COURT FILES NO: 273/09

DATE: 20091125

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Regional Municipality of Niagara and The Corporation of the City of Niagara Falls, Applicants

AND: Ministry of Municipal Affairs and Housing et al, Respondents

BEFORE: KARAKATSANIS J.

COUNSEL: P. De Melo for the Applicants,

G. Frelick and S. Lockwood, for the Respondent, Ministry of Municipal Affairs and Housing

HEARD: November 16, 2009

E N D O R S E M E N T

[1] This is a motion brought by the Regional Municipality of Niagara and the Corporation of the City of Niagara Falls for leave to appeal from a decision of the Ontario Municipal Board dated August 20, 2008. The Board allowed an appeal of the Minister of Municipal Affairs and Housing (MMAH) and set aside provisions of Amendment 170 to the Regional Policy Plan (RPPA 170) for the Niagara Planning Area and Amendment 66 to City of Niagara Falls Official Plan (OPA 66.)

[2] The City and Region sought to reclassify land from agricultural to rural and to provide for estate residential use in the land re-designated as rural land. RPPA 170 and OPA66 together would permit estate residential development to proceed by way of plans of subdivision, including storm water management facilities and internal road systems, for a potential development of 50 to 80 new estate lots.

[3] The Board found that the amendments did not conform to the provincial Growth Plan for the Greater Golden Horseshoe as required by s. 14 of the Places to Grow Act 2005, S.O. 2005, c. 13. The applicants take the position that the Board erred in its interpretation of policy 2.2.9.3 of the provincial Growth Plan.

[4] Appeals from the Board to the Divisional Court lie only on a question of law. The finding or determination of the Board upon any question of fact within its jurisdiction is binding and conclusive.

[5] In granting leave the Court must be satisfied that:

(a) there is some reason to doubt the legal correctness of the Board's decision on a question of law; and

(b) the question of law is of sufficient importance to warrant the attention of the Divisional Court.

[6] I need not be satisfied that the decision is wrong, or even probably wrong. I must be satisfied that there is some reason to doubt the legal correctness of the Board’s decision on a question of law.

[7] Interpretation of an official plan raises questions of law. Official plans must conform to provincial policy and plans. It follows that the interpretation of a provincial policy or plan is also a question of law. Such questions of law engage the policy expertise of the Board and attract a standard of reasonableness. The application of the provincial plan to the specific facts may however raise questions of mixed law and fact.

[8] The primary focus of the Growth Plan is to provide policy direction on where and how future growth and development are to proceed in the Greater Golden Horseshoe area, in order, among other things, to create compact communities and protect the valuable natural resource of land.

[9] Policy 2.2.9.3 of the Growth Plan relates to rural areas and provides:

New multiple lots and units for residential development will be directed to settlement areas, and may be allowed in rural areas in site-specific locations with approved zoning or designation that permits this type of development in a municipal official plan as of the effective date.

[10] The last part of the provision permits development that had been approved prior to the effective date of the Growth plan. It has no application to this case.

[11] ‘New multiple lots and units for residential development’ is defined as: “the creation of more than 3 units or lots through either plan of subdivision, consent or plan of condominium.” The land in issue was not a settlement area, as defined.

[12] Counsel agreed that at some point during the hearing, the City and Region proposed changes to permit the estate residences to be developed in plans of subdivision of three or fewer units at a time.

[13] The Board concluded:

The Board…finds that policy 2.2.9.3 expressly limits residential development in rural areas to three or fewer units. The language is plain and unambiguous and is consistent with the declared intent and purpose of the Growth Plan to manage and direct growth to urban and rural settlement areas. The Board finds that any phasing scheme to develop three lots at a time would indeed be an attempt to circumvent the clear policy direction expressed by the Province.

The Board finds that the proposed amendments, RPPA 170 and OPA 66, intend development of more than three lots to proceed by way of plan of subdivision and therefore do not conform to the Growth Plan.

[14] The Region and City submitted that the Board erred in finding that the language of the policy was plain and unambiguous, particularly given that the language does not provide an express prohibition. They submit that the Board erred in failing to define what rural area means in the context of policy 2.2.9.3; the Board did not indicate whether rural areas meant all rural areas within the Plan area, the City, the Region, or within a specific amendment area. They submit that the context in which “three or fewer units” is defined is critical to a determination of conformity and the Board provided no direction in its decision.

[15] I do not agree that the Board decision is not supported by the language or the evidence. The Board interpreted the language in the context of the expert evidence and the declared intent of the Growth Plan itself. While the language in 2.2.9.3 does not expressly use language of prohibition, it uses clear mandatory language that large plans of subdivisions “will be directed” to settlement areas.

[16] The Board found as a fact that the amendments were intended to permit subdivisions of more than three lots and that the phasing scheme was designed to circumvent the policy direction. The Board was entitled to make factual determinations and findings of fact cannot be appealed.

[17] In these circumstances, and given the findings of fact, it was not necessary for the Board to address other potential issues of interpretation that may arise in future. The fact that there remain unanswered questions about the meaning of 2.2.9.3 does not mean there is reason to doubt the correctness of the decision.

[18] As a result I am not satisfied that there is good reason to doubt the correctness of the Board’s legal interpretation. Leave to appeal is denied.

[19] Counsel’s joint submission that $2,500 was a reasonable quantum is appropriate in these circumstances. The Respondent shall have its costs of $2,500.

A. KARAKATSANIS J.

Released: