The application judge determined that there was insufficient evidence to support an order for the removal of the fill and
decided that the appropriate order was to require Airpark to
submit a complete application under the new 2014 by-law, with
respect to the work it had already performed. He held that this
would be the “best mechanism to advance the expeditious exploration of the issue [of contamination] and to require Airpark
to participate constructively in the process”: para. 120. He
awarded Burlington costs on a substantial indemnity basis,
fixed at $118,000.
 The principal issue raised by Airpark on this appeal
Did the application judge err by giving By-Law 64-2014 retroactive effect,
requiring Airpark to apply for a permit for work already done before that
by-law was enacted?
Airpark also raises the following issues:
Did the application judge err by admitting certain expert evidence?
Did the application judge err in fact regarding the constitutionality of the
application of By-Law 64-2014 to Airpark and in holding that Airpark was
precluded from arguing that issue?
 Airpark also contests the finding that it was carrying out
a commercial fill operation.
 In oral submissions, Airpark abandoned its argument
that Burlington was estopped from changing the position it
held when the fill was being placed in 2008–13, namely, that its
by-laws did not apply.
 Airpark also seeks leave to appeal the application judge’s
(1) Did the application judge err by giving By-law 64-2014
retroactive effect, requiring Airpark to apply for a permit
for work already done before that by-law was enacted?
 Paragraph 1 of the order of the application judge pro-
THIS COURT ORDERS AND DECLARES THAT Burlington Airpark Inc. shall file
an application by August 31, 2016 under By-Law 64-2014 for the 2008-2013
fill work and site alteration carried out before By-Law 62-2014 had been
passed, and while By-Law 6-2003 was in effect.