Manning Developments Inc. v. Lakeshore (Town), 2021 CanLII 88649

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 17, 2021

CASE NO(S).: PL210076

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Manning Developments Inc. Subject: By-law No. 092-2020 Municipality: Town of Lakeshore OLT Case No.: PL210076 OLT File No.: PL210076 OLT Case Name: Manning Developments Inc. v. Lakeshore (Town)

PROCEEDING COMMENCED UNDER subsection 34(25) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Motion By: Beachside Development Inc. Purpose of Motion: Request for an Order Dismissing the Appeal Appellant: Manning Developments Inc. Subject: By-law No. 092-2020 Municipality: Town of Lakeshore OLT Case No.: PL210076 OLT File No.: PL210076

Heard: July 29, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Beachside Development Ltd. ("Beachside")	J. Hewitt
Municipality of Lakeshore ("Municipality")	J. Meader
Manning Developments Inc. ("Manning")	P. Harrington

DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal concerns Beachside’s Motion to Dismiss the appeal by Manning of the Municipality’s approval of Zoning By-law Amendment ZBA-9-2020 (“ZBA”) for the Beachside Lands known municipally as 0 Amy Croft Drive (“Beachside Lands”/”Phase 2 Lands”).

DECISION

2For the reasons set out below, the Tribunal allows the motion and wholly dismisses the Manning appeal.

BACKGROUND AND CONTEXT

3The Beachside Lands are located in the Amy Croft Secondary Plan area and are north of Amy Croft Drive.

4The Beachside Lands are a portion of a former driving range, located within an urban settlement area in the County of Essex (“County”) Official Plan, designated in the Municipality’s Official Plan as Mixed Use and zoned Mu being Mixed Use (h2) allowing residential uses such as apartments but not at the height and gross floor area applied for by Beachside.

5Manning owns the adjoining lands (“Manning Lands”) which were also part of the former driving range, and in fact sold the Beachside Lands to Beachside. Both the Beachside Lands and the Manning Lands have the same land use designations and had the same zoning.

CHRONOLOGICAL EXTRACTS

6The Tribunal will set out some of the relevant events pertinent to the consideration of this matter.

• August 2018 - the Municipality adopted the Amy Croft Secondary Plan (“OPA 13”);
• October 17, 2018 - Manning and Lakeshore Properties Inc. commenced an action against the Municipality (CV_18-27003) concerning inter alia OPA 13, and a cost sharing agreement for servicing;
• Dec. 20, 2018 - Beachside, through 1988880 Ontario Limited, purchased lands from Manning with a clause in the Agreement of Purchase and Sale obligating Manning not to object to development proposals including zoning amendments.
• January 18, 2019 - a settlement agreement is reached among Lakeshore Properties Inc., Manning and the Municipality concerning the cost sharing agreement, the withdrawal of the Manning objections to OPA 13 at the County, and a clause in the settlement agreement that Manning directly or indirectly will not for a period of three years appeal any approval by the Municipality within the Amy Croft area, and that the clause may be pleaded in any court or before any administrative tribunal.
• February 5, 2019 - the Manning restrictive covenant arising out of the agreement of purchase and sale with 1988880 Ontario Limited is registered on title with a covenant not to object to any …zoning amendments by 1988880 Ontario Limited.
• September 24, 2019 - the Municipality approved ZBA 15-2017 to rezone the Beachside Phase 1 lands. No appeals were filed.
• September 24, 2019 - Beachside and the Municipality enter into a cost sharing agreement for servicing for the Beachside Lands.
• September 24, 2019 - Manning and the Municipality enter into a cost sharing agreement for servicing for the Manning Lands.
• December 16, 2019 - Beachside’s site plan for Phase 1 is registered on title.
• July 6, 2020 - Beachside filed its complete ZBA application for Phase 2.
• September 2020 - Manning filed a rezoning application for the Manning Lands but it was not deemed complete until October 14, 2020.
• December 4, 2020 - Manning filed an Application for a Declaration (CV-20-652590-0000) with regard to the cost sharing agreement for the Amy Croft Secondary Plan servicing;
• December 14, 2020 - counsel for Manning submitted a letter to the Municipality concerning the Beachside development application, stating that Manning does not take issue with the future development of the Beachside site for higher, denser uses, but that the staff report gives short shrift to the availability and provision of servicing, that there is a disconnect between the Beachside proposal and the Manning proposal (with regard to servicing) and that it would be premature to approve the proposed zoning.
• December 14, 2020 - the Municipality’s Planning Staff recommended the Beachside ZBA to Council with a holding provision to be conditional upon site plan agreement, extension of Lanoue Street, the storm water management facility being operational, condominium agreement approval, and final approval by the County.
• December 15, 2020 - the Municipality’s Council approved the ZBA for the Beachside Phase 2 lands.
• January 8, 2020 - Manning appealed the Municipality’s approval of the ZBA as inter alia being premature: “There is no discernable reason why the Beachside Site should be rezoned with servicing issues to be determined through site plan while the adjacent Manning Site is stalled at the rezoning stage on assertions that municipal services will not be available.”
• January 15, 2021 - the Municipality’s Planning Staff recommended deferral of the Manning development proposal until April or May of 2021 as the existing sanitary system cannot accommodate the proposed development from a treatment and conveyance perspective.
• February 14, 2021 - Manning appealed its development proposal to the Tribunal for the Municipality’s failure to render a decision within the statutory time frame.

STATUTORY PROVISIONS

7With regard to a motion to dismiss, the Tribunal will reference provisions from both the Planning Act (“PA”) and the Ontario Land Tribunal Act, 2021 (“OLTA”).

8Turning firstly to the PA, s. 34(25) states:

Despite the Statutory Powers Procedure Act and subsection (24), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that,

(i) The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal,

(ii) The appeal is not made in good faith or is frivolous or vexatious,

(iii) The appeal is made only for the purpose of delay, or

(iv) The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2. The appellant has not provided written reasons for the appeal.

3. The appellant intends to argue a matter mentioned in subsection (19.0.1) but has not provided the explanations required by that subsection.

4. The appellant has not paid the fee charged under the Local Planning Appeal Tribunal Act, 2017.

5. The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal. 2019, c. 9, Sched. 12, s. 6 (8).

9As s. 34(25) references s. 34(19.0.1), it is set out below:

If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3(1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document.

10Finally, the Tribunal notes s. 19(1) from OLTA:

Subject to subsection (4), the Tribunal may, on the motion of any party or on its own initiative, dismiss a proceeding without a hearing, …

(c) if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

THE MANNING APPEAL

11As it is integral to the determination of this motion, the Tribunal notes the following from the Manning appeal letter of January 8, 2021:

Manning has currently applied to rezone the Manning Site to permit an 8-storey apartment building with 10 townhouses. This application (file NO ZBA-20-2020) had been filed with the Town in early October, but has not been advanced by staff in large part due to servicing concerns being raised by the Town. Town staff have to date advised that the Town will not be providing the Manning Site with the servicing infrastructure necessary to achieve the level of residential intensification being sought by Manning.

The foregoing has given rise to an unreasonable situation: despite similar applications seeking similar permissions on adjacent lands within the same Secondary Plan area, a ZBA has been passed to permit residential development on the Beachside Site, with servicing issues to be addressed at site plan, while Manning’s rezoning application for the Manning Site is being artificially held back.

Manning submits that there is a clear disconnect between the Town’s approach to higher, denser development on the Beachside Site and the Town’s approach to higher, denser development on the Manning Site. Despite both Beachside and Manning making financial contributions towards infrastructure upgrades, and despite the Town having previously agreed to provide the municipal services necessary for full development of lands within the Amy Croft Secondary Plan, the Town is prepared to ensure enlarged municipal services are available to accommodate the increases in zoned height and density at the Beachside Site but is not similarly prepared to ensure services are available to accommodate increased height and density on the immediate-adjacent Manning Site.

Accordingly, Manning is appealing the ZBA on grounds that it is premature for Council to have approved the Beachside application, or advance a site plan on the Beachside Site, unless and until issues regarding the provision of agreed-upon servicing to the Amy Croft Secondary Plan are resolved. There is no discernable reason why the Beachside Site should not be rezoned with servicing issues to be determined through site plan while the adjacent Manning Site is stalled at the rezoning stage based on assertions that municipal services will not be made available. Both Sites are subject to the same infrastructure and servicing policies under 2020 PPS (see Policy 1.1.3.3, amongst others) the County of Essex Official Plan (see Policy 2.10 amongst others), the Town of Lakeshore Official Plan (see Policy 7.3.1 and 7.3.2 amongst others), including the Amy Croft Secondary Plan (see Policy 3.5.3.1, amongst others). The Town’s commitment to provide required municipal services (both through its policies and its prior agreements) and the equitable availability of such services are clear issues of good planning.

THE MOTION

12The Motion to Dismiss is based on s. 34(25) of the PA: (1)(i) no apparent land use planning grounds), (1)(ii) not in good faith, frivolous or vexatious, and (1) (iii) purpose of delay. As the grounds cited in s. 34(25) are disjunctive, the moving party need only satisfy one of the grounds to have the appeal dismissed.

13Beachside, based on the land use planning affidavit of Karl Tanner, first submits that the Manning Appeal fails to identify any land use planning ground upon which the Tribunal could allow all or part of the appeal. Beachside submits that the impugned ZBA is consistent with the Provincial Policy Statement 2020 (“PPS”), conforms to the County of Essex Official Plan, conforms to the Municipality’s Official Plan and to the Secondary Plan (as recommended in the Planning Staff report to Council). While the Manning Appeal raises the issue of sewage allocation, sewage allocation is not within the Tribunal’s jurisdiction but rather lies entirely with the Municipality.

14Secondly Beachside submits that Manning has contractually agreed with both the Beachside and the Municipality not to appeal any planning applications made with regard to the Beachside Lands, and while a party cannot contract out of its statutory rights, such conduct is demonstrative of bad faith, is frivolous and vexatious.

15Finally, as both Manning and Beachside are neighbours and competitors, the appeal of the ZBA delays the Applicant and the effect of which is to allow the Manning development to catch up.

16Thus, Beachside submits that the Manning Appeal should be dismissed.

MUNICIPALITY’S RESPONSE

17The Municipality’s Response in support of the Motion to Dismiss, is somewhat more nuanced.

18Relying on the land use planning affidavit of Tammie Ryall, the Corporate Leader of Growth and Sustainability for the Municipality, the Municipality’s Response first notes that OPA 13 is in force and of effect and then observes that the Phase 1 approval of Beachside was not appealed by Manning and is now under construction. Thus Phase 1 was and is consistent with the PPS, and conforms to both the County’s and the Municipality’s Official Plans.

19The Municipality points out that the Manning/Municipality court settlement of January 18, 2019 stipulates that Manning will not appeal any approval granted by the Municipality for a period of three years, and the subject Beachside development falls within that provision.

20Further counsel for the Municipality submits that the Manning appeal clearly states that it does not take issue with the future development of the Beachside Site for higher, denser uses, and thus the only discernable reason for the appeal relates to servicing allocation and the assertion that Beachside’s Phase 2 servicing was different than Manning’s servicing allocation, a matter which is ultra vires the Tribunal’s jurisdiction, and therefore the Motion should be allowed and the Manning Appeal dismissed.

21In addition to the Tribunal’s jurisdiction under s. 34(25) of the PA, the Municipality pleads that s. 19 of the OLTA also provides that the Tribunal may dismiss any appeal when there is no reasonable prospect of success and as servicing allocation is ultra vires, the Manning Appeal has no reasonable ground of success.

22Finally the Municipality raises s. 34(19.0.1) of the PA (cited above) that if an appellant intends to argue PPS inconsistency or failure to conform to an applicable official plan, the notice of appeal must explain how the by-law is inconsistent or fails to conform.

23The Municipality quotes the portion of the Manning Appeal noted above that references the PPS and the County’s and Municipality’s Official Plan and the Secondary Plan and pleads that the Manning Appeal merely pays “lip service” to the PPS and official plan policies and does not meet the onus under s. 34(19.0.1) of the PA by advising how the impugned ZBA is inconsistent with the PPS and/or fails to conform or conflicts with the County and Municipality’s official plans.

MANNING RESPONSE

24The Manning Response seeks the following: firstly an Order dismissing the Motion, secondly an Order consolidating the Manning Appeal with the Beachside Appeal, and thirdly an Order consolidating the Beachside and Manning Appeals to the first Case Management Conference of the Manning appeal on September 16, 2021.

25The Manning Response includes the Affidavit of Casey Kulchycki, a land use planner.

26The Kulchycki Affidavit provides a list of “fundamental” similarities between the Beachside Phase 2 Development and the Manning Application:

(a) The sites are immediately adjacent; (b) Both sites were formerly part of the same golf course/driving range use; both are now vacant; (c) Both sites have (or will have) access to the newly constructed Lanoue Street. extension; (d) Both sites are designated “Mixed Use”; (e) Both sites are zoned as “Mixed Use”; (f) Both are within the Amy Croft Secondary Plan; (g) Both need site specific zoning amendments to permit higher, denser multi-residential uses; (h) Both applications were filed around the same time: Beachside Phase 2 in July 2020; Manning in September 2020; (i) The unit count is similar: Beachside Phase 2 at 174 units; Manning at 165 units; and (j) The increased gross floor area is similar with Beachside Phase 2 at 20,916 square metres and Manning at 19,331 square metres.

27Based on this at paragraphs 24, 25, and 26, of his affidavit Mr. Kulchycki states the following:

24 Given the locational, factual, policy and regulatory similarities outlined above, it would be my expectation as a professional land use planner that the staff recommendations for each application would be the same. Consistent application of provincial municipal policies is fundamental to good land use planning – particularly where the factual policy’s context is substantively the same.

25 However contrary to the above noted-expectation the staff recommendations for the Beachside application and the Manning application were different. The Beachside application was recommended for approval while the Manning application was recommended for a deferral.

26 In terms of identifying the fundamental difference between the applications that would cause the divergence in staff recommendations, I can only point to the issue of servicing. Whereas servicing was not identified as an issue for the Beachside application, it was deemed to be a fundamental issue for the Manning application…”

28Further Mr. Kulchycki, a land use planner, goes on to opine that if a sanitary system problem exists, it exists for both sites and consequently the approval of the Beachside application was premature or the approval should have carried with it the same restriction with regard to sanitary capacity.

29With regard to the Manning appeal of the Beachside development application he quotes from the Manning written submission to Council: that Manning “… does not take issue with the future development of the Beachside site for higher, denser uses” and he agrees with that statement and states that the scale of development sought by Beachside is appropriate and constitutes good land use planning with provincial and local planning policies.

30Based on the Kulchycki affidavit, Manning submits there is a good land use planning ground to justify the Appeal.

31Responding to the contentions that the Manning appeal of the impugned ZBA was not brought in good faith or is frivolous or vexatious, counsel for Manning submits that a party cannot contract out of its statutory rights and Manning had submitted written comments to Council prior to Council’s decision and Manning was eligible then to appeal Council’s decision.

32Manning submits that the issues being raised are legitimate land use planning issues related to servicing capacity, orderly development, the fair application of local policies, and whether the impugned ZBA appropriately addresses those issues. With regard to the private agreements between the adjacent landowners and the covenants not to object those issues, counsel submits those issues are appropriate to be raised before the Superior Court of Justice but not before the Tribunal. With regard to the ground that the Manning appeal was brought only for the purpose of delay, the Manning Response indicates that in its submission to Council it did not take issue with the future development of the Beachside site for a higher and denser usage and that as Manning has publicly stated that it supports Beachside’s development there is no evidence of any competitive motive for delay.

33Turning to the issue of consolidation Manning suggests that the Beachside Appeal be consolidated with the Manning Appeal and that would ensure a fair, just and expeditious resolution on the merits of both appeals.

AUTHORITY TO DISMISS

34Noted above is the statutory basis upon which the Tribunal may dismiss an Appeal without holding a hearing.

35The leading case for many years has been Toronto (City) v. East Beachside Community Association (1996) Ontario Municipal Board Digest OMBD 1890 (“East Beach”). There the Tribunal said:

The Board is entitled to examine the reasons stated to see whether they constitute genuine, legitimate and authentic planning reasons. This is not to say that the Board should take away the rights of appeal whimsically, readily and without serious consideration of the circumstances of each case. This does not allow the Board to make a hasty conclusion as to the merit of an issue. Nor does it mean that every appellant should draft the appeal with punctilious care and arm itself with iron clad reasons for fear of being struck down. What these particular provisions allow the Board to do is to seek out whether there is authenticity in the reasons stated, whether there are issues which should affect a decision in a hearing, and whether the issues are worthy of the adjudicative process.

36Additionally there is a strong line of cases since Luigi Stornelli Ltd. v. Centre City Capital Ltd. (1985) 17 OMBR 323 (“Stornelli”) that the accepted principle in response to a motion to dismiss is that the appellant may elaborate and clarify the grounds for appeal.

37As East Beach and Stornelli et al considerably predate this Motion, they do not reference s. 34(19.0.1) of the PA which provides that if an appellant intends to argue inconsistency with the PPS or lack of conformity or conflict with a provincial plan or an applicable official plan the notice of appeal must explain how the by-law is inconsistent with, fails to conform, or conflicts with the other document.

38Additionally, what is novel with regard to this Motion is s. 19(1) from the OLTA that the Tribunal may dismiss a proceeding without a hearing if it is of the opinion that there is no reasonable prospect of success.

TRIBUNAL JURISDICTION WITH REGARD TO SERVICING

39The submission of Beachside and of the Municipality is that Manning has no reasonable prospect of success with regard to its appeal inasmuch as the Tribunal has no jurisdiction with regard to servicing. That both Beachside and the Municipality submit is solely within the ambit of the Municipality.

40In support of this counsel referenced Aryeh Construction Ltd v Markham (Town), [2011] OMBD No 153 in PL090996 wherein the Board stated:

Having heard the submissions in that regard and on consent of the parties, the Board confirms it having no jurisdiction to deal with the Town’s servicing allocation program and as a result of this it will not make any determination as to the reasonableness of the Town’s allocation criteria.

41This finding, counsel argues, is supported by the Milton Meadows Properties Inc v Milton (Town), [2014] OMBD No 269, 23 MPLR (5th) 157, 2014 CarswellOnt 4831 in PL101316 in which there was a declaration requested before the Board and the Board gave this order:

In this phase of the proceedings, the matter specifically before the Board was not a request for draft plan approval, but for a declaration. The appeal on that point is allowed; the Board agrees with the applicants,

• That “the approval of the Royal Park and Anderin subdivision which do not have servicing allocation from the Region is not premature”,
• on the condition that registration of all or part of the subdivisions may not take place, prior to all external water and wastewater infrastructure necessary for each such plan being secured or in place to the satisfaction of the Region.

42Counsel for Manning, to the contrary, submits that it is a matter of good planning and in the greater public interest to ensure development applications are treated in a fair and orderly manner. To that end it is submitted that it is also a matter of good planning to ensure that land use planning and infrastructure policies applicable to adjacent sites are applied equally and fairly between them and that it is not appropriate to ignore infrastructure capacity issues for one application to the exclusion and detriment of an immediate adjacent application.

LAND USE PLANNING GROUNDS: s. 34(25)(1)(i)

43From the chronological extracts the Tribunal notes that the Beachside Phase 1 rezoning was approved on September 24, 2019.

44On that same day the chronological extracts note that Beachside and Manning both entered into separate Cost Sharing Agreements with the Municipality for their respective lands.

45The Tribunal notes that it was not until September 2020 that Manning filed a Rezoning Application for its lands but that was not deemed complete until October 2020.

46Thus, it was over one year after that Manning had entered into the Cost Sharing Agreement with the Municipality that Manning filed its complete rezoning application.

47Counsel for Manning submits that as the Beachside Lands and the Manning Lands share the same land use designations and are adjacent to one another and are currently applying for the same type of residential uses, they should be treated the same.

48While Manning indicates that there is no good reason for this distinction in treatment between the Beachside application and the Manning application, counsel for Beachside disagrees, as does the Municipality.

49Counsel for Beachside submits that the simple reason for the differentiation in treatment is the fact that Manning first indicated to the Municipality it would not be developing on a residential basis but rather on a commercial basis and accordingly the plans for the infrastructure that were utilized in the Cost Sharing Agreement were not sized for such residential development. This position he submits is corroborated by the Planning Staff report.

50The January 15, 2021 Planning Staff report to Council on the Manning development proposal, recommended deferral until April or May 2021 with the notation that the existing sanitary system cannot accommodate the proposed development from a treatment and conveyance perspective. The basis for that recommendation is provided in the body of the report that at the Pre-Application Consultation Meeting, Manning was advised that:

…the existing conveyance system and supporting infrastructure is not sized to accommodate the additional flows generated by the proposal. Past planning review of this site anticipated commercial development on the property which generates less sewage than the sewage generates in the high density residential development. (emphasis added)

51The Planning Staff report provides that Manning had proposed a holding tank in order to get around this situation, but that holding tanks are not permitted for new development.

52With regard to the alleged planning grounds for the appeal, the Tribunal first notes that the foundation of the appeal is based on servicing, and that the affidavit evidence from Manning comes from a land use planner.

53In paragraph 28 the planner states: “In my opinion, if a sanitary system problem exists, it exists for both sites.”

54Firstly, the Tribunal does not accept the qualifications of the land use planner to opine with regard to a municipal engineering matter. The Tribunal would have at least expected to have an affidavit from a qualified municipal engineer.

55Secondly the Tribunal notes that the Manning Cost Sharing Agreement was entered into on September 24, 2019. Inter alia, that agreement provides that Manning “…shall be entitled to review the final engineering drawings for the Municipal Services to ensure, acting reasonably, there are sufficient service connections and capacity for the Subject Lands.”

56Thirdly, it appears that there was a clear disconnect between the engineering work that had been done, and the subsequent Manning 2020 development application.

57And finally, the fact that a dispute may have arisen with regard to the servicing for the Manning development appears to have nothing to do with land use planning, nor with Beachside.

58Accordingly, the Tribunal finds that the issue of servicing of the Manning Lands is in these circumstances, not within the jurisdiction of the Tribunal and that the Manning appeal does not disclose any apparent land use planning ground upon which the Tribunal could allow part or all of the appeal. This finding is fatal to the Manning appeal.

GOOD FAITH, FRIVILOUS OR VEXATIOUS: s. 34(25)(1)(ii)

59Turning to the submissions that “no-objection” provisions referenced by Beachside and the Municipality contained within the Agreement of Purchase and Sale and the Restrictive Covenant on title and the Settlement with the Municipality are indicative of actions that are not in good faith, or are frivolous or vexatious, the Tribunal finds that it need not consider those submissions based on the findings set out above and below.

DELAY: s. 34(25)(1)(iii)

60In the event that the Tribunal is wrong with regard to its finding that there were no apparent land use planning grounds upon which the appeal could be allowed in whole or in part, the Tribunal will assess the submissions that the appeal is for the purpose of delay.

61In this issue, the Tribunal clearly prefers the evidence of Beachside and the Municipality.

62The Tribunal finds that Beachside was nought but a collateral third party in an on-going dispute between Manning and the Municipality, and that the purpose of the Manning appeal of the Beachside ZBA was to delay development within the Amy Croft Secondary Plan area, to advance the Manning position in its servicing dispute with the Municipality and also to enable Manning’s own development application to advance at the delay of Beachside.

63On this ground, the Tribunal would allow the Motion and as all the tests in s. 34(25) are disjunctive, this finding would also result in the dismissal of the Manning appeal.

SECTION 34(19.0.1)

64The Municipality has raised s. 34(19.0.1) of the PA and the Municipality’s Response focuses on that portion of s. 34(19.0.1) that provides that the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with, or conflicts with the other document.

65Section 34(19.0.1) of the PA is an “if/then” proposition: if the appellant intends to argue that the ZBA is inconsistent with the PPS etc. then the notice of appeal must also explain how the ZBA is inconsistent with the PPS etc.

66The Tribunal notes that the Manning written submission dated December 14, 2020 clearly states that Manning does not take issue with the future development of the Beachside Lands for higher and denser uses. The concern expressed in the December 14, 2020 letter is with regard to servicing and the different treatment of the Beachside Lands to that of the Manning Lands.

67The reference in the December 14, 2020 letter to the PPS and the County’s and Municipality’s official plans is made in support of the land use planning attributes of both sites.

68Turning to the Manning appeal letter of January 8, 2021, the appeal letter again sets out the land use planning attributes of both sites, and again with reference to the provisions of the PPS and the County’s and Municipality’s official plans.

69The basis of the appeal letter is however the alleged “prematurity” of the approval of the Beachside ZBA, because of the different treatment arising out of the servicing.

70The Tribunal finds that the appeal is not based on any allegation that the impugned ZBA is inconsistent with the PPS or fails to conform or conflicts with the official plans of the County and the Municipality. Accordingly, it was not necessary to explain in the appeal letter how the ZBA was inconsistent with the PPS or failed to conform or conflicted with the official plans of the County and the Municipality.

SECTION 19(1)(C) OLTA

71In the event that the Tribunal were to be wrong with regard to its findings concerning s. 34(25) of the PA, the Tribunal will consider below the statutory provision of s. 19(1)(c) of OLTA.

72Noted above is s. 19(1)(c) of the OLTA, whereby the Tribunal on the motion of any party or on its own initiative may dismiss a proceeding without a hearing if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success.

73This submission arises from the Response by the Municipality (Exhibit 3, Paragraph 14) where the Municipality pleads that s. 19 of the OLTA provides among other things that the Tribunal may dismiss a proceeding without a hearing where the Tribunal is of the opinion that the proceeding has no reasonable prospect of success. Again, it is argued that the servicing allocation is ultra vires the Tribunal as enunciated by the Tribunal itself on various occasions. Given that this is the only ground of appeal raised by Manning, counsel submits that the appeal has no reasonable prospect of success.

74This submission is akin to that referenced above concerning s. 34(25) of the PA.

75To the Tribunal it appears that there has been an obvious disconnect between the servicing plans as envisioned and the ultimate development application by Manning.

76That disconnect has nothing to do with Beachside. That disconnect is a matter strictly between Manning and the Municipality and it deals with the servicing for the Manning lands.

77The Tribunal does not have jurisdiction to deal with servicing in these circumstances and on this ground alone the Tribunal would allow the Motion and dismiss the Manning appeal.

SUMMARY

78In summary the Tribunal finds that the appeal by Manning is focused on a servicing issue for which the Tribunal does not have jurisdiction and thus the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Tribunal could allow all or part of the appeal: s. 34(25)(1)(i). This finding alone is fatal to the Manning appeal.

79Secondly, the Tribunal finds that the Manning appeal of the Beachside ZBA was for the purpose of delay to advance the Manning servicing dispute with the Municipality and to delay the Beachside development: s. 34(25)(1)(iii). This finding is fatal to the Manning appeal.

80Finally, the Tribunal finds that the Manning appeal does not satisfy s. 19(1) of the OLTA as servicing is in these circumstances ultra vires the Tribunal and that the Manning appeal would have no reasonable prospect of success. This finding is also fatal to the Manning appeal.

CONCLUSION

81The Motion is granted and the Manning Appeal is wholly dismissed.

82This is the Order of the Tribunal.

"Blair S. Taylor"

BLAIR S. TAYLOR 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.