A Superior Court judge in Kitchener has ruled that the Orica Canada explosives storage and distribution facility near Luther Marsh may continue to operate over the objections of residents and East Luther Grand Valley Council.

But the ruling will hold only until full arguments have been heard on the company's plea for an injunction against East Luther Grand Valley's denial of its bid for extended temporary and/or permanent rezoning of its site.

That continuing hearing is expected to conclude next week before Justice Gerald Taylor, whose June 12 order directs that the expiry of Temporary Use By-law Z9/2007 of the Township of East Luther Grand Valley be stayed pending the return of this motion.

"This court orders that an interlocutory injunction is hereby granted prohibiting the (ELGV), from enforcing its Zoning By-laws and/or Official Plan provisions against the Applicant in such a manner as to prohibit the operation by the Applicant of the existing federally licensed explosives storage and distribution facility," the order reads in part.

June 12 was a critical date for Orica as its federal license to operate would be invalid unless the facility was brought into compliance with municipal zoning as of that day.

The Orica site is on land owned by Klaus Friescecke. The present Official Plan designation and zoning are "Agriculture and Environmental Protection." But an explosives facility had been in operation under temporary zoning for more than a dozen years. Orica took over the site June 12, 2007 under a two-year continuation of the temporary zoning but, according to the minutes of township council of that date, the zoning was continued "with the understanding that (it) would be rezoned" permanently within two years.

Orica lawyer John Doherty says his client "was not aware until the fall of 2008 that it would require anything more than a relatively simple rezoning of the Grand Valley site beyond June 12, 2009."

Amid public opposition to the site, township planner Tracey Atkinson along with Mayor John Oosterhof met with Orica officials on May 20, at which time the company apparently undertook to resolve any outstanding issues on zoning.

Township council did not, however, receive written confirmation of the undertakings in time for a review prior to its meeting of May 26. (Orica officials have since told this newspaper that it had taken time for them to communicate with their head office in Australia.)

On May 26, Ms. Atkinson told the council that "in this instance a temporary use bylaw is not appropriate, and that the concerns with the site use on a temporary basis parallel the concerns expressed regarding (other) applications.

"Therefore it is necessary to receive the findings of the peer review, Ministry review, and receive comments from our commenting agencies prior to granting approval to any continued operation of the explosive storage and distribution site," she said in her recommendation.

On June 1, Orica applied to the Ontario Municipal Board for a date on which it could "bring an urgent motion ... for an interim order of the (OMB) prior to June 12, 2009.

As such a date could not be arranged, Orica proceeded to seek the interlocutory injunction. Whether the facility will be able to continue operation until meeting the requirements of the township's planning processes will not be known until at least next week.