CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-004092

DECISION ISSUE DATE(S):

November 17, 2023

CORRECTION NOTICE ISSUE DATE:

December 28, 2023

RE: Claybar Road Holdings Inc. v. Hamilton (City)

Correction to: The pronoun used to refer to Aman Hansra in paragraph [10] and wording in paragraph [11].

Originally:

Corrected to:

he

she

It was clear to the Tribunal that the content of her Witness Statement spoke to having not received an Environmental Impact Statement and opinion evidence which was outside her area of expertise.

It was clear to the Tribunal that the content of her Witness Statement spoke to having not received an Environmental Impact Statement and opinion evidence which was not relevant.

“Euken Lui”

EUKEN LUI 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.

ISSUE DATE:

November 17, 2023

CASE NO(S).:

OLT-22-004092

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant:

Claybar Road Holdings Inc.

Subject:

Consent – Conditions of Provisional Consent

Description:

To sever a lot addition and appeal conditions associated with the approval

Reference Number:

AN/B-22:38

Property Address:

1620 Claybar Road

Municipality:

City of Hamilton

OLT Case No.:

OLT-22-004092

OLT Lead Case No.:

OLT-22-004092

OLT Case Name:

Claybar Road Holdings Inc. v. Hamilton (City)

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

Applicant/Appellant:

Claybar Road Holdings Inc.

Subject:

Site Plan

Description:

To facilitate the development of six two-storey office/employment buildings

Reference Number:

DA-22-127

Property Address:

1620 Claybar Road

Municipality:

City of Hamilton

OLT Case No.:

OLT-22-004675

OLT Lead Case No.:

OLT-22-004092

Heard:

April 20-21, 2023, by video September 22, 2023, closing submissions deadline for written closing submissions with the Tribunal

APPEARANCES:

Parties

Counsel

Claybar Road Holdings Inc.

D. Baker

City of Hamilton

R. McVean

DECISION DELIVERED BY D. CHIPMAN AND GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

Link to Order

1Claybar Road Holdings Inc. (“Claybar”) submitted two applications to the City of Hamilton (“City”). The first application is a Consent Application to sever a portion of the property located at 1620 Claybar Road to merge with the neighbouring lot at 1624 Claybar Road. The second is a Site Plan Application for the merged properties. The City’s Committee of Adjustment approved the Consent Application, in part. The Consent Application conditions 3,5,6,7 and 8 were subsequently appealed to the Tribunal pursuant to s. 53(19) of the Planning Act (“Act”), on June 24, 2022. The Site Plan Application was appealed pursuant to s. 41(12) of the Act based on the City’s failure to make a decision on the Application within the statutory timeframe. These matters have been consolidated for this hearing.

2The Panel is tasked with, considering the planning merits of the Consent and Conditions of Consent in this appeal.

3This hearing was scheduled for two days. After opening remarks, the Parties requested that the Panel stand down to allow time to resolve the issues surrounding the Conditions of Consent. The Tribunal was subsequently advised that the Conditions of Consent had been modified resulting in an agreement between the Appellant and the City. The Tribunal will in the paragraphs that follow, examine the planning merits of the agreed Conditions of Consent and the Consent itself.

[4] The Tribunal received two separate requests for the extension of time to allow for written closings to be made on the Site Plan Application as requested by the City and to enable the Applicant and City to continue discussions with the possibility of a resolution of all conditions pertaining to the Site Plan Appeal.

ISSUE

5Since the Hearing of April 2023, the Parties have acknowledged that they are seeking approval of two conditions which remain in dispute. The two conditions that remain in dispute are Special Condition 7 and Special Condition 8. The Panel will determine whether Special Condition 7 and Special Condition 8 are to be part of the overall Conditions of Site Plan as requested by the City or if the two remaining conditions should be included at the construction management phase of the development as per the Appellant.

SITE CONTEXT AND PROPOSED DEVELOPMENT

6The property at 1620 Claybar Road (the “Subject Property”) is located on the eastern terminus of Claybar Road, east of Trinity Road South. It is located within an employment area of the City of Hamilton. The Subject Property is an irregularly shaped lot with 30.48 metres (“m”) of frontage on Claybar Road. The Subject Property has a lot area of 33,789.27 square metres (“m2”). The Subject Site is currently vacant and was previously used for outdoor storage.

7The lands to be severed have 30.48 m of frontage on Claybar Road and are 30,351.55 m2 in area. The lands to be retained have 45.72 m of frontage on Claybar Road and are 3,437.72 m2 in area. The Subject Site is accessed through a single driveway off Claybar Rd.

[8] The proposed development contemplates 4,212.16 m2 of office (Industrial) and 8,950.84 m2 of warehousing and storage units (Commercial), totalling 13,163 m of employment use across 62 units. A total of 194 parking spaces will be provided, including three accessible spaces and six bicycle parking spaces with a proposed lot coverage of 29.4%.

PLANNING CONTEXT

9The Tribunal qualified Paul Demczak, a Registered Professional Planner, to provide opinion evidence as an expert in land use planning and Matt Stairs, a Civil Engineer, to provide opinion evidence as an expert in Civil Engineering on behalf of the Appellant.

10On behalf of the City, the Tribunal qualified Aman Hansra, GIS Technician and Planning Technician, who stated he is a Candidate Member of the Canadian Association of Certified Planning Technicians and Zivko Panovski, Senior Project Manager, Engineering Design and Construction Engineer, to provide opinion evidence as an expert in Civil Engineering.

11The Tribunal heard arguments on the applicability of Ms. Melissa Kiddie’s, (Natural Heritage Planner) Witness Statement. It was clear to the Tribunal that the content of her Witness Statement spoke to having not received an Environmental Impact Statement and opinion evidence which was outside her expertise. The evidence presented by the Applicant clearly illustrated to the Tribunal that an Environmental Impact Study had been conducted and submitted to the City. The Panel after consideration, struck the Witness Statement of Ms. Kiddie from the evidence.

12The Tribunal received the following documents which were marked as Exhibits:

1. Applicant/Appellant Document Book (Witness Statements included)
2. City Document Book
3. Witness Statement Of Aman Hansra, City,
4. Witness Statements of Zivko Panovski, City
5. City Document Book Addendum
6. New conditions on Consent. – April 20

PLANNING EVIDENCE

Consent Appeal – s. 53 (19) of the Act

13Having provided the Parties time to resolve their issues relating to the conditions, the Tribunal was furnished with a revised list of six (6) Conditions that were submitted on April 20, 2023, as an agreeable solution by both Parties. The planning merits of the six conditions were explained in detail by Mr. Demczak.

14The Panel heard the Consent to sever a portion of the Subject Property to merge with the adjacent property at 1624 Claybar Road. No new lots or development are proposed; the consent is simply required for a lot adjustment. The Panel heard the consent to sever meets the relevant criteria in s. 51(24) of the Act. Vehicle access to the retained lands is maintained at the terminus of Claybar Road.

15Mr. Demczak opined that the proposal contributes to the orderly development of safe and healthy communities and to the adequate provision of employment opportunities. The severed portion of lands will provide for additional employment expansion to the adjacent lands, and the retained parcel is intended to be developed through the associated Site Plan Application.

16The proposed Consent is located in an existing employment area. The division of the Subject Property aligns with the employment needs of the landowners and does not negatively impact the lot characteristics of the surrounding area, is not premature and is in the public interest.

17The proposal will result in additional employment uses on the adjacent lands at 1624 Claybar Road and adequate land area for the balance of 1620 Claybar Road which is to be developed through the associated Site Plan Application. The proposal is consistent with the land use patterns in this area, that effectively results in an efficient use of the land and infrastructure as per the policy direction of the Growth Plan (“GP”) and Provincial Policy Statement (“PPS”).

Urban Hamilton Official Plan (“UHOP”)

18The Subject Property is designated “Employment Area” as per Schedule E of the UHOP. Policy E. 5.4.3. The following uses shall be permitted on lands designated Employment Area - Business Park on Schedule E-1 - Urban Land Use Designations:

i. manufacturing, warehousing, repair service, building or contracting supply establishments, building and lumber supply establishments, transportation terminals, research and development, office, communication establishment, and private power generation. Salvage yards and other uses which are unsightly or otherwise incompatible with the design policies and image for business parks shall be prohibited;

iii. ancillary uses which primarily support businesses and employees within business parks, including hotels, health and recreational facilities, financial establishments, restaurants, personal services, motor vehicle service stations and washing, retail establishments, and commercial parking facilities.

19Policy F. 1.14.3.6. Minor lot line adjustments shall be permitted provided there is no increased fragmentation of a core area and the adjustments do not conflict with intent of the policies of this Plan.

[20] Mr. Demczak opined the proposed severed lot contains existing industrial buildings to which no changes are proposed through the application. Both lots have frontage on a municipal road. The lots are compatible with the surrounding neighbourhood and maintain the intent of the UHOP.

Zoning By-law

21The Subject Property is zoned “General Business Park” (M2 Exception 678) in the Hamilton Zoning By-law No. 05-200 which permits a range of industrial uses, and manufacturing/warehousing uses accessory thereto, are permitted in accordance with the applicable provisions.

22Mr. Demczak opined that the dimensions of the severed and retained lots meet the minimum required width and area of the M2 Zoning Provisions, are compatible with the surrounding neighbourhood and conform to the Zoning By-law No. 41. On the retained portion of the subject lands, six development blocks comprising 62 warehouse/employment condominium units with a total floor area of up to 13,149 m2 are contemplated. The proposed buildings are two storeys in height with a total of 194 proposed parking spaces. The site incorporates looped road access as well as landscape buffering which conforms to the Zoning By-law. The site will be serviced by private waste collection. The lots are compatible with surrounding industrial area and maintain the intent of the Zoning By-law. The lot offers sufficient space for outdoor storage without any kind of principle building.

23A very small portion of the lands adjacent to the north is zoned “Conservation/Hazard Lands” (P5). The P5 zone only permits: Conservation, Flood and Erosion Control Facilities and Recreation, Passive uses. This Mr. Demczak opined, will not impede on the use of retained or severed lot nor will there be any negative impacts on the Conservation/Hazard Lands.

[24] The Tribunal heard that adequate municipal utilities and services are available to the proposed severed lot and the retained lot through Condition 5 of the Revised Consent Conditions (“Revised Conditions”), which ensures the installation of the municipal sanitary sewer and watermain on Claybar Road, from Trinity Road South to the east terminus of the street, to provide for adequate municipal services for development on the severed portion of the property.

25The Panel heard that Condition 6 provides for the necessary transfer document to establish a 9 m wide storm sewer easement, from the west property line adjacent to Claybar Road to the east property line, and a 4.5 m wide storm sewer easement adjacent to the east property line in favour of the City and will be registered at the owner’s costs.

Findings on the Consent Application, containing the Revised Conditions

26The Panel finds the Consent including the six Revised Conditions is suitable for the site for the purposes for which it is being subdivided. The proposed lot size is consistent with the size and lot pattern in the local context, and the proposed employment buildings are designed and scaled to fit appropriately within the local employment context and have regard for relevant policies as set out in the UHOP.

27The Panel in hearing the planning evidence in support of the Revised Conditions finds that the Consent represents good planning, are reasonable and appropriate.

[28] The Panel is satisfied that the approval of the proposed provisional Consent including conditions, is consistent with the PPS and conforms to such Provincial Plans that may be applicable, which in this case is the GP.

SITE PLAN

29The Panel turned to the Site Plan Application. The retained portion will be developed into six development blocks comprising 62 warehouse/employment condominium units with a total floor area of up to 13,149 m2 are contemplated. The site incorporates looped road access as well as landscape buffering which conforms to the Zoning By-law. The site will be serviced by private waste collection.

30The purpose of Site Plan Control is to ensure that the site functions appropriately to limit negative on-site impacts and secure attractive, functional design in accordance with the zoning by-law permissions for the Subject Property.

31Mr. Demczak opined that the proposed Site Plan Approval and the proposed conditions of Site Plan Approval, are appropriate and reasonable and within the jurisdiction granted under the Planning Act. He stated the proposed development would intensify employment uses, implement an efficient land use pattern close to employment uses and use existing municipal infrastructure.

32Mr. Demczak opined that the proposed Site Plan Application conforms with the UHOP as it would facilitate development in an Employment Area using existing services and infrastructure and would increase employment opportunities without causing adverse effects on the Conservation/Hazardous lands abutting the Subject Property.

33The proposed development would increase employment density, provide a built form and building height that is appropriate for the area, and reduce surface parking on the Subject Property. The proposed uses are permitted and would fit well in the existing site context and would be a positive development for the community.

34The Panel heard the following UHOP Policies which are relevant to the Site Plan Application: E.5.4.7 Employment Area – Business Park on Schedule E-1 – Urban Land Use Designations:

a) New development and redevelopment of existing sites shall contribute to a quality image for the business park by incorporating quality building and landscaping designs in those areas adjacent to and visible from public roads, and by complementing the landscape qualities of adjacent sites.

b) Outdoor storage and assembly areas, loading areas, and larger parking areas shall generally be located at the sides or rear of buildings, away from public roads, and shall be screened from view of the roads and adjacent properties, with appropriate landscaping or fencing.

c) Prestige business park uses, such as offices or industrial administrative offices, are required to achieve higher design standards when within view of an arterial road such as Stone Church Road, Rymal Road, Upper Red Hill Valley Parkway, Garner Road, north and south of Highway 2, and other Provincial Highways, in order to further promote and enhance the image of the business park and the City.

d) A range of compatible employment uses shall be encouraged to locate adjacent to lands designated Neighbourhoods, Institutional or Commercial and Mixed Use. Outdoor storage, assembly and loading areas shall be appropriately located and buffered from these adjacent lands.

35The proposed development incorporates architecture and landscape design which compliments the business park uses on Claybar Road and adjacent sites. Outdoor storage and assembly areas, loading areas, and parking areas are proposed to be located at the sides or rear of buildings, away from public roads, and are generally screened from view of the roads and adjacent properties, with appropriate landscaping or fencing.

36The proposed Site Plan Approval complies with the provisions in s. 41 of the Act, represents good planning and is in the public interest. In formulating his opinion, Mr. Demczak stated that he has had regard to the matters of provincial interest set out in s. 2 of the Act.

OUTSTANDING CONDITIONS OF SITE PLAN APPROVAL

[37] After hearing the testimony of the experts during the two-day hearing and having supplied the Parties ample time to resolve these issues, the Panel must now determine whether Special Conditions 7 & 8, meet the relevant criteria set out in s. 41(4) and s. 41(7) of the Act and are to be included as conditions of Site Plan Approval :

PRIOR TO THE APPLICATION FOR ANY BUILDING PERMITS

[38] Special Condition 7: That the Owner submits a technical memorandum prepared by a qualified professional (P. Eng, P. Geo) which provides a written record of their proposed monitoring and contingency plan that outlines their protocol for action in case construction activities impact private wells nearby to the satisfaction of the Director of Hamilton Water.

39Special Condition 8: That in case dewatering is required for the proposed construction activities, the Owner agrees to submit a water well monitoring program on the adjacent properties prepared by a qualified professional and to the satisfaction of the Director, Hamilton Water.

Legislative Framework

40The Panel’s jurisdiction to provide a determination on the Site Plan and the content of the conditions is determined by s. 41(12): “The Tribunal shall hear and determine the matter in issue and determine the details of the plans or drawings and determine the requirements, including the provisions of any agreement required.”

41The specific Conditions that this Panel must consider are contained in s. 41(7) of the Act, which specifically states:

Conditions to approval of plans

(7) As a condition to the approval of the plans and drawings referred to in subsection (4), a municipality may require the owner of the land to,

(a) provide to the satisfaction of and at no expense to the municipality any or all of the following:

1. Subject to the provisions of subsections (8) and (9), widenings of highways that abut on the land.

2. Subject to the Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings and traffic direction signs.

3. Off-street vehicular loading and parking facilities, either covered or uncovered, access driveways, including driveways for emergency vehicles, and the surfacing of such areas and driveways.

4. Walkways and walkway ramps, including the surfacing thereof, and all other means of pedestrian access.

4.1 Facilities designed to have regard for accessibility for persons with disabilities.

5. Facilities for the lighting, including floodlighting, of the land or of any buildings or structures thereon.

6. Walls, fences, hedges, trees, shrubs or other groundcover or facilities for the landscaping of the lands or the protection of adjoining lands.

7. Vaults, central storage and collection areas and other facilities and enclosures for the storage of garbage and other waste material.

8. Easements conveyed to the municipality for the construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities of the municipality or local board thereof on the land.

9. Grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water from the land and from any buildings or structures thereon;

(b) maintain to the satisfaction of the municipality and at the sole risk and expense of the owner any or all of the facilities or works mentioned in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of clause (a), including the removal of snow from access ramps and driveways, parking and loading areas and walkways;

(c) enter into one or more agreements with the municipality dealing with and ensuring the provision of any or all of the facilities, works or matters mentioned in clause (a) or (d) and the maintenance thereof as mentioned in clause (b) or with the provision and approval of the plans and drawings referred to in subsection (4);

(c.1) enter into one or more agreements with the municipality ensuring that development proceeds in accordance with the plans and drawings approved under subsection (4);

(d) subject to subsection (9.1), convey part of the land to the municipality to the satisfaction of and at no expense to the municipality for a public transit right of way. R.S.O. 1990, c. P.13,

s. 41 (7); 1996, c. 4, s. 24 (1, 2); 2006, c. 23, s. 16 (6, 7).

42Both Parties have agreed that this case stands for the principle that s. 41(7) provides a finite list of the types of conditions that can be imposed on the Site Plan and that Conditions not authorized by this section can only be imposed where there is agreement between the Parties.

43It was noted in final submissions the revised wording of Special Condition 6 submitted by both Parties, as a previously contentious issue, has now been resolved.

Appellant’s Position

44Ms. Baker directed the Panel to the Act and emphasized that the Act allows for an appeal of both the failure to approve the plans and drawings as well as allowing an appeal with respect to the conditions under s. 41(7) of the Act. In this case, the appeal deals with both of those elements.

45Ms. Baker stated the City sees Special Conditions 7 & 8 as flowing from s. 41(7) paragraph 9. Ms. Baker pointed out that this section deals with, inter alia, on-site servicing. In this regard, she contended that the City’s interpretation of paragraph 9 was ill-placed as the City is requesting servicing conditions that are, with respect to off-site works namely on other people’s private property.

46Section 41(7) paragraph 9 reads:

As a condition to the approval of the plans and drawings referred to in subsection (4), a municipality may require the owner of the land to, (a) provide to the satisfaction of and at no expense to the municipality any or all of the following:

9. Grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and wastewater from the land and from any buildings or structures thereon;

[47] Ms. Baker stated that the City is asking the Tribunal to read into s. 41(7) paragraph 9, the intent of Special Conditions 7 & 8 as being applicable to the provision of services outlined in this section. She drew the Tribunal’s attention to s. 41 (7)(9) and stated that Special Conditions 7 & 8, which include well monitoring on off site properties, is clearly not articulated within this section. She further added that the City is attempting to have the Tribunal approve words that are simply not there. She opined that under s. 41(7) the conditions are deemed to be restrictive, and a fulsome list of conditions meant to be met. A plain reading of Special Conditions 7 & 8 proposes to deal with construction activities that do not deal with the disposal of storm, surface, and wastewater from the land and of which, in fact pertain to private lands offsite.

48Ms. Baker referred to Reynolds, Re, 2012 CarswellOnt 15612 where the Ontario Municipal Board found that s. 41(7) provides a finite list of the types of conditions that can be imposed through this section. She stated that, unlike s. 51(25), b) and c), in the case of a plan of subdivision, which allow an approval authority to impose, as a condition of plan of subdivision approval, conditions to a plan of subdivision that in the opinion of the approval authority are reasonable. Section 41(7) she emphasized does not include wording that provides such flexibility for municipalities to impose other types of conditions.

49She noted that conditions that may not be specifically permitted may only be imposed where there is the agreement of the Parties. Absent consent, municipalities are limited to the finite list of conditions provided in s. 41(7) the results of which, Special Conditions 7 & 8 remain outside of what the Act permits a municipality to condition through the Site Plan process.

City’s Position

50The City indicated that the Conditions are incidental and necessary to the completion of Special Conditions 5 and 6 which speak to the Owner entering into an Agreements with the City on the installation of municipal sanitary and watermain along with a storm sewer easement to be installed at the owner’s cost in order to avoid negative impacts on neighbouring properties. It was emphasized that Special Conditions 7 & 8 do not require significant financial contribution, rather they require a technical memorandum outlining monitoring and contingency planning for private wells, and if dewatering is required, through a well monitoring program.

51Ms. McVean in her submission stated that the purpose of Special Conditions 7 & 8 is to avoid and address the potential risk of impacts to any neighbouring properties that may have private wells within proximity of the required works at no cost to the City.

[52] She outlined that, pursuant to s. 41(7)(9) of the Act, a municipality may require as a condition of approval of drawings that the owner of the land provide “to the satisfaction of and at no expense to the municipality” the “provision for the disposal of storm, surface and wastewater from the land.”

[53] Ms. McVean stated there is no dispute that this case stands for the principle that s. 41(7) provides a finite list of the types of conditions that can be imposed on the Site Plan and that conditions not authorized by this section can only be imposed where there is agreement between the Parties, however, she stated it is the City’s position, that Special Conditions 7 & 8 do fall within the finite list of conditions under s. 41(7) since they pertain to the provision of services to the Subject Property.

54Ms. McVean drew attention to Burger King Restaurants of Canada Inc. v. Markham (Town), 2000 CarswellOnt 2501, where the Ontario Municipal Board recognized the limited ability of the legislature to draft provisions that capture the full range of conditions authorized given the dynamic and complex nature of planning. In its reasons, the Board provided insight into how and why s. 41(7) should be liberally interpreted to give the provision its intended full force and effect.

[55] Ms. McVean stated that the Board considered a condition imposed by the municipality that required the payment of the construction of a recently built road. The Board held that the impugned condition related to the conditions listed under s. 41(7)(a)(1) and (2), as well as the authority vested with the municipality under s. 41(7)(c) to execute agreements so that the provision of facilities be “provided for and looked after, financially or otherwise”. In this case, the Board held that the impugned condition fell within the “pith and substance” of the subsections and was therefore within the authority of the municipality and was approved by the Tribunal under s. 41(7).

56Ms. McVean relied on this case to emphasize Special Conditions 7 & 8 are within the authority of s. 41(7) since they are (i) consistent with the pith and substance of the provision and (ii) are reasonable.

[57] Ms. McVean explained the proposed development requires that the Appellant excavate portions of the Subject Property and Claybar Road to a depth of approximately 4 m for the provision of storm and sanitary services needed to facilitate the development. Special Conditions 7 & 8 aim to avoid and address the potential risk of impacts to any neighbouring properties that may have private wells within proximity of the required works. In other words, these conditions are incidental and necessary to the completion of Special Conditions 5 & 6 and are intended to avoid negative impacts on neighbouring properties as a result of the Appellant’s development, at no cost to the City. Pursuant to s. 41(7)(9) of the Act, a municipality may require as a condition of approval of drawings that the owner of the land provide “to the satisfaction of and at no expense to the municipality” the “provision for the disposal of storm, surface and wastewater from the land.”

58Ms. McVean referred to Melrose Investments Inc. v. Oakville (Town), 2021 CarswellOnt 15911, where the Ontario Land Tribunal made the following observations with respect to the purpose of the Site Plan:

Site Planning is meant to ensure development is designed to be functional and compatible with the surrounding area, balancing the needs of the development and its users with the need of the neighbouring property owners and the general public.

59The City stated that well monitoring and contingency planning is a balancing of the need of the development for servicing, with the needs of the neighbouring properties to protect their private wells from impacts of the Appellant’s development.

60The City provided the following cases for the consideration of the Panel, Douglas Macdonald Development Corp. v. City of Gloucester, 1986 CarswellOnt 3156,6 and First City Shopping Centre Group et al. v. City of Gloucester, 1990 CarswellOnt 37967. Ms. McVean highlighted that the Board found that the impugned conditions were not authorized under the Act because they: (i) required significant financial contribution from the applicant; (ii) that the conditions pertained to works well beyond the limits of the Subject Property; and (iii) were conditions that would benefit other properties.

[61] In providing this example, she explained under (i), that the City is not asking for a significant financial contribution, rather they are requiring a technical memorandum outlining contingency planning for private wells, and if dewatering is required, a well monitoring program. In response to (iii) in this case the City is looking to avoid negative impacts to these properties as a result of the Appellant’s development and to ensure these costs of development are not assumed by the City and taxpayers. The City stated that these conditions are also to the benefit of the Appellant as it is in their interest to avoid contaminating or cutting off the water supplied to a private well during the works undertaken to service their development.

CONCLUSION

Consent

62The Panel accepts the evidence and opinion of Messrs. Demczak and Stairs and finds that the Consent Application with the Conditions of Consent as set out in this Order, warrant approval.

[63] The Panel finds that the proposed consent meets the criteria as set out in s. 51(24), (b) and (d), of the Act.

64The Panel finds the Consent Application is not premature, is suitable for the lands and is in the public interest.

Site Plan

65The Panel having heard a significant amount of evidence on the nature of the disputed conditions from both Counsel, as well as the planning evidence on whether or not Special Conditions 7 & 8 should be included in the Conditions of Site Plan, accepts the evidence and opinions of Messrs. Demczak and Stairs that the Site Plan Application and the related drawings warrant approval subject to the Conditions set out in Attachment 1 to this Decision.

66The Panel finds that the interests of the City directly related to Special Conditions 5 & 6, which speak to the External Works Agreements and an easement for storm sewers, have been adequately addressed in the agreed Conditions of Consent by the Parties on consent, therefore the City’s argument of having Special Conditions 7 & 8 included to complete the effect of Special Conditions 5 & 6 is moot.

67The Panel has considered all evidence presented and remains unconvinced that Special Conditions 7 & 8 should be included as Conditions of Site Plan as they do not deal with the technical details of the site, instead they are better placed within the construction management process as they are intended to minimize potential problems, ensure a safe and positive public experience with development related construction activities.

68Although the City asked the Panel to rely on a liberal reading of s. 41(7) to substantiate the City’s desire to include Special Conditions 7 & 8 within the Site Plan, it is this Panel’s finding that s. 41, even under a liberal reading, does not speak to construction management processes which define the steps that will be taken to mitigate the impact of construction and set out how construction will proceed to minimize the impacts associated with the construction project.

69The Panel examined the following decisions referred by the City for consideration: Douglas Macdonald Development Corp. v. City of Gloucester, 1986 CarswellOnt 3156,6 and First City Shopping Centre Group et al. v. City of Gloucester, 1990 CarswellOnt 37967. In each of these cases the Board found that “(ii) the conditions pertained to works well beyond the limits of the Subject Property” and were therefore not authorized under the Act. It is the findings of this Panel that the City does not have jurisdiction to impose Special Conditions 7 & 8 as part of the Conditions of Site Plan under s. 41 as the direction of those Conditions pertains to work outside of the perimeters of the Subject Property.

[70] The Panel, based on the review of the plans and evidence provided by the expert witnesses, finds that the Site Plan drawings as set out, will not unduly and adversely impact the neighbouring wells and their functions. The Panel is satisfied that every reasonable effort has been made by the Applicant to protect the surrounding area through the construction process by means of a construction plan.

71The Panel finds the proposed Site Plan and Consent Application support the construction of warehouse/employment buildings on an underutilized, vacant parcel located within an existing employment subdivision in the City of Hamilton’s Urban Employment Area. The proposed lot size is consistent with the size and lot pattern in the local context, and the proposed employment buildings are designed and scaled to fit appropriately within the local employment context having regard for relevant policies.

72The Site Plan Application meets all of the requirements under the Act, is consistent with the PPS, and conforms to the GP and the requirements under s. 41 of the Act. The proposed Consent and Site Plan Applications before the Panel represent good planning, subject to the implementation of conditions that are reasonable and appropriate and permitted under the Act.

ORDER

73THE TRIBUNAL ORDERS that the appeal is allowed, in part, and that provisional consent is to be given subject to the following conditions:

1. The owner shall submit a deposited Ontario Land Surveyor’s Reference Plan to the Committee of Adjustment Office, unless exempted by the Land Registrar. The reference plan must be submitted in pdf and also submitted in CAD format, drawn at true scale and location and tied to the City of Hamilton corporate coordinate system. (Committee of Adjustment Section)

2. The owner shall pay any outstanding realty taxes and/or all other charges owing to the City Treasurer.

3. The lands to be conveyed/retained shall be merged in title with the lands to which they are to be added.

4. That the owner submits a payment (not a letter of credit) to the City for the future urbanization of Claybar Road based on a frontage of 30.48 metres at the “New Roads Urbanization Rates” in effect at the time of payment to be cleared by the Manager Engineering Approvals Section.

5. That, the owner enters into an External Works Agreement with the City of Hamilton to install municipal sanitary sewer and watermain on Claybar Road, from Trinity Road South to the east terminus of the street, to provide for adequate municipal services for development on the severed portion of the property, to satisfaction of the Manager Engineering Approvals Section.

6. That the owner completes the necessary transfer document to establish a 9 metre-wide storm sewer easement, from the west property line adjacent to Claybar Road to the east property line, and a 4.5 metre-wide storm sewer easement adjacent to the east property line in favour of the City of Hamilton at 100 percent the owner’s costs, to be cleared by the Manager Engineering Approvals Section.

74THE TRIBUNAL ORDERS that the Appeal pursuant to s.41, is allowed, and the Site Plan, Attachment 2, and related drawings Attachments 3 and 4 prepared by Chamberlain Architect Services Limited dated October 10, 2021, are approved, subject to the Conditions set out as Attachment 1.

75THE TRIBUNAL ORDERS that the City of Hamilton remains the approval authority for clearing the conditions of Site Plan.

76The Members are seized and may be spoken to should any matters arise respecting the implementation of this Order.

“D. Chipman”

D.CHIPMAN MEMBER

“Gregory J. Ingram”

GREGORY J. INGRAM

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.