Site Alteration: Digging into Municipal Authority on Excess Soils

  • April 21, 2023
  • Matthew Lakatos-Hayward, Goodmans LLP

This paper provides an overview of site alteration by-laws in Ontario and the limits of their authority to regulate excess soils.  As Ontario’s On-site and Excess Soil Management regulation (“O. Reg 406/19”) comes into force,[1] municipalities are forced to revisit their existing site alteration by-laws and determine a framework for how best to manage and regulate soils excavated from construction sites in their borders. 

Single-tier and lower-tier municipalities can both prohibit and regulate site alteration activities through a by-law.[2]  This authority also allows those municipalities to establish a permitting scheme for the above activities and impose various conditions to the issuance of these permits.[3]

The Province has recognized the importance of municipal authority in the excess soil regulatory framework.  O. Reg 406/19 prescribes requirements for the quality and quantity of excess soils destined for a re-use site.  If a “municipal instrument” [4] deals with “quality” requirements, then the regulation will benchmark the stringency of the instrument against provincial standards, such as the Excess Soil Quality Standards (the “Excess Soil Standards”),[5] and then imposes the following conditions on the soil:[6]



Equivalent to or more stringent, or in the case that the instrument does not address soil quality.

The applicable excess soil quality is determined in accordance with the Excess Soil Standards, not the municipal instrument.[7]

Less stringent

The requirement in the instrument must be satisfied.

A similar analysis is performed to determine the quantity of soil permitted at the re-use site.  If the municipal instrument does not stipulate a maximum quantity of soil that may be imported, but does identify the “beneficial purpose” for which soil must be used, then the quantity must not exceed the quantity necessary for the beneficial purpose.  If however, the instrument deals with quantity, then the importation must comply with the maximum quantity specified in the instrument.[8]