.). The department then ordered that the work be stopped until a certificate was issued, but the developer refused to suspend the project and questioned the need to obtain the certificate.

The dispute eventually ended up before the Court of Appeal, which was called upon to rule on the need to obtain a certificate of authorization to build a residential condominium project.

Though article 22 of the Environment Quality Act (L.R.Q., c. Q-2.) stipulates that a certificate of authorization must be issued before carrying out a project that could impact the quality of the environment, the Regulation respecting the application of the Environment Quality Act (R.R.Q., c. Q-2, r.3.) lists certain exceptions to the application of article 22.

In this case, only projects in a floodplain and intended for public access or for municipal, industrial, commercial or public purposes must obtain an authorization from the MDDEP. The Court of Appeal therefore concluded that a residential building does not require a certificate of authorization.

Although the developer builds and sells residential condominiums for a commercial purpose, the condominium building was intended for residential use, and a certificate of authorization from the MDDEP was not required.

As a result, for work and projects on a shoreline or floodplain, it is important to determine the intended use of the building that will be constructed rather than the objective of the project from the developer's point of view. However, the builder must obtain all the authorizations required under municipal regulations