Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 2, 2022

CASE NO(S).: OLT-22-002023 (Formerly PL200651)

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Whitby Brock Estates Inc. Subject: Request to amend the Official Plan - Failure of Town of Whitby to adopt the requested amendment Existing Designation: "Mixed use" - Town's OP; "Medium Density Residential" - DSP Proposed Designated: "High Density Residential" Purpose: To permit the development of a 7-storey residential apartment building comprised of 119 residential units with an overall height of 26.45 m Property Address/Description: 423-435 Brock Street North Municipality: Town of Whitby Approval Authority File No.: OP-2019-W/05 OLT Case No.: OLT-22-002023 Legacy Case No.: PL200651 OLT File No.: OLT-22-002023 Legacy File No.: PL200651 OLT Case Name: Whitby Brock Estates Inc. v. Whitby (Town)

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

Applicant and Appellant: Whitby Brock Estates Inc. Subject: Application to amend Zoning By-law No. 2585 - Neglect of Town of Whitby to make a decision Existing Zoning: “Residential 4 - Downtown (H-R4-DT", "(H)" Proposed Zoning: "Residential 6 - Downtown (R6-DT)" Purpose: To permit the development of a 7-storey residential apartment building comprised of 119 residential units with an overall height of 26.45 m Property Address/Description: 423-435 Brock Street North Municipality: Town of Whitby Municipality File No.: Z-19-19 OLT Case No.: OLT-22-002023 Legacy Case No.: PL200651 OLT File No.: OLT-22-002023 Legacy File No.: PL200652

Heard: March 21-25, 2022, by video hearing

APPEARANCES:

Parties Whitby Brock Estates Inc. (“Appellant” / “Applicant”)

Counsel Christopher Tanzola Michael Cara

Parties Town of Whitby (“Town”)

Counsel Andrew Biggart

DECISION DELIVERED BY D. CHIPMAN AND S. MANN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant filed a development application for the lands known municipally as 423-435 Brock Street North (“Subject Lands” / “Subject Site”) seeking to build a 7 storey and 119-unit residential apartment building, of which the proposal requires an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”).

2As the development application was not dealt with within the statutory time frames, the Applicant commenced this proceeding before the Tribunal pursuant to s. 27(17) and 34(11) of the Planning Act, R.S.O 1990, c. P.13, as amended (“Act”).

3Since the appeal, the Applicant has revised the application to reduce the proposed development to a 6 storey and 113-unit residential building (“Application”) which is now before this Panel.

4The Region of Durham did not attend the hearing as there were no issues regarding compliance of the Application with the Durham Region Official Plan (“Region OP”).

5In making its decision, the Tribunal weighed the Participant Statement from Steven and Elizabeth Siple who opposed the Application citing incompatibility with the ZBL, impact on the natural features of the area, neighbourhood context and privacy issues, accordingly.

Application History and Site Context

6The Subject Lands are a consolidation of 4 residential properties, each containing a single detached, single storey dwelling, totalling a combined area of 3,570 m² located on the east side of Brock Street North. The Subject Lands have 60.71 meters of frontage along Brock Street North and a minimum depth of 58.84 metres. The Subject Lands are 535 meters north of the intersection of Brock Street North and Dundas Street (“Four Corners”), which is considered the central intersection of Downtown Whitby.

7Surrounding the Subject Lands, to the north is a commercial property, immediately to the south is a low rise residential dwelling and a place of worship. To the east there are single detached dwellings fronting onto Perry Street and Chestnut Street East which comprise one and two storey dwellings and to the west directly across Brock Street North are 2.5 storey townhouse dwellings.

8The Subject Site is located within the boundaries of Downtown Whitby, which generally encompasses the area bounded by Chestnut Street to the north, Garden Street to the east, Burns Street to the south, and Cochrane Street to the west.

9The original OPA and ZBA Application was filed on October 21, 2019. On December 9, 2019, the Application was deemed complete by the Town. A public meeting was held January 13, 2020. The Town’s comments focused on the permitted height and density under the Town of Whitby's Official Plan (“Town OP”) and the Downtown Whitby Secondary Plan (“Town SP”) as well as the prematurity of the Application due to the pending Secondary Plan review.

10In May 2020, the Downtown Whitby Secondary Plan Update exercise commenced. In August of 2020, Town Staff confirmed the Application would need to be amended to conform with the Town OP and Town SP.

11The Town SP study is now in Phase 3 of 4 Phases, which includes a Preferred Downtown Whitby Concept Plan Report, draft proposed land use and building height schedules, and draft proposed policies, to be presented at a third and final Community Open House. Upon the completion of public consideration from Phase 3, the draft proposed land use and building height schedules, and draft proposed policies will be refined in Phase 4. The final draft Secondary Plan is then intended to be presented at a Statutory Public Meeting. A final recommended Official Plan Amendment for the Secondary Plan is intended to be brought forward to Council for consideration later in 2022 in accordance with the requirements of the Planning Act.

12While work continues on the final review and passing of an OPA to initiate the new Secondary Plan, this Panel recognizes the evidence presented is informative but not determinative in coming to the following findings.

Proposed Development

13The revised architectural plans dated February 14, 2022, incorporate the following modifications to the original proposal:

a. The building height has been reduced from 7 residential storeys to 6 residential storeys.

b. The proposed Gross Floor Area (“GFA”) has been reduced from 10,347 m² to 8,826 m², which represents a Floor Space index (“FSI”) of 2.47. The unit count has decreased from 119 to 113. The original density was that of 370 dwellings units per net hectare with the revised concept it is now approximately 344 units per net hectare.

c. Stepbacks along the east elevation commence above the height of the third storey.

d. The building has been pulled back and is below grade along the western frontage to accommodate a 5.0 m road widening across the Brock Street North frontage.

e. In addition to the land dedication, the building has been set back an additional 1.5 metres from the (new) property boundary both above grade and below grade, to accommodate additional landscaping between the sidewalk and the building face. Above the third storey, the building is stepped back an additional 1.5 m from the Brock Street North frontage.

f. The front elevation of the building has been redesigned to incorporate vertical bays.

14Along the north, east and south boundaries of the proposed building, the Application provides landscape buffers of 4 m, 6 m and 3 m respectively.

15Vehicular access to the proposed building will be accommodated by a two-way driveway from Brock Street North using a pass-through configuration. The proposed development will have a total of 11 visitor parking spaces along with 138 below-grade parking spaces, accessed via a ramp setback 6 m from the rear of the property line.

Witnesses before the Tribunal for the Hearing

16The Appellant called Sean McGaffey, to provide opinion evidence on matters of urban design and Bruce Hall, to provide opinion evidence on matters of land use planning. Both were qualified before the Tribunal without objection.

17The Town called Nusrat Omer, a land use planner employed with the Town and who was involved in the Application process. No objection was raised regarding qualifying Mr. Omer to provide opinion evidence on matters of land use planning.

KEY ISSUES

18There was no disagreement between the Parties that the property is designated “Mixed-Use” and that the Subject Site is within the designated Downtown Whitby Intensification Area as identified on Schedule B, Intensification.

19The disagreement fell primarily into two categories: the appropriate density to be deployed on the Property; and the height of the building which should be permitted on the Subject Site.

20The Tribunal must also decide whether the OPA and ZBA sought by the Applicant to facilitate the development of the proposed 6-storey residential development is:

1. Prejudice & Prematurity: Are the Whitby Brock Estates Inc (“WBEI”) applications premature and therefore prejudice to the ongoing municipal comprehensive review process to update the Town’s SP, as required in policy 4.3.3.3.3.2 of the Town’s OP?

2. Precedence: Would approval of the applications set an undesirable precedent within the area along Brock Street North that is proximate to the Subject Site, in consideration of the Downtown Whitby Secondary Plan area, and other intensification areas/corridors of the Town?

21In considering these key issues the Tribunal considered the suitability of the Application in relation to the Town OP, specifically regarding its overall goals, intent and guiding principles, appropriateness of the transitioning of heights and appropriateness of the intensification.

22Considerations regarding the Town SP included whether the Application is compatible with the existing surrounding land uses and densities and whether the proposed increase in height from 3-storeys to 6-storeys is appropriate.

23Finally, whether the proposed ZBA conforms to the Town OP with regard to compatibility with adjacent uses of land, suitability of proposed purpose, adequacy of vehicular access, parking requirements, height and density, lot coverage, set back requirements, road widening and impact to site plan and development approvals.

LEGISLATIVE TESTS

24The Issues List forming part of the Procedural Order governed the presentation of the evidence and the hearing of these appeals. From a policy context, the issues before the Tribunal require the general determinations of whether the proposed OPA and the proposed ZBA have sufficient regard to the provincial interests listed in s. 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms to the Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”), the ROP, the Town OP, the in force Downtown Whitby Secondary Plan and are guided by the Town’s Urban Design Guidelines and in general, represents good planning and is in the public interest.

25The Tribunal accepts the Agreed Statement of Facts provided by the land use planners that the proposed OPA and ZBA:

a. Are consistent with the applicable policies of the PPS including those related to developing healthy, livable and safe communities (1.1.1), managing growth (1.1.2), achieving efficient development patterns (1.1.3), promoting diversity of housing (1.4), transportation options (1.6.7) and long term economic prosperity (1.7);

b. Conform with the GP including policies related to managing growth (2.2.1), intensification (2.2.2) and housing (2.2.6); and

c. Conform to the Region OP as the Subject Lands are within a Regional Centre along a Transit Spine.

TOWN OF WHITBY OFFICIAL PLAN

26As noted in Schedule A – Land Use, the Subject Site is within the Central Area, and more specifically recognized within the Downtown Whitby Major Central Area. Central Areas identified on Schedule “A” are intended to be the primary focal points of activity in the Town and support a broad range of land uses. The OP speaks to the Lands in the Downtown Whitby Major Central Area by stating the lands shall be developed in accordance with the land use designations on Schedules “A” and “H” and the relevant policies of the OP and the Downtown Whitby Secondary Plan.

27The Subject Lands are located within the Downtown Whitby Intensification Area (“DWIA”) as identified on Schedule ‘B’ – Intensification. The Subject Site is considered part of an “Intensification Area”. The Tribunal heard that through the implementation of OPA 90, the Town has allocated other Intensification Areas and Intensification Corridors in the Town for increased building height and densities.

28The Tribunal heard that Intensification Areas are the locations where the majority of expected intensification in the municipality is planned to occur. Within the DWIA, the long-term overall density target is at least 75 residential units per gross hectare, the overall long-term FSI target is 2.5 and the maximum building height is set out in the Secondary Plan (Section 4.3.3.3.3).

29The Subject Land is designated “Medium Density Residential” in the Downtown Whitby Secondary Plan. Medium Density Residential areas are intended to provide a range of residential uses including single and semi detached dwellings, townhouses, triplexes and apartment dwelling units, with a density range up to 75 dwelling units per net hectare (Section 11.3.6.2).

30Mr. Omer stated the Appellant originally proposed a density of 370 dwelling units per net hectare, through the revised February 2022 concept the proposed density is approximately 344 units per net hectare. In his opinion this far exceeds the intention of the Town SP and DWIA.

31The Tribunal heard that the in force Town SP permits a maximum building height of 3 storeys for the Subject Lands as set-out on Schedule ‘I’ - Downtown Secondary Plan Building Height.

32Mr. Hall opined these provisions are now out of date and would effectively limit the built form of the Subject Site to townhouses. In his opinion, these provisions are not a contemporary approach to planning to promote a built form and are not in line with the Growth Plan and the Region’s Official Plan. In his opinion, a difference in height is not in itself an incompatible relationship. He stated being compatible does not mean being “the same as”.

33In reference to Mr. Omer’s opinion that the proposed development is not in keeping with the current policy context and represents an “over build” or “over intensification” of the Subject Site, based on the proposed scale and the current planning frameworks and other considerations, Mr. Hall indicated that given that OP and ZBA applications to amend the current policy context, the determination of whether the scale of a proposed development is reasonable or whether it is an over built is appropriately determined on the basis of consideration of the physical attributes of the Subject Site itself and the relationship of the proposed development to the Subject Site and its surroundings. He added, it is also important that there be sufficient services to accommodate the scale of the proposed development.

34Mr. Omer stated that it is inappropriate to permit a building height and density at the proposed scale and in the proposed location as it is not in keeping with the current policy context. The proposed building will considerably “stick out” in an otherwise lower scale setting, both based on the current built form and the maximum permitted heights within the immediate area.

35He stated through the implementation of Official Plan Amendments #90 (“OPA 90”), and #105 (“OPA 105”), the Town has appropriately accommodated for the intensification allocation in other Intensification Areas, and Intensification Corridors through increased density and height permissions. Through the above noted Town initiated OPA’s, no increases to density or height were proposed to achieve these intensification allocations within the Downtown Whitby Secondary Plan. Further, OPA #103 also did not increase building height permissions within the Downtown Secondary Plan.

36Mr. Omer stated that subject to further qualified design policies, other areas of the Town include permissions for up to 18-storey buildings including the Brock/Taunton, Dundas East, Brock/Rossland, and Port Whitby/Whitby GO Station Intensification Areas. The Downtown Whitby Intensification Area already includes permissions for a maximum building height of 6-storeys, but not at this location.

37The Subject Site is further designated “Mixed-Use” on Map - A of the Official Plan. According to Policy 4.6.1.1, the goal of the Mixed Use designation is to “encourage mixed residential and commercial development and redevelopment to ensure an intensive, transit-supportive, and efficient use of land, particularly in Intensification Areas.” Policy 4.6.3.7 states that “further and superseding provisions for the range, mix, and density of uses and building heights permitted in areas designated as Mixed Use may be provided in a Secondary Plan.”

38Policy 11.3.3.3 refers the reader to Schedule “I” and states that “generally, buildings shall not exceed the number of storeys indicated on Schedule “I”, except as provided for in Sections 11.3.3.4 and 11.3.7.3.” Section 11.3.3.4 provides the exception which refers to Commercial, Mixed Use and High Density Residential Areas.

39Mr. Hall did not agree with Counsel for the Town, that if there is going to be an increase in height beyond that set out in Schedule “I”, it could be expected to occur in an area designated Commercial, Mixed Use or High Density Residential (or Institutional as set out in 11.3.7.3).

40Mr. Omer stated that due to the appeal on the Subject Lands, the Downtown Whitby Secondary Plan Update (“DWSPU”) has excluded the Subject Lands from a land use depiction and is identified as “Subject to Appeal”. However, the lands abutting the north and south lot lines along the east side of Brock Street North are depicted as “Corridor Mixed Use”.

41Mr. McGaffey disagreed with the OP strategic initiative (2.3.4.2.1) involving the requirement that new development and redevelopment be compatible with the scale and density of the existing built form and that the character of existing and well established residential neighbourhoods are maintained and enhanced over time.

42Mr. McGaffey explained the urban design policies were taken into consideration by the Applicant to fit into the context of Downtown Whitby. Such measures taken included building setbacks and step backs, angular planes, landscape buffer areas, amenity space, measures to address privacy concerns, shadow impact and materiality and architectural detail. He opined that the development proposal:

a. Sensitively integrates new development into an existing neighbourhood in a manner consistent with the Town OP;

b. Provides for appropriate built form standards, landscaping and relationships that conform to the Town OP;

c. Does not represent premature development of the Subject Lands as it provides for a built form and site configuration that can be accommodated by existing servicing and infrastructure, in conformity with the relevant Town OP policies and with regard to good urban design principles and without negative or adverse impact to the adjacent properties; and

d. Provides for appropriate landscape open space and indoor and outdoor amenity spaces for residents.

43The Town opposed the Applicant’s interpretation of the guidelines. The Town stated that the vision currently in place for the Downtown Whitby area was designed to contain only 3 storeys at the Subject Site’s location. The Town agreed that ground floor units would aid in accessibility, (as per the testimony of Mr. McGaffey) however, the addition of 3 storeys to the permitted heights would be unnecessary to accomplish this goal. Regarding the urban design used to aid in compatibility the Town argued that the measures proposed were insufficient and would not be able to overcome a doubling of permitted height.

Town of Whitby Zoning By-law No. 2585, as amended

44The Subject Land is currently zoned Holding – Residential Type 4 –Downtown Zone (H-R4-DT). The R4-DT Zone permits a wide range of residential uses including apartment dwellings. The R4-DT zone is reflective of the medium density permissions within the Town’s OP with more specific zoning standards to ensure compatibility and an appropriate built form for an apartment dwelling.

45The Town stated that in looking at the requested ZBA one needs to look at the zone provisions which are not complied with:

a. Minimum Lot Area of 135 sq.m / unit, which would permit a maximum of 24 residential units on the subject land, whereas the proposed development seeks to reduce this standard to a Minimum Lot Area of 28.5 sq.m / unit, to permit 113 residential units;

b. Maximum Lot Coverage: 35%; whereas the proposed development proposes a maximum lot coverage of 42% and therefore does not comply with this standard;

c. Minimum Front Yard Setback: 7.5m; whereas the proposed development proposes 1.5m and therefore does not comply with this standard;

d. Minimum Rear Yard Setback: 10m; whereas the proposed development proposes 6m and therefore does not comply with this standard;

e. Minimum Side (Interior) Yard Setback: 4.5m; whereas the proposed development proposes 4m from the north lot, and either 3m or 5.5m from the south lot (subject to the extent of any above ground projection for the underground garage), and therefore does not comply with this standard;

f. Maximum Building Height: 3-storeys; whereas the proposed development proposes 6-storeys plus a mechanical and amenity space rooftop enclosed structure; and therefore, does not comply with this standard;

g. Maximum Floor Space Index of 1.0; whereas the proposed development proposes a maximum floor space index of 2.74 and therefore does not comply with this standard;

h. Minimum Parking: 1.25 spaces per unit, plus 0.25 spaces per unit for visitors; whereas the proposed development proposes 1.22 spaces per unit, plus 0.1 spaces per unit for visitors, therefore the provided parking does not comply with this standard.

i. Minimum Landscape Open Space: 30%, whereas the Appellant has not indicated the provided landscape space on the revised concept and therefore, it is unclear if the concept is compliant to this standard;

j. Minimum Private Amenity Space: 9 sq.m per unit, whereas the Appellant has not indicated the total amount of private amenity space on the revised concept and therefore it is unclear if the concept is compliant to this standard;

46It was noted to the Tribunal there has been a lack of response to outstanding comments and concerns by the Town’s Engineering Service Division in relation to the parking reduction analysis.

47Based on the current in-force standards, the Town stated it is clear the proposed development represents an over-build on the property and is therefore not appropriate for this location.

Prematurity

48The Town indicated that urban design consideration is premature in light of the ongoing Downtown Whitby Secondary Plan Review (“SP Review”) which has not been completed at this time and will require Council’s consideration on the final form of the policies. The Town chose not to call testimony from an expert of urban design to offer a counter opinion on the urban design.

49The Tribunal heard that to approve the Application based on what may result in the SP Review will prejudice the Town’s ability to establish an appropriate planned character for this area of Whitby.

50Mr. Omer stated that the developer was advised from the very beginning of the process that the Application was premature because the Town was about to embark on a process that would determine appropriate heights, densities and uses within the Downtown. It was his opinion that this site, which is on one of the major ‘Spines’ of the Town is critical to establishing the appropriate scale and type of development that can occur on Brock Street.

Angular Plane

51The Applicant stated that the angular plane proposed allowed for proper transition from neighbouring properties allowing for compatibility. The definition of compatibility was established to not be limited to the same as.

52The Town argued that the proposed eastern angular plane was not properly implemented as the angle commenced from the third floor instead of at grade.

53Mr. McGaffey described the angular plane that the proposed building would make use of to address transitioning to the neighbouring properties, a residential house and church to the south and a mixed use property to the north and the neighbourhood of residential homes to the east fronting onto Perry Street. With an understanding of the Application’s urban design characteristics, Mr. McGaffey moved on to a review of the following policy.

54S. 2.1 of the Town OP establishes the vision for the Town:

Whitby’s vision is to be a healthy, sustainable and complete community providing for balanced residential and employment growth, while maintaining a high quality of life and enhancing its cultural and natural heritage attributes

55The Town maintained that it is a backward way of considering an angular plane. The angular plane should be an input into the urban design exercise, should not just be drawn as an outcome of the building’s location and design. Further, the Town stated it does not have an angular plane at the rear (eastern side) that can be explained.

56Mr. Omer stated the subject development will dwarf the existing residential community that is next to the site. It will not only dwarf the existing buildings, but it will be located 1.5m from the front property line and 6m from the rear property line.

57The Town directed the Tribunal to a sketch of the proposed building from 2018 demonstrating an angular plane commencing from the ground floor, which had since been amended.

GOOD LAND USE PLANNING AND PUBLIC INTEREST

58Mr. Omer opined that the proposal for intensification and redevelopment with higher densities and higher built form located beside low density residential forms do not meet several criteria as set out in the OP. Furthermore, he opined that the proposed amendment to the OP cannot be supported as it is contrary to the overall vision, planning principles and policies for the area that are currently in place. He concluded, as a result, that the proposed development does not represent good land use planning and is not in the public interest.

59Mr. Hall came to an opposite conclusion. He opined that the proposed OPA and ZBA will strike the appropriate balance between neighbourhood character, streetscape, urban design, intensification and compatibility. He characterized the plan as a high-quality development proposed at a key and pivotal intersection of the Town, integrating well with the 1 and 2-storey neighbourhood to the east. He opined that the building design minimizes adverse impact upon the neighbourhood to the east by carefully designed step backs of balconies and terraces.

FINDINGS AND ANALYSIS

60Under the Act, s. 3(5) requires the Tribunal’s Decision to be consistent with the PPS and conform or not conflict with the GP.

61The PPS is specific that, municipal official plans are the most important vehicle for implementation and achieving comprehensive, integrated and long-term planning. Official plans shall identify provincial interests and set out appropriate land use designations and policies.

62The Issues List does not include references to the Provincial Policy Statement 2020 (“PPS”), the Province's Places to Grow: Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”), and the Region of Durham Official Plan (the “ROP”) so the Tribunal focused its analysis on a review of the Town OP and Town SP.

63The evidence before the Tribunal is that the current, in-force policy documents, are working properly. It was provided through the evidence presented, that current planning practices are evolving and developing in accordance with the approved and in-force policies to achieve the Town’s vision.

64It remains evident to the Tribunal that the exercise undertaken currently by the Town through the DWSPU is not yet complete. Planning staff have not yet had the opportunity to recommend the appropriate densities or heights for the downtown area. Public input has been sought and iterations of the Plan have moved forward in the process. Changes to the existing DWSP are being contemplated. In initiating this municipal comprehensive review, the Town is illustrating that their planning practices are moving forward and are inclusive of public input.

65As of the date of this hearing, the final outcome of the DWSPU has not been established and the process of obtaining public input has not been completed and as such any recommendations set in draft are informative but cannot be considered in-force and effect and therefore cannot be considered determinative. The Tribunal notes that the Applicant was advised of the DWSPU early on in the planning process but chose to proceed regardless.

66The Tribunal finds that it is premature to usurp the ongoing municipal comprehensive review process by considering the proposed development as it would undermine the public consultation process in its final stages.

67The Tribunal finds that there is clear evidence that the Town has intention to intensify in the immediate area. As to what degree of intensification, this is unknown until the DWSPU is complete. The evidence presented is that this development will be twice as high as permitted in the in-force Town’s OP and as established in the Zoning By-law, it will be denser than the highest density permissions permitted thus far in the Town.

68The Tribunal finds that the proposed application represents an unprecedented over intensification of residential uses within the Downtown Area. Accordingly, the DWSPU process is to assess and accommodate appropriate levels of intensification through the Downtown Whitby area. Until such a time as a new directive policy is determined, the Tribunal remains unconvinced that this level of intensification is warranted.

69The Tribunal finds the proposed development neither maintains nor enhances the character and stability of existing and well established residential communities surrounding the Subject Lands as required by the OP.

70Although the proposed building is located on a main road, the Tribunal finds the subject development will dwarf the existing residential community next to the site as it will be located 1.5m from the front property line and 6m from the rear property line.

71Further Mr. McGaffey provided no explanation as to why his client would not have created predominant stepbacks to assist in achieving pedestrian scale. He simply provided the opinion that the 1.5m stepback at the front of the building was appropriate to provide a pedestrian scale. The Tribunal finds that the proposed development could have included ground floor retail to assist in animating the street and addressing pedestrian scale in line with its Mixed Use designation but chose not to.

72The Tribunal questioned Mr. McGaffey on how the angular plane was achieved, which now starts at a height of approximately 6.8m above finished grade. The evidence of Mr. McGaffey was that the developer had established a setback from the property line and tiered the rear of the building and the angular plane, measured from that drawing, which takes one to a point that is approximately 6.8m above finished grade.

73In stating this, the Tribunal finds that the proposed structure does not have an angular plane at the rear of the building (east side) that can be explained in any rationale way, other than to say that it arrives at a point above grade simply due to the design of the building.

74The Tribunal finds that the angular plane implemented is not effective and does not appropriately aid in addressing compatibility and transition. The Tribunal notes that the original application included the measurement of angular plane commencing from the property line.

75It is the decision of the Panel that an approval will result in a development which is double that currently permitted, with densities higher than even the highest densities permitted elsewhere in the Town (without regard to appropriate setbacks and angular planes from established residential areas) and is inappropriate.

76For the reasons outlined above, the Panel Orders as follows.

ORDER

77The Tribunal Orders that the appeals are dismissed.

“D. Chipman”

D. chipman MEMBER

“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.