Build It Green Canada Inc. v. New Tecumseth (Town), 2021 CanLII 49332

Local Planning Appeal Tribunal

Tribunal d’appel de l’aménagement local

ISSUE DATE: June 1, 2021

CASE NO.: PL180947

PROCEEDING COMMENCED UNDER subsection 51 (34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Build It Green Canada Inc.

Subject: Proposed Plan of Subdivision - Failure of Town of New Tecumseth to make a decision

Purpose: To permit a plan of subdivision

Property Address/Description: Lots 31 to 33, Lots 34 to 37, Et Al

Municipality: Town of New Tecumseth

Municipality File No.: NT-T-1801

LPAT Case No.: PL180947

LPAT File No.: PL180947

LPAT Case Name: Build It Green Canada Inc. v. New Tecumseth (Town)

BEFORE:

DAVID L. LANTHIER VICE-CHAIR

Tuesday, the 1st day of June, 2021

THE TRIBUNAL ORDERS that the Procedural Order, attached hereto as Appendix “1” shall be in force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence on Monday, October 18, 2021 at 10:00 a.m. by Videoconference at https://global.gotomeeting.com/join/425547813. The length of the hearing will be 5 days.

“Becky Fong”

BECKY FONG

REGISTRAR

If there is an attachment referred to in this document, please visit www.olt.gov.on.ca to view the attachment in PDF format.

Local Planning Appeal Tribunal A constituent tribunal of Ontario Land Tribunals Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

APPENDIX 1

Case No. PL180947

LOCAL PLANNING APPEAL TRIBUNAL

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: Build it Green Canada Inc.

Subject: Proposed Plan of Subdivision– Refusal or neglect of Town of New Tecumseth to make a decision

Purpose: To permit residential subdivision plan

Property Address/Description: Lots 31 to 33, Lots 34 to 37

Municipality: Town of New Tecumseth

Municipality File No.: NT-T-1801

OMB Case No.: PL180947

OMB File No.: PL180974

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on request of a party or its own motion

Organization of the Hearing

2. The video hearing will begin on Monday, October 18, 2021 at 10:00 a.m., or as soon after that time as possible, by GoToMeeting Video Conference. The length of the hearing may be shortened as issues are resolved or settlement is achieved.

3. The parties’ initial estimation for the length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The Town of New Tecumseh, Nottawasaga Valley Conservation Authority and the County of Simcoe shall provide their issues to the Appellant on or before February 5, 2021 and finalized issues will be inserted into Attachment 2. The issues will be as set out in the finalized Issues List which will become Attachment 2. There will be no changes to this list after February 5, 2021 unless the Tribunal permits, and a party who asks for changes may have costs awarded against it, except if the Issues List is modified through mediation or pursuant to a settlement between any of the parties.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide an email address and a telephone number to the Tribunal. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Tuesday, August 24, 2021 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before Friday, September 10, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the LPAT case co-ordinator on or before Monday, October 4, 2021.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before Friday, September 3, 2021, the parties shall provide copies of their witness and expert witness statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 22 below.

14. On or before Friday, September 3, 2021, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before Monday, October 4, 2021, the parties shall provide copies of their visual evidence to all of the other parties in accordance with section 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the LPAT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with section 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the LPAT case co-ordinator on or before Friday, October 8, 2021.

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the LPAT case co-ordinator, on or before the day the document is introduced.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a final hearing plan with the Tribunal on or before Friday, October 8, 2021 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

____________________________

TRIBUNAL REGISTRAR

SUMMARY OF DATES

DATE

EVENT

Friday, February 5, 2021

Township of New Tecumseth, County of Simcoe and Nottawasaga Valley Conservation Authority’s Issues Lists due

Tuesday, August 24, 2021

Witness lists (including names, disciplines and order to be called) to be exchanged

Friday, September 3, 2021

Witness Statements, Participant Statements, Expert Witness Statements and Expert Reports to be exchanged

Friday, September 17, 2021

Reply Witness Statements (if any) to be exchanged

Friday, September 10, 2021

Deadline for Expert Witness Meetings

Friday, October 8, 2021

Hearing Plan

Monday, October 4, 2021

Statement of Agreed Facts Parties to exchange copies of visual evidence

Friday, October 8, 2021

Joint Document Book

Monday, October 11, 2021

Notification of Witness’ Written Evidence Not Part of Record

Monday, October 18, 2021

Hearing commences

Attachment 1 – List of Parties/Participants

Parties:

Build It Green Canada Inc.

Town of New Tecumseth

Nottawasaga Valley Conservation Authority

County of Simcoe

Participants:

Leo Halpern

Attachment 2 – Issues List

NOTE: The identification of an issue on the Issues List is intended to provide notice to all parties that a party will lead evidence and/or argument on the matter. This identification does not serve as an acknowledgment of relevancy; merely notice that a party may seek to establish the issue’s relevancy. The identification of a change to the Issues List does not constitute an admission by the opposing party that the revised issue is relevant, it is only an indication that the identifying party will seek to demonstrate the relevance of the revised issue to the matters before the Tribunal.

Build It Green Canada Inc.

1. Is the proposed subdivision plan consistent with the Provincial Policy Statement (2014 and 2020)?

2. Does the proposed subdivision plan conform with and have no conflict with A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (2019) (the “Growth Plan”)?

3. Does the proposed subdivision plan adequately account for issues related to transportation and roads in its vicinity?

4. Is the proposed subdivision plan appropriate in light of Provincial policies and City Official Plan policies?

5. Is the proposed subdivision appropriate in light of the area context, history and general intent of the Official Plan?

6. Is the use of draft conditions appropriate and adequate to address concerns raised by the City of New Tecumseh, County of Simcoe and Nottawasaga Valley Conservation Authority, in particular for:

a. the determination of the health of and need for a protection plan for the butternut tree identified on the lands;

b. a tree replanting and compensation plan, with appropriate financial security for trees to be removed on Second Street right-of-way;

c. a grading permit from the Nottawasaga Valley Conservation Authority to deal with

i. the final location, configuration, depth, profile and grading of the storm water drainage channel, its banks and areas adjacent to that channel

ii. final grading of the balance of the subdivision lands

iii. fish concerns in the Hendrie Street Drain?

7. Must Second Street, running through the subdivision lands be connected with Second Street North? Should the conveyance of lands to The Town of New Tecumseh that permits the later connection, if required, be required?

8. Has the Appellant demonstrated that development of the subdivision will not adversely affect flood control on either the subdivision lands or lands in its vicinity, having regard to the applicable guidelines?

9. Does the proposed subdivision have appropriate regard to the criteria set out in subsection 51(24) of the Planning Act, R.S.O. 1990, c. P. 13 as amended?

Town of New Tecumseth

1. Does the current Official Plan Designation and Zoning continue to support development of these lands given the current development and environmental policies of the Province, County and Town?

2. Can the development be approved when the Town has not consented to the opening of the unopened Second Street road allowance?

3. If the development is approved, should the appellant be required to connect the road access and services to the existing Second Street right-of-way to the north of the proposed development?

4. The Town adopts and supports the issues of the Nottawasaga Valley Conservation Authority (NVCA) set out below.

Nottawasaga Valley Conservation Authority

The Provincial Policy Statement

1. Has the application demonstrated consistency with Section 3.1.1 b) of the PPS, by demonstrating that the proposed development is outside of hazardous lands adjacent to river, and stream systems which are impacted by flooding hazard and/or erosion hazards?

2. Has the application demonstrated consistency with Section 3.1.2 c) of the PPS, by demonstrating that the proposed development is outside of an area that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard?

3. Has the application demonstrated consistency with Section 3.1.2 d) of the PPS by demonstrating that the development is outside of a floodway regardless of whether the area of inundation contains high points of land not subject to flooding?

4. Has the application demonstrated consistency with Section 2.1.6 of the PPS by demonstrating that all development and site alteration is outside of fish habitat except in accordance with provincial and federal requirements?

5. Has the application demonstrated consistency with Section 2.1.7 of the PPS by demonstrating that all development and site alteration is outside of habitat(s) of endangered species and threatened species, except in accordance with provincial and federal requirements?

The County Of Simcoe Official Plan [SCOP]

6. Has the application demonstrated conformity with Section 4.5.9 b) of the SCOP by demonstrating that the proposed development is outside of hazardous lands adjacent to river, and stream systems which are impacted by flooding hazard and/or erosion hazards?

7. Has the application demonstrated conformity with Section 4.5.10 b) of the SCOP by demonstrating that the proposed development is outside of an area that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard?

8. Has the application demonstrated conformity with Section 4.5.10 c) of the SCOP by demonstrating that the development is outside of a floodway regardless of whether the area of inundation contains high points of land not subject to flooding?

9. Has the application demonstrated conformity with Section 3.3.15 iv) of the SCOP by demonstrating that development and site alteration is outside of fish habitat except in accordance with provincial and federal requirements?

10. Has the application demonstrated conformity with Section 3.3.15 v) of the SCOP by demonstrating that development and site alteration is outside of habitat of endangered species and threatened species, except in accordance with provincial and federal requirements?

Town Of New Tecumseth Official Plan [NTOP]

11. Has the application demonstrated conformity with Section 4.5.13 g) of the NTOP by demonstrating that development has generally been directed to areas outside of hazardous sites and hazard lands adjacent to river and stream systems that are impacted by erosion hazards?

12. Has the application demonstrated conformity with Section 4.5.13 g) that development will not occur in areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, and/or erosion hazards unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard?

13. Has the application demonstrated conformity with Section 4.5.13 j) of the NTOP by demonstrating that buildings and structures are not located within the floodplain, except where written permission has been obtained from the appropriate Conservation Authority? Has the application demonstrated conformity with Section 4.5.14 a) of the NTOP by demonstrating that all development and site alteration has been subject to review under the Endangered Species Act and is subject to appropriate mitigation as required by the Province?

County of Simcoe

Will the final design allow for waste collection services to be provided according to County standards in place at the time of final approval?

Attachment 3 – Order of Evidence

1. Build It Green Canada Inc.

2. Town of New Tecumseth

3. County of Simcoe

4. Nottawasaga Valley Conservation Authority

5. Participant Leo Halpern (examination by Tribunal, if directed)

6. Build It Green Canada Inc. (Reply, if any)