CITATION: The Town of Richmond Hill v. Haulover Investments Ltd., 2012 ONSC 1111

DIVISIONAL COURT FILE NO.: 533/11

DATE: 2012-04-11

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: THE TOWN OF RICHMOND HILL, Moving Party

AND:

HAULOVER INVESTMENTS LTD. and REGIONAL MUNICIPALITY OF YORK, Respondents

BEFORE: Pepall J.

COUNSEL: Chris Barnett, Laura K. Bisset, for the Moving Party Jeffrey E. Streisfield, for the Respondent Haulover Investments Ltd. No one Appearing for the Respondent Regional Municipality of York

HEARD AT TORONTO: February 8, 2012

ENDORSEMENT

Relief Requested

[1] The Town of Richmond Hill (the "Town") seeks leave to appeal a decision of the Ontario Municipal Board dated October 28, 2011. The Board approved amendments to the Town’s Official Plan and Zoning Bylaw that would permit mixed-use high density development at the south-east corner of Yonge Street and 16th Avenue in Richmond Hill.

[2] The impact of the Board’s decision would be that if constructed, both buildings would exceed the 20 storey height and the density limitations contained in a new Official Plan adopted by Town Council but currently under appeal to the Municipal Board. The two proposed buildings would be 28 and 24 storeys high.

Background Facts

[3] Beginning in 2007, the Town had commenced a lengthy study and consultation process with the aim of preparing a new Official Plan that conformed with various planning policy documents issued by the Province. The Respondent Haulover Investments Ltd. ("Haulover") was aware of the Town’s direction in this regard. On March 23, 2009, Town Council approved the Official Plan Guiding Principles. On July 13, and October 26, 2009, Town Council endorsed the recommended urban structure for the Town and a Housing and Residential Intensification Study.

[4] In April 2010, Haulover filed applications for a site specific Official Plan amendment and Zoning Bylaw amendments. Before and after the applications were submitted, Haulover met with Town staff to discuss the inconsistency between the proposed development and the Town’s vision for the property. No decision was rendered by the Town Council within the time frames specified in the Planning Act, R.S.O. 1990, c. P.13. As a result, on October 10, 2010, Haulover appealed its applications.

[5] On May 3, 2010, Town Council endorsed Urban Design Principles and Guidelines for the subject property area and on July 10, 2010, adopted the new Official Plan.

[6] On March 9, 2011 Council accepted staff's recommendation not to support Haulover's applications, in part due to Haulover's failure to have regard to the new Official Plan policies.

[7] In May 2011, Haulover modified its development proposal to incorporate comments from the Town and the Regional Municipality of York and reduced the height of one tower from 30 to 28 storeys. Town Council staff did not take this concept back to Town Council for consideration.

[8] Section 37 of the Planning Act authorizes a municipality to permit increases in the height and density of development in return for community benefits. The Town authorized a proposed development by Great Land Development for property adjacent to the property in issue on this motion. In return for certain community benefits, the Town permitted the height of a proposed building to be 24 storeys. The Municipal Board approved the Great Land Development on August 16, 2010.

[9] The Haulover hearing proceeded before the Municipal Board. The Regional Municipality of York and Haulover had reached an agreement as a result of which the former made no objections to Haulover’s proposed development at the Board hearing.

Board’s Decision

[10] In her reasons of October 28, 2011, Municipal Board Member Sylvia Sutherland identified two key issues to be considered: which Official Plan was applicable and height.

[11] On the first issue, the Board applied the Clergy principle. The Clergy principle is a presumptive rule that the Board will apply only those planning practices and policies that were in effect at the time the application under consideration was made: Beechridge Farms Inc. v. Ajax (Town) [2008] O.J. No.447. The Board determined that the new Official Plan was under appeal and not in force and that the old Official Plan was therefore applicable. The Board recognized that the Clergy principle is not strict and that on occasion, it had been set aside. The Board saw no reason to do so in this case however. In addition, the Board did consider the new Official Plan and made a factual finding that the proposed development was consistent with the policy direction of the new Official Plan. The Board also observed that the evidence of Michael Manett of Manett Planning Services Ltd., who had done a conformity analysis of the proposal and who was called as a witness by Haulover, supported this finding.

[12] On the second issue relating to height, relying on both the Town’s Intensification Study, which was a supporting document to the Town's new Official Plan and which observed that the highest buildings were to be at the intersection in issue, and the new Official Plan itself, the Board observed that locating the highest building at the corner of Yonge and 16th Avenue was the direction the Town was taking. The Great Land Development related to land south of the intersection. The settlement entered into by Great Land Development and the Town logically supported a taller building at the intersection in issue on Haulover’s applications. Furthermore, to measure height in storeys rather than in metres was arbitrary.

[13] The Board accepted Mr. Manett's view that there was no adverse impact and found that the proposed Haulover development was consistent with the Growth Plan for the Greater Golden Horseshoes [released under the Places to Grow Act, 2005, S.O. 2005, c.13] and the Provincial Policy Statement [2005 issued under s. 3 of the Planning Act]. The Board considered and accepted the view of M. Behar of M. Behar Planning & Design who was called as a witness by Haulover. His opinion was that many of the details relating to design were most appropriately dealt with at the stage of site plan approval and that the proposed development was in substantial compliance with the principle of good urban design. Lastly, the Board accepted Mr. Manett’s evidence that the existing services were suitable for the development.

[14] As a result, the Board allowed Haulover's appeals.

Parties’ Submissions

[15] The Town submits that:

(a) the Board erred in law by failing to “have regard to” the decisions of Council with respect to the applications of Haulover and the new Official Plan as required by s. 2.1 of the Planning Act and particularly in light of the public dimension of the process undertaken by the Town;

(b) the Board exceeded its jurisdiction by imposing on the Town community benefits the Town did not agree to. This constituted a misapplication of s. 37 of the Planning Act;

(c) the Board disposed of the appeal without regard to applicable policy and the circumstances of the case. Had it had such regard, it would have found the policies of the new Official Plan to be applicable;

(d) the Board’s decision is inconsistent with its previous decision relating to the Great Land Development, which is located at the same intersection in the Town, wherein the development applications were subject to the exact same policy framework; and

(e) the Board’s reasons are inadequate and in violation of the duty of procedural fairness.

[16] Haulover submits that the Board considered the relevant planning policies, the issues and the expert evidence. The fundamental disagreement between the Town and Haulover related to the proposed height of the buildings and urban design considerations both of which are matters that fall within the Board’s expertise to determine. Haulover states that the Town has failed to satisfy the test for leave to appeal to the Divisional Court from a decision of the Municipal Board. It notes that the Region’s approval of the development is also part of the package the Board considered.

Discussion

[17] The parties both agree on the applicable test. The proposed appeal must raise a question of law. There must be good reason to doubt the correctness of the decision and the questions raised must be of sufficient importance to merit the attention of a Divisional Court panel.

[18] In my view, the first four issues raised are issues of fact or mixed fact and law. The Board's decision is entitled to deference. The Board was acting within its core area of expertise and was alive to the issues of height and the differing Official Plans. Member Sutherland referred to the six expert witnesses and described why she accepted the evidence of Haulover’s experts. In any event, there is no reason to doubt the correctness of the Board's decision.

[19] Dealing firstly with the first and third issues identified by the Town, under section 2.1 of the Planning Act, the Board is to have regard to any decision made under the Act by a municipal council and that relates to the same planning matter. Here, the Board did consider the Official Plan and the new Official Plan. It is the case that the Board noted that Haulover’s appeals arose as a result of no decision by Town Council within the requisite time frames. There was no decision of Council before it to consider. That said, the Board found that the proposed development was consistent with the Growth Plan for the Greater Golden Horseshoe and the Provincial Policy Statement and the in force Official Plan was not. The Board did consider the planning evidence of the Town Planner, Mr. Robb, which it did not accept. The Board also accepted the settlement between Haulover and the Regional Municipality. The Board exercised its discretion having considered these issues.

[20] On the second issue, a reading of the Board’s decision makes it clear that community benefits were not imposed on the Town. Rather, the Board simply observed that Haulover’s proposal applications featured somewhat similar benefits to those accepted by the Town with respect to the Great Land Development proposal. It did not determine that as a result, Haulover should be permitted the height and density requested. At page 7 of the Decision, the Board expressly stated that it does not use precedent as a basis for its decisions.

[21] On the fourth issue, the Board’s decision is clearly not inconsistent with its decision relating to the Great Land Development property. The context of the decision was a major development south of the intersection in issue. It was not an error for the Board to consider that development.

[22] Lastly, the fifth issue engages natural justice and therefore attracts a correctness standard: Clifford v. OMERS, [2009] ONCA 270.

[23] Obviously, the Board had a legal obligation to give reasons for its decision. The issue to consider is whether the Board complied with that legal obligation. As stated by Goudge J.A. at paragraph 11 in Clifford, “…the ‘path’ taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.”

[24] In my view, there is no question that the Board “grappled with the substance of the matter.” The Board identified the issues to be considered, addressed the evidence of the witnesses and made a reasoned decision. The Board did explain why it reached the decision it did. The Reasons also allow for effective judicial review. The Board’s decision was a rational one based on the evidence. The Board's reasons are not inadequate nor was there any violation of a duty of procedural fairness.

[25] In conclusion, the test for leave has not been met and the motion is dismissed. If the parties are unable to agree on costs, they are to make brief written submissions.

Pepall J.

Released: April 11, 2012