Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 09, 2021
CASE NO(S).: PL200152
PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Referred by: 1384673 Ontario Inc.
Subject: Site Plan
Property Address/Description: 200, 230, 260 Steamline Street
Municipality: City of Ottawa
LPAT Case No.: PL200152
LPAT File No.: PL200152
LPAT Case Name: 1384673 Ontario Inc. v. Ottawa (City)
Heard: February 18, 2021 by Video Hearing
APPEARANCES:
Parties
Counsel
1384673 Ontario Inc.
M. Polowin
and Controlex Corporation
J. Polowin
City of Ottawa
T. Marc
DECISION DELIVERED BY D.S. COLBOURNE AND G. BURTON AND ORDER OF THE TRIBUNAL
1On January 19, 2018, Controlex Corporation (“Controlex”) made an application for Site Plan approval for a significant residential development (1,900 units) on the lands 200, 230, and 260 Steamline Street. The site plan relates to Blocks 7, 8 and 9 of a larger area known as “The Train Yard” Lands.
2Council made no decision on the application for Site Plan approval, and Controlex has appealed the matter to the Tribunal.
3There is no dispute on any details of the application for Site Plan Approval (“SPA”) other than the issue of the Parkland dedication. The City is seeking a 10% parkland dedication based on the residential development currently proposed. The SPA had included requirement for 2% cash in lieu of parkland.
4The history is that there was approval of a draft plan of subdivision for these lands and those nearby on December 20, 2001, and registration of a SPA covering all of the lands on November 24, 2005. At the time, the proposed uses were commercial/retail.
5Controlex relies on that SPA (Exhibit 1, Vol. 1, Tab 18), executed by differently numbered companies involving the same lands, as an enforceable contract.
6Controlex submits that binding case law from the Ontario Court of Appeal establishes that subdivision agreements are binding contracts, and no extrinsic evidence can be brought in order to interpret them. Where a municipality seeks to impose infrastructure obligations beyond those contemplated in a SPA, the agreement prevails to the extent of any conflict. As such, the SPA prevails to the extent of any conflict with the City’s parkland dedication by-law. The City is bound to accept 2% cash-in-lieu of parkland for the subject lands.
7The 2001 draft plan application (Exhibit 1, Tab 17) was to divide the property into blocks. Those blocks were to contain office, commercial, as well as industrial development. This was approved by the City, subject to the conditions set out in the SPA.
8Controlex points out that, consistently throughout the SPA, there are references to residents and residential-type items, such as “a school Board designated to serve this subdivision”. It states that the fact that there are nine such references to residential items indicates that residential development was contemplated under the SPA, even though that was not contained in the application. Controlex concludes that “Residential Uses on the Lands are not a change in the uses contemplated by the SPA”, even though these were not permitted by the existing planning documents.
9Subsequent amendments to the Official Plan in 2003 redesignated the land to Mixed Use Centre, allowing for residential development on the subject lands. It was the evidence of Paul Black for Controlex that by By-law No. 2008-250, the lands were rezoned to Mixed Use Centre One with a site-specific exception (MC (136), which introduced residential uses, among other uses for the subject lands.
10In 2012, the City approved the City-initiated Official Plan and Zoning By-law amendments for new Transit Oriented Development Plans. These were non-status documents, but the planning amendments had the effect of rezoning the subject and other lands to Transit Oriented Development Zone, Subzone 2 (TD2). This continues to allow residential uses.
11In fact, there is no disagreement as to the current development proposal for residential development being permitted as a use. The City’s Draft Delegated Authority has recommended approval of the application for residential development, subject to a number of conditions.
12In March of 2009, the City enacted its Parkland Dedication By-law. Section 13 has the same exception as s. 42(7) of the Planning Act:
42(7) If land has been conveyed or is required to be conveyed to a municipality for park or other public purposes or a payment in lieu has been received by the municipality or is owing to it under this section or a condition imposed under section 51.1 or 53, no additional conveyance or payment in respect of the land subject to the earlier conveyance or payment may be required by a municipality in respect of subsequent development or redevelopment unless,
(a) there is a change in the proposed development or redevelopment which would increase the density of development; or
(b) land originally proposed for development or redevelopment for commercial or industrial purposes is now proposed for development or redevelopment for other purposes.
13Mr. Black concurred that the current application is completely within the confines of s. 42(7)(b), except there is no retroactivity in either the By-law or in the legislation.
14It is this reference to a proposal “for other purposes” that the City relies upon to develop the amount of parkland required to be dedicated for a residential proposal of this nature.
15The City’s evidence is that there is a need for parkland in the area, especially with the amount of residential development proposed here and contemplated in the surrounding area.
16Controlex counters that because of the SPA, the City can only rely upon what was agreed to in it, regardless of purported need. They also point out that their application proposes ample amenity space for its residents. As well, there is more than sufficient parkland in the surrounding neighbourhood.
17This is contrary to the opinion of Jeanette Krabicka, an architect with the Parks and Facilities Planning Branch, as to the need for parkland in this area. The Tribunal is satisfied with her evidence on the aspect of need.
18The Tribunal agrees that contracts such as subdivision agreements are enforceable and binding on the parties. However, the world around this two-decade-old agreement has altered considerably.
19The development applied for at the time and on which all the schedules to the SPA were predicated was for office, commercial as well as industrial development. These were the uses assessed by City staff and negotiated between the parties. This is set out in the supporting information to the subdivision application (Ex. 1, Tab 17).
20At Tab 21, the summary of Application comment sheet to the Development Approvals Branch indicates the development then contemplated was office/commercial.
21At Tab 22, the entire McManus servicing report dated February 2001 was based, as the introduction states, on “The Site Servicing Report summarizes the proposed servicing configuration for the commercial development proposed by Ottawa Train Yards Inc.” (emphasis added).
22Within the engineering report, it states that the construction of all works, and the use by the owner of the lands will be in accordance with the engineering reports.
23The whole context of the 2005 SPA was for office and commercial uses. All the schedules to the Agreement are based on servicing, fees and other matters for such uses. The City suggests that the SPA was a boiler plate draft contract used for all types of development. The alleged references to residential items certainly did not apply to the proposal at that time.
24The Tribunal agrees that in considering and developing an agreement at the time, staff would not have had any thoughts about residential development when assessing park requirements. Residential development was not permitted on the lands at the time.
25The fact that, subsequently, residential uses have been added to the subject and surrounding lands is fortuitous for the applicant, in that it allows for the current proposal.
26The basis for agreement on the conditions in the SPA has dramatically changed. The Tribunal does not believe that the applicant should be able to rely upon the conditions agreed to for something neither implied nor permitted at the time. It does not believe that the so-called references to residential uses in the standard-form contract can be stretched so far as was claimed.
27For this reason, the Tribunal considers that it is not required to determine other issues raised by the Appellant such as the subsequent Parkland Dedication By-law provisions and whether the SPA conflicts with them. It appears clear that by s. 42(7)(b) of the Planning Act, the City has the authority to demand a conveyance for park purposes because of the proposed use “for other purposes” than originally contemplated.
28We dismiss the appeal by Controlex.
29We were advised that this Decision would now allow the parties to negotiate the condition to be imposed. The Tribunal can be spoken to if there are any issues within six months of the date of this Decision.
30The Tribunal so orders.
“D.S. Colbourne”
D.S. COLBOURNE
VICE-CHAIR
“G. Burton”
G. BURTON
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
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