ISSUE DATE: July 8, 2022
CASE NO.: OLT-22-002280
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Manning Developments Inc.
Subject: Application to amend Zoning By-law No. (2-2021) - Refusal or neglect of Town of Lakeshore to make a decision
Existing Zoning: Mixed Use Zone (MU)
Proposed Zoning: Mixed Use Zone Exception 35 (MU-35)(H25)
Purpose: To permit the development of an 8-storey apartment building with condominium and townhouse units and one semi-detached dwelling.
Property Address/Description: 1654 Manning Road
Municipality: Town of Lakeshore
Municipality File No.: ZBA-20-2020
OLT Case No.: OLT-22-002280
Legacy Case No.: PL210129
OLT Lead Case No.: OLT-22-002280
Legacy Lead Case No.: PL210129
OLT Case Name: Manning Developments Inc. v. Lakeshore (Town)
S. BRAUN
Friday, the 8th
MEMBER
day of July, 2022
THE TRIBUNAL ORDERS that the Procedural Order, attached hereto, shall be in full force and effect.
"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.
PROCEDURAL ORDER
CASE NO(S).: PL210129 (OLT-22-002280)
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties' request or its own motion.
Organization of the Hearing
The video hearing will begin on Monday, October 3, 2022 at 10 a.m. (the "hearing date").
The parties' initial estimation for the length of the hearing is 5 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal's Video Hearing Guide, available on the Tribunal's website (https://olt.gov.on.ca/tribunals/lpat/).
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Friday, July 8, 2022 and in accordance with paragraph 20 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 12 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert's evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness' evidence, as in paragraph 12 below.
On or before Friday, August 5, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and to the LPAT case co-ordinator and in accordance with paragraph 20 below.
On or before Friday, August 5, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 20 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Friday, September 2, 2022, the parties may provide a written response to any written evidence received in accordance with paragraph 20 below
On or before Friday, September 16, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 21 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
The parties shall cooperate to prepare a joint document book which shall be shared with the LPAT case co-ordinator no later than Friday, September 23, 2022.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal's Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, February 28, 2022 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal's Rule 17 applies to such requests.
ATTACHMENT 1
LIST OF PARTIES
Applicant/Appellant
Manning Developments Inc.
Represented by:
Patrick Harrington Aird and Berlis LLP 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 pharrington@airdberlis.com
Municipal Authority
Town of Lakeshore
Represented by:
Scott Snider and Jennifer Meader Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 ssnider@tmalaw.ca; jmeader@tmalaw.ca
ATTACHMENT 2
ORDER OF EVIDENCE
- Manning Developments Inc. (Applicant/Appellant).
- Town of Lakeshore (Municipal Authority).
- (Added Parties – Subject to Common Interest Direction).
- Manning Developments Inc. (Applicant/Appellant) – In reply.
ATTACHMENT 3
Issues List
Is it premature to consider the Zoning By-law Amendment for the Manning Lands ("ZBA") in the absence of a servicing solution that has been confirmed by Lakeshore and for which appropriate financing has been secured?
Does the ZBA have appropriate regard for matters of Provincial Interest, such as the adequate provision and efficient use of sewage services, pursuant to subsection 2 (f) of the Planning Act?
Are adequate municipal sewage services planned, available and feasible to service the Manning Lands as proposed by the ZBA pursuant to the definition of "municipal sewage services" in section 6 of the Provincial Policy Statement 2020 ("PPS")?
Is there confirmation of sufficient reserve sewage system capacity within the municipal sewage services to allow residential development on the Manning Lands as proposed by the ZBA, pursuant to Section 1.6.6.6 of the PPS?
Is it feasible to promote intensification and redevelopment on the Manning Lands to optimize the use of the municipal sewage services, pursuant to section 1.6.6.2 of the PPS?
Is the use of holding provisions under subsection 36(1) of the Planning Act the appropriate tool to use to achieve orderly development and to control the timing of the provision of municipal sewage services to the Manning Lands, pursuant to Section 8.3.3.1 of the Lakeshore Official Plan?
Does the ZBA have appropriate regard for matters of provincial interest as enumerated in section of the Planning Act?
Is the ZBA consistent with the Provincial Policy Statement and Policies 1.1.1(a) & (b), 1.1.3.1, 1.1.3.2, 1.1.3.3 and 1.4.1 in particular?
Does the ZBA conform to the County of Essex Official Plan and Policies 1.5(e), 3.2.6 and 3.2.7 in particular?
Does the ZBA conform to the Municipality of Lakeshore Official Plan and Policies 4.3.1.1., 4.3.1.2, 4.3.1.3 and 7.3.2 in particular?
Are the proposed setbacks from Manning Road appropriate?
Will the development proposed by the ZBA have any adverse shadow impacts?
Will the development proposed by the ZBA have any adverse wind impacts?
Will the development proposed by the ZBA have any traffic impacts on Manning Road? If so, what improvements will be required?
NOTE: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
Attachment to Sample Procedural Order
Meaning of terms used in the Procedural Order:
Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual, group or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Subsection 33.2 of the Local Planning Appeal Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person's background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness' opinions on those issues; and a list of reports that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness' opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.
A participant statement is a short written outline of the person's or group's background, experience and interest in the matter; a list of the issues which the participant wishes to address and the submission of the participant on those issues; and a list of reports, if any, which the participant wishes to refer to in their statement.
Additional Information
Summons: A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the parties. (See Rule 13 on the summons procedure.) If the Tribunal requests it, an affidavit must be provided indicating how the witness' evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.
The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.