Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 11, 2021

CASE NO(S).: PL180364

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: SO Development Inc.

Subject: Application to amend Zoning By-law No. 60-94 - Refusal or neglect of City of Oshawa to make a decision

Existing Zoning: UR (Urban Reserve)

Proposed Zoning: Appropriate Residential Zones

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipality File No.: Z-2016-15

OLT Case No.: PL180364

OLT File No.: PL180364

OLT Case Name: SO Development Inc. v. Oshawa (City)

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

Applicant and Appellant: SO Development Inc.

Subject: Proposed Plan of Subdivision - Failure of City of Oshawa to make a decision

Purpose: To permit a proposed draft plan of subdivision and temporary sales office

Property Address/Description: South of Renaissance Drive, West of Park Road South

Municipality: City of Oshawa

Municipality File No.: S-O-2016-15

OLT Case No.: PL180364

OLT File No.: PL180365

Heard: March 29, to April 20, 2021 by video hearing

APPEARANCES:

Parties

Counsel

SO Development Inc. (“Applicant/Appellant”) Michael Melling Meaghan McDermid

City of Oshawa (“City”) Adam Kosnick

Region of Durham (“Region”) Kevin Ryan

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1This was the Phase 1 Hearing respecting appeals by the Applicant/Appellant. Applications have been submitted for a proposed amendment to the City’s Zoning By-law No. 60-94 (“ZBA”) and for a proposed Draft Plan of Subdivision. The appeal results from the failure of the City to make a decision on the ZBA and the Draft Plan of Subdivision within the legislated timeframes pursuant to s. 34(11) of the Planning Act (“Act”).

Description of Subject Lands

2The Subject Lands are referred to as “Block ‘B’”, also historically referred to in some instances as the “Maurac lands”, and are located in the south-west region of the City, in Ward 5, south of Renaissance Drive and west of Park Road South legally described as Parts of Lots 13 and 14, Broken Front Concession, Part 1 of Plan 40R-22187.

3The Subject Lands are vacant, comprising a total area of approximately 10.3593 hectares (25.59 acres) with 221.1 metres of frontage along Park Road South to the east, 529.779 metres of frontage abutting City-owned open space lands to the south and 113.105 metres of frontage abutting City-owned open space lands to the west.

4The hearing of the appeals took place over the course of 18 days. The conduct of the hearing was governed by a Procedural Order (“PO”) issued on February 19, 2019 confirming the Parties and Participants.

5The Parties filed a 2,935-page joint document book and an Experts Agreed Statement of Facts for each, the Butterfly Experts, Environmental Experts and Planning Experts on March 29, 2021 which provides foundational matters not in issue between each respective specialty of expert. More documents were filed by each Party during the course of the hearing and were marked as further Exhibits.

6The Panel heard from eight witnesses on behalf of the Parties. All witnesses were qualified to provide expert evidence in their respective fields.

7The Applicant provided the following affidavits in support of its Applications:

• Dr. Jeremy Kerr - Conservation Biologist on Butterflies and their Habitats
• Christopher Ellingwood - Biology/Ecology
• Ryan Guetter - Land Use Planning

8The City provided the following affidavits in support of their objections to the Applications:

• Christopher Jones - Land Use Planning
• Dr. Ryan Norris - Conservation Ecologist and Biologist in the Studies of Monarch Butterflies
• Kathy Luttrell - Ecology
• Sean Male - Ecology
• David Sappleton - Land Use Planning

THE HEARING

9A concern was raised prior to the start of this hearing regarding the presentation abilities of those conferred Participant status.

10The Tribunal ruled that based on Participants being conferred status in December 2018 and subject to a PO issued in February 2019, both dates pre-dating Bill 108’s effective date of September 3, 2019, both fit within the circumstance described in Rule 7.7 of the Tribunals Rules of Practice and Procedure.

11There were four Participants affirmed to generally provide fact-based evidence:

• Diane Shermet Williamson
• Paul Krowchuk
• Robert Crosier
• Brian Nicholson

12The four Participants were advised that the Tribunal would weigh their concerns accordingly when determining the outcome of this Phase 1 Hearing.

THE DEVELOPMENT PROPOSAL

13The Proposed Development seeks to permit 141 single-detached lots and 34 semi-detached lots, resulting in a total of 175 units. Not including servicing easements, the Proposed Development is 7.873 hectares and is comprised of 5.515 hectares of residential land and 2.358 hectares of roads. The balance of the Subject Lands is proposed to contain 2.486 hectares of other uses, including open space.

NEIGHBOURHOOD CONTEXT

14The Proposed Development is located on the southern end of the City.

15Existing low-rise residential neighbourhoods abut the Subject Lands to the north, inclusive of a 22-lot plan of subdivision, located south of Renaissance Drive, that was approved by City Council in 2006. The Proposed Development includes north-south road connections to the dead-end stubs of three separate local roads to the north consisting of Mayport Drive, Seabring Street and Tradewinds Street that link Renaissance Drive to the north lot line of the Subject Lands.

16The east lot line of the Subject Lands abuts Park Road South, which is a north-south collector road. The southeast corner of the Subject Lands is adjacent to the intersection of Park Road South (south terminus) and Stone Street (west terminus), and a portion of the Waterfront Trail also connects to this intersection. Residential neighbourhood areas are located east of Park Road South.

17The south lot line of the Subject Lands abuts a landscaped waterfront area adjacent to Lake Ontario, consisting of public open space lands that accommodate passive recreational uses including the Lake Ontario Waterfront Trail. The Trail is a publicly accessible pedestrian walkway that connects a series of parks and conservation areas along the Lake. These lands are regulated by the Central Lake Ontario Conservation Authority (“CLOCA”) and are owned by the City as public open space.

18The southwest boundary of the Subject Lands is adjacent to public open space lands that primarily accommodate passive recreational uses, including a local north-south trail that connects the Lake Ontario Waterfront Trail to Renaissance Park.

UNDERSTANDING THE SPECIES AT QUESTION

19The Tribunal was brought through a very thorough and educational description of the Monarch Butterfly, the species at the heart of this Phase 1 matter. Drs. Kerr and Norris’s passion for Monarch butterflies was evident in their description of the species, the migratory pattern they endure and their search to refuel and rest on their journey to reproduce.

20It was presented by both experts that Monarch butterflies are a migratory species, with multiple generations per year. The overwintering generation remains in Mexico for 4 - 6 months until spring. These Monarchs (“Generation 1”) then migrate north and begin reproducing in the southern United States. Reproduction is specialized on certain milkweed species, including common milkweed, Asclepias syriaca and swamp milkweed, Asclepias incarnata, upon which butterflies lay eggs and that the caterpillars consume. As new butterflies emerge (“Generation 2”), the butterflies continue to expand northward across warm areas east of the Rocky Mountains. This process repeats through “Generation 3”. “Generation 4” Monarchs (and some earlier generations) colonize southern Canada and continue reproducing on milkweed plants. “Generation 5” of Monarch butterflies is probably the last generation of Monarch butterflies each year in Canada. These butterflies do not reproduce at the end of the season, instead flying south to Mexico to the overwintering grounds. “Generation 5” of one year is then “Generation 1” of the following year, and the cycle begins again.

21This pattern of successive generations of Monarch butterflies expanding northward from Mexico is a general one, but some butterflies even from “Generation 1” return long distances, even as far as the Great Lakes region.

22It was emphasized by both experts, that Monarch Butterfly population numbers fluctuate substantially from one year to the next but have shown a long-term decline. Monarch butterflies are listed as “species of special concern” pursuant to Canada’s Species at Risk Act. They are listed as a “species of special concern” pursuant to the Ontario Endangered Species Act.

23Both experts agreed many causes of decline for Monarch butterflies have been identified and suggested, but there is significant uncertainty and scientific debate around which are most important. Monarch migration distances are several thousand kilometres, necessitating many “refueling” stops (in the form of nectar in flowers) along the way for them to maintain and replenish their energy reserves. Goldenrod species and purple loosestrife provide such nectar resources during the fall migratory period because that coincides with their flowering time. Nectaring resources during the fall are critical for successful monarch migration.

CHRONOLOGY OF THE APPLICATION PROCESS

24The Tribunal was brought through a chronology presented by the Planners for both Parties. Included in the overview were specific references to a pre-application consultation meeting with City staff, a presentation to the Public, the City’s Development Services Committee and a Public Open House held by the Applicant for the purpose of gaining administrative guidance and public input.

25From the time the Applications were deemed complete until the hearing of this matter, the Applicant undertook site-specific study work to identify that the Subject Lands contained Significant Wildlife Habitat (“SWH”) as a migratory stopover area for Monarch butterflies, as defined by the Provincial Policy Statement, 2014 (“PPS 2014”).

26The Applications undertook several revisions and were presented as a second re-submission for consideration for the ZBA and Draft Plan of Subdivision which would be considered at a Phase 2 Hearing based on the outcome of whether the Tribunal is satisfied that the Phase 1 Issues have been resolved.

THE ISSUES

27The Issues List forming part of the PO governed the presentation of the evidence and the hearing of these appeals. From a policy context, the issues before the Tribunal require determinations of whether the Phase 1 Hearing merits the continuation of the Applications to a Phase 2 Hearing.

28The evidence presented over the course of the hearing, focused primarily on the issue of whether the Proposed Development is appropriate in whole or in part, owing to the presence of SWH (particularly with respect to the Monarch Butterfly), natural heritage system (“NHS”) and/or key natural heritage features (“KNHFs”) both within and adjacent to the Subject Site. Questions regarding the prematurity of the development as well as the appropriateness of the Proposed Development envelope were considered in the findings. In order to properly evaluate the different elements of these concerns, the Tribunal felt it was best to review each item on the Issues List in relation to the appropriate policies presented by the City and the Applicant as it specifically relates to the migratory stopover of the monarch butterfly.

PLANNING EVIDENCE

The Planning Act

29The Tribunal was directed to s. 2(a), (m), (n), and (p) of the Act as particularly applicable matters of provincial interest to which the Tribunal must have regard in this case. These sections generally relate to protection of the natural environment, orderly development of healthy communities, the provision of housing, the balancing of public and private interests and appropriate locations for growth.

30Mr. Guetter testified that the Applications have proper regard to the applicable matters of provincial interest. He opined the Applications demonstrate regard for s. 2(a) by proposing ecological mitigation measures, inclusive of enhancement of existing on-site habitat features and new linkages to ecological areas adjacent to the Subject Lands. He stated the identification of natural areas has occurred in accordance with an appropriate natural heritage evaluation, and that through such evaluations, regard for the protection of ecological systems, natural areas, features and their functions has been achieved and will be implemented in the development proposed in the current Applications.

31With respect to s. 2(m) of the Act, he opined the Applications were circulated to all relevant public commenting departments and agencies, including City and Region departments, and was prepared based on consideration of the technical input received.

32He testified the Applications have regard for s. 2(n) of the Act. They propose 2.486 hectares of open space area adjacent to publicly-owned waterfront and park lands to the south and west of the Subject Lands, consisting of uses that will enhance the surrounding public waterfront area, including a park for passive recreation uses, a wetland compensation area, and additional open space lands to be dedicated for butterfly habitat uses. In his opinion, the Applications configuration of blocks and areas has had regard to and sought to mitigate potential conflicts between private and public interests, by providing public lands to serve an overall public interest.

33With respect to s. 2(p) of the Act, he stated that the Applications propose an appropriate balance and interface between intensification and infill development in an appropriate location, and the provision for open space areas that are to be dedicated to the conservation of butterfly habitat uses.

34Mr. Kosnick gave his opinion that the proposal does not properly implement the applicable sections of the Act, including the requirement to have proper regard to matters of provincial interest.

35The Act requires the Tribunal in carrying out its responsibilities under the Act, to have regard to, among other matters, matters of provincial interest, and the Tribunal is satisfied that there has been proper regard to the applicable matters of provincial interest, as will be apparent in this decision.

The Provincial Policy Statement

36Land use planning in Ontario is a policy-led system, implemented in a top-down fashion. The system is deliberately crafted to recognize that there cannot be a ‘one-size fits all’ approach to implementing the policy framework, given the diversity of Ontario’s local communities. As such, the PPS, as revised in 2020, sets out broadly defined policies and recognizes that official plans play a critical role in implementing those broad policies, as appropriate, at a local level. Further, the PPS speaks to geographic scale, noting a requirement for flexible implementation in line with local context and that not all policies are applicable to every site, feature or area.

37The PPS applies throughout the Province and represents minimum standards. It is to be read in conjunction with the other plans. Provincial plans take precedence over the PPS only to the extent of any conflict.

38In order for the Tribunal to authorize moving this matter to a Phase 2 Hearing, the Tribunal must be satisfied upon the evidence that the ZBA and the Draft Plan of Subdivision are consistent with the natural heritage policies of the PPS that relate the impact on the Monarch Butterfly.

A. Prematurity

39At the heart of the Phase 1 Hearing is the issue of identifying whether or not the Proposed Development is “premature” based on the Subject Lands being recognized as a SWH particularly with respect to the Monarch Butterfly and whether the Subject Lands are appropriate for development.

40The PPS states that development and site alteration are not permitted in SWH area unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.

41The PPS provides definitions of “significant” and “wildlife habitat”:

Significant: means

c) in regard to other features and areas in policy 2.1 [which includes wildlife habitat], ecologically important in terms of features, functions, representation or amount and contributing to the quality and diversity of an identifiable geographic area or natural heritage system.

Wildlife habitat: means areas where plants, animals and other organisms live, and find adequate amounts of food, water, shelter and space needed to sustain their populations. Specific wildlife habitats of concern may include areas where species concentrate at a vulnerable point in their annual or life cycle; and areas which are important to migratory or non-migratory species.

42The Tribunal notes that the Durham Region Official Plan (“DROP”) contains definitions consistent with those found in the PPS.

43The Parties referred specifically to Ministry of Natural Resources and Forestry (“MNRF”) documents which provide assistance to municipalities when interpreting and implementing the natural heritage policies of the PPS. These documents include: Significant Wildlife Habitat Technical Guide (2000); Significant Wildlife Habitat Mitigation Support Tool (2014); Significant Wildlife Habitat Criteria Schedules for Ecoregion 6E (2015) and MNRF’s Significant Wildlife Habitat Criteria Schedules (“Criteria Schedules”).

44Each of the aforementioned documents were referred to by the Parties to assist the Tribunal in an understanding of whether the impacts of the Proposed Development were examined and applied to determine whether the Applications are premature.

45Mr. Ellingwood testified that the Applications have been subject to the review and full participation of all relevant regulatory bodies, including the MNRF, the Region, the City and the CLOCA. He stated that he had undertaken “Pollard Walks”, which traversed through the Subject Lands and created a Monarch Butterfly Migration Survey in November of 2017. An Addendum to the 2016 Environmental Impact Study (“EIS”) was submitted to the City on November 21, 2017 that summarized the results of the Monarchs Migration Surveys in the fall of 2017 (the “2017 EIS Addendum”).

46In addition, he stated, the 2017 EIS Addendum commented on the calculations, habitat limitations and options for restoring and monitoring the Monarchs on the Site. In order to be deemed SWH under the PPS 2014, he informed Tribunal that the following criteria must be met:

(a) Observations of more than 5000 monarch butterflies or observations of 3000 monarchs with the presence of two additional migratory butterfly species (specifically, Painted Lady or Red Admiral); and,

(b) The habitat must be:

a. Over 10 hectares in size;

b. Include a combination of field and forest; and,

c. Be located within 5 km of the Lake Ontario or Lake Erie shoreline.

47He further stated that the study area for the migration surveys included the entire Site and the shoreline along the Waterfront Trail.

48In order to determine the number of butterflies present on the habitat, he employed the Monarch Use Days (“MUD”) methodology as outlined and confirmed by the MNRF, using the number of survey days multiplied by the cumulative total number of individual butterflies observed on all dates in the survey period, on Site. Mr. Ellingwood informed the Tribunal that the methodology used followed the standard technique of a transect/area search (known as a Pollard Walk) of the entire property to inventory the clusters of Monarchs using the nectaring habitats, and clusters on appropriate roosting sites in the evening (forest edges, shrub stands, copses/stands of trees and larger specimen trees).

49He informed the Tribunal that he conducted Monarch Migration Surveys on eight separate dates between the months of August and October 2017, with one visit per week over eight weeks. The two transects on the Site he conducted were specifically designed to:

(a) pass through and inventory all patches of Goldenrod nectaring habitat;

(b) count numbers in each individual patch and for every encounter along the transect length;

(c) follow edge of northeast treed area adjacent to nectaring patches in the evening when roosting would occur;

(d) check larger trees, edges of shrub communities, corpses of trees and individual planted and natural trees throughout the property for roosting;

(e) assess roosting habitat based on temperature and wind direction; and

(f) select dates when temperature, wind, precipitation, flowering times and migration conditions were optimal.

50Following comments received from the CLOCA dated February 10, 2017, Mr. Ellingwood undertook additional work to assess the potential of the Subject Lands as stopover habitat for migratory Monarch Butterflies. He concluded that the threshold number had been met. Based on this outcome he advised his recommendations through the compensation/mitigation measures, ensure the continued support and consideration of the migratory stopover elements needed for Monarch butterflies within a SWH. Mr. Ellingwood concluded was that the Applications are not premature.

51Mr. Sappleton opined it is premature to conclude matters related to subdivision design, unit types, servicing, etc. without identifying the development envelope from a natural heritage perspective, which includes the amount of land required to have no negative impact on the SWH associated with the migratory butterfly stopover area.

52Mr. Sappleton stated that consideration must be given to the impact on the current features on the Site and the preservation of the appropriate amount of naturalized lands. He added that, the existing natural heritage features must first be properly evaluated to determine the type and degree of sensitivity of the environmental conditions. Only when the natural heritage features been evaluated can the potential impacts of the development on the natural heritage features be properly determined. Messrs. Sappleton and Jones both testified that the Subject Lands simply had not had a proper evaluation through the EIS submitted to map and demonstrate that all policies are adhered to.

53The Tribunal upon hearing the evidence accepts and finds that the proposal has had significant analysis and review from all agencies and the public. The Parties have agreed that the site contains SWH for Monarch butterflies as defined in all policy documents, both as a migratory butterfly stopover area and as a habitat of species of special concern.

54Having progressed the Applications through public vetting with resubmissions including a compensation/mitigation plan specifically oriented to support the migratory stopover of the Monarch butterflies, the Tribunal is therefore satisfied that the Applications are not premature.

55The Tribunal does, however, recognize there remains between the Parties the question of how much of the Site contains SWH.

56The City submits that the entirety of the Subject Site should be considered SWH for Monarch butterfly migration, with the exception of the 0.36 hectares of wooded wetland which is exempt from the ecoregion criteria for SWH for Monarch butterflies.

57Mr. Male testified the first document which outlined how to assess SWH was the Significant Wildlife Habitat Technical Guide that was released in 2000, which speaks to assessment on a broad scale when considering features as it lists the primary location of habitat as shorelines of large lakes, as well as forest, old field, and undisturbed open lands. He also referred to the Natural Heritage Reference Manual (“NHRM”) which expands on the process of identifying SWH, and references ecological land classifications, which needed to be considered.

58Dr. Norris testified that the whole Site should be considered SWH for Monarch butterflies. He was not aware of a situation when someone would try to parse out the number of flowering plants for Monarchs and suggest this is the amount that can be replaced. He stated that Monarchs will forage, and do forage, all over the Site, including high- and low-density patches of Goldenrod. He also gave evidence that Monarchs will distribute themselves in such a way that they optimize the nectar they are trying to consume, and some may go to lower patches if there is competition.

59It was his evidence that Monarch butterflies will roost in trees, shrubs, and Goldenrod itself, and noted that on windy days, Monarchs will prefer roosting in shrubs because it is closer to the ground. He stated that Monarchs move their roost all the time. He also stated that he observed Monarchs across the Site when he visited the Site’s perimeter in September of 2020.

60All ecology experts agreed that, if left to succession without management, the Subject Lands will eventually become forest, at which time they will no longer support butterfly nectaring or breeding habitat and will provide only limited roosting habitat along the forest edge.

61Based on the classification in the 2016 EIS conducted by Mr. Ellingwood’s firm, Niblett Environmental Associates (“NEA”), the largest vegetation community on the Subject Lands is old field meadow (ELC code CUM1-1). The central area of the property contains a regenerating shrub thicket (no ELC code) and the northeast corner contains two wooded areas (ELC code FOD7-2), two wooded swamp wetland areas (ELC code SWD2-2) and a meadow marsh area (ELC code MAM2-2) to the south of the wetland. The trees currently existing on the Subject Lands, including in the northeast wooded and wetland areas, are predominantly Green Ash. The majority of these have been infested with the invasive Emerald Ash Borer insect and are dead or dying.

62Mr. Ellingwood testified that in terms of Monarch Butterfly habitat, the Subject Lands contain clusters of nectaring plants, primarily Goldenrod and Purple Loosestrife, as well as roosting trees, which are predominantly Green Ash. There is very little milkweed for breeding. He opined that the effect of succession on Monarch habitat is already being Observed Lands, if left as is, will be fully dominated by shrubs and will retain limited, if any, nectaring habitat on the Subject Lands. From the original 2016 ELC mapping to the present time, Mr. Ellingwood testified he had observed that the areas covered by Dogwood shrubs have increased, have now spread to all patches of high-density Goldenrod, and have begun to replace it in some areas. Based on his observations of the Subject Lands over the past five years, Mr. Ellingwood expects that within 10 years, the Subject Lands, if left as is, will be fully dominated by shrubs and will retain limited, if any, nectaring habitat.

63The Tribunal on hearing the testimony of the experts, prefers the outline provided by Mr. Ellingwood. His testimony has regard for the succession which has begun to degrade the Site of the necessary nectaring plant over time and provides for compensation/mitigation plans, which will provide for a sustainable approach to ensure the stopover continues to provide the specific vegetation needed in the future.

64Moreover, as Dr. Norris pointed out in his testimony, “Monarchs will forage, and do forage, on high- and low-density patches of Goldenrod”. Based on the natural degradation of the Site due to time and infestations, the Tribunal recognizes the balance of residential and compensation/mitigation as presented by the Applicant to be appropriate.

65Further, site-specific plantings and landscape which will be discussed as part of the Draft Plan of Subdivision, Phase 2 Hearing will focus on the amounts of specific vegetation need to be provided.

B. Environment, Ecology and Natural Heritage issues

Appropriateness of the Proposed Development Envelope

66Mr. Guetter opined, the Proposed Development is not located in whole or in part within or adjacent to an NHS as defined by the PPS. He referred the Tribunal to the DROP Schedule ‘B’, Map ‘B1(d)’– Greenbelt Natural Heritage System & Key Natural Heritage and Hydrologic Features, which does not identify Key Natural Heritage or Hydrologic Features on or adjacent to the Subject Lands. He outlined the Oshawa Official Plan (“OOP”) (2016 Consolidation) Schedule ‘D’ – Environmental Management, and informed the Tribunal that it does not identify Environmental Sensitive Areas (“ESA”) on or adjacent to the Subject Lands, but that it does identify Hazard Lands along the waterfront area south of, but not on, the Subject Lands. He testified that Schedules ‘D-1’ of OPA 179 identifies NHS to the south of the Subject Lands, and not on the Subject Lands. He pointed out that although Schedule ‘D-1’ identifies a portion of the Subject Lands along the southwest boundary within the “Natural Heritage and/or Hydrologic Features Outside of the Natural Heritage System”, this portion of the Subject Lands is proposed to be utilized as wetland and other landscaped open space features supportive of Monarch Butterfly habitat.

67Mr. Sappleton drew the Tribunal’s attention to the general location of KNHFs which were shown on Schedule ‘B’ – Map ‘B1’ of the DROP. He stated that Schedule ‘B’ does not identify the Subject Site with KNHF. However, policy 2.3.14 of the DROP states that the location and extent of KNHFs may be confirmed through appropriate studies such as an EIS. The definition of KNHF in the DROP includes SWH. Therefore, he stated, if the Subject Site is a SWH, then it is KNHF. He informed the Tribunal that it is important to note that the definition of KNHF in the DROP and the 2019 Growth Plan for the Greater Golden Horseshoes (“GP”) includes the habitat of special concern species.

68The Tribunal prefers the opinion evidence of Mr. Guetter, noting that it was clear through the mapping provided in evidence that Schedule ‘B’ – Map ‘B1’ of the DROP does not identify the Subject Site with KNHF.

Negative Impacts and Mitigation/Compensation Relief

69Mr. Ellingwood opined that the SWH, being the migratory butterfly stopover area and the presence of special concern and rare wildlife species, constitutes the only natural feature found on the Subject Lands for the purposes of this Phase 1 Hearing. He testified there will be no negative impacts on the Monarch habitat, provided that all of the NEA recommendations and other mitigation measures are implemented. He stated that this must also be combined with a robust post-construction monitoring plan which, can be established as a condition of draft plan approval.

70In his opinion, the identification of SWH does not preclude development, the assessment of which depends on the nature of the SWH. Mr. Ellingwood opined that the habitat can be restored in such manner that existing SWH conditions will be conserved and improved. He relied upon the Significant Wildlife Habitat Mitigation Support Tool, which he informed the Tribunal is intended for use by practitioners as a guide to assist in the understanding of habitat functions, as well as potential impacts and opportunities for mitigation within a development context.

71He stated the Support Tool indicates that options for Monarch stopover site habitat are available, and it does not state that all existing habitat is required to be maintained as-is. He testified that the Applications provide for restoration of a 2.486-hectare portion of the Subject Lands and is designed to provide an enhanced area for roosting and nectaring, without prompting a reduction in the number of butterflies or the range of habitats available to migrating monarchs and other butterfly species. He also noted, the proposed habitat is based on consideration of the recommendations contained within the Support Tool.

72In accordance with section 2.1.8 of the PPS, development and site alteration are not permitted on lands that are adjacent to the natural heritage features and areas that are identified in policies 2.1.4, 2.1.5 and 2.1.6 of the PPS (including SWH), unless the ecological function of the adjacent lands has been evaluated and no negative impacts on the natural features and functions have been demonstrated.

73Mr. Ellingwood noted that “adjacent” lands are generally defined as the areas within 120 metres of the natural feature. As he further noted, adjacent lands for butterflies are relatively difficult to delineate and do not constitute “critical habitat”, as the butterflies only rely on the specific habitat features required for their life processes. Mr. Ellingwood stated, this is based on the Support Tool with respect to potential development effects on Monarch stopover habitat, which states that “Development on adjacent land is not expected to affect the function of migration stopover areas”. Mr. Ellingwood opined the Applications will not generate negative impacts on the Monarch habitat, provided that all of the NEA recommendations and other mitigation measures are implemented, in addition to a robust post-construction monitoring plan, which can be implemented as a condition of draft plan approval.

74In his opinion, the existing habitat areas constitute poor or marginal habitat that provide limited value and long-term function for Monarchs. Mr. Ellingwood noted that a scenario in which no development occurs and in which the Subject Lands remain as-is and are subject to natural succession, would not be beneficial from an ecological perspective and would limit any use of the Subject Lands by Monarch butterflies as a migration stopover.

75Mr. Ellingwood opined that the Proposed Development will not negatively impact the natural features and/or ecological functions of the Monarch Butterfly habitat and the use of the Subject Lands as a monarch migratory stopover. Mr. Guetter concurred with the findings of Dr. Kerr supporting his analysis that with the proposed mitigation measures and most particularly the planting of nectaring and roosting specific vegetation species will support the migration stopover area.

76Ms. Luttrell, Mr. Male and Dr. Norris all testified that development of the Site will negatively impact the natural features and ecological functions of the migratory butterfly stopover area. They stated the Subject Lands have been confirmed as a SWH area. Provincial policy and guidelines clearly state that development is not permitted in SWH area unless there will be no negative impacts on the SWH or their ecological functions. Their opinion is that development would clear the entire Site physically destroying the existing Monarch Butterfly migratory stopover area habitat, leaving newly constructed parkland, wetland and sloped open space lands on a small portion of the property, with the rest being developed for roads and homes.

77Ms. Luttrell testified the Proposed Development does not leave intact as much of the existing forest and open habitat as possible and the mitigation measures proposed do not go far enough to ensure the population of the migratory Monarchs will have sufficient roosting or nectaring available.

78Mr. Jones proposed that the development plans have not demonstrated the creation of new, smaller areas for butterfly habitat that will replace or enhance the existing natural features and their ecological functions that currently span the entire Site.

79Ms. Luttrell, Mr. Male and Dr. Norris all testified that the Proposed Development, which includes extensive site alteration, will negatively impact the SWH by not just degrading but removing the natural features completely over 10.4 hectares of land and replacing with inadequate features on a smaller area of land that cannot replicate the ecological function provided by the Subject Site’s current condition.

80The Tribunal accepts the evidence of Messrs. Ellingwood and Guetter and Dr. Kerr. Mr. Guetter, relying on Mr. Ellingwood and Dr. Kerr, applied the correct test for no negative impacts based on the definition in the PPS 2020, being, degradation that threatens the health and integrity of the SWH and its ecological functions. Outlining the degradation of the site with regard to the Emerald Ash Borer, dying Emerald Ash trees and the spread of the Dog-Strangling Vine and other noxious weeds, the Tribunal recognizes the compensation/mitigation measures specific to support the migratory stopover will provide for ecological functions that will sustain the stopover in the future.

81Policies 2.1.4, 2.1.5 and 2.1.6 of the PPS (including SWH), the ecological function of the adjacent lands have been evaluated and no negative impacts on the natural features and functions have been demonstrated.

82The functional analysis of the SWH by Mr. Ellingwood and Dr. Kerr is consistent with the Guidance Documents. The Technical Guide emphasizes that the primary guiding principle in protecting SWH is to protect enough habitat to maintain the functions and condition of the habitat to support the species.

83The Tribunal agrees that whether the Subject Lands are entirely or only partially considered to be SWH is ultimately irrelevant to the decision that must be made in Phase 1. The applicable policy framework does not prohibit development within SWH, provided that the test in the PPS, as reflected in all of the Official Plan documents in this case are met.

Provincial Policy Statement 2020

84Mr. Ellingwood testified that provincial mapping does not show natural heritage features on or within 120 metres of the Subject Lands. He stated the proposed landscape and Monarch Butterfly restoration plans include programming of the on-site open space lands and will result in the creation and restoration of improved and higher-quality habitat for Monarch butterflies. The permitted uses within the open space lands are proposed to be restricted by site-specific Open Space zoning. Based on these considerations, it was his opinion that consistency with sections 2.1.5 d and 2.1.8 of the PPS has been demonstrated.

85Mr. Guetter stated the proposed configuration of the development area and open space blocks has been designed to maintain contiguous shoreline corridor and habitat for Monarch butterflies. The proposed location of the development area in the north portion of the Subject Lands facilitates east-west corridor movement and linkages along the Lake Ontario shoreline and other natural areas demonstrate consistency with section 2.1.1, which seeks to protect natural features, and section 2.1.2, which seeks to improve linkages and restore ecological function over the long term.

86Mr. Guetter stated sections 2.2.1 and 2.2.2 are not relevant to the issues for Phase 1 of this Hearing, as they are not applicable to the Monarch Butterfly habitat or the use of the Subject Lands as a monarch migration stopover.

87Mr. Sappleton stated the Proposed Development does not demonstrate that there are no negative impacts on the natural features associated with the SWH or their ecological functions. As testified by Ms. Luttrell and Mr. Sappleton, the development proposed would eradicate the features and attempt to replace with features that cannot achieve the same function.

88Mr. Sappleton directed the Tribunal to the OOP, stating that section 2 of the PPS (Wise Use and Management of Resources) acknowledges Ontario’s long-term prosperity, environmental health and social well-being depends on conserving biodiversity, protecting the health of the Great Lakes and protecting natural heritage resources for their economic, environmental and social benefits. The definition of KNHF in the DROP includes SWH. Therefore, if the Subject Site is a SWH area, then it is with KNHF.

89Mr. Sappleton stated, the PPS provides a clear objective in policy 2.1.1 by stating that natural features are to be protected. This statement he opined is not limited to publicly owned lands. He explained the City has also mapped the known NHS consistent with the direction of policy 2.1.2. and that the Subject Site is contiguous with the known NHS and has been identified KNHF. Therefore, the Subject Site forms part of the NHS.

90Mr. Male and Ms. Luttrell opined as per section 2.1.5 of the PPS, development and site alteration are not permitted in SWH area unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.

91Mr. Sappleton stated the NEA Report has not completed an analysis of the additional 112 hectares of lands that it claims will sufficiently support the Monarch Butterfly population that visits this section of the Lake Ontario shoreline. According to Ms. Luttrell, a fulsome evaluation of the other lands has not taken place for NEA to conclude those lands will support Monarch migration.

92Mr. Sappleton testified the Applicant’s consultants may have attempted to demonstrate that the same ecological functions on the 10.36-hectare site can be replicated on a smaller area of land within a draft plan of subdivision by re-planting nectar producing flowers and roosting trees. According to Ms. Luttrell, Mr. Male and Dr. Norris, this strategy is not sufficient for protecting the function of the migratory butterfly habitat and the development proposal has not met the test of no negative impacts on the natural features or their ecological functions.

93Mr. Sappleton testified the Proposed Development and mitigation measures for enhancements along the fringe will not satisfy the test of no negative impacts. Therefore, the Proposed Development is not consistent with policy 2.1.5 of the PPS as it has not met the test of no negative impact.

94The Applicant referred to Jennison Construction Ltd. v. Ashfield-Colborne-Wawanosh (Township), [2011] O.M.B.D. No. 969 where the Board approved development applications to permit an aggregate extraction operation.

95In the above noted case, the Board found that mitigation measures involving a phased approach would have no negative impacts on the wildlife habitat as the proposed enhancements would be species specific, which would benefit the species in the long term:

(a) The proposal included sequential removal and replacement of 14.9 hectares of a total of 19.3 hectares of significant woodland existing on the development site. The mitigation involved phasing for removal and replanting in a manner that would improve the function of the significant woodland.

(b) In considering the “no negative impact” test of section 2.1.4 of the PPS 2005, the Board took guidance from the definition of “negative impact” in the PPS 2005 and NHRM, which indicates that mitigation, including actions to enhance beneficial effects, can be considered as part of the assessment of negative impacts.

(c) The Board concluded that:

…a proper reading of 2005 PPS Policies 2.1.4.b and c is that mitigation may include replacement of the woodland components and wildlife habitat, and that such actions are appropriate tools to alleviate negative impacts resulting from the interim loss of a portion of significant woodland. These approaches must be considered within the context of the larger significant woodland area affected, Forest Patch 38 and its surroundings, and be considered against the long term results and benefits that can result from such replanting plans (e.g. improved species diversity, better connectivity improved long term habitat for endangered species, improved forest interior etc.) and that any residual impacts, if any, should be evaluated against any immediate loss.

96The Tribunal prefers the interpretation of the no negative impact policy of Messrs. Guetter and Ellingwood and Dr. Kerr that the proposed Zoning By-law Amendment and Draft Plan of Subdivision has paid significant regard to ensure mitigation measures with respect to natural heritage, SWH and KNHF.

97Accepting this testimony, the Tribunal, in understanding the scattered flight patterns as described by both Drs. Norris and Kerr, recognizes that the mitigation measures as set out by the Applicant provide a contiguous effort along the shoreline to the City owned and protected Monarch Butterfly nectaring and roosting while having the dedicated Cambium site to the west of the Proposed Development. In siting the plantings, wetland and bio-retention facility, the Applicant has demonstrated regard for maintaining a continuum of opportunity adjacent to the Waterfront Trail of existing nectaring and roosting opportunities.

2019 Growth Plan for the Greater Golden Horseshoe

98Section 4.2.1.5 of the GP provides policy direction regarding the protection of Water Resource Systems, as follows: “Municipalities will consider the Great Lakes Strategy, the targets and goals of the Great Lakes Protection Act, 2015, and any applicable Great Lakes agreements as part of watershed planning and coastal or waterfront planning initiatives.”

99Based on the submission of Mr. Ellingwood and that of Mr. Guetter, their combined opinion is that sections 4.2.1 and 4.2.1.5 of the GP are not applicable to and do not inform the issue of the presence of Monarch Butterfly habitat on the Subject Lands.

100Mr. Sappleton stated that it must be demonstrated that the Proposed Development within the settlement area protects any natural heritage features and areas and the NHS. It was his opinion, based on the fact the Site is confirmed as a SWH area by several experts, the Applicant’s proposal and justification has not met this burden.

101With respect to the sections 4.2.1 and 4.2.1.5 of the GP, the Tribunal agrees with the evidence of Mr. Guetter. He provided site mapping of the Subject Lands in relation to the Waterfront Trail and City owned parkland which abuts Lake Ontario. The Tribunal accepts his interpretation that the Subject Lands is not identified as part of the watershed and is zoned “Residential” in the OOP. The Tribunal accepts Mr. Guetter’s testimony that in this matter, agreements respecting watershed planning and coastal or waterfront planning initiatives do not address the issue of the presence of Monarch Butterfly habitat.

Durham Regional Official Plan

102Under section 1.3.1 of the DROP, Mr. Ellingwood opined that the Proposed Development and mitigation measures promote protection of significant features and functions of the natural environment through efficient utilization of land and are not anticipated to create adverse cumulative impacts on the natural environment.

103He stated, the proposal represents development that is consistent with provincial planning objectives, and which encourages stewardship of land and protects identified resources in the Region. The Proposed Development has been designed based on paramount consideration of ecological functions and scientific, educational and health values, and is anticipated to provide for a greater and more long-term protection of Monarch Butterfly habitat (sections 2.2, 2.1.2 and 2.2.2) as well as conforming to sections 2.3.14, 2.3.15, 2.3.16 and 2.3.43.

104Mr. Ellingwood stated section 2.3.15 of the DROP does not permit development or site alteration in KNHF and/or hydrologic features. However, he illustrated through, Schedule ‘B’, Map ‘B1d’ – Greenbelt Natural Heritage System & Key Natural Heritage and Hydrologic Features – does not identify KNHF on or adjacent to the Subject Lands. Furthermore, there is no designated NHS within 120 metres of the Subject Lands according to Schedule ‘B’ of the DROP.

105The DROP policies, he opined, set out a framework that recognizes and maps natural features at a regional level, and although providing policies that seek to restrict development with KNHFs, directs that identification of such features be set out in municipal plans or through zoning by-laws. As provided for under section 2.3.14, the location and extent of KNHFs and/or hydrologic features were confirmed through appropriate studies and the EIS.

106Mr. Sappleton testified section 2.3.43 under the heading “Environmental Impact Studies” states that any proposal or site alteration in proximity to KNHFs shall be required to include an EIS, and outlines core items that are to be addressed. He believes the appropriateness of the NEA’s EIS was insufficient in addressing the items in policy 2.3.43. He stated the site is designated Waterfront Areas on Schedule ‘A’ of the DROP because it is KNHF and forms part of the NHS which is aligned with the Waterfront Areas goals and policies. He suggested that if there is any developable portion, that would be located within the Living Areas designation with the non-developable portion related to migratory butterfly stopover area containing features such as wetlands and woodland, are designated Waterfront Areas.

107Based on the above considerations, and the implementation policies in section 14 of the DROP as well as section 2.3.15, the Tribunal considered the location of the Proposed Development and determine the location is north of the Waterfront Trail and the City open space/park lands.

108The Tribunal notes the Applications include a setback from the south property line that is designed to maintain an appropriate separation from the Waterfront Trail and facilitate a passive open space block specifically designed for the Monarch Butterfly habitat.

The City of Oshawa Official Plan (October 2016)

109Mr. Ellingwood opined the Site is not designated Open Space and Recreation in the OOP, although this designation can be found on adjacent lands to the south and west. It was his opinion that none of the policies of section 2.6 are applicable to the issue of Monarch Butterfly habitat on the Site, or the use of the Site as a monarch butterfly stopover.

110The OOP defines ESA as:

natural landscapes containing lands or waters of inherent biological or physical sensitivity, such as areas containing aquifer recharges, headwaters, unique plants, wildlife, breeding or over-wintering habitats, vital ecological functions, rare or endangered species, or other combinations of habitat and landform which could be essential for scientific research or conservation education.

111Referring to section 5.2.1 of the OOP, he informed the Tribunal that this section states that “ESAs are generally shown on Schedule ‘D’ and Part II Plans” of which the Site is not located within or adjacent to an ESA. Section 5.2.1 also states that “additions or reductions to ESAs from those shown on Schedule ‘D’ may be identified during the review of development applications without amendment to this Plan. The extent and the exact location of ESAs shall be determined at the time of development applications.” He noted that neither the City nor the CLOCA during the review of the Application identified the Site as being within or adjacent to an ESA.

112In his opinion, section 5.5.2 of the OOP does not apply to the issue of the Monarch Butterfly habitat on the Site as it speaks to the design of development in the vicinity of the Lake Ontario Waterfront, which should consider views and vistas.

113Mr. Sappleton opined that the Applications do not conform to the 2016 version of the OOP. The Subject Site qualifies as an ESA as defined in the 2016 version of the OOP. Any development within an ESA is to demonstrate it will be compatible with the function of the feature. This has not been demonstrated but rather, the development will simplify the features such that they do not provide the migratory butterfly stopover area functions.

114Mr. Sappleton suggested that the Subject Site qualifies as an ESA however, when brought to Schedule ‘D’ and Part II Plans by Mr. Guetter, an ESA is not identified nor was it identified by the Region at the time of initial circulation of the draft plan of subdivision in 2016.

115The Tribunal also agrees with Mr. Ellingwood’s interpretation of section 5.5.2 of the OOP as it speaks to the design of the development in vicinity of Lake Ontario having regard for views and vistas, which have no relevant effect on the migratory habitat issue in this Phase 1 Hearing.

116Finally, the Tribunal notes that the Subject Site is designated "Residential” on Schedule ‘A’ of the 2016 OOP which denotes a clear intent for Subject Lands to be developed primarily for residential uses.

Applicability of Official Pan Amendment No. 179

117Mr. Guetter opined that OPA 179, though adopted, was not in force at the time that the Applications were filed, and accordingly, the Applicant would not have known whether or when the policies would be approved, or whether they would be modified by the Region, or the Tribunal on appeal. He stated that it was worthy of noting, OPA 179 is a relatively new document, and did not change the Residential designation of the Subject Lands on Schedule A, or include them within the NHS or its components on Schedules D-1 and F1-A.

118He stated the mapping in OPA 179 provides the Applicant with no indication or warning that the City would ultimately treat the Subject Lands as undevelopable. He further explained that were the City to argue that the Applicant should have known about the OPA 179 policies, Mr. Sappleton, who reviewed and assessed the Applications, confirmed that even he was not familiar with the specifics of OPA 179 at the time of submission.

119According to the testimony of Mr. Guetter, OPA 179 does not change the designation from Residential and is further not designated Open Space or Recreational concluding that policy 2.6 does not apply. He stated that a balance needs to be struck on protection versus mitigative functions on development. Mr. Guetter testified, the PPS 2020 and environmental policies of the DROP apply to the Applications and provide a modern and appropriate policy framework to ensure the protection of the environment.

120Mr. Jones submitted that the City went from “Zero to Hero” and through OPA 179, the City now has a very robust environmental plan. He opined that the CLOCA does not support the Applications as they do not have regard for the long-term environmental biodiversity and preservation of significant wildlife. He followed this by stating the Applicant submitted an EIS that was incomplete.

121The Tribunal prefers the interpretation of the Application for OPA 179 as set out by Mr. Guetter. Noting that although this policy was of contention as to its applicability, the amendment to the OOP was not in force at the time of Applications. The Tribunal notes that Mr. Sappleton confirmed in his testimony that the City had not substantively updated the policies of the OOP for many years, and specifically the natural heritage policies until OPA 179.

122The Tribunal concurs with the Applicant that the City, should not be able to now rely on the fact that those policies are outdated as justification for an exception to the “Clergy Principle”.

Development of the Subject Lands

123Mr. Jones, Ms. Lutrell and Dr. Norris were adamant that the development of this Site was not something that should be considered. In total, it was their belief that neither the EIS nor the Draft Plan of Subdivision with the compensation dedication did enough to ensure that Monarch butterflies would be protected.

124Messrs. Guetter and Ellingwood and Dr. Kerr provided evidence that through the proposed dedicated educational component of the compensation/mitigation plan with plantings specific to roosting and nectaring, the migratory stopover would focus on and sustain the yearly pilgrimage of the Monarch Butterfly. This plan would also include a staged construction plan to ensure that feeding and resting for the butterflies continues to be present through the development of the Site.

SUBMSSIONS OF PARTICIPANTS

125As mentioned, the Tribunal heard from four Participants who each provided non-expert witness-based evidence. Suffice to say that neither the Opposing Participants nor the City differed markedly on many of the issues regarding the development of the Site.

126Some of the concerns noted through the Participants verbal evidence included references to bird migration and a lack of regard by the Applicant to speak to climate change in the EIS. Concerns regarding the possibility of flooding by the impact of development causing a change in the water table and the erosion of the natural area were also of concern.

127No Participants offered any persuasive evidence or suggestions other than that of leaving the site untouched.

128No Participants demonstrated persuasively to the Tribunal how this development destabilizes the functionality of a migratory stopover or the character of the neighbourhood.

ANALYSIS AND FINDINGS

129These Applications require balancing the private right to develop existing lots of record against the public interest in protecting the environment. The assessment of the Applications should not be approached as an exercise to prevent development on these Subject Site as they are zoned “Residential”, but rather to balance such proposed development with the environmental protection policies within the Provincial, Regional and Local planning framework. Ideally, the Applicant should not be left with vacant land they cannot use, and for which they have not received any compensation from the City. However, such lands deemed SWH, should only be developed in a way that respects the applicable provincial, regional and municipal policies and has regard for the migratory stopover of the monarch butterfly.

130The Applicant and the applicable planning agencies have worked hard to try to find this balance between public and private interests in these Applications. To their credit, the current development proposal before the Tribunal results in a larger area of compensation/mitigation measures to the land than the original proposal, even though the original proposal which spoke to a compensation plan was supported by the CLOCA at the time of its submission. Since that time, further studies and mitigation strategies were found and have been applied in the current submission.

131The question now is whether the tests as set out in s. 2 of the Act and the PPS 2020 have been met by the most recent and improved development proposal.

132As Mr. Ellingwood pointed out, the Applicant has done their best to address the SWH of the monarch butterfly migratory stopover including measures to speak to the specific vegetation necessary to attract and support the migratory stopover. In siting the development, regard has been given to maintaining the migration along the shoreline and a phased construction plan to retain the function as migratory Monarch Butterfly stopover habitat throughout the proposed construction period (the “Phasing Plan”), as follows:

• Phase 1A: the proposed Monarch habitat will be constructed;
• Phase 1B: the Phase 1B lands will be cleared concurrently with Phase 1A; and
• Phase 2: the northeast area of the Subject Lands, including the wooded area and wetland, will be cleared and then developed.

133The Phasing Plan will retain the Phase 2 lands, including the woodland and wetland area, to serve butterflies while the new Monarch habitat is being created. The Monarch habitat will have at least one year to establish prior to the removal of the woodland and wetland in Phase 2.

134The Environmental Experts Agreed Statement of Facts identified that the wetlands on the property were not included as a component of the SWH (migratory stopover areas) and that development can be permitted on the site. Degradation of the forested area, which was noted by Mr. Guetter, and with which the Tribunal agrees, will diminish over time, depleting the vegetation and roosting vegetation that plays a vital role in supporting the migratory stopover. The trees currently existing on the Subject Lands, including in the northeast wooded and wetland areas, are predominantly Green Ash. Expert evidence confirmed, the majority of these have been infested with the invasive Emerald Ash Borer insect and are dead or dying. In addition, invasive plant species including European Buckthorn, Dog-Strangling Vine and Wild Parsnip are present on the Subject Lands.

135The Tribunal further finds that configuration of the development area and open space blocks are designed to maintain a contiguous shoreline corridor and habitat for Monarch butterflies as exists in their current flight path today. The proposed relocation of the wetland will provide for a contiguous habitat to that established by the City on the nearby City owned lands to the west.

136Based on the whole of the evidence inclusive of the oral testimony of the experts, the documentary record and the oral and written submissions of the Parties and Participants, and for the reasons provided which speak specifically to the migratory stopover, feeding and roosting habits of the Monarch butterfly, the Tribunal finds that the Applications are not premature.

137The Applicant has demonstrated that the Applications meet the ecological integrity tests within the PPS pertaining to the Phase 1 Hearing, which focuses on the migratory stopover of the monarch butterfly. The Tribunal is satisfied that with the species-specific vegetation coupled with the phased construction program, focused along the Lake Ontario shoreline, the migratory habits and habitat of the Monarch butterfly will not be negatively impacted by the proposed development.

138The Tribunal is satisfied the Applicant has illustrated regard for s. 2 of the Act by speaking specifically to s. 2(a), (m), (n), and (p). In doing so, regard has been given to the protection of the natural environment through ecological mitigation measures and the enhancement of existing on-site habitat features and new linkages to ecological areas adjacent to the Subject Lands, orderly development of healthy communities, the provision of housing, the balancing of public and private interests and appropriate locations for growth.

139The Tribunal is further satisfied that compensation/mitigation measures will be fine tuned in the Draft Plan of Subdivision, Phase 2 Hearing, through the Zoning By-law and Site Plan Control requirements.

DISPOSITION

140The Tribunal having made its findings on the issues addressed in the Procedural Order pertaining to the Phase 1 Hearing, directs this matter move to the Phase 2 Hearing.

141In accordance with paragraph 4 of the Procedural Order governing this Phase of the hearing, the Parties are to contact the Case Coordinator to schedule the case management conference for the Phase 2 Hearing, if required, within three months of the issuance of this Decision and Order.

142This Member is seized of this matter.

“D. Chipman”

D. CHIPMAN MEMBER

Ontario Land Tribunal Website: www.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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.