Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 03, 2021
CASE NO(S).: PL200415
The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Derrick Chartrand
Applicant: 1887409 Ontario Inc.
Subject: Consent
Property Address/Description: Lots 6, 7 & 8, Concession 1
Municipality: City of Greater Sudbury
Municipal File No.: B103/2019
LPAT Case No.: PL200415
LPAT File No.: PL200415
LPAT Case Name: Chartrand v. Sudbury (City)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Derrick Chartrand
Applicant: 1887409 Ontario Inc.
Subject: Consent
Property Address/Description: Lots 6, 7 & 8, Concession 1
Municipality: City of Greater Sudbury
Municipal File No.: B104/2019
LPAT Case No.: PL200415
LPAT File No.: PL200416
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Derrick Chartrand
Applicant: 1887409 Ontario Inc.
Subject: Consent
Property Address/Description: Lots 6, 7 & 8, Concession 1
Municipality: City of Greater Sudbury
Municipal File No.: B105/2019
LPAT Case No.: PL200415
LPAT File No.: PL200417
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Derrick Chartrand
Applicant: 1887409 Ontario Inc.
Subject: Consent
Property Address/Description: Lots 6, 7 & 8, Concession 1
Municipality: City of Greater Sudbury
Municipal File No.: B0035/2020
LPAT Case No.: PL200415
LPAT File No.: PL200420
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Derrick Chartrand
Applicant: 1887409 Ontario Inc.
Subject: Consent
Property Address/Description: Lots 6, 7 & 8, Concession 1
Municipality: City of Greater Sudbury
Municipal File No.: B0034/2020
LPAT Case No.: PL200415
LPAT File No.: PL200419
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Derrick Chartrand
Applicant: 1887409 Ontario Inc.
Subject: Consent
Property Address/Description: Lots 6, 7 & 8, Concession 1
Municipality: City of Greater Sudbury
Municipal File No.: B0033/2020
LPAT Case No.: PL200415
LPAT File No.: PL200418
Heard: February 18 and April 22, 2021 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
Derrick Chartrand (“Appellant”)
Self-represented
1887409 Ontario Limited
Stephen Watt*
DECISION OF THE TRIBUNAL DELIVERED BY DAVID L. LANTHIER AND S. BRAUN AND ORDER OF THE TRIBUNAL
INTRODUCTION AND HEARING
1The Applicant initially made three applications for consent to sever three new residential lots (Lots 1, 2 and 3) on the west side of Edgecliff Crescent in the Garson community within the City of Greater Sudbury. As explained in further detail in this Decision, three additional applications for consent to sever, for three additional residential lots (Lots 4, 5 and 6) on the west side of Edgecliff Crescent, and south of Lots 1, 2 and 3 were then made to the City (collectively, the “Applications”).
2The City of Sudbury has implemented a somewhat different process for applications for consent. The City Planning Staff prepared a planning report (the “staff report”) dated March 9, 2020, which was authored by Glen Ferguson and addressed only the question of whether the Applications should be dealt with by way of consent applications or alternatively a plan of subdivision. Planning Staff did not support the consideration of the Applications by consent and recommended instead that the applications be dealt with by way of a draft plan of subdivision.
3Notwithstanding that recommendation, it was decided by the Planning Committee on June 8, 2020 that the first three Applications already filed, and the additional three Applications not yet filed with the City, should proceed by way of consent application under s. 53(19) of the Planning Act (“Act”) rather than a plan of subdivision. That collective decision was then approved by City Council on July 8, 2020.
4Following the decisions of the Planning Committee and Council, the second set of Applications for the three additional residential lots was then filed and public notice was sent out for all six Applications for consent. There was no public meeting. The comments and responses from residents and agencies were correlated and summarized. The Applications were then approved by the delegated Consent Official in six decisions (“Consent Decisions”) issued on August 31, 2020.
5The Appellant then filed these six Appeals which are now before the Tribunal relating to all six of the Applications.
6The City did not appear at the commencement of the hearing on February 18, 2020, although a representative was in attendance and took no position in the Appeals.
7Through inadvertence and miscommunication arising in part, due to Covid-19 on-site staffing issues at the Tribunal, three requests from the Appellant for the issuance of summons for three City staff members, and 1 request from the Applicant for another City staff member, were unfortunately not dealt with by the Tribunal in advance of the commencement of the hearing. The Appellant was unaware of this oversight and had expected the witnesses to appear. As these witnesses under summons were intended to represent the majority of the evidence of the Appellant, the Tribunal was unable to complete the hearing of the Appeals on the first return date.
8With the cooperation of the Applicant, and the agreement of the Appellant, it was agreed that the Applicant would first present its case to the Tribunal on the first day, and the hearing was thereafter adjourned to continue on April 22, 2021. The Applicant did not close his case on the first day, reserving its right to call the missing witness under summons. It was also directed, as a result of the circumstances, that the Applicant would reserve the right to call reply evidence if necessary, upon hearing the Appellant’s case. Eventually the Applicant determined that would not be necessary.
9The Tribunal qualified the Applicant’s witness, Mr. Jamie Robinson, to provide expert opinion evidence in the area of land use planning and Ms. Candace Green as an expert in civil engineering. Both witnesses provided their evidence on the first day.
10When the parties reconvened on the second day the Panel was advised that the Applicant was electing to forgo the final witness under summons. The Tribunal heard from three witnesses called by the Appellant under summons:
Jesse Oshell, the Deputy Fire Chief with the City, who provided direct evidence relating to fire protection matters and specifically fire flow rates as they were relevant to the Appeals;
Ronald Webb, the City’s Supervisor of Development Engineering who was, upon inquiry from the Tribunal as to his education, experience, professional certification and qualifications, and with confirmation as to all matters outlined in the Tribunal’s required Acknowledgement of Expert’s Duty, qualified to provide expert opinion evidence in the area of civil and municipal engineering, including fire flow issues; and
Glen Ferguson, Senior Planner for the City of Greater Sudbury who was also, upon inquiry from the Tribunal, and with confirmation as to all matters outlined in the Tribunal’s required Acknowledgement of Expert’s Duty, qualified to provide expert opinion evidence in the area of land use planning.
11No other person appeared in support of, or in opposition to, the Applications before the Tribunal.
ISSUES
12In the determination of these Appeals pursuant to s. 53(19) of the Act and deciding whether the proposed provisional consents should be granted, with such conditions that may be required, the Tribunal must consider and decide the following issues:
(a) the Tribunal must address the threshold question in accordance with s. 53(1) of the Act, and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality, and can proceed by way of application for consent;
(b) the Tribunal must then, under s. 53(12), have regard for the criteria set out in s. 51(24) of the Act which includes: that the proposed consents have regard to the effect that the consents will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed consents are premature or in the public interest; and whether the consents conform to the City’s Official Plan;
(c) as required by s. 3(5) of the Act the Tribunal must, in its decision, be satisfied that the approval of the proposed provisional consents are consistent with the Provincial Policy Statement, 2020 (“PPS”), and conform to such Provincial Plans that may be applicable, which in this case is the Growth Plan for Northern Ontario. The Tribunal must also have regard to the decision of the approval authority relating to the consent applications that are before the Tribunal and the information and material that was before the approval authority in making the decision. In this case, this relates to the decisions of both the Planning Committee/Council and the Consent Official, and information and material before both approval authorities.
(d) the Tribunal may, under s. 53(12) also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed consents, and such conditions may include such requirements as are set out in s. 51(25) of the Act. The Tribunal must be satisfied that any condition to be imposed is: (1) reasonable; (2) relevant, having regard to the nature of the proposed consents and proposed development of the subject lands; (3) necessary for the granting of the consent when taking into account the criteria to be considered under s. 51(24) and the facts of the application for consent; and (4) equitable in the circumstances such that the condition is fair and proportional to the proposed severance requested by the applicant and reasonably capable of being satisfied by the applicant; and
(e) generally, the Tribunal will decide whether the giving of provisional consent to the Applicant, with any required conditions, represents good planning in the public interest.
13As the Appellant has advanced his Appeals in the course of the hearing it was made apparent that the focus of the objections to the Applications is two-fold.
14From an overview perspective, the Appellant asserts that the development of these six lots by the Applicant, as they follow the Applicant’s prior development of three other lots immediately to the north, in 2018, has amounted to a piecemeal approach to developing multiple lots through consents contrary to the City Official Plan. The Appellant submits that this approach is a circumvention of proper land use planning, and a “loophole” that should not be permitted. In the Appellant’s submission the Applicant should properly have applied for a subdivision to address broader planning concerns that adversely impact nearby existing residents, and not just the future residents of these nine residential lots.
15The Appellant’s narrower, focused issue relates to fire flow and the fact that the City’s review determined that the creation of these six additional residential lots can not meet the prescribed fire flow rating sufficient to permit new development due to already deficient water flows to this area of Garson. The Appellant submits that based on the reviews undertaken by City staff, as the Applications were considered and approved by the Consent Official, and as they are now considered by the Tribunal with the additional Condition 10 discussed in the hearing, the Applications fail to adequately consider the potential adverse impacts of adding additional residential lots to an area of the City already underserviced by inadequate fire flow service. The issue is whether the Applications, with Condition 10, are consistent with the identified policies of the PPS that address the health and safety of a community and require that development occur on lands with appropriate planned or available infrastructure and conform with the City OP.
16The Tribunal has considered all of the evidence, and for the reasons given, and upon the findings set out herein, it has determined that although aspects of the Appellants concerns warranted a hard examination of the facts, ultimately, the Applications: can be considered without the necessity of a subdivision; are consistent with the PPS; conform to the City OP, and have regard to the criteria set out in s. 51(24) of the Act. The decision of the Tribunal, however, is ultimately predicated on the eventual inclusion of Condition 10, without which the Tribunal would not have made its findings supportive of the Applications.
PRELIMINARY CONCERNS – THE CITY’S BIFURCATION OF THE APPROVALS
17Before turning to the context of the Applications and the analysis of the evidence and findings of the Tribunal, it is necessary to address the circumstances relating to the manner in which the Applications were processed, and how these Appeals were brought before the Tribunal. Due to the planning evidence, and the initial position being taken in the hearing it was suggested by the Applicant that the determination of whether the Applications should proceed by way of consent application or subdivision – the consideration required under s. 53(1) of the Act – was an issue that was not properly before the Tribunal.
18The municipal record, and the evidence presented, confirms to the Tribunal that the City of Greater Sudbury undertakes the consideration of its consent applications in a manner that is rather different than is ordinarily followed by most approval authorities in the Province. The City has adopted a process which the Tribunal would describe as a bifurcation of the application and approval process for consent applications. Under the two-step process, the singular threshold question of whether a consent process is appropriate, or instead that a plan of subdivision of the lands is necessary for the proper and orderly development of the municipality, is first considered and determined by the Planning Committee, composed of members of Council, and then considered and approved by Council. A planning report with recommendations on that issue alone is provided to the Planning Committee.
19If the severance application is then determined to be appropriate, and a plan of subdivision is not required, only then is the application processed in the second part of the City’s application stream. Planning staff will then undertake the circulation and public consultation process, without a public meeting. Notwithstanding that the mandatory threshold of “consent versus subdivision” is already decided by the Planning Committee, under By-law, “all of the powers of Council for the City of Greater Sudbury to give a consent under s. 53 of the Planning Act” as well as other related powers are delegated to the City’s Consent Official, who then makes the final decision (Exhibit 7).
20The decision of the City’s Consent Official on each application identifies the comments received from all parties and agencies, which includes additional comments from the Planning Staff in the Development Planning division. The process thus effectively vests with the Consent Official, the exercise of “the remainder” of the powers to give consent under s. 53, as delegated, which would appear to involve all considerations relating to consistency and conformity, matters of provincial interest, and the criteria in s. 51(24).
21Owing to this bifurcation of decision making in consent applications, it was the decisions of the Consent Official relating to all matters other than the “consent versus subdivision” threshold test, that were appealed by the Appellant. On its face, the decisions of the Planning Committee deciding that the Applications could be considered by the City, and need not proceed as a plan of subdivision, pursuant to s. 53(1), were not the subject of the appeal.
22This initially gave rise to the interesting anomaly that only one of two decisions relating to the consent Applications were, in theory before the Tribunal. This was highlighted by Mr. Robinson’s planning opinion on the first day of the hearing that the decision of the Planning Committee that the Consent Applications were appropriate and that no plan of subdivision was required, was not an issue before the Tribunal since only the latter decisions of the Consent Official had been appealed by the Appellant.
23This bifurcation of the planning decisions was somewhat “muddled” further by the fact that when the Applicant first applied for consent approvals to the City, and when the Applications went before the Planning Committee, only the first three Applications were filed with the City for Lots 1, 2 and 3. The Municipal Record confirms that the Planning Committee made its decision on June 8, 2020 (Exhibit 3, Tab 8) that these three Applications “proceed by way of the consent process as opposed to the subdivision planning process”. However, although they were not yet filed by the Applicant, the Planning Committee also similarly decided, under s. 53(1), that the consent process was the appropriate process for “three additional future Consent Applications”. Essentially the Planning Committee, and subsequently Council, decided the threshold question for three Applications for Lots 1, 2 and 3 that were filed with the City and three Applications for Lots 4, 5 and 6 that were not yet filed with the City and properly before the Planning Committee.
24The chronology of events indicates that while the Planning Committee pre-empted the decision-making on the threshold planning question under s. 53(1) for the second set of Applications, the Applications for these additional three lots were filed with the City on the date of the Planning Committee’s Decision, on June 8, 2020. As a result, the Consent Official, in August, properly had all six Applications before her, and the Decisions, on the balance of the considerations under the Act, were made approving all of the Applications, with the conditions then set out for each Application.
25These unusual circumstances initially gave rise to a concern of the Tribunal that those determinations to be made by the Tribunal, and the powers to be exercised, with respect to the six Applications were somehow also bifurcated such that the Tribunal, now exercising the mandate of the Approval Authority, was arguably barred from deciding the threshold issue under s. 53(1) because those decisions were not subject to appeal. If that was the case, it also gave rise to an unusual anomaly that the Tribunal was required to consider an appeal of three decisions on the threshold question in s. 53(1) by the Planning Committee, on three Applications that were not actually before the Committee. This was essentially the “pre-determination” of the required decision under s. 53(1) for three consent applications not yet filed.
26These potential concerns were ultimately addressed by the Applicant when the Tribunal was advised by Mr. Watt, on the second day of the hearing, that notwithstanding Mr. Robinson’s planning evidence that the decisions of the Planning Committee were not before the Tribunal, the Applicant was conceding that as the Appeals were before the Tribunal, as hearings de novo, it had the full jurisdiction to determine all questions and issues relating to the six Applications including the preliminary threshold question under s. 53(1).
27On that basis the Tribunal concluded that the concerns of the Tribunal initially arising by this division of the decision-making process adopted by the City, and the pre-emptive decision on the threshold question by the Planning Committee on three not-yet filed Applications, were inconsequential. Since the Tribunal was acknowledged to be deciding all planning issues, without limitation, inclusive of the issue of whether the subdivision was required, the anomaly created by the process, and Planning Committee’s prematurity in making decisions on Applications not yet filed, did not create an obstacle to the adjudication of the Appeals on their merits.
28The rationale provided to the Tribunal for the City’s divided process is that this preliminary determination of the threshold issue by the Planning Committee avoids the time and effort necessary to assess the planning merits of certain consent applications which ultimately must be redirected as applications for subdivision under s. 51 of the Act. Without commenting on this parsing of the decision-making process, or the fact that the City has vested the Planning Committee with the power to decide the threshold question while also delegating all of the powers to give consents under s. 53 of the Act to the Consent Official, without limitation, it is the view of the Tribunal that the Act does not anticipate the division of decision making in such a manner. The determination of whether a subdivision process is required for the proper and orderly development of the City, is not, in the Tribunal’s approach, so easily segregated from the other planning determinations to be made by the Tribunal, including the criteria under s. 51(24), which includes whether the consent is premature or in the public interest, and conforms to the City’s OP and the question of whether the approval of the consent application is consistent with the various policies of the PPS which address broader issues of good planning. In the Tribunal’s view, the powers vested with an approval authority under the Act, to give consents is a holistic process where the entirety of the planning considerations and matters of provincial interest must be decided together, and not separately.
29The Tribunal finds that notwithstanding the potential concerns as to process and jurisdiction over the issues in these Appeals, arising from the chronology of treatment by the City, Planning Committee, Council and Consent Official, the Tribunal has before it, and will decide, all issues relating to the Consent Applications, as set out in paragraph 12 of this Decision, including the issue raised by the Appellant that a plan of subdivision is instead necessary to effectively address the concerns arising from these multiple consent Applications.
THE APPLICATIONS AND THE NEIGHBOURHOOD CONTEXT
30The subject properties (Lots 1 through 6) are located on Edgecliff Crescent in the community of Garson, City of Greater Sudbury. The lands are designated Living Area 1 in the City’s OP. Living Area 1 includes residential areas that are fully serviced by municipal water and sewer and are to be the primary focus of residential development.
31The lots are currently vacant and zoned R1-5 (low density residential). They are situated on the west side of Edgecliff Crescent, immediately south of three lots which the Applicant created by way of consent in 2018 and has since fully developed.
32To the east are the existing properties on the opposite side of Edgecliff Crescent, which has been fully developed for some time. Further east is Penman Avenue, also fully developed with residential dwellings. To the north are low density urban residential land uses, open space lands and a general commercial shopping plaza land use on Falconbridge Road. There is vacant open space to the west. To the South are vacant lands designated for future urban residential land use and several large rural parcels of vacant land.
33For further context, it is important to note that Edgecliff Crescent and the surrounding area (including Penman Avenue) has been identified by the City as having insufficient fire flow. Fire flow is the amount of water needed during firefighting to contain the fire to a specified area. The City’s standard fire flow requirement is 75 litres per second (“L/s”) and the watermain on Edgecliff Crescent where the subject properties are located has an available fire flow of 67 L/s.
POLICY CONTEXT
34Sections 1.1.1 c) and e) of the PPS speak to sustaining healthy, liveable and safe communities by avoiding development and land use patterns which may cause environmental or health and safety concerns and promoting cost-effective development patterns that minimize land consumption and servicing costs.
35Section 19.4.1 of the City’s OP requires proposals which would create less than four new lots to be considered as Applications for Consent to be dealt with by the Consent Official, whereas proposals which have the effect of creating more than three new lots shall be considered as applications for a Plan of Subdivision, unless in the City’s opinion, a plan of subdivision is not necessary for the proper development of the area.
36A recurrent theme throughout the OP is the encouragement or focusing of new residential development in areas with suitable/sufficient infrastructure and public service capacity and the efficient use of land, infrastructure and public service facilities.1 With respect to servicing and infrastructure, the OP makes specific reference to the adequacy of fire flows in relation to new development in Policy 12.2.2.1, which states:
Development in urban areas is permitted provided that existing and planned public sewage and water services have confirmed capacity to accommodate the demands of the proposed development. Alternatively, the proponent of the development will upgrade, at their own expense, the existing sewage and water systems to ensure adequate delivery and treatment facilities consistent with City standards, including the adequacy of fire flows.
37Pursuant to s. 53(12) of the Act, in determining whether a provisional consent is to be given, regard must be had for the matters enumerated in s. 51(24) including: the health, safety, convenience, accessibility for persons with disabilities and the welfare of present and future inhabitants of the municipality; whether the proposed development is premature and in the public interest; whether it conforms to the OP; and the adequacy of utilities and municipal services.
38As previously mentioned, the Appellant, who resides on the east side of Edgecliff Crescent, asserts that there are legitimate health and safety concerns associated with allowing further development on the Crescent, given that the current fire flow is already below the City standard. He argues that adding more homes in the absence of a requirement to upgrade the infrastructure accordingly (so as to support the new development and ensure existing residents are not adversely impacted), is inconsistent with the PPS, s. 51(24) of the Act and does not conform to the OP which requires development to be in areas that have adequate servicing, in particular, fire flow.
39The Appellant explained his concern with the approach to development taken by the Applicant and submitted it does not conform to the intent of the policy in the OP requiring proposals creating more than three lots to be considered as applications for a plan of subdivision. In his view, the Applicant has deliberately utilized a series of consent applications as a means of creating a larger 9-lot development, 3 lots at a time, to avoid a plan of subdivision and, by extension, the responsibility of paying costs associated with infrastructure upgrades necessary to support such development.
40He submits, under the circumstances, a plan of subdivision is necessary for the orderly development of the area, as infrastructure upgrades are required to protect the health and safety of new and existing residents and further, that the Applicant should be the one to bear the costs of same. He argues, based on all the foregoing, that the Applications before the Tribunal are premature and not in the public interest.
ANALYSIS AND FINDINGS
41In support of his position, the Appellant relied upon the staff report dated March 13, 2020 which addressed the consent applications in relation to Lots 1, 2 and 3 that would ultimately be before the Planning Committee on June 8, 2020. In particular, he drew the Tribunal’s attention to the following passage:
Development Engineering advises that there is insufficient fire flow to service the proposed lot creations. The City’s established policy since 2004 is to use the Fire Underwriter’s guidelines for fire protection in urban areas and the Fire Marshall’s guidelines for rural situations. This results in the requirement for this development proposal of 75 litres per second fire flow. There is the potential for six lots in additional to the original three (ie. approved consents from 2018) to be development [sic] from this parcel of land. Developing [sic] Engineering is of the opinion that the development of these urban residential lots should proceed by way of the subdivision process to deal with such matters as, but not limited to, insufficient fire flow, lot grading, site servicing and road reconstruction after the installation of services. Development Engineering has also noted that other development along Penman Avenue also have insufficient fire flows and that an equitable solution would be for all parties to join in an application to the City to address the fire flow issue through the City’s established cost-sharing policy.
42Although it was acknowledged within the report that the subject properties are located in a fully serviced residential area, planning staff advised against allowing urban residential lots to be created in a “piecemeal manner”, as this would negatively impact fire flows in the area, representing a risk to public health and safety, thereby rendering the Applications premature and not in the public interest. The report ultimately recommended the Planning Committee deny the Applications, noting the subdivision planning process represented a more appropriate land use planning approach.
43It was further noted that other development projects approved in the surrounding area were impacted by fire flow issues and, on this basis, there was a suggestion that an equitable and appropriate solution would be for the developers to join in an application to the City to address the issue through the City’s established cost-sharing policy.
44Notwithstanding the foregoing, at the June 8, 2020 Planning Committee meeting, a resolution to deny the consent applications was defeated. Instead, an alternate resolution was put forward as a means of allowing development to proceed on Edgecliff Crescent, while managing the risk surrounding fire and fire protection.
45The resolution proposed a site-specific exemption requiring 85 per cent of the City’s standard fire flow requirement (essentially reducing the requirement from 75 L/s to 64 L/s). It also required the proposed dwellings be constructed according to certain parameters which, according to the Fire Underwriters Survey (“FUS”), would have the effect of decreasing the actual amount of flow required. The Planning Committee passed the alternate resolution and ultimately approved the Applications.
46With respect to fire flows the Appellant has referenced the City’s Water and Wastewater Master Plan, noting the following scale:
Less than 65L/s – Needs improvement (typically occurs at dead-ends or high ground). New mains and/or loops may increase the AFF2 for key areas
65 to 75 L/s – May be achievable by improved operations or maintenance. Relining existing mains or replacing sections with new, larger mains may also be required
75 L/s or above – Meeting City Design Criteria and Master Plan Objectives
The Appellant has argued that approval of the development with the site-specific fire flow exemption provided in the Committee’s alternate resolution places the area’s infrastructure within a category that needs improvement, which should be addressed using the City’s cost sharing policy, as proposed in the staff report.
47The Applicant’s witness, Mr. Robinson, testified that because the subject properties are located in a residential development within Living Area 1 and are zoned R1-5, in an area which is fully serviced, the type of development proposed is not only permitted in this area but contemplated within the OP and the City’s Zoning By-laws. He further testified that the Applications conform to, and do not conflict, with the Growth Plan for Northern Ontario. His testimony in this regard was not contested and was accepted by the Tribunal.
48With respect to conformity with the OP and the issue of proceeding by way of consent vs. subdivision, Mr. Robinson explained in the City of Sudbury, development proposals involving three lots or less automatically proceed by way of consent whereas, in situations involving more than three lots, permission is required to proceed through the consent application process rather than through a plan of subdivision.
49He further explained that practically speaking, from a land use planning perspective, a plan of subdivision is generally preferred in situations where the area in which development is to occur lacks any existing service. This is because s. 53(41) of the Act requires conditions associated with provisional consents be fulfilled within one year. As such, developing by way of a plan of subdivision in such circumstances is more appropriate, given that the creation of services like roads, hydro lines and watermains are large projects which generally take more than one year to complete. Conversely, in areas which are fully serviced, developing by way of a provisional consent may be appropriate.
50Based on the foregoing, he opined that, in this instance, the Planning Committee’s ultimate decision to permit the Applications to proceed by way of consent was likely due to the fact that neighbourhood was already fully serviced with roads, hydro, water and sewer. He further noted that Council in this case had, in the broader context, decided that looking at improved fire flows across the area was necessary from the perspective of the overall larger servicing plan and it would not be necessary or appropriate to have this development shoulder those costs. Mr. Robinson was of the view that covering such infrastructure costs could be accomplished through other means such as development charges or local area improvement charges and that for now, allowing development to proceed through the dual consent applications, instead of a subdivision, was not premature considering the direct access the proposed lots have to the already existing services on Edgecliff.
51Regarding the Appellant’s concerns over health and safety resulting from further development in an area with insufficient fire flow, Mr. Robinson indicated that specific mitigation measures could be used to address the fire flow issue, thereby achieving conformity with OP policy 12.2.2. He noted the Applications were approved by the Consent Official subject to nine conditions (none of which were disputed in the context of this hearing) and he recommended the Tribunal impose a further condition, referred to as Condition 10.
52Condition 10 requires the six new dwellings be constructed in accordance with a set of recommendations referred to throughout the hearing as an ‘engineered solution’ to the fire flow issue, as provided by Ms. Green in a technical memorandum dated February 8, 2021, and discussed in more detail below.
53Ms. Green testified that, although the City’s standard fire flow requirement is 75 L/s, there are many areas where this requirement is not met for a variety of reasons, including timing. She further testified that the current fire flow on Edgecliff Crescent (of 67 L/s) is below what is required for a new home, explaining that, similar to the building code requirements of the day, required fire flow changes over time and, as such, a development constructed in line with past fire flow requirements might be out-of-step with the current requirements.
54She went on to explain that there are a variety of means to address the issue of insufficient fire flow in order to accommodate new development and as such, infrastructure upgrades such as watermain replacement are not the only solution. She noted that, in areas where the fire flow falls below the City’s standard requirement, the Fire Underwriters Survey (“FUS”) is often used to determine what can be done to safeguard homes against fire.
55The FUS provides a formula for estimating the required fire flow, which takes into account the type of building materials used (ie: wood versus brick/masonry) and the total floor area above grade. It is noted that other variables can have the effect of increasing or decreasing the required fire flow, including the type of building contents and separation distance between buildings.
56Ms. Green explained that, in this instance, the six new lots could achieve compliance with the required fire flow of 85% of 75 L/s without upgrading the area infrastructure by: limiting the size of the proposed dwellings above grade; requiring increased separation between the buildings; using non-combustible construction materials on the exterior such as brick/masonry; and the installation of monitored sprinkler systems. The specifics with respect to the above recommendations are now codified in Condition 10.
57In addition, Ms. Green referenced the concern raised in the staff report that the proposed development would further reduce the insufficient fire flow and clarified that the only instance in which existing homes would be impacted by the addition of the newly built homes would be in the case of two completely separate fires occurring simultaneously, which she opined was a statistical improbability.
58Mr. Oshell, the Deputy Fire Chief, also confirmed that there are many areas in the City which have insufficient fire flow. He testified that a minimum of three or four trucks are dispatched to any suspected or confirmed fire and, in areas where there are reduced fire flows or no access to a hydrant, one of the trucks dispatched is a tanker which shuttles extra water to the site. With respect to Edgecliff Crescent specifically, he indicated that it would be standard practice to automatically dispatch a tanker along with pumper trucks for any suspected or confirmed fire.
59As regards Condition 10, Mr. Oshell opined that the cumulative effect of the recommendations contained therein, if implemented, would reduce the required fire flow and tremendously increase the safety of the dwellings being built. He noted that the requirement of monitored sprinkler systems provides an added level of protection to the surrounding community and explained that the setbacks and non-combustible materials on the building exteriors reduces the likelihood that a fire will spread to other houses.
60Mr. Webb, the City’s Supervisor of Development Engineering, testified that despite insufficient fire flow in various areas throughout the City, new development does occur in such areas, addressed on a case-by-case basis often involving a review of the FUS to determine what can be done from a building science/construction perspective to ensure new development can meet fire flow requirements. He noted that, in cases where a proposal involves the development of hundreds of lots, it is usually easier to make modifications to the infrastructure to meet fire flow requirements. With respect to Edgecliff Crescent and the surrounding area, he confirmed that upgrading the infrastructure “is not currently on the City’s radar”.
61Mr. Webb testified that, at the time the Engineering Department was asked to provide comments and recommendations for the staff report, the engineered solution to the fire flow issues as set out by Ms. Green, now codified in Condition 10, was not before the Department for consideration. Although he had not reviewed Condition 10 in detail, he conceded that, if the implementation of Condition 10 resulted in an adequate solution to the fire flow insufficiency, his objection to the development proceeding by way of consent rather than by subdivision would be moot and construction could proceed. He noted that the City had proceeded in a similar fashion with conditional requirements to new development imposed to deal with lower flow rates in two other instances in the City.
62The Tribunal also heard from Mr. Ferguson, who authored the staff report. Mr. Ferguson explained that the recommendation given to the Planning Committee to deny the Applications and require a plan of subdivision was based upon the information available at the time, which was that there was an unaddressed issue of insufficient fire flow.
63He opined that the addition of Condition 10 adequately addresses the issue of insufficient fire flow and, as such, the creation of the new lots in accordance with Condition 10 would represent good planning regardless of the means (consent vs. subdivision).
64While the Tribunal is cognizant of the recommendations made in the staff report and in particular, the concerns raised by the Engineering Department, it is also cognizant that these recommendations and comments were made on the basis of information available at the time, which was that there was an issue of insufficient fire flow in relation to the proposed development that had not been adequately addressed. As Mr. Ferguson testified, with the consideration of the additional building stipulations and demonstrated compliance with the FUS requirements, the planning review and recommendations evolved to the point of recommending approval of the consent applications and provided that the fire flow issues were resolved, he was satisfied that the criteria in s. 51(24) had been met.
65The Tribunal is satisfied, based on information now available, and in particular, the uncontroverted expert evidence of Ms. Green (with whom Messrs. Robinson, Ferguson and Oshell concurred), that the engineered solution codified in Condition 10 adequately addresses the issue of insufficient fire flow and that the new development can be supported without an upgrade to the existing infrastructure.
66The Appellant raised a concern that Condition 10 does little, if anything, to protect the existing homes on Edgecliff in case of fire. In that respect, the Tribunal is persuaded by the evidence of Mr. Oshell, that aspects of Condition 10 do, in fact, have the effect of reducing the risk of fire exposure for existing residents. Moreover, his testimony that the fire department’s standard operating procedure of automatically dispatching a tanker truck carrying extra water to areas with insufficient fire flow such as Edgecliff Crescent, adequately addresses this particular concern.
67The Tribunal is also persuaded by Mr. Webb’s opinion that the addition of the six additional lots, or the nine lots in total on the west side of Edgecliff would have a negligible effect on water flows in the immediate neighbourhood, which was a concern expressed by the Appellant.
68Finally, the Tribunal rejects the assertion made in the closing submissions of Applicant’s counsel, that the Appellant’s ultimate aim is to leverage a decision in this matter so as to compel costly infrastructure upgrades for the entire neighbourhood. The Tribunal found the Appellant’s submissions in the hearing of the Appeals to be genuine, well-constructed and focused upon relevant land use planning grounds and is of the view that that the Appellant was legitimately concerned with orderly development and issues of public health and safety within his community, including his neighbourhood.
CONCLUSION
69The Tribunal finds a plan of subdivision is unnecessary in this instance and the consent applications which are the subject of this appeal represent proper and orderly development which is not premature and is in the public interest. The subject properties are zoned R1-5 and are located in Living Area 1, which has been targeted for growth and development in the OP.
70Upon the uncontroverted evidence from the engineering and fire safety witnesses, the Tribunal is satisfied that the area’s existing infrastructure can adequately support the proposed new development without any upgrades, provided the comprehensive engineered solution as set out in Condition 10 is implemented, as the evidence has demonstrated this condition adequately addresses the issue of insufficient fire flow.
71Upon the planning evidence of Mr. Robinson, as eventually supported by Mr. Ferguson at the hearing of the Appeals, and in the absence of any planning evidence to the contrary, based on all the foregoing, the Tribunal finds the development will not result in adverse effects upon the health and safety of new or existing residents, is consistent with the PPS, conforms to the OP, has appropriate regard for the matters enumerated in s. 51(24) and overall represents good planning in the public interest.
72In making its decision the Tribunal has had regard to matters of Provincial intertest as set out in s. 2 of the Act, and is satisfied that granting provisional consent is, pursuant to s. 3(5) of the Act, not only consistent with the PPS but also conforms to the Growth Plan for Northern Ontario to the limited extent of its application to the subject Applications. As well, the Tribunal has had regard to the decisions of the Planning Committee, Council and the Consent Official as they have been addressed in this Decision and to the information and material that was before each of these approval authorities.
73Accordingly, the Tribunal will allow the appeal in part for the purpose of adding a further condition (Condition 10), as recommended by Mr. Robinson, and as amended following review by staff.
74The Tribunal is satisfied, based on the totality of the evidence, that the inclusion of Condition 10 is reasonable, relevant and necessary and equitable, having regard to the nature of the development proposed, in order to address the issue of insufficient fire flow and to ensure the health and safety of the new and existing residents on Edgecliff Crescent. Specifically, the Tribunal finds that Condition 10, as it will require the Agreement with the City addressing development requirements necessary to comply to the fire flow requirements, is a necessary condition pursuant to s. 53(12) and s. 51(25)(d) of the Act for the purposes of conformity with the City OP and good planning.
ORDER
75THE TRIBUNAL ORDERS that the appeal is allowed in part and the provisional consents are to be given subject to the conditions set out in Attachment 1 to this Order.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
“S. Braun”
S. BRAUN
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.