Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 30, 2021

CASE NO(S).: PL200584

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Referred by: Melrose Investments Inc.

Subject: Site Plan

Property Address/Description: Part 1, Lot 33, Concession 3

Municipality: Town of Oakville

OLT Case No.: PL200584

OLT File No.: PL200584

OLT Case Name: Melrose Investments Inc. v. Oakville (Town)

Heard: July 8, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Melrose Investments Inc.

Russell Cheeseman

Town of Oakville

Dennis Perlin and Jessica Jakubowski (student-at-law)

Regional Municipality of Halton

Jing Bo Yu

DECISION DELIVERED BY S. BRAUN AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION AND CONTEXT

1The matter before the Tribunal is an appeal pursuant to section 41(12) of the Planning Act (“Act”) with respect to the failure of the Town of Oakville (“Town”) to make a decision on a site plan application filed by Melrose Investments Inc. (“Appellant”).

2The Appellant proposes to develop three single storey buildings for light industrial use on the property, which is approximately 6.3 hectares (“ha”) in size and is legally described as Part 1, Lot 33, Concession 3 of Plan 20R-14971 (“subject property”).

3The subject property is located south of the Queen Elizabeth Way (“QEW”) between Burloak Drive and Bronte Road and is Phase II of a larger development, referred to as Melrose Business Park. Phase I of the development, located just north of the subject property, contains three buildings similar to those proposed, two of which are already constructed with the remaining one currently under construction.

4The north side of the subject property abuts the South Service Road. To the south are Canadian National and Government of Ontario rail lines. To the east is McPherson Road and to the west is a RioCan Power Centre (big box retail complex) at the corner of Wyecroft Road and Burloak Drive. Wyecroft Road is not a through road and currently ends at the boundary between the RioCan Power Centre and the subject property, but is planned to extend through the subject property across Bronte Creek to the east, eventually connecting to Bronte Drive. The proposed buildings are to be located to the west side of McPherson Road fronting onto what is to be the future extension of Wyecroft Road.

REQUEST FOR PARTY STATUS

5The Tribunal received a written request for party status from the Regional Municipality of Halton (“Region”), marked as Exhibit 1. The appeal is related to lands located within the Region and in order to ensure its interests would be appropriately addressed, the Region sought to be added as a party. The Town and the Appellant consented, and the Tribunal accordingly granted party status to the Region.

6No other requests for party or participant status were received by the Tribunal.

PARTIAL SETTLEMENT

7At the outset of the hearing, all parties (including the Region) indicated that they had reached a partial settlement. It was explained that, while the Appellant agreed to some of the conditions of site plan approval imposed by the Town and the Region, a number of them remained in dispute, including a condition requiring the Appellant to dedicate certain lands to the Region in relation to the planned extension of Wyecroft Road.

8As such, the parties requested an Interim Order approving an Interim Site Plan for Phase 2 of the Melrose Business Park and an associated list of conditions agreed upon by the parties, as well as the scheduling of a future date for a hearing on the merits in relation to a list of outstanding contested conditions and the final form of the Site Plan.

9The purpose of the hearing is for the Tribunal to determine whether the contested conditions should be Conditions of Approval in this matter and, if so, whether they should be in the wording presented to the Tribunal (in Attachment 2 to the Draft Procedural Order, discussed in more detail below) or whether such wording should be modified or replaced by the Tribunal. It was explained that proceeding in this manner would allow the parties to begin working toward clearing some of the uncontested conditions and begin working with an interim draft of the Site Plan.

10In support of the partial settlement, the Tribunal heard contextual and land use planning testimony from Paul Lowes, who was qualified without objection to provide independent expert opinion evidence in relation to the matter under appeal.

11Mr. Lowes provided an overview of applicable portions of the Official Plans of the Region and the Town and opined that the proposed interim Site Plan conforms to both. In addition, he reviewed applicable portions of the Town of Oakville Zoning By-law and opined that the interim site plan is in accordance with the provisions therein. Mr. Lowes further testified that, in his opinion, the conditions agreed to by the parties were reasonable and appropriate. Mr. Lowes’ ultimate recommendation at this stage was for the Tribunal to approve the interim Site Plan with conditions, save and except those that remain in dispute, which will be the subject of the subsequent hearing requested.

12Based on the foregoing, the parties jointly requested the Tribunal provide approval of the interim form of the Site Plan (appended as Schedule 1 to this Decision and Interim Order) with the inclusion of only those conditions that are not in dispute. Those agreed-upon conditions were presented by the parties as those listed in Attachment 2 to the Draft Procedural Order which did not have an asterisk beside the condition. The Tribunal is advised that those conditions listed in Attachment 2 to the Draft Procedural Order and identified with an asterisk in the Site Plan Conditions List remain as those conditions which are, at present, in dispute and which will represent the subject matter of the hearing before the Tribunal.

13On the basis of the uncontested evidence of Mr. Lowes and the agreement of the parties with respect to the interim form of the site plan and the list of uncontested conditions, the Tribunal is satisfied it is appropriate to provide an Interim Order approving the interim form of the Site Plan, appended as Schedule 1 to this Decision and Order, subject to final approval and such modification of the plans and drawings which may be required following the Tribunal’s determination of the hearing on the merits in relation to the contested conditions and the final form of the Site Plan. The foregoing approval will also be subject to the conditions which are not in dispute and appended as Schedule 2 to this Decision and Interim Order.

FUTURE HEARING OF CONTESTED CONDITIONS

14At the request of the parties, the Tribunal will maintain jurisdiction in the matter until finalization of the Site Plan Approval for Phase 2 of the Melrose Business Park. With respect to the final form of the Site Plan and those conditions which remain unresolved, the Tribunal scheduled a two-day video hearing which will commence at 10 a.m. on September 23, 2021, subject to the further pre-hearing obligations of the Parties to refine the Issues List and identify the remaining conditions that are in dispute, as set out below.

15This Member will remain seized for the hearing on the merits as to the final form of the Site Plan and the disputed issues and conditions and, in the interim, may be spoken to should difficulties arise with respect the implementation of this Interim Order.

16Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/620551821

Access Code: 620 551 821

17Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

18Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free): 1 888 455 1389 or +1 (647) 497-9391 The access code is 620 551 821.

19Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

PROCEDURAL ORDER/ISSUES LIST

20The parties submitted a draft Procedural Order (“PO”) to govern the hearing on the merits, which has now been reviewed and revised by the Tribunal as follows:

a) Paragraphs [5] and [8] of the PO have been altered to reflect that, following the expert meeting referred to in paragraph [8] of the PO and no later than Wednesday, September 8, 2021, the parties will file with the Tribunal an agreed statement of facts, the list of conditions which remain in dispute and issues relating to those conditions (“Issues List”), as well as a copy of the final form of the Site Plan which will be adjudicated upon at the September 23 and 24, 2021 hearing.

b) In addition to the foregoing, the Tribunal altered paragraph [16] of the PO to reflect the Tribunal’s current requirements for the filing of documents.

21The PO, as revised by the Tribunal (appended as Schedule 3), shall govern these proceedings leading up to and including the scheduled hearing, subject to the delivery of the further, more specific, list of conditions in dispute and issues relating to those conditions, and the final form of the Site Plan which will be the subject matter of the hearing.

INTERIM ORDER

22In addition to the further Case Management directives set out above and within the Procedural Order, the Tribunal makes the following Interim Order:

a) The Regional Municipality of Halton is a party to the proceeding;

b) The Interim Site Plan prepared by Baldassarra Architects Inc. issued for submission to the Tribunal on July 2, 2021, and set out in Schedule 1 to this Order is approved subject to the conditions set out in Schedule 2 to this Order;

c) A two-day video hearing will commence at 10 a.m. on September 23, 2021 in relation to the final approved Site Plan, the final form of conditions and the remainder of the contested matters in this proceeding;

d) No further notice will be given and this Member will remain seized of the matter.

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

SCHEDULE 2

Conditions of Site Plan Approval

Site Plan File #: SP.1633.008101

The following conditions must be satisfied prior to final site plan approval, recognizing that this site plan approval shall be considered a conditional approval and not a final approval for the purpose of determining compliance with other applicable law under the Building Code Act unless these conditions are complied with, at which time the Director of Planning Services will grant final Site Plan Approval:

1. Planning Services

That the owner submits a full set of coordinated, digital drawings and reports as identified by the pre-consultation meeting, in PDF format, updated to address each of the following sub-points, including any additional technical matters identified through review of the plans, to the satisfaction of the Director of the Planning Services Department.

That the following comments from each of the Town's reviewing departments, be addressed to the satisfaction of the Director of Planning Services.

Urban Design

1. Trees along the McPherson Road frontage adjacent to the proposed retaining wall do not have the necessary minimum 3m wide planting bed width. If widening the landscape strip is not feasible, to meet this standard it is recommended that enhanced rooting techniques be used to widen the planting bed under the adjacent curb and asphalt paving, for example with products such as CU Structural Soil.

2. A pedestrian connection should be provided from McPherson Road to Building ‘D’. If there is already one on the neighbouring property to the north that is convenient for Building ‘D’ users, please clarify on the drawings.

3. Site Plan approval does not include approvals of any proposed signage regulated by the Town of Oakville Sign By-law 2018-153. Elevations reference signage areas. All reference to signage should be removed from the drawings.

4. The screening walls fronting onto Wyecroft Road are very excessive in their height (~6m) and should be lowered. No reason for the additional height was provided. No architectural detailing on these large precast concrete walls has been proposed other than a square-shaped line form with no description. For such large blank walls, extensive architectural detailing should be proposed, incorporating projecting and recessed elements, different materials and planting to provide visual interest.

5. Rooftop equipment shall not be visible from view from the public realm. The rooftop units are shown and the applicant states that parapet screening is used (located on some sides of the buildings). As both the OP and the Zoning By- law require screening, the details of the screens must be shown, with the proposed materials and colours. The proposed units and screens should be also dimensioned. Screening for the roof top mechanical units from the sides without parapet is not shown on the drawings.

Development Engineering

6. The Topographic Survey shall be signed by the surveyor.

7. Clarification on the grades shown on McPherson Road required. There are centerline grades etc. [xxx.xx] shown. Please clarify what these are and what they are based on. This was not clearly addressed or reflected on the drawing legend.

8. Confirm the differences between the interim plans and the grading/servicing drawings.

Engineering and Construction, Transportation

9. The swept path analysis of truck turning movements shows conflicting movement of the trucks with the curbs at the driveways. The applicant is advised to widen all required driveway widths to ensure that there is no conflict of the vehicles with the curb and at the driveway.

10. The applicant is required to submit an updated truck turning plan for the modified driveway illustrating the trucks movement entering/exiting to and from the site, and that turns can safely be performed without encroaching on elements of the adjacent roadway curbs. The truck turning plan should be submitted for review and comments by Transportation Services.

11. The applicant is required to submit an easement agreement to access the driveway of the adjacent property used for trucks ingress and egress from west full move driveway.

Building Services

12. Provide an OBC Data Matrix with spatial separation information between buildings for review. Also indicate imaginary property lines for each building on the Site Plan for review.

Fire Prevention

13. Once the proposed fire route plan illustrates compliance with the Ontario Fire Code, submit a fire route application prior to Site Plan approval to designate the fire route onto the Town's By-Law 1981-66.

14. Deposit Securities

That the owner deposit securities with the Finance Department, in a form meeting the Finance Department's requirements, in the amount calculated by the following formula:

[$50,000 * site area (ha)] + [$500 * site frontage (m)] = $XXX,XXX.XX

3. Planning Services

The owner will enter into a Site Plan Agreement with the Town, to be registered on title, containing clauses suitable to the Director of Planning, Director of Development Engineering and the Town Solicitor, including but not limited to the following:

1. That the owner and tenants / future purchasers will maintain the approved minimum tree canopy cover over the site area. Any tree removals granted by way of Town permits will require the replanting of trees so as to maintain this minimum tree canopy cover target to the satisfaction of the Town.

2. That all owners and tenants / future purchasers are required to maintain all access ramps and driveways, parking and loading areas, and walkways, unobstructed to ensure safe operations within this private development and as there is insufficient on site snow storage, all snow cleared from the access ramps and driveways, parking and loading areas and walkways shall be removed from the site. In no circumstance shall snow cleared from the site be placed in a manner that might damage private or public landscaping, fences, or impinge on adjacent properties or open space. The contracting for private snow removal from the site shall remain the sole responsibility of the owners and tenants / future purchasers.

3. The Owner acknowledges and agrees to convey any easement(s) as deemed necessary by Bell Canada to service this new development. The Owner further agrees and acknowledges to convey such easements at no cost to Bell Canada.

4. The Owner agrees that should any conflict arise with existing Bell Canada facilities or easements within the subject area, the Owner shall be responsible for the relocation of any such facilities or easements at their own cost.

5. Bell Canada

That confirmation be provided from Bell Canada that the inclusion of the above-mentioned clauses, items 3 and 4, to the Site Plan Agreement, constitute their sign-off on the application.

5. Region of Halton Conditions of Approval

On the basis that the Region has no objection to the approval of the above noted application, provided to the following conditions submitted by the Region of Halton to the Town of Oakville, in response to the first submission dated October 28, 2020 and second submission of June 2021, be addressed to the satisfaction of the Region, with any conditions to be added or removed as necessary through consultation with the landowner. Issuance of a Regional Services Permit, and confirmation in writing there are no further concerns will constitute Regional approval on the file.

1. A signed and completed ESSQ is required. These lands are located in close proximity of previous intensive industrial usage with a history of contamination. If there are any existing sampling and monitoring data of soil or groundwater the Region will need to complete a review. Although the proposed use remains industrial, if there is potential for direct human contact or soil vapour intrusion risk pathways, they must be mitigated. Furthermore, if there is any potential for a flow through situation it must be delineated. Currently there is not sufficient information to assess these concerns.

2. The Owner shall contact the Regional Services Permit Section for review and approval of the proposed water and sanitary servicing, to obtain water and sanitary sewer Services Permits, and pay all necessary fees.