Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 4, 2022 CASE NO(S).: OLT-21-001534

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

Subject: Site Plan Referred by: Melanie Mayhew-Hammond Property Address/Description: 5251 Ritson Road North Municipality: City of Oshawa OLT Case No.: OLT-21-001534 OLT Lead Case No.: OLT-21-001534 OLT Case Name: NDA Investments Limited v. Oshawa (City)

Heard: April 5-6, 2022 by video hearing; and April 22, 2022 in writing

APPEARANCES:

Parties	Counsel
NDA Investments Limited, David Biddle and Alexandra Sciuk	Alan Heisey
City of Oshawa	Melanie Mayhew-Hammond

DECISION DELIVERED BY M.A. SILLS AND S. MANN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This appeal was brought by NDA Investments Ltd. (the “Applicant”/“Owner”) from the failure of the City of Oshawa (the “City”) to approve a Site Plan Control Application (the “Application”) for the property located at 5251 Ritson Road North (the “subject lands”/ “property”), pursuant to s. 41(12) of the Planning Act (the “Act”). The appeal was submitted on December 9, 2019.

2The Application facilitates the development of a single detached dwelling and accessory building on the subject property.

Site Context

3The subject lands encompass an area of approximately 7.28 hectares and are irregular in shape with a rolling topography, and are entirely forested. The property fronts onto Coates Road East to the north and is bound by Ritson Road to the west, the Canadian Pacific Rail line to the south, and a mixture of agricultural fields and pockets of woodlands to the east. The Purple Woods Conservation Area is immediately west of Ritson Road in the vicinity of the subject property.

4The subject lands are unoccupied and were previously used for recreational purposes. There are two woodland stands on the property; a Sugar Maple deciduous forest and a no-code Black Locust stand towards the front of the property.

5The property was acquired by the Applicant in December 2000. According to the new Owner, at the time of purchase the subject lands showed no signs of forest management. The Owner undertook to remove dumped garbage, cut access trails, and initiated an active management program to protect the existing mature areas, mainly in the southern portion of the property, and to clear the areas of poor and invasive species.

6To formalize a forest restorative process, the Owner entered into a Managed Forrest Plan – Woodlot Management Plan (the “MFP” – “WMP”) with the Ministry of Northern Development, Mines and Forestry (the “MNDMF”), the goal and objective of which was to maintain a healthy, undisturbed, ecologically-centred woodlot over the long term with minimal disturbance. The site inspection approval form described the subject property as “A well-managed woodlot with very old maples and new growth on the north end across from the Conservation Maple Sugar Bush”. The MFP was approved by the MNDMF in June 2011 and extended for 20 years with a 10-year renewal option, which has been completed. The MFP was recently extended and now expires in 2041. As part of the MFP, the Owner planted trees in what was historically a cleared area at the front of the property abutting Coates Road East as part of the Plan.

7The subject lands are located within the Oak Ridges Moraine (the “ORM”) and form part of the Natural Linkage Area and Category 1 Landform Conservation Area as identified in the Oak Ridges Moraine Conservation Plan (the “ORMCP”). This area is also considered to be an area of aquifer vulnerability and a significant recharge area.

8The subject lands are designated ORM Areas by the Durham Region Official Plan (the “ROP”) and Open Space and Recreation – Natural Linkage, by the City of Oshawa Official Plan (the “COP”). The entirety of the subject property has been identified as part of the Natural Heritage System in the COP.

9The property is split-zoned by Zoning By-Law 60-94 (the “ZBL”); the majority of the property is within the Open Space Oak Ridges Moraine (the “OS-ORM”) Zone with a smaller portion to the north fronting onto Coates Road East zoned Agricultural Oak Ridges Moraine (the “AG-ORM”).

Chronology of the Application

10July 12, 2019: an application was submitted by Biddle and Associates on behalf of the Owner to the City’s Committee of Adjustment (the “COA”) requesting three (3) minor variances for an accessory building associated with a new single-detached dwelling proposed to be developed on the subject property. The minor variance application was tabled at the July 24, 2019 COA meeting to allow for the processing of a supporting Natural Heritage Evaluation (the “NHE”).

11September 13, 2019: a site visit was conducted with the Owner and his consulting team Niblett Environmental Associates Inc. (the “NEA” / “GHD”), City staff Tim Ryan and David Sappleton, and Central Lake Ontario Conservation Authority (“CLOCA”) staff, Kathy Luttrell, Marnie Guindon and Diana Shermet.

12September 19, 2019: a meeting was held to discuss the development proposal. During this meeting CLOCA identified deficiencies and errors in the NHE which it said needed to be addressed, including a suitable habitat for bats and potential maternity roosts. The position taken by the CLOCA and the City at the time was that:

The site has a historically disturbed area at the front of the Property that would not be considered part of the more sensitive significant woodlot. The Zoning also reflects this area as being AG-ORM. CLOCA recommends that the development be relocated to this portion of the property as it would require less fill and grading and would preserve the more significant woodlot. The proposed driveway itself passes through multiple Key Hydrogeological features as well as Significant Landform Features and would require extensive grading…

13December 12, 2019: the Application, accompanied by an NHE prepared by NEA, a Site Plan Drawing (SP-1) and a Grading Plan (SG-1) prepared by Biddle was submitted to the City. The Application did not implement the recommended locational change recommended by the City and CLOCA at the September 2019 meeting.

14April 8, 2020: the City provided Return Comments and confirmed it would be seeking a peer review of the NHE submitted with the Application, to be funded by the Applicant. The City subsequently retained Cambium Inc. (the “Cambium”) to conduct the peer review.

15June 25, 2020: Comments from the Cambium peer reviewer were provided to the Applicant. The Cambium peer-reviewer, Jeremy Sprahl (Natural Heritage Ecologist) concluded that the NHE did not satisfactorily demonstrate that the proposed development was in conformity with the applicable ORMCP policy. According to the City’s planner, this determination was consistent with the comments provided by CLOCA and the City. Cambium requested that further review be undertaken of the natural habitat and recommended that Site Plan approval be deferred until the following (4) concerns are resolved:

1. The Site appears to provide at least two (2) types of Significant Wildlife Habitat (“SWH”) not recognized in the NHE. The report should be updated to include a comprehensive SWH assessment based on provincial criteria applicable to Ecoregion 6E.

2. In order to mitigate potential impacts to nesting birds and bat maternity roost colonies, vegetive removals should occur outside the period extending from April 15th and September 30th of a given year. [ subsequently corrected to October 31st].

3. The Site Plan should be revised using a “least impact” approach that is consistent with the intents of ORMCP policies associated with Natural Linkage Areas and Category 1 Landform Conservation Areas.

4. An updated NHE should be provided which demonstrates that proposed encroachments into identified key/significant natural heritage features (i.e. Significant Woodlands and SWH) will be minimized or avoided and that existing landforms (i.e. hardwood ridges and steep slopes) will be maintained undisturbed, to the extent possible. The updated study should also clearly demonstrate that the proposed development does not adversely affect the ecological integrity of the Plan Area.

16March 16, 2021: the Applicant submitted a revised grading plan and a 1-page response to the peer review, which did not include a revised NHE. The City and CLOCA reviewed the re-submission material, and finding no significant changes to the proposal, were not satisfied that the majority of the comments from City staff and the peer reviewer had been addressed.

17April 26, 2021: the Applicant emailed the revised Environmental Impact Study (the “EIS”) directly to Cambium without the City’s permission and without having received a response from the City on the status of the review of the March 16, 2021, submission materials.

18April 28, 2021: the City and CLOCA formally advised the Applicant that no substantial changes were found in the preliminary review of the material, and offered two options: 1) the City would circulate the material to Cambium and spend the remainder of the reserved money for the review, or, 2) the City would return the submissions materials and have the Applicant address the previously identified issues.

19July 2021, the Applicant provided a response to comments by the City’s peer reviewer. As a result of further review, the Site Plan was modified slightly to relocate the proposed structures entirely on the flat portion of the subject property and several minor adjustments were made to the laneway extending from Coates Road East.

20August 9, 2021: the Applicant submitted a 2nd revised submission of the Application which was circulated for comment.

21November 5, 2021: CLOCA advised that it continued to object to the approval of the Application, and reconfirmed its position that the proposed building envelope should be limited to the area within the AG-ORM zone.

22November 18, 2021: Return Comments were provided by the City.

23August 4, 2021: Revised Site Plan resubmission.

The Key Issue

24The parties in this dispute agree that the ZBL permits, and no other policy explicitly prohibits, the development of a single family residential dwelling on the subject property. For greater context, s. 7 of the ORMCP states:

7. Nothing in this Plan applies to prevent the use, erection or location of a single-family dwelling if,

(a) the use, erection and location would have permitted by the applicable zoning by-law on November 15, 2001, and

(b) the applicant demonstrates, to the extent possible, that the use, erection and location will not adversely affect the ecological integrity of the Plan Area.

25The parties agree that the first criteria (a) is met, but diverge on the second criteria.

26The Applicant’s preferred development envelope as illustrated in the Application is a relatively flat-surfaced area with limited vegetation on the east side of the subject property within the OS-ORM zone. An extended laneway/driveway is proposed along the eastern property line with Coates Road.

27The City maintains that to satisfy the second criteria (b) the development area would have to be located within the AG-ORM zoned area towards the front of the property:

Given there is over a hectare of land along the road frontage of the subject lands that could be utilized to avoid any impacts to the healthy Sugar Maple Deciduous Forest, shorten the length and slope of the proposed driveway, and avoid the need for culverts interior to the site…

28In determining this matter, the Tribunal had the benefit of the expert evidence and opinions of four witnesses:

On behalf of the Owner:

Robert Clark: registered professional planner and member of the Canadian Institute of Planners and the Ontario Professional Planners Institute; Agrologist (P. Ag.); and an Engineer (P. Eng.); and

Chris Ellingwood: Senior Terrestrial and Wetland Biologist with expertise in Wetlands, Species At Risk, Natural Heritage Systems, and Environmental Impact Assessments.

On behalf of the City:

Time Ryan: registered professional planner and a Full Member of the Canadian Institute of Planners and the Ontario Professional Planners Institute employed by the City; and

Kathy Luttrell: Natural Heritage Ecologist and Certified Wetland Evaluator certified in Ecological Land Classification employed by CLOCA.

Applicant Case Presentation

29Principally, it is Mr. Clark’s position that the Site Plan process is intended to review the proposed site development and is not an appropriate tool to direct land management for the purposes of natural features evaluation or protection. According to the Act, a Site Plan regulates the structures and facilities identified in the application and does not allow for on-going evaluation and regulation of a changing environment, in particular the natural features of a site. Those matters can only be addressed through other forms of planning applications such as zoning by-law amendments, plans of subdivision and consent applications.

30Section 41(4) of the Act outlines the matters to be included in Plans and Drawings and the conditions that may be imposed as part of the approval of plans. Section 41(7) is directed to the structures and facilities required to accommodate those structures.

31Mr. Clark maintains the Site Plan is not an appropriate vehicle to request, maintain or advance environmental approvals or measures; there is no statutory requirement for supporting documentation such as an Environmental Impact Assessment (the “EIS”) or authorization for a municipality to resquire such studies.

32Notwithstanding his position that an analysis of planning policy documents is not required, it is his opinion that the development being proposed conforms to the ROP, the COP and the ORMCP, and is consistent with the Provincial Policy Statement, 2020 (the “PPS”).

33Turning then to his planning justification, Mr. Clark confirmed the relevant policy documents are: the Act, PPS, Growth Plan for the Greater Golden Horseshoe, 2020 (the “GP”), Greenbelt Plan (the “GBP”), ROP, COP, and ZBL No 137-89 which regulates Site Plan Control in the City. Site Plan approval is required for all development as the ORM is identified in the City’s planning documents as a Site Plan Control Area.

34Section 1.1.5.2 of the PPS: the development proposal is compatible with the rural landscape and will be sustained by rural service levels. The proposed dwelling is well removed from the municipal road and is visually screened from adjacent uses.

35Section 2.2.1 states: “Natural features and areas shall be protected for the long term”. The proposed development has been designed to limit the impact on the Natural Heritage System through the conservation of identified Natural Heritage Features. The Owner has demonstrated through the WMP his intent to maintain and improve the wooded areas which encompasses the entirety of the property.

36The GP defines Key Natural Heritage Features as:

Habitat of endangered species and threatened species; fish habitat; wetlands; life science areas of natural and scientific interest (ANSI), significant valleylands, significant woodlands, significant wildlife habitat (including habitat of special concern species); sand barrens, savannahs, and tall grass prairies; and alvars.

37The development proposal has been purposely designed to limit the impact on the Natural Heritage System through the conservation of identified Natural Heritage Features. The disturbed area is no more than 8.25% of the property area and the proposed building coverage is equal to 0.8% of the property area. Through the WMP the Owner has demonstrated his intent to maintain and improve the wooded area on the entirety of the subject lands. On that basis, it is Mr. Clark’s opinion that the Application conforms with the GP.

38Zoning By-law No. 60-94 allowed a detached dwelling on the property as of November 15, 2001, and prior to the implementation of the ORMCP and the imposition of zoning. A NHE has been prepared which demonstrates that the proposed detached dwelling will not adversely affect the ecological integrity of the ORMCP Area.

39Although the Act does not require supporting documentation or studies for Site Plan Approval, in an effort to meet the locally stated requirement the Owner arranged for an NHE to be prepared by GHD. This evaluation demonstrated that the proposed dwelling and associated development will not adversely affect the ecological integrity of the Natural Heritage System (“NHS”). The evaluation was peer reviewed by the City’s chosen peer reviewer, Cambium Inc., at the expense of the Owner.

40This area has been designated as a Natural Linkage Area in the implementing planning documents, and in Mr. Clark’s opinion the Owner through the WMP has been meeting this objective and the residential development being proposed has been designed to continue this process.

41As the subject lands are located within the ORMCA Area, the Greenbelt Plan defers policy requirements to the ORMCP.

42Schedule ‘A’ of the ROP designates the subject lands as Oak Ridge Moraine (the “ORM”); Schedule ‘B’ designates the lands as an area of Key Natural Heritage Features and Hydrological Features. An NHE has been prepared which demonstrates that the proposed new detached dwelling and associated development will not adversely affect the ecological integrity of the Natural Heritage Features on the subject lands. The development plan has been purposely designed to limit impact on the NHS through the conservation of identified natural heritage features.

43The COP identifies the subject lands as within an area of Key Natural Features where an EIA, NHE and/or Hydrological Evaluation may be required. Section 5.4 provides policy for the NHS. Section 5.4.5 allows development provided it can be demonstrated through an EIA that the area of additional lands to be added to the NHS will match or exceed the area of lands removed, and the added lands will abut other portions of the NHS. In that regard, the WMP reports indicate that significant improvements have been made to the subject lands.

44The ROP designates the subject lands as ORM (Schedule ‘A’) and Key Natural Features and Hydrologic Features (Schedule ‘B’). Although the ROP does not list a single detached residential dwelling as a permitted use of the property, it is Mr. Clark’s opinion that as the ORMCP specifically permits the use of a single detached residential dwelling and it prevails in the event of a conflict with an official plan, the ROP can be considered to support the proposed development.

45This area has been designated as a Natural Linkage Area (“NLA”) in the implementation planning documents. Section 12(1) of the ORMCP states:

12. (1) The purpose of Natural Linkage Areas is to maintain, and where possible improve or restore, the ecological integrity of the Plan Area, and to maintain, and where possible improve or restore, regional-scale open space linkages between Natural Core Areas and along river valleys and stream corridors, by,

(a) maintaining, and where possible improving or restoring, the health, diversity, size, and connectivity of key heritage features, key hydrologic features and the related ecological functions;

(b) maintaining, and where possible improving or restoring natural self-sustaining vegetation over large parts of the area to facilitate movement of plants and animals;

46Consistent with these objectives, the Owner through the WMP has been meeting this objective and the proposed residential development has been designed to continue this process.

47The COP identifies the subject lands as within an area of Key Natural Features where an EIS, NHE and/or Hydrological Evaluation may be required. Section 5.4 provides policy for the Natural Heritage System. Section 5.4.5 allows development provided it can be demonstrated through an EIA that the area of additional lands to be added to the Natural Heritage System will match or exceed the area of lands removed, and the added lands will abut other portions of the Natural Heritage System. The WMP report indicates that significant improvements have been made to the subject lands.

48Section 5.4.13 outlines what a proposal for development is required to demonstrate:

• There will be no negative effects on key natural heritage or key hydrologic features or their function. The NHE concluded that the proposed residential development would not adversely affect the ecological integrity of the ORM;

• Connectivity between key natural heritage or key hydrologic features is maintained, or where possible, enhanced for the movement of plants and animals across the laneway (driveway) and the residential landscape. The connectivity is maintained by the limited alterations proposed for the laneway and the residential development;

• The removal of other natural features not identified as a key natural heritage or key hydrologic feature should be avoided, and such features should be incorporated into the planning and design of the proposed use wherever possible. The project has been designed and re-designed based on comments received to minimize the removal and incorporation of the natural features;

• The disturbed area of any site does not exceed 25% and the impervious surface does not exceed 10% of the total development area. The proposed disturbed area is 8.25% of the area of the property and the building coverage is 0.7% of the development area.

The proposal demonstrates compliance with this criteria, and as such, indicates there will be no negative impact on the Natural Heritage System. The proposed dwelling unit complies with the required zoning provisions, including lot frontage, front yard, rear yard, interior (south) sideyard, exterior (north) sideyard and maximum number of dwellings (1) per lot. In his opinion the Owner has demonstrated a strong commitment to the management of the woodland area through the WMP. Based on his review, it is Mr. Clark’s opinion that the Site Plan and drawings as revised should be approved subject to the prescribed conditions. Mr. Clark submits that even though municipal staff may prefer an alternate location, the development envelope identified in the Application meets the requirements of the relevant planning policy and regulations. The Site Plan process is intended to reflect the actual construction and cannot be used to address the management of NHF. The concerns expressed by the City’s peer reviewer (Cambium), City staff and CLOCA are minor and fail to recognize the benefit of the location chosen for the proposed development.

49Regarding the development area preferred by the City and CLOCA and as identified in the witness statements of Ms. Luttrell and Mr. Ryan, Mr. Clark confirmed that area is currently zoned AG-ORM and is subject to several forms and setbacks. Section 5.4.11 and 5.4.12 of the COP establishes a minimum buffer of 30 metres (“m”) from the OS-ORM Zone boundary, which is also the Key Natural Heritage System boundary. This significantly reduces the area available for construction in the AG-ORM zoned lands, particularly when combined with the required yard setback of 15 m, thus leaving an area of only 95 square metre (“sq m”), while the slope is 12%. In his opinion the limited area and irregular shape make it an unsuitable location for the proposed residential building and accessory structures.

50Mr. Clark also pointed out that the entire Coates Road frontage is zoned for agricultural uses. These lands are 50 to 70 m in width and could be used for agricultural purposes. Lands within the AG-ORM designation are identified as Class 2 Agricultural Lands for agricultural capability, therefore the use of these lands for a non-agricultural purposes is inconsistent with s. 1.1.5.7. of the PPS which directs that these lands should be protected for agricultural purposes.

51Moreover, the lands along the Coates Road East frontage are subject to a slope in the order of 10 – 15%. Construction in this area will require substantial fill, estimated to be in excess of 23,000 cubic m, which is substantially more than the net fill of 490 cubic m required for the location being proposed by the Application (as some of that fill will be obtained from the foundation excavation). This extensive regrading in the AG-ORM zoned area is not consistent with the Landform Conservation Policy, which directs that the landform is to be maintained with minimal disruption. Even if the required 30 m setback were to be reduced to the ZBL setback of 15 m, this area will still require significant fill to make the site accessible and buildable due to the slope of the lands. The process of clearing and cultivating these soils would limit the Natural Heritage linkage capability of this area.

52Mr. Clark acknowledged that because the development proposal involves the construction of a building with a ground floor area of more that 500 sq m (actual 600 sq m) it is defined as “major development” by the ORMCA and requires a Landform Conservation Plan. In compliance with the ORMCP and the COP a Grading Plan was prepared and submitted with the Application which indicates the development proposal will have little impact on the landform.

53Mr. Clark submits the Site Grading Plan submitted with the Application provides all of the elements of a Landform Conservation Plan and illustrates a development proposal that would concentrate development on a portion of the property that is not “significant” and would retain the prevailing significant landform feature.

54Mr. Clark took particular note of the statement by Ms. Luttrell that the wildlife areas in the southern portion of the subject property and the Conservation Lands to the west are effectively linked across the Ritson Road North road allowance. It is his contention that if a wildlife connection is possible across a municipal road right-of-way the laneway cannot be challenged due to concerns about its potential to disrupt an existing and future natural linkage, particularly when the intention as demonstrated by the Owner is to maintain the wooded area on the other side of the lane.

55Mr. Clark submits that although municipal staff and CLOCA may prefer an alternate location, the development area proposed by the Applicant and detailed in the Application, meets the requirements of the applicable planning policy and regulations based on the NHE provided by the Applicant.

56In that regard, the development decision should consider the neighbouring land uses. In this case, the adjacent lands to the east are open farm fields under active cultivation. The entire Coates Road frontage (50 to 70 m in width) is zoned for agricultural use and could be used for agriculture purposes.

57CLOCA and the City claim this area would be a preferred location for the residence and accessory structure. In his opinion, this area serves as a potential agricultural area according to both the zoning and agricultural capability mapping, but would disrupt the Natural Linkage function of this area due to wooded areas on both sides of Coates Road East.

58By contrast, the Applicant is proposing to locate the residential building and accessory structure in an area of Class 6 agricultural capability soil with limited Natural Linkage function due to the cultivated field immediately to the east.

59Overall, it is Mr. Clark’s professional opinion that the proposal conforms with the ROP, the COP and the ZBL. The Site Plan process is intended to reflect the actual construction and required facilities referenced in s. 41 of the Act and cannot be used to address the management of the NHF. The Owner has demonstrated a strong commitment through the MFTIP and this commitment has been extended to the year 2041. Based on his review, it is Mr. Clark’s opinion that the Site Plan as presented should be approved.

60Christopher Ellingwood is a Senior Terrestrial and Wetland Biologist, with more than 25 years of experience as a consultant with expertise in wetlands, Species At Risk, Natural Heritage Systems, and Environmental Impact Assessments, birds, plants and restoration ecology.

61Mr. Ellingwood provided a chronology of the series of events, site visits, consultations, reports and studies relied upon and forming the basis of his conclusions and opinion.

62The study area included Significant Woodland, the ORM Natural Linkage designation, and the City of Oshawa Natural Heritage System; primarily the north half of the subject lands, but also the woodlands on the southern portion of the subject property.

63The subject property is 210 m from the nearest tributary to the north (Blackstock Creek) and over 1 kilometer (“km”) from the nearest wetland to the east and southwest. The nearest Provincially Significant Wetland is the Lake Scugog wetland 2.5 km to the north.

64The EIS concluded that the proposed development will not result in negative impacts on the identified natural heritage features or their functions, or the ecological integrity of the ORM, provided the recommendations and mitigation measures described in s. 5 and 7 of the NHE are implemented. The recommendations related to tree protection, timing windows for birds, landscaping, bat cavity tree retention or appropriate habitat compensation, sediment and erosion control have all been incorporated onto the three site plans and drawing sets and the proposed conditions of Site Plan approval.

65This also includes additional conditions be included in the existing Managed Forest Tax Incentive Program requiring: an arborist to conduct the tree removals; the installation of bat boxes; the placement of gravel pervious surface on the driveway; bird deterrent decals on windows; and the planting of native trees on site as part of the invasive species management program.

66GHD’s recommendations have been incorporated into the proposed conditions of Site Plan approval and on the final Site Plan drawings and grading plans. GHD worked with the Owner and the EIS team on several occasions during this process to revise the Site Plan in order to limit impacts to natural heritage features and/or their functions during site preparation, construction and post-construction periods.

67Mr. Ellingwood indicated that the recommendations were intended to ensure there were no negative impacts to the natural heritage features, sensitive species and wildlife in general. The recommendations regarding driveway routing and drainage, the size of the building envelope and layout of the lot, tree plantings and native seed mixes, as well as landscaping, were all made in order to maintain, improve and enhance wildlife habitat, nesting and foraging opportunities on the open spaces on the site and the adjoining woodlands.

68The Site Plan was revised and re-submitted several times with the latest iteration being submitted on August 4, 2021. The Site Plan modifications involve the dwelling, garage, septic system and driveway providing a more compact building envelope. Among these modifications, the dwelling was moved north and up to the top of the slope. Mr. Ellingwood submits that the proposed conditions of Site Plan approval have addressed all of the City peer reviewer comments other than the Significant Woodland Heritage (“SWH”). GHD has reviewed the SWH and completed an analysis and it is Mr. Ellington’s opinion that a further SWH analysis is not required.

69The NHE conducted by GHD demonstrates that there will be no negative impacts on the natural heritage features or their ecological functions. A review of the confirmed criteria, specifically for area sensitive species, did not confirm that the two area-sensitive species observed on the property (Eastern Wood-Pewee and Wood Thrust) met the minimum number of species required (3) to be confirmed as SWH. The criteria are outlined in the SWH Ecoregion 6E Manual (Ministry of Natural Resources 2015). Special Concern species are not covered under the Ontario Endangered Species Act.

70In Mr. Ellingwood’s opinion the location of the proposed development and the removal of the minimal amount of vegetation will have the least impact on the integrity of the area. On the other hand, the proposed improvements to the remainder of the subject property will improve the integrity of the area and maintain its natural linkages. The approval agencies have suggested that building closer to the road would have less impact. However, that area is a black locust stand with high diversity of species of which some are invasive, a 15-year old pine stand planted by the Owner, and has a 4:1 slope. Building in that area would require considerable grading and fill slopes that would be greater than the proposed building envelope in the north central part of the subject property. Removal of the forest cover, including native eastern pine planted by the Owner to increase forest cover and diversity of the ORM would be necessary.

71Removing that vegetation and creating a flat building envelope would have a greater impact on the connectivity and impact movement of animals more than the development site being proposed. Having a driveway from Ritson Road North would require extensive tree removal and grading as there are steep slopes from west to east in this area of the subject property. The proposed building envelope is on the north edge of the forest adjacent to a large cornfield that limits the forest connectivity and linkage values. That location would have the least impact on wildlife corridors and connectivity.

72In his reply statement, Mr. Ellingwood pointed out that with the planting that has already taken place, the commitment in the conditions of Site Plan approval and MFTIP to plant at least another 100 native hardwood trees and a continued implementation of invasive species management for that area and the remainder of the subject property, that will become a mixed forest in time. By contrast, creating a building on this 10-15% grade will require a large amount of grading and a large quantity of imported fill to create an area of sufficient size, flat grade and engineered stability to support a house, driveway, garage and septic bed. This would dramatically alter the ORM landform rolling topography and would require a grading and landform conservation plan.

City Case Presentation

73Mr. Ryan confirmed that the subject property is identified as part of the Natural Heritage Systems in Ecoregion 6E. The entirety of the subject lands have been identified as part of the Oshawa Natural Heritage System.

74Mr. Ryan maintains the Applicant has not demonstrated that the proposed development area would have no negative impact on the existing ecological function of the subject property, and has failed to comment as to why the City and CLOCA’s continued recommendation to relocate the area to the front of the property cannot be accommodated. It is therefore his opinion that the proposal is not consistent with the policies of the PPS.

75The subject property is identified as Protected Countryside within the ORM. Policy 4.1.2. lists the criteria non-agricultural uses must demonstrate prior to development. The criteria includes demonstrating there are no negative impacts on key natural features of key natural hydrologic features or their functions; and no negative impacts on the biodiversity or connectivity of the NHS. The Applicant has not satisfactorily demonstrated the criteria described within Policy 4.1.2 of the Greenbelt Plan.

76The ORMCP is an ecologically based plan which provides land use and resource management direction for the 190,000 hectares of land and water within the Moraine. Several key features objectives of the ORMCP include protection of the ecological and hydrological integrity of the ORM area, and ensuring that only land and resource uses that maintain, improve or restore the ecological and hydrological functions of the ORM are permitted. While acknowledging that a single dwelling is permitted by By-law 60-95, it is Mr. Ryan’s opinion that the Applicant has not satisfactorily demonstrated the criteria described within s. 7(b) of the ORMCP.

77The Applicant insists that a 1,200 sq m driveway leading to the proposed dwelling is in a location that least impacts the NHS and the ecological integrity of the Plan area. In Mr. Ryan’s opinion this is not consistent with the relevant policies of the ORMCP, given that the alternative development area proposed by the City and CLOCA staff near the front of the property in the area that has been historically disturbed, and is primarily outside of the Key Natural Heritage and Key Hydrologic Features as shown on Schedule F1-A of the COP and within the Natural Cover Regeneration/Restoration Area of the NHS identified in Policy 5.4.5. of the COP.

78The ORMCP defines “major development” as development consisting of, (b) the construction of a building or buildings with a ground floor area of 500 sq m or more. Given the ground floor area of the dwelling, a landform conservation plan is required. The Applicant has failed to provide such a plan to date within the Application. In his opinion, the proposed development does not represent a concentration of development on portions of the site that are “not” significant, nor has any meaningful effort been made in the retention of significant landform features in an open and undisturbed form.

79The ROP is consistent with the policies and language within the ORM. Given his position on the proposal’s lack of consistency with the ORMCP policies the proposal also fails to meet the applicable policy of the ROP.

80In citing numerous policy provisions of the COP, Mr. Ryan maintains the Applicant has failed to provide a rationale as to why the alternative proposal presented by the City and CLOCA cannot be accepted. In his opinion, the Application has failed to appropriately demonstrate conformity to the relevant policies of the ROP. Overall, it is his opinion that the City has acted reasonably to uphold the relevant policies of the PPS through to the local legislation and has continuously provided an alternative development proposal so that a single detached dwelling can be developed elsewhere on the subject property.

81Ms. Luttrell explained that CLOCA has a Memorandum of Understanding with the City of Oshawa, whereas CLOCA reviews land use plans and applications under the Act and supporting technical reports and drawings to provide formal comments that address environmental and public safety considerations. The subject lands are not regulated by CLOCA.

82Ms. Luttrell provided an overview of her involvement with this Application, first becoming aware of the proposal at a site meeting on September 13, 2019. It was at the same meeting that she learned that the Owners had an MFTIP for the subject property.

CLOCA’s first review of the NHE on September 16, 2019, identified missing information as it pertains to Significant Wildlife Habitat (“SWH”), incorrect disturbance calculations, and lack of commentary on the significance of the woodland. Overall, CLOCA concluded that it had not been demonstrated to the extent possible, that the location of the building envelope and ~200 m driveway to access the development envelope will not adversely affect the ecological integrity of the Plan Area, specifically, Key Natural Heritage Features (“KNHF”) and functions pursuant to the requirements of s. 7 of the ORMCP.

83A second NHE submission dated December 2019 was received by CLOCA on December 20, 2019. Natural Heritage comments were prepared by CLOCA on February 10, 2020, and again noted a number of inconsistencies related to woodland removals on the subject property. Staff were generally satisfied with the level of field studies that had been conducted to that time.

84Staff specifically noted that the development as proposed was not positioned in an area that would provide the least impact to the Key Natural Heritage Features and functions as directed by the ORMCP. As stated by staff:

The preferred placement for the development envelope is in the already disturbed AG-ORM portion of the property, which will not have any impact on the interior habitat, be completely outside of the core habitat, and will retain the existing east west connectivity between the existing natural features.

85A peer review process was subsequently initiated by the City to review the NEA’s NHE. The peer review was completed by Cambium on June 25, 2020, the findings of which were summarized in 4 main points. (reference: paragraph 15)

86The Cambium review specifically noted there were 2 types of SWH present on the subject property, whereas NEA had concluded that there was no SWH present on the subject property. The SWH types identified by Cambium are Confirmed Special Concern Species for the presence of Eastern Wood-Pewee and Wood Thrush during breeding bird surveys, and Candidate Maternity Bat Colony SWH. The latter was determined to be candidate given the timing of snag tree surveys during the leaf-on period and absence of in-season, dusk exit surveys. As cavity surveys are better conducted during leaf-off period, Cambium concluded that the number of cavity trees was likely to be under-estimated.

87Cambium also noted that to effectively mitigate any disturbances to breeding birds or roosting bats, the sensitive window in which there should be no disturbance occurs between April 15 and October 31.

88Cambium did not agree with NEA’s conclusion that “the building envelope is located in an area that would create the least amount of impact on the Oak Ridges Moraine key natural features and functions, including the woodland”. Cambium reported that it did not consider the Application to be in conformity with the policies of the ORMCP, and that the site should be updated to reflect a “least impact” approach.

89Consequently, NEA was requested to provide an updated NHE in order to demonstrate that encroachments into significant woodland and SWH will be minimized or avoided, and existing landforms will be maintained as undisturbed to the extent possible. The updated study was expected to clearly demonstrate that the development will not adversely affect the integrity of the ORMCP.

90CLOCA staff reviewed the peer review prepared by Cambium and generally supported the findings (memorandum dated July 22, 2020).

91A third NHE submission dated July 20, 2021, from GHD (formerly NEA) was received by CLOCA on August 10, 2021. The GHD report is focused specifically on addressing peer review comments from Cambium. The report did not appear to acknowledge the CLOCA staff commentary which indicates:

The preferred placement for the development envelope is in the already disturbed AG-ORM portion of the property, which will not have any impact on the interior habitat, be completely outside of the core habitat, and will retain the existing east west connectivity between the existing natural features

92In response to the Cambium peer review regarding the “least impact” approach, GHD reiterated that the building envelope has been located in an area of least impact. GHD states that the proposed development area is less sensitive than the more mature forest, both south and west of the building envelope. Ms. Luttrell maintains the report does not address the young successional area of woody vegetation zoned AG-ORM at the northern portion of the subject property, where the Applicant has previously focussed forest restoration efforts through the MFTIP.

93Ms. Luttrell provided comments on the third submission, noting discrepancies in the report pertaining to SWH, whereas GHD states that “biologists analyzed the information collected from the ecological communities on the subject property using the criteria for Significant Wildlife Habitat in Ecoregion 6E (2015) and confirmed none of the candidate SWH were on the property”. However, it is Ms. Luttrell’s opinion that SWH for Bat Maternity may exist on site and should remain as candidates as neither NEA nor GHD undertook any bat surveys. Ms. Luttrell further noted that GHD did not address the habitat type for the Eastern Wood-Pewee and Wood Thrusts.

94GHD concluded that “the building envelope is located in an area that would create the least amount of impact on the Oak Ridges Moraine key natural heritage features and functions, including the woodland”, and as such, Cambium considered this item to be resolved. Ms. Luttrell claims that “this conclusion is partly based on incomplete findings with respect to SWH on the subject property”.

95Ms. Luttrell acknowledges that Cambium was generally satisfied with the “least impact” approach with respect to efforts made with the updated Site Plan and reflected in the updated NHE, whereas it stated in its report that “significant efforts have been made to bring the proposed development more in line with a “least impact” design to minimize impacts to landforms on the site”, and regarding their fourth comment in the original review, Cambium is generally in agreement that the impacts to the Significant Woodland as a natural heritage feature have been minimized to a reasonable extent. Ms. Luttrell emphasized that Cambium did not opine that the AG-ORM zoned lands are effectively the area of “least impact”.

96Ms. Luttrell referred the Tribunal to a letter to the City from CLOCA dated November 5, 2021, wherein CLOCA reiterated its long-standing position made in conformity with the ORMCP that the ONLY area that should be considered for “least impact” for development on this property is in the northern portion, fronting on Coates Road. CLOCA views development in this location, also zoned AG-ORM, to be in conformity with the policies of the ORMCP.

97Ms. Luttrell expressed the view that a development envelope is best suited in the area that the Owner intends to actively manage to become a hardwood stand to complement the rest of the subject property. The northern portion of the subject property within the AG-ORM zone is somewhat disturbed, and in a state of succession dominated by weedy species. A development envelope in this location would be beneficial in assisting with removal of invasive species while undertaking a planting program that would foster development of desirable hardwood.

98Based on the foregoing, it continues to be her opinion that there is a “least impact” option to avoid the significant woodland altogether and meet the requirements of the ORMCP regulation, specifically the prohibition that is established against development and site alteration within key natural heritage features.

REVIEW AND ANALYSIS

99In its review, the Tribunal considered the ecological issues raised by the City to determine whether there would be an unacceptable negative effect on the ecological integrity of the subject property and surrounding area. In order to conduct this review the Tribunal first considered whether such a requirement existed. Pursuant to the PPS, there is an emphasis on the protection of natural heritage features in the Province.

100The PPS permits municipalities to designate areas within their jurisdiction fitting the description of natural heritage under the Natural Heritage Reference Manual (“NHRM”). As noted, the ORMCP identifies the subject property to be within a Natural Linkage area. Further, the City has identified the entirety of the subject property under the City of Oshawa Official Plan (“City OP”) as part of the Natural Heritage System.

101As stated, the key issue in this dispute is the location of the proposed building on the subject property. The parties agree that the ZBL permits the development of a single family residential dwelling on the subject property.

102The Applicant proposes to maintain the location as proposed in the Application which is within the OS-ORM zoned area. The City and CLOCA take the position that due to natural heritage concerns within the development envelope proposed in the Application, the proposed building should be located within the AG-ORM zoned area.

103Being located within the ORM, an environmentally sensitive, geological landform in south central Ontario which stretches 160 kilometers and covers an area of approximately 470,000 acres, would typically require a more in depth review to determine if consideration is appropriately given to the ORMCP.

104The City argued that the proposed location would disturb a key natural heritage feature; the removal or disturbance of at least 340 m2 of Sugar Maple Deciduous Forest. In addition, there would be disturbance to maternity bats, a species of bird listed as of special concern at the federal and provincial level and to linkage and connectivity to the ORM. The City further argues that the location preferred by the City and CLOCA would result in less harm to natural heritage features and only require the removal of the less desirable black locust trees.

105NDA argues in the first instance, that the City does not have the legal jurisdiction to impose these requirements under s. 41 of the Act, and that the location preferred by the City and CLOCA is not acceptable due to setback requirements that would result in a greater impact due to the amount of fill that will be required to create an appropriate landform to build upon, and is inconsistent with the PPS as it pertains to the development of non-agricultural uses on agricultural lands. Otherwise, the concerns regarding the location proposed by NDA in the Application, in some instances are overstated and in others have been appropriately mitigated. This includes the removal of bat habitats in the form of cavity and dead snag trees, which NDA proposes to mitigate through the use of bat houses.

106While NDA has raised an issue with the validity of introducing such concerns in an application for site plan approval under s. 41(12) of the Act, both parties have put forth arguments regarding whether or not the development proposal will have a negative impact on the ecological integrity of the City. As such, the Tribunal has considered whether there is a negative impact on natural features or ecological functions based on the selected location, and if so, to what degree. In its review the Tribunal has taken into consideration the Act, PPS, GP, GBP, ORMA and ORMCP, as well as the TOP, the COP and ZBL.

107The overall direction of the relevant policies requires the review of properties containing natural heritage features, specifically within the ORM area in order to determine whether or not there will be a negative or adverse impact on the ecological integrity of the lands. In this case the Tribunal has reviewed the NHE as well as considered the testimony of both Chris Ellingwood as well as Kathy Luttrell.

108In order to conduct its review, the Tribunal has considered matters raised by policy including impact on woodland, wildlife as well as linkages and connectivity. The City argues that there is significant woodland being put at risk, a potential for wildlife to be displaced, and that the development proposal will have a negative impact on the connectivity to surrounding natural heritage features. NDA proposes that the Application will not result in a negative impact as detailed in the NHE prepared on their behalf.

Significant Woodland

109The subject property contains a Significant Woodland as defined in the NHRM. There are two species of trees of concern in this hearing (1) black locust trees and (2) sugar maple forest trees. The sugar maple trees are considered natural to the ORM area, whereas the black locust trees are considered by some to be an invasive species.

110The City argues that the black locust trees are not within the definition of Significant Woodland, whereas NDA argues that due to the number of trees and added diversity of woodland to the surrounding area the black locust trees located in the City location should also be considered Significant Woodland. Based on the proposed locations of both parties, there would be a more limited effect on woodland within the subject property if the proposed structure was constructed at the NDA location. The number of trees removed would be reduced and in addition, regarding concerns raised about the invasive trees, NDA has in place a Managed Forest Plan (“MFP”) with the Province, which allows for a controlled removal of invasive plant life and replanting of trees and therefore allowing the subject property to maintain its ecological integrity. The MFP is a plan that was scrutinized and approved in 2011 and continues until 2041.

Significant Wildlife

111Due to the significant wildlife existing on the subject property, consideration must be given towards concerns of a negative impact on such natural heritage features as a result of the proposed building. The wildlife of concern in this case are bat maternity colonies as well as species of special concern, in this case being two species of bird (1) the Wood Thrush and (2) the Eastern Wood-Pewee.

112As previously mentioned, the NHE has identified snag trees which are or may be used as bat maternity colonies. As a result of decreasing bat populations there is a concern about the protection of the species. There exists on the subject property, numerous snag trees, at a rate of 18 snags per hectare. The Application proposes the removal of 3 trees, two of which are dead snag trees and the third being a cavity tree. Mr. Ellingwood advised the Tribunal that a dead snag tree is a temporary home for the species as such trees will eventually fall.

113In addition, the Applicant has proposed as a condition of Site Plan approval to install 3 bat houses which will provide alternative habitats for bats that may be displaced as a result of the development in a location which will be determined with advice of a terrestrial biologist. This condition, during the course of the hearing, was reinforced after concerns were raised by the City regarding the timing of their installation to occur during the period of November 1 to April 14, prior to any site alteration or construction.

114Regarding the bird species of concern, the NHE had determined their existence on the subject property, however NDA argues that this does not confirm the presence of a habitat. Ms. Luttrell maintains the NHE had not thoroughly searched for the existence of such habitats, whereas Mr. Ellingwood argues that the subject property NDA did not meet the typical requirements of habitat for such species.

115Mr. Ellingwood countered that although both species reside within woodland type areas, the Wood Thrush is found in mature deciduous and mixed forest, with a dense understory of trees. Their nests tend to be made in dense maples or coniferous trees in subcanopies in the range of 15-25 foot elevation.

116In that regard, the Tribunal accepts and relies on the evidence and information provided by Mr. Ellingwood based on his expertise, experience, field work and studies, and his familiarity with the subject property. By contrast, while Ms. Luttrell’s knowledge of the subject matter is apparent and laudable, she did not conduct any field studies to inform her evaluation, conclusions and opinions. Ms. Luttrell’s familiarity with the subject property is limited to a single site visit and she has not carried out field studies.

117On the basis of the available evidence, the Tribunal accepts the opinion of Mr. Ellingwood that the location proposed in the Application is more suitable due to its proximity to the edge of the woodland in addition to being a more appropriate location as being further away from the Purple Woods Conservation Area.

Linkages and Connectivity

118NDA contends that the location preferred by the City would potentially eliminate the natural linkage between two adjoining wooded areas.

119The City argues that the location chosen by NDA will affect the natural linkages and connectivity of the natural heritage features of the area, with a specific concern being that the proposed driveway will prevent wildlife access between connected areas.

120The NHE considers and addresses the issue of connectivity, and Mr. Ellingwood has stated that the Application will not impact connectivity of woodland, and in fact, its location at the edge of the woodland further away from the Purple Woods Conservation area is more desirable and maintains the linkages and connectivity in the area. In regard to the driveway, Mr. Ellingwood has opined that wildlife would not be hindered in travelling across the driveway and therefore it is unlikely to affect wildlife access between natural linkage areas.

121On the other hand, even though the City retained a peer reviewer of its choice that was paid for by the Applicant, the City has chosen not to call the reviewer to evidence at this hearing. Such as it is, the City has not provided any tangible evidence or reasonable grounds to confirm the legitimacy of the issues and concerns about significant woodland, significant wildlife, and linkages and connectivity.

FINDINGS

122The Tribunal accepts the evidence and opinion of Messrs. Clark and Ellingwood to find that the Site Plan warrants approval.

123The Tribunal finds that the Applicant has demonstrated, to the degree necessary and possible, that the modifications to the Application and related Site Plan drawings will not unduly and adversely impact the ecological integrity and functions of the ORM, and/or that any such impact will be successfully mitigated. The City, on the other hand, has not undertaken any independent studies to demonstrate, or to otherwise convince the Tribunal that the location of its choice presents a better alternative.

124Further, the Tribunal has typically adopted the approach that it does not, in the consideration of a development proposal such as this one, embark upon an examination and assessment of multiple “alternatives” or possibilities. Although alternatives can assist in providing context for analysis, the Tribunal most nevertheless focus upon examining and accessing the proposal that actually is before the Tribunal in the context of the relevant policy framework. In this case, the Tribunal finds that the proposed Site Plan Drawings that are before the Tribunal, as they will permit the uses, erection and location of the development, will not adversely affect the ecological integrity of the area.

125Furthermore, based on the Owner’s demonstrated stewardship of the lands through the MFP, the removal of garbage etc., together with the conditions of Site Plan approval (bat houses, etc.) the Tribunal is satisfied that every reasonable effort has, and will continue, to be made by the Owner to protect and foster the ecological functions and wildlife habitat of the subject property. Having reviewed and considered the evidence of both parties, the Tribunal finds that the Site Plan drawings represent good site plan design, and the requirements pursuant to of s. 2 of the Act have been met.

ORDER

126THE TRIBUNAL ORDERS that the Appeal is allowed and the draft plan prepared by D.G. Biddle & Associates Limited dated March 18, 2022 as set out in Attachment 1a and 1b to this Order, is approved, subject to the conditions set out in Attachment 2 to this Order.

“M.A. Sills”

M.A. SILLS

VICE-CHAIR

“S. Mann”

S. MANN

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.

ATTACHMENT 1a

ATTACHMENT 1b

ATTACHMENT 2