Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).: OLT-21-001608

DECISION ISSUE DATE(S): August 8, 2022

CORRECTION NOTICE ISSUE DATE: August 22, 2022

Correction to:

Originally:

Parties Counsel City of London Analee Baroudi

Corrected to:

Parties Counsel City of London Aynsley Anderson

“Euken Lui”

EUKEN LUI ACTING REGISTRAR 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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 08, 2022

CASE NO(S).: OLT-21-001608

PROCEEDING COMMENCED UNDER subsection 17(45) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Motion Request by: 2355440 Ontario Inc. & City of London

Purpose of Motion: Request for an Order dismissing the appeal

Appellant: Tyson Whitehead

Subject: Proposed OPA 740

Municipality: City of London

OLT Lead Case No.: OLT-21-001608

OLT Case No.: OLT-21-001608

Heard: February 2, 2022 by video hearing

APPEARANCES:

Parties	Counsel
2355440 ONTARIO INC.	Analee Baroudi
City of London	Aynsley Anderson
Tyson Whitehead	Self-represented

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

INTRODUCTION

1The Corporation of the City of London (“City”) and 2355440 ONTARIO INC. (“Applicant”), jointly the (“Moving Party”), has brought this Motion seeking an Order of the Tribunal dismissing the appeals by Tyson Whitehead (“Respondent”) pursuant to s. 17(45)(1)(i) of the Planning Act and s. 19(1)(c) of the Ontario Land Tribunal Act; its costs of the Motion; and any other relief that counsel may request and the Tribunal deem appropriate.

2The materials before the Tribunal on the Motion included:

1. Joint Factum; Motion Record, which includes the Affidavit, Curriculum Vitae and Acknowledgement of Expert’s Duty of Alanna Riley sworn January 26. 2022; Affidavit, Curriculum Vitae and Acknowledgement of Expert’s Duty of Ric Knutson sworn January 24, 2021; various reference materials and the Book of Authorities of the City of London and 2355440 ONTARIO INC.
2. Response to the Motion by Tyson Whitehead.

Background to the Motion

3The Applicant is the owner of vacant lands comprising the properties municipally known 250-272 Springbank Drive (the “subject lands”). In November 2018, the Ontario Municipal Board (“OMB”) granted land use permissions for the subject lands, which effected site-specific zoning standards (“ZBA”), an Official Plan Amendment (“OPA”), and granted draft plan approval to permit the development of high-density residential uses; namely, 306 units per hectare, 51 metres (m) and 14 storeys in height. The ZBA was statutorily barred for 2 years from the date of the OMB Order.

4In late 2020, the Applicant applied for further modifications to the approved site-specific ZBA (“modified ZBA”), and both of the 1989 Official Plan (“1989 OP”) and the new OP (“London Plan amendment”); specifically, to permit an increase from 14 storeys to 15 storeys (but with no change to the 51 m height restriction); the addition of 28 affordable housing units; and, among other less significant modifications, the removal of commercial permissions.

5City Council approved all three applications/instruments in October 2021, which were subsequently appealed by the Respondent. However, on January 21, 2022, the Respondent withdrew his appeals of the modified ZBA and the 1989 OP, leaving only the London Plan amendment appeal alive.

Submissions by the Moving Party

6The Moving Party submits that the withdrawal of the modified ZBA and the 1989 OP appeals by the Respondent has effectively rendered the appeal of the London Plan moot and/or unworthy of adjudication. In that regard, the Applicant can proceed with the development, subject only to obtaining site plan approval.

7The Moving Party confirmed it is the intention of the Applicant to submit an application for site plan approval in January 2022. The site plan application will be determined on the basis of the OP policies and the zoning provisions that are in force on the date of the application, in other words, the 1989 OP and the site specific modified ZBA which permits the development being proposed.

8The Urban Corridor Placetype in the London Plan, within which the subject lands are located, continues to be under appeal and therefore, is not determinative of the site plan approval application. Notably, under the Planning Act there are no third-party appeals of site plan approval.

9The Moving Party submits that the adjudication of the Respondent’s only remaining appeal, the London Plan amendment, would be a waste of the parties’ and the Tribunal’s resources.

10Ms. Riley is employed as a Senior Planner in the City’s Planning and Economic Development Department. She was the planner assigned to the ZBA and 1989 OPA applications for the subject lands. In her Affidavit, Ms. Riley provided a detailed chronology of the multiple planning applications, Council decisions, OMB hearings and Orders regarding the subjects lands over the past 8 years.

11Ms. Riley identified in her Affidavit that the appeal by the Respondent does not reference any policy on which the Tribunal could find inconsistency or non-conformity. In support of this position, Ms. Riley included in her Affidavit a commentary on every ground identified by the Respondent in the body of the appeal form and the supplementary attachment that accompanied the form.

12Based on her review and assessment, it is her position and professional opinion that the appeal does not contain any land use planning grounds upon which the Tribunal could allow the appeal. Given the lack of planning grounds, there is no reasonable prospect that the appeal will be successful.

13In her professional opinion, from a land use planning perspective the current development proposal generally maintains the use, intensity, and built form previously approved by the OMB. The intensity of the originally-approved development has remained unchanged, notwithstanding that 15-storeys are now being proposed given that the recommended height will remain at the approved 51 m, as well as the density will remain at 360 units per hectare.

14In fact, the only changes to the development proposal from what was originally approved is that the requirement for a GREEN Roof and LEED Certification has been eliminated, and those elements have been replaced with 28 affordable housing units. Given that the recommended ‘use’, ‘intensity’ and ‘form’ of the proposed development remains largely unchanged, it was, and is, her opinion that the recommended amendments are consistent with the intent of the 1989 OPA and the ZBA approved by the OMB, and are consistent with the Provincial Policy Statement (“PPS”).

15Mr. Knutson is a Land Use Planner of considerable tenure and the owner of Knutson Development Consultants Inc. He has been the Manager of Consulting Services for the Applicant since June 2011.

16The Affidavit of Mr. Knutson includes a chronology of the progression of, and modifications to, the development proposal since the OMB Order (“Original Order”) was issued on November 22, 2018. Of note is that the approved ZBA was statutorily barred for 2 years from the date of issue of the Original Order.

17Mr. Knutson pointed out in his Affidavit that during the 2-year hiatus, the Applicant’s consultants worked with a different architect to address concerns the City had about the built form approved in the Original Order. The intent was to design a building that was more in keeping with the Urban Design directives of the City, and to remedy and remove the permission for the commercial podium. According to Mr. Knutson, it was understood that the LEED certification process for this type of construction would add at least 18 months to the building process.

18Mr. Knutson confirmed in his affidavit that the redesigned building preserves the 51 m height approved in the Original Order; increases the lot coverage from 28% to 29%; and replaces the LEED certification and GREEN Roof requirements with an agreement to provide 28 affordable housing units to the London Housing Authority. The redesign also replaces the commercial podium with 2-storey residential suites adjacent to Springbank Drive.

19The Appellant’s Appeal Form lists appeals against the 1989 OPA, the ZBA and the London Plan amendment approved by Council. On January 14, 2021, the Appellant formally withdrew his appeals against the 1989 OPA and ZBA.

20With the withdrawal of these appeals the 1989 OPA and ZBA are in full force and effect, meaning that the Applicant can proceed with the development proposal subject only to site plan approval, and rendering the remaining appeal by the Appellant of the London Plan Amendment moot and not worthy of adjudication. The application for Site Plan Approval is intended to be submitted the week of January 24, 2022.

Response to the Motion

21Mr. Whitehead first explained that the money to pay the appeal fee was raised through donations from many members of the neighbourhood. According to him, the appeal represents the views of the majority of the community that the proposed development is highly inappropriate in this neighbourhood.

22At the time the money was raised, he was not aware that an individual appeal fee was required for each appealed planning instrument. Having raised only enough money for one appeal fee, the Respondent chose to continue with the appeal the London Plan amendment, and withdraw the appeals of the 1989 OP amendment and the ZBA.

23In response to the Motion, the Respondent asserts the City and the Applicant are trying to use technicalities to avoid legitimate questions and concerns regarding the amendments that were to be made to the London Plan. This, he submits, seems neither to be operating in good faith nor in the City’s own best interest when considering that a core part of the questions the Appellant is trying to bring forward concerns the City setting an unfavourable legal precedent for itself through its special treatment of this Applicant’s prior HDR designation.

24The Respondent contends that at its core this appeal is not attempting to relitigate the past approvals, but rather seeks to address issues with the new amendments to the London Plan. These include both the addition of another storey to the proposed development and the manner in which the Applicant’s prior 1989 OP amendment specific to the residential area is being brought forward into the London Plan.

25The Respondent submits that the Appellant has paid the appeal fee and endeavoured to provide all information and responses to the Tribunal in a timely manner. The appeal was made in good faith based on his understanding from reading the relevant documents. The Respondent indicated he feels somewhat intimidated by the City’s and the Applicant’s request for costs, their arguments in support of the dismissal of the appeal on the basis of technicalities, not to mention the large volume of documents submitted, but is hoping that the appeal process actually does continue to be open for an average citizen.

26In that regard, the Respondent maintains many neighbours feel hopeless to even protest as they believe their input has and will be of no importance. He claims this may be a valid attitude as the City’s notice of adoptions does not list any effects from the community’s input.

DISPOSITION

27The Tribunal’s jurisdiction to dismiss an appeal without a hearing is provided by s. 17(45) of the Planning Act, as follows:

Despite the Statutory Powers Procedure Act and subsection (44), the Tribunal may, on its own initiative or on the motion of any party, dismiss all or part of an appeal without holding a hearing if any of the following apply:

1. The Tribunal is of the opinion that, i. The reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the plan or part of the plan that is the subject of the appeal could be approved or refused by the Tribunal, ii. The appeal is not made in good faith or is frivolous or vexatious, iii. The appeal is made only for the purpose of delay, or iv. The appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

2The appellant has not provided written submissions for the appeal under subsection (24) or (36),

3The appellant intends to argue a matter mentioned in subsection (25.1) or (37.1) but has not provided the explanations required by that subsection,

4The appellant has not paid the fee charged by the Tribunal,

5The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.

28The Tribunal need only find that one of these criteria are not met as grounds to dismiss the appeal.

29In addition, s. 19(1) of the Ontario Land Tribunal Act (“OLTA”) provides the authority for the Tribunal to dismiss an appeal without a hearing if it is of the opinion that the proceeding has “no reasonable prospect of success”.

30The Tribunal first acknowledges that the Respondent is inexperienced in land use planning matters and the Tribunal’s appeal processes, and apparently does not have the financial resources to consult with and/or retain legal counsel, or at a minimum, a land use planner.

31However, in bringing an appeal before the Tribunal the Appellant is not only expected, but is required to put forward a legitimate evidentiary case to support the appeal – failing to do so will certainly result in the appeal being unsuccessful and the Applicant having incurred needless additional costs. Given the present circumstances, including that it is the Applicant’s intent to be self-representing and he does not intend to call any expert witnesses, the Tribunal is not satisfied that a hearing is warranted.

32Furthermore, the Tribunal finds that the appeal is without merit; it will not achieve the remedy being sought by the Appellant and therefore is frivolous in nature. The reality here is that with the withdrawal of the of the 1989 OPA and the ZBA appeals, the permissions approved by those planning instruments are now in full force and effect, rendering the appeal of the London Plan amendment moot and frivolous.

33Specific to the Respondent’s main issues with respect to the development proposal, that being the increase from 14 storeys to 15 storeys, and the approved new residential uses, the Tribunal notes first, that the height of the building is unchanged from the 51 m that was approved in the Original Order, and second, from a land use perspective the creation of additional residential units aligns with the current planning directives of the Provincial planning regime and the municipality.

34In any event, with the withdrawal of the appeals by the Appellant of the 1989 OPA and ZBA, the current form of the development proposal can proceed as of right once site plan approval is obtained, with the emphasis here being, regardless of the status of the London Plan amendment. In the circumstances, the appeal of the London Plan amendment is moot.

35The Tribunal orders the appeal is dismissed.

36The parties shall bear their own costs of the Motion.

“M.A. Sills”

M.A. SILLS VICE-CHAIR 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.