The bank did require the Air Park to provide documentation on the soil testing that was done – and those certificates were produced.
Can the bank be expected to drive up and down the regional and municipal back roads and walk on private property? No, they have to rely on their client to tell them if there are issues. However, one would hope that the bank would have its own ears to the ground and pick up on what the chatter is.
And the chatter is not all that good along the back roads of north Burlington.
When taking a charge on commercial property, banks run the risk of having to manage an environmental problem if, in fact, the borrower defaults. It is therefore in the lender’s interest to understand the known condition of the site, AND to know what the “go forward” risk may be.
Further complicating this matter is the federal vs. provincial jurisdiction issue. Municipalities (even if they choose to get involved in a “private” dispute between land owners) are unlikely to have much clout with Environment Canada, and if the Ontario Ministry of the Environment has no jurisdiction, they’re very unlikely to be interested unless there is substantive damage to the natural environment that can be proven to be caused by activity at the air park. It’s anyone’s guess how the MOE would interpret the terms “substantive” and “proof”. Suffice it to say that any aggrieved landowner will have to incur the cost to of furnishing the evidence of actionable environmental damage.
Which means that if any action is brought against the air park through the far more likely process of civil litigation, the bank could potentially get dragged in.
Banks don’t like this.
It is therefore incumbent on the lender to have undertaken thorough due diligence BEFORE placing their charge on title. Whether TD performed an adequate assessment of environmental risk in this case remains to be seen.
Ms Whistler obviously didn’t do any environmental assessment on the Burlington AirPark. This is probably the most anti environment project that has ever taken place on the newly created Green Belt.
Smooth talking will outwit the environment any day. Perhaps the TD bank should have a look at how much it will cost to restore the damage done. They may have trouble with loan repayments.
Talking about the environment does not make one an environmentalist no more than standing in a garage makes one a car.