Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 27, 2023
CASE NO(S).: OLT-22-004850
PROCEEDING COMMENCED UNDER section 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Wasser and Yassim Philobes
Subject: Proposed Official Plan Amendment
Description: To permit the redevelopment of the Subject Property to a 4-storey residential building with 74 units
Reference Number: COPA2020-0003; PLN 41.4
Property Address: 1467 Prestonvale Road
Municipality: Municipality of Clarington/Durham
OLT Case No: OLT-22-004850
OLT Lead Case No: OLT-22-004850
OLT Case Name: Philobes v. Clarington (Municipality)
Heard: April 12, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Wasser and Yassim Philobes | A. Stewart |
| Municipality of Clarington | R. Maciver |
| Regional Municipality of Durham | R. Woon |
| Southwest Courtice Landowners Group | C. Barnett |
MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST AND BRYAN W. TUCKEY ON APRIL 12, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was conducted in the appeal by Wasser and Yassim Philobes (the “Applicants”) of the decision of the Regional Municipality of Durham (the “Region”) to approve, subject to modifications, non-decisions, and a refusal, Official Plan Amendment No. 125 (“OPA 125”) to the Municipality of Clarington (the “Municipality”) Official Plan. OPA 125 creates a planning framework for the Bayview Village Secondary Plan area in southwest Courtice (“the Secondary Plan Area”)
2The proposed redevelopment of 1467 Prestonvale Rd. (“Subject Property”) is a four-storey residential building with 74 units and an access driveway from Prestonvale Rd. The proposal includes the preservation of the existing heritage house and its relocation on the Site closer to the street. The heritage house would be repurposed and preserved with increased prominence and visibility, making it a landmark building that would be highly visible to the travelling public. Parking would be provided in surface and underground parking facilities.
3The Subject Property is located on the east side of Prestonvale Rd. south of Bloor St. It has an existing frontage of 74.1 metres (“m”), a depth of 76.7 m, and is 5,776 square metres “(m2”) in area. The site contains an existing detached dwelling, which is designated under Part IV of the Ontario Heritage Act. The existing dwelling was constructed circa 1860 and is identified as a fine example of a Gothic centre gable farmhouse built of coursed fieldstone. The Applicants intend to retain the existing heritage dwelling and incorporate it into the redevelopment of the site.
4The proposed development would have a gross floor area of 8,359.47 m2, with an overall Floor Space Index of 1.45 times the lot area. The submitted development concept would be refined through the zoning by-law amendment and site plan approval process.
5The Affidavit of Service of Alexander Harras, sworn March 10, 2023, affirming compliance with respect to the Directions as to service of the Notice of this Case Management Conference, was marked as Exhibit 1 to the CMC.
PRELIMINARY MATTERS
6Mr. Barnett, counsel for the Southwest Courtice Landowners Group, requested Party status on behalf of the Southwest Courtice Landowners Group. All parties consented to this request.
7The Tribunal finds that the request satisfies the necessary applicable legislative tests and its presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding” (Rule 8.2 -Ontario Land Tribunal – Rules of Practice and Procedure) and there is no prejudice to any other Party. Therefore, the Tribunal grants Party status to the Southwest Courtice Landowners Group to these proceedings.
8There were no requests for Participant status received.
ISSUES BEFORE THE TRIBUNAL
9Mr. Maciver, counsel for the Municipality, presented an overview of OPA 125 which is to create a planning framework that will facilitate the development of a complete community in the Bayview Secondary Plan area, both in the already built neighbourhood to the north, and in the unbuilt area to the south. OPA 125 complements the Official Plan principle of promoting higher densities and a mix of uses in the north and the principle of promoting a diversity of housing types and tenures in the south, as well as promoting sustainable design throughout the Secondary Plan area.
10Mr. Maciver submits that OPA 125 is consistent with the policy statements issued under subsection 3(1) of the Planning Act, conforms with and does not conflict with applicable Provincial interests.
11The submission of Mr. Maciver was uncontested by the Parties.
12Mr. Barnett submitted that the appeal filed is invalid, as no oral or written submissions by the Applicants were made to the Municipality of Clarington Council prior to adoption of OPA 125. This is a statutory pre-condition for the filing of an appeal under subsection 17(36) of the Planning Act. In the absence of submissions prior to adoption, there is no right of appeal. Mr. Barnett advised this position is based on the understanding of the public record that exists in relation to the consideration of OPA 125.
13The submission of Mr. Barnett was confirmed by Mr. Maciver and by Mr. Woon, counsel for the Region.
14Ms. Stewart, counsel for the Applicants, concurred with the factual circumstances submitted by Mr. Barnett. Ms. Stewart opined that an interpretation of subsection 17(36) of the Planning Act is required.
ANALYSIS AND FINDINGS
15A core issue before the Tribunal is to determine if a valid appeal exists and therefore if the Tribunal has statutory authority to adjudicate on specific matters presented by the Appellant.
16Subsection 17(36) of the Planning Act provides a clear starting point in the determination of a valid appeal before the Tribunal:
Appeal to Tribunal
(36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Tribunal by filing a notice of appeal with the approval authority:
A person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.
The Minister.
In the case of a request to amend the plan, the person or public body that made the request. 2006, c. 23, s. 9 (6); 2017, c. 23, Sched. 5, s. 80.
17It is uncontested that the Appellants did not make oral submissions at a public meeting or written submissions to Clarington Council prior to OPA 125 being adopted.
18The Tribunal is in receipt of sworn declarations from the Municipality indicating that they are not in receipt of any correspondence on record from the Appellants nor that they are not in receipt of any record of oral submissions made by the Appellants to Clarington Council with respect to the subject matter.
19There is no flexibility for the Tribunal in the interpretation of the Planning Act. In this circumstance it is evident that the Appellants failed to adhere to the statutory requirements to proceed with an appeal to the Tribunal.
20The Tribunal is in agreement that the appeal before the Tribunal is invalid.
21Accordingly, the Tribunal finds it does not have the jurisdiction to hear this appeal.
ORDER
22Accordingly, THE TRIBUNAL ORDERS that the appeal is dismissed.
“W. Daniel Best”
W. Daniel BEST
MEMBER
“Bryan W. Tuckey”
Bryan w. tuckey
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.