Northgate Land Corp. v. Waterloo (Region), 2023 CanLII 50968

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 09, 2023

CASE NO(S).:

OLT-22-002321

(Formerly PL130028)

OLT-22-002327

(Formerly PL180119)

OLT-22-002314

(Formerly PL180121)

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Northgate Land Corp.

Subject:

Proposed Official Plan Amendment

Municipality:

City of Waterloo

OLT Case No.:

OLT-22-002321

Legacy Case No.:

PL130028

OLT File No.:

OLT-22-002321

Legacy File No.:

PL130028

OLT Case Name:

Northgate v. Waterloo (Region)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

1017081 Ontario Limited

Subject:

Proposed Plan of Subdivision – Failure of the Region of Waterloo to make a decision

Property Address/Description:

Part of Lot 28 GERMAN COMPANY TRACT (Plan 58R et. al.

Municipality:

Region of Waterloo

Municipality File No.:

30T-17401

OLT Case No.:

OLT-22-002327

Legacy Case No.

PL180119

OLT File No.

OLT-22-002327

Legacy File No.:

PL180119

OLT Case Name:

1017081 Ontario Ltd. v. Waterloo (Region)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

1017081 Ontario Ltd.

Subject:

Proposed Plan of Subdivision – Failure the Region of Waterloo to make a decision

Purpose:

To permit the creation of a new residential neighbourhood with parks and protected open space

Property Address/Description:

Part of Lot 28 GERMAN COMPANY TRACT (Plan 58R et. al.)

Municipality:

Region of Waterloo

Municipality File No.:

30CDM-17409

OLT Case No.:

OLT-22-002327

Legacy Case No.:

PL180119

OLT File No.:

OLT-22-002330

Legacy File No.:

PL180120

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

Applicant and Appellant:

Gabriel Groff and 1017081 Ontario Ltd.

Subject:

Application to amend Zoning By-law No. 1418 (now, Zoning By-law No. 2018-50) – Neglect of the City of Waterloo to make a decision

Existing Zoning:

“Agricultural (A)”

Proposed Zoning:

"G 1 - Green 1- Environmental"; "G2 - Green 2 - Parks and Other Municipal Facilities"; "FR - Flexible Residential"; "MD3 - Medium Density 3"; "MR6 - Multiple Residential - Six"; "MXR - Mixed use residential", "SD - semi-detached"

Purpose:

To permit the development of 614 - 835 dwelling units, including single-detached dwellings, street fronting town houses, multiple residential blocks and mixed use development

Property Address/Description:

S/W Corner of Conservation Dr. & Beaver Creek Rd.

Municipality:

City of Waterloo

Municipality File No.:

Z-17-14

OLT Case No.:

OLT-22-002327

Legacy Case No.:

PL180119

OLT File No.:

OLT-22-002328

Legacy File No.:

PL171494

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

1455136 Ontario Limited

Subject:

Proposed Plan of Subdivision – Failure of the Region of Waterloo to make a decision

Purpose:

To permit the creation of a new residential neighbourhood with parks and protected open space

Property Address/Description:

Part Of Lot 28 GERMAN COMPANY TRACT

Municipality:

Region of Waterloo

Municipality File No.:

30T-17402

OLT Case No.:

OLT-22-002314

Legacy Case No.:

PL180121

OLT File No.:

OLT-22-002314

Legacy File No.:

PL180121

OLT Case Name:

1455136 Ontario Ltd. v. Waterloo (Region)

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

1455136 Ontario Limited

Subject:

Proposed Plan of Subdivision – Failure of the Region of Waterloo to make a decision

Purpose:

To permit the creation of a new residential neighbourhood with parks and protected open space

Property Address/Description:

Part of Lot 28 GERMAN COMPANY TRACT

Municipality:

Region of Waterloo

Municipality File No.:

30T-17410

OLT Case No.:

OLT-22-002314

Legacy Case No.:

PL180121

OLT File No.:

OLT-22-003784

Legacy File No.:

PL180122

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

Applicant and Appellant:

1455136 Ontario Limited

Subject:

Application to amend Zoning By-law 1418 – Neglect of the City of Waterloo to make a decision

Existing Zoning:

Agricultural ‘A’

Proposed Zoning:

“G 1 – Green 1 – Environmental”; “G2 – Green 2 – Parks and Other Municipal Facilities”, “FR – Flexible Residential”; “MD3 – Medium Density 3”, “MR6 – Multiple Residential – Six; MXR – Mixed use residential: ”SD – semi-detached”

Purpose:

To permit the creation of a new residential neighbourhood with parks and protected open space

Property Address/Description:

Part Of Lot 28 GERMAN COMPANY TRACT

Municipality:

City of Waterloo

Municipality File No.:

Z-17-15

OLT Case No.

OLT-22-002314

Legacy Case No:

PL180121

OLT File No.

OLT-22-003783

Legacy File No.:

PL171495

Heard:

October 3 to November 3, 2022, and February 1, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Northgate Land Corp. Gabriella Groff 1017081 Ontario Limited 1455136 Ontario Limited (“Appellants”)

Robert Howe Rodney Gill

City of Waterloo (“City”)

Steven O’Melia Susan Smith

Regional Municipality of Waterloo (“Region”)

Fiona McCrea

John Brohman

Eric Davis

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1These appeals relate to two parcels of land proposed for development by the four Appellants, Northgate Land Corp., Gabriella Groff, 1017081 Ontario Limited and 1455136 Ontario Limited; hereinafter collectively referred to as the “Appellants”. The larger eastern parcel, comprising the majority of the subject development, is owned by Gabriella Groff and 1017081 Ontario Limited. The western parcel, a comparatively narrow strip, is owned by 1455136 Ontario Limited. Northgate Land Corp. (“Northgate”) is the proposed developer and acted as ‘manager’ of the collective appeals.

2The Appellants are seeking approvals of the following planning instruments to facilitate the proposed development:

(a) Zoning By-law Amendment (“ZBA”);

(b) Draft Plans of Subdivision (“DPS”);

(c) Draft Plan of Vacant Land Condominium (“DPVLC”);

(d) and that the above approvals of DPSs and DPVLC (collectively hereinafter referred to as the “Draft Plans”) be subject to:

(i) the Region of Waterloo’s (“Region”) Draft Plans conditions; and

(ii) a revised version of the City’s Draft Plans conditions;

3In addition, if necessary to permit the proposed development, Northgate is pursuing modifications to parts of the 2012 Official Plan (“2012 OP”) for the City of Waterloo (“City”). This element of the present hearing arises from a separate appeal initiated by Northgate concerning the passing of the 2012 OP on a City-wide basis (the “OP Appeal”). The OP Appeal was subsequently consolidated with the present hearing’s site-specific ZBA and Draft Plans appeals.

4The Tribunal notes that the Appellants and the City were the main actively participating parties of the hearings. The Region attended throughout but did not significantly participate and generally took no position on the contentious issues between the Appellants and the City. Counsel for the individual party, John Brohman, attended the first day of the hearing but either did not attend or did not participate thereafter.

5Despite several weeks of hearing and thousands of pages of evidence and submissions, the Tribunal finds this case to be relatively straight forward. The principal question to consider is: should the Appellants be permitted to develop a 2.486 hectare (“ha”) ‘island’ of cleared land in the middle of a recognized Natural Heritage Feature and Area¹ (“NHFA”)? The Tribunal notes that, while the Appellants also contest a number of conditions of Draft Plans approval, the vast majority of evidence and time spent at the hearing was dedicated to this principal question.

6The contested ‘island’ of land became known throughout the proceedings as “Block 1 Stage 5” and it is illustrated below at Figure 1.² The surrounding NHFA (also referred to as “Block 2 Stage 5” in some evidence, and recognized as a “Core Natural Feature” pursuant to various relevant municipal policies), consists of approximately 16.884 ha and is generally illustrated in the below image as the wooded/vegetated areas surrounding Block 1 Stage 5.

Figure 1

7The Tribunal’s answer to the principal question is similarly straightforward: “no” because it is more likely than not that development of Block 1 Stage 5 will negatively impact the surrounding NHFA’s natural features or their ecological functions and, thus, a decision to allow such development would be inconsistent with policy 2.1 of the Provincial Policy Statement, 2020 (“PPS”), contrary to s. 3(5)(a) of the Planning Act (“Act”).

8It is noteworthy that the proposed development of Block 1 Stage 5 involves only 14 units of housing being proposed as part a much larger 775-1,112 unit residential development planned for the lands occupying the balance of the Appellants’ lands (generally illustrated in Figure 1 as the cleared areas surrounding the NHFA). The Tribunal notes that the proposed development of Block 1 Stage 5 necessitates construction of a raised private roadway and buried private services, to serve the 14 units, which would cut directly through the NHFA and/or lands immediately adjacent to it (shown in Figure 1 between the two white asterisks). It is the anticipated damages to the NHFA caused by said roadway that leads to the Tribunal’s decision to deny the planning instruments necessary to develop of Block 1 Stage 5.

9Significantly, the parties are not fundamentally opposed to the remainder of the proposed development, apart from some parkland dedication issues and a number of concerns raised by the Appellants regarding the City’s proposed conditions of Draft Plans approval.

10Similarly, the Tribunal generally accepts that the balance of the proposed development is policy-supported and should be permitted, contingent upon resolution of said parkland dedication issues and conditions of Draft Plans approval. The Tribunal emphasizes that, if the Appellants are not willing to convey more parkland to the City, then the Tribunal finds that the balance of the proposed development is not policy-supported on that specific basis. Presently, the parties have not provided the Tribunal with a satisfactory resolution to consider concerning this issue. As a result, the below Order is designed to provide the parties with an opportunity to further present a resolution on this and other issues prior to issuing a Final Order.

Parties’ witnesses

11The following are the parties’ respective witnesses, together with their areas of expertise as qualified by the Tribunal:

Appellants

• Trevor Hawkins Land Use Planning

• Jeff Martens Infrastructure Engineering, and Surface and Ground Water Management

• Ernie Polsom Fire Safety, Emergency Response, and Fire Risk Assessment

• David Stephenson Wildlife Ecology, Aboriculture, Environmental Impact Assessments, Natural Heritage System Delineation, Aerial Photography Interpretation (re: vegetation and wetland communities)

City

• Adam Lauder Land Use Planning

• Laura Dewar Land Use Planning

• Caroline Amyot Civil Engineering Municipal Infrastructure

• Robyn McMullen Environmental Land Use Planning

• Steven Hill Terrestrial Wildlife Ecology

Botany, Arboriculture, and Invasive Species

Environmental Impact Assessments

Natural Heritage System Assessment and Delineation

Aerial Photography and Interpretation as it relates to Woodlands and Environmental Features.

• Karl Konze Significant Wildlife Habitat Assessment

Wildlife Ecology

Natural Heritage System Delineation (incl. aerial photo interpretation)

Environmental Impact Assessment

• Richard Hepditch Emergency and Fire Response

Standard Operating Procedures (re: Emergency and Fire Response) within the City of Waterloo

• Jeff Silcox-Childs Parks and Woodlot Management Landscape Architecture

Analysis

Disposition of Northgate’s OP Appeal

12As noted above, Northgate’s OP appeal was consolidated with the Appellants’ site-specific ZBA and Draft Plans appeals.

13Of importance, the OP appeal is focused on interpreting “essential infrastructure” found at policy s. 8.2.4³ of the 2012 OP:

Core Natural Feature

(3) Development or site alteration will not be permitted within Core Natural Features, except for:

(c) essential infrastructure for which no other alternative is feasible and where crossings and the area of disturbance will be minimized;

14While it is not a defined term in the 2012 OP, Northgate takes the position that “essential infrastructure” may include private essential infrastructure, such as the proposed private roadway and buried services necessary to cut through the NHFA/adjacent lands to serve development of Block 1 Stage 5. The City, meanwhile, takes the position that “essential infrastructure”, in the context of the 2012 OP, necessarily excludes private infrastructure, and so the proposal to build a private roadway and buried services through the NHFA will consequently fail to conform with the 2012 OP, contrary to s. 24 of the Planning Act. On this basis alone, the City submits, Northgate cannot develop Block 1 Stage 5.

15As a result of the City’s position regarding the interpretation of “essential infrastructure”, Northgate submits that they are maintaining their appeal of the 2012 OP on a precautionary basis, in the event that the Tribunal agrees with the City’s interpretation. Put another way, Northgate’ OP Appeal is only necessary if the Tribunal accepts the City’s interpretation. For clarity, the Tribunal confirmed with Northgate that their OP appeal could be dismissed as unnecessary if the Tribunal accepts their interpretation of “essential infrastructure”.

16The Tribunal considered the interpretation of “essential infrastructure” in the context of the 2012 OP, read as a whole. The Tribunal further notes that the Region’s OP reference to “infrastructure” within its own “Core Environmental Features Policies” expressly includes “private roadways” as part of its “infrastructure” definition. Nevertheless, the Tribunal accepts that the City’s OP may be more restrictive than the Region’s OP.

17It is noteworthy that the City’s former OP expressly limited infrastructure that may pass through a Core Natural Feature to “public” services, which the Tribunal finds is reasonably interpreted as excluding private roads. The Tribunal further finds that the change in the OP language to remove the word “public” must reflect an intention to broaden what is permitted. On this point, the City contends that the change was only meant to avoid an interpretation which might unintentionally limit what they called “quasi-public infrastructure”, such as utilities, from potentially passing through a Core Natural Feature. The City remained adamant that the change was not intended to open the door to possibly allow all sorts of private infrastructure to pass through a Core Natural Feature, such as the Appellants’ proposed roadway.

18Despite the City’s evidence, which was led to purportedly prove their claims of intention, including testimony from staff who drafted the subject OP, the Tribunal finds that the wording of the 2012 OP primarily speaks for itself, and it does not necessarily exclude private infrastructure. Furthermore, the Tribunal finds that Northgate is entitled to rely on the plain and ordinary language of policy 8.2.4(3)(c), read together with the balance of the OP, and similarly plan in accordance with such policies that do not expressly or implicitly exclude private infrastructure per se.

19On this point, the Tribunal gives little weight to City staff’s testimony regarding what they ‘meant’ when they wrote it. If the staff meant the policy to be more restrictive, then it should have been written more restrictively (as it was prior to the 2012 OP). What we have to rely on, instead, is the current wording which was considered and passed by City Council. As a result, the Tribunal finds in favour of Northgate’s position on this point, and consequently Northgate’s OP appeal is dismissed for being unnecessary.

20The Tribunal adds that, in light of the Tribunal’s decision to deny development of Block 1 Stage 5 on PPS grounds, as detailed below, Northgate’s OP appeal is also unnecessary on a practical basis because the case does not effectively turn on conformity with the City’s OP.

‘Standards of Adherence’ as set out in the Planning Act

21Both of the main parties proffered extensive evidence and made submissions concerning the proposed development’s consistency (or lack thereof) with the PPS. As stated above, the Tribunal finds that the developability of Block 1 Stage 5 principally turns on such an analysis. The Tribunal therefore finds it prudent to review the directions set out in the Planning Act with respect to the Tribunal’s obligation to render decisions that are consistent with the PPS.

22The term “be consistent with”, as set out in s. 3(5)(a) of the Planning Act, prescribes a particular ‘Standard of Adherence’ which the Tribunal is obligated to follow. This section states that “a decision of [the Tribunal], in respect of the exercise of any authority that affects a planning matter […] shall be consistent with the policy statements [of the PPS] that are in effect on the date of the decision”.

23The Tribunal notes that, similarly, the Planning Act sets out other ‘Standards of Adherence’ which the Tribunal must also follow when rendering a decision, including “have regard to” matters of provincial interests and municipal decisions, as set out at ss. 2 and 2.1(1)(a) respectively, and “conform with” or “not conflict with” Provincial Plans, as set out at s. 3(5)(b) of the Act.

24The Divisional Court has described the spectrum on which such ‘Standards of Adherence’ are found as ranging from “recite them then ignore them” at the lowest end, to “adhere to them slavishly and rigidly” at the highest end (Concerned Citizens of King (Township) v. King (Township), [2000] O.J. No. 3517 (Div. Ct.) at para 19). It is generally understood that the “have regard to” standard falls close to the lower end of the spectrum, commanding a minimal degree of adherence but nevertheless imposing an obligation to at least scrutinize and carefully consider matters of provincial interest as it relates to s. 2 of the Planning Act, and decisions of a municipality as it relates to s. 2.1(1)(a) of the Act. It is also generally understood that the “be consistent with” and “conform with” or “not conflict with” standards fall closer to the other end of the spectrum and command a high degree of adherence. Given that this case principally turns on consistency with the PPS, the Tribunal’s present analysis is primarily concerned with the ‘Standard of Adherence’ commanded by the term “be consistent with” pursuant to s. 3(5)(a) of the Act.

25Definitions and synonyms of “be consistent with” may include ‘meet’, ‘agree with’, ‘adhere to’, ‘accord with’, be ‘harmonious with’, ‘be compatible with’, and/or ‘follow’. Incidentally, the same can be said with respect to “conform with” and “not conflict with”; however, the Tribunal notes that the plain meaning of “conform with” suggests a standard that is the most rigid of the ‘Standards of Adherence’ contained in the Planning Act. As it applies to s. 3(5)(a) of the Act, the Tribunal finds that the term “be consistent with” demands adherence that is at least ‘parallel with’ the polices of the PPS, and clearly the Tribunal cannot render a decision that is inconsistent with the PPS. Consequently, if it is found that any of the present applications prove to be inconsistent with the PPS, then such application(s) must fail.

26The Tribunal further notes that the language of the above noted sections is directive (using the word “shall”) and the duty to carry out these directives rests squarely on the Tribunal based on the evidence at hand. This means that, even if the parties do not raise questions of adherence involving matters of Provincial interest, the PPS or Provincial Plans, the Tribunal is nevertheless obligated to conduct the prescribed adherence-standard analyses as set out in the Planning Act.

Environmental Considerations and Block 1 Stage 5

Consistency with the PPS

27With environmental questions being at the forefront in the present case, especially as it relates to the PPS, the Tribunal is tasked with determining whether it is more likely than not that the Appellants’ plans will negatively impact the area’s protected environmental features and/or its ecological functions. The burden of proof rests with the Appellants on a balance of probabilities.

28The Tribunal notes that environmental polices of the PPS feature a unique degree of specificity, being language that is more typically found in municipal plan policies. Consequently, the PPS presents relatively specific adherence directions to apply when conducting a consistency analysis involving environmental considerations.

29Under Part I (Preamble), the PPS confirms that it is positioned at the top of Ontario’s planning framework, insofar as its purpose is to provide policy direction on matters of provincial interest related to land use planning and development (which entails the protection of ecological systems, including natural areas, features and functions) and it sets the policy foundation for regulating the development and use of land in Ontario.

30Of particular note, in the context of the present case, is that Part III of the PPS states: “[t]he policies of the [PPS] represent minimum standards”. The Tribunal recognizes that this means that municipalities may go beyond particular directives of the PPS, but neither municipalities nor the Tribunal may apply weaker standards.

31The Tribunal acknowledges that the policies of A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) generally prevail over those of the PPS where there is a conflict (see s. 14(2)(c) of the Places to Grow Act). However, there is also an exception where, if a conflict between the Growth Plan and PPS involves policies relating to the natural environment, whichever provides more protection to the natural environment will prevail (see s. 14(4) of the Places to Grow Act). Consequently, environmental protection policies hold special status within the relationship between the PPS and the Growth Plan.

32Regarding environmental concerns in the present case, witnesses for both parties drew the Tribunal’s attention to policy 2.1 of the PPS: “Natural Heritage”. The Appellants’ Ecology expert, Mr. Stephenson, confirmed that “Significant Wetlands”, “Significant Woodlands”, “Significant Wildlife Habitats”, and “Habitat for Endangered and Threatened Species” have all been identified within the NHFA that surrounds Block 1 Stage 5. Furthermore, he confirmed that the NHFA is entitled to consideration pursuant to the PPS as set out in certain provisions of policy 2.1. There is no contest between the parties that policy 2.1.1 of the PPS provides directive language as it relates to such features, insofar as the PPS demands that “[n]atural features and areas shall be protected for the long term”.

33The PPS continues with non-directive but nevertheless supportive language at policy 2.1.2:

The diversity and connectivity of natural features in an area, and the long-term ecological function and biodiversity of natural heritage systems, should be maintained, restored or, where possible, improved, recognizing linkages between and among natural heritage features and areas […]

with the following definitions at policy 6:

Ecological function: means the natural processes, products or services that living and non-living environments provide or perform within or between species, ecosystems and landscapes. […]

Natural heritage system: means a system made up of [NHFA], and linkages intended to provide connectivity (at the regional or site level) and support natural processes which are necessary to maintain biological and geological diversity, natural functions, viable populations of indigenous species, and ecosystems. […]

34The City takes the position that policy 2.1.2 supports their position insofar as they want to see the NHFA within Block 2 Stage 5 protected, and the area within Block 1 Stage 5 restored and protected in conjunction with Block 2 Stage 5 to create a larger, healthier, ‘deep woodland’ NHFA. From a balancing standpoint, the City takes the position that the balance tips in favour of restoring Block 1 Stage 5, given that development (as proposed by the Appellants) will only provide 14 more units of housing at the cost of damaging and further limiting the ecological potential of the surrounding NHFA.

35Mr. Stephenson notes that PPS policy 2.1.3 recognizes that natural heritage systems will vary in size and form in settlement areas, rural areas, and prime agricultural areas. He consequently opines that “this is an indication that delineating natural heritage systems in settlement areas may take into account the need to accommodate development within those areas”. However, he also acknowledges that natural heritage systems are defined as a system of NHFAs together with linkages.

36The directive language of the PPS continues at policy 2.1.4, prohibiting development and site alteration within significant wetlands, followed by policy 2.1.5 which prohibits development and site alteration within significant woodland and significant wildlife habitat “unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.” Likewise, Mr. Stephenson confirms that policy 2.1.8 prohibits development or site alteration within lands adjacent to protected features unless there will similarly be no negative impact on the protected features or their ecological functions.

37The PPS defines “negative impact” as “degradation that threatens the health and integrity of the natural features or ecological functions for which an area is identified due to single, multiple or successive development or site alteration activities.”

38In addition, policy 2.1.7 of the PPS provides that any development or site alteration within the habitat of endangered species and threatened species must be in accordance with provincial and federal requirements. Mr. Stephenson notes that Ontario’s Endangered Species Act protects the habitat of Species at Risk (“SAR”) from damage and destruction. He further confirmed that the various studies and reports done to assess the subject lands, including SAR screening, identifies several SARs (including the threatened Blandings Turtle) as having suitable habitat within the NHFA lands surrounding Block 1 Stage 5.

39Upon considering these sections of the PPS, Mr. Stephenson opines that no development or site alteration is proposed within any of the actual features protected by policy 2.1 of the PPS. However, he nevertheless recognizes that development is proposed on lands adjacent to the NHFA. Consequently, it is uncontested that the Appellants must prove, on a balance of probabilities, that construction of the proposed roadway to connect development of Block 1 Stage 5 will not cause a negative impact on the protected features of the NHFA or their ecological functions.

40The Tribunal notes that there was some dispute between the parties in terms of where to establish the extent of the protected features of the NHFA.⁴ However, the Tribunal finds that it makes no difference because the test set out in the PPS is the same whether the strip of land where the roadway is proposed constitutes a protected feature of the NHFA or merely adjacent lands; either way, construction of the proposed roadway is not permitted unless it is more likely than not that there will be no negative impact on the protected features of the NHFA, as it exists now, or their ecological functions.

41In his testimony, Mr. Stephenson relied heavily on Environmental Impact Assessment Studies (“EIS”) prepared by him. His conclusion is that the proposed development (including that of Block 1 Stage 5 and the associated access roadway) will not threaten the health and integrity of the protected features of the NHFA or their ecological functions. Consequently, he opined, the proposal will not run afoul of the PPS or municipal plans. Moreover, he opined that the proposed development protects the associated natural heritage system of features and linkages for the long term. As set out in his EIS (as revised) and supporting technical memos, Mr. Stephenson recommends mitigation measures (such as an ‘eco-passage’ under the roadway and strategic fencing) that he opines will ensure the subject features and their linkages are protected.

42The City’s ecology expert, Mr. Konze, opined that Mr. Stephenson’s EIS inadequately identifies the full extent of the negative ecological consequences that the proposed development will have on the NHFA and linkage functions. He further testified that the EIS erroneously assumes that development of Block 1 Stage 5 will occur and is focussed on mitigation measures, identifying techniques towards a more ‘environmentally friendly’ approach to undertaking the development. This basis, he opines, is fatal to the EIS’s conclusions insofar as it does not adequately assess the environmental damage that will be caused by the proposed development of Block 1 Stage 5, compared to that which will not occur if the development does not proceed.

43The Tribunal finds the same, insofar as Mr. Stephenson’s testimony was principally focused on communicating the merits of the proposed plan from a standpoint which assumes that development will occur, and how their plan will mitigate any negative impacts to the greatest extent possible. It is noteworthy that the Tribunal finds the same regarding the Appellants’ engineering expert, who convincingly testified that the engineering plans will result in the least amount of damage, but nevertheless assumes that the roadway must be built. The Tribunal finds that this is the wrong premise from which to present an opinion on the relatively straightforward question of whether or not the proposed development will negatively impact the protected features of the NHFA or their ecological functions.

44To get to the core of the environmental question, the Tribunal asked both Mr. Stephenson and Mr. Konze whether construction of the roadway will result in a negative impact on the NHFA or its ecological functions.

45Mr. Stephenson initially responded by again promoting the virtues of the mitigation measures that the Appellants have planned. Such measures include the proposed eco-passage under the roadway to provide safe passage to small animals moving back and forth from the northwest (“NW”) and southwest (“SW”) lobes of the NHFA, as well as fencing to dissuade some small animals from attempting to cross the road and potentially being run over by automobiles. He also testified that there will be additional tree planting in the buffer areas surrounding the NHFA, a salt plan will be in place to avoid contaminating the NHFA with sodium, and (together with Mr. Martens’ testimony) there are other engineering solutions to manage potential pollutants from the roadway.

46When pressed by the Tribunal to answer the question directly, insofar as whether or not the establishment of the roadway will negatively impact the NHFA or its ecological functions compared to not building it, and specifically as it relates to impairing the linkage functions between the NW and SW areas of the NHFA that are presently divided by only the relatively narrow strip of cleared agricultural land, Mr. Stephenson answered that their plan will not only not negatively impact the NHFA, but it will “improve it”, principally due to tree/vegetation plantings within the buffer areas surrounding the NHFA.

47Mr. Stephenson further answered by stating that the Tribunal should not anthropomorphize animal’s behaviour by assuming that animals will naturally choose to take the shortest path between the NW and SW lobes of the NHFA, because the existing strip of agricultural land already divides linkage functions between these areas. He opined that animals already naturally go all the way around Block 1 Stage 5 through the forested areas to avoid the cleared strip of land, and so a roadway would not further cut off linkages between the areas.

48The Tribunal finds these last statements by Mr. Stephenson to be inconsistent with other claims and evidence submitted by the Appellants in terms of current and anticipated wildlife movement tendencies across the cleared strip of land and/or proposed roadway. Contrary to Mr. Stephenson’s opinion that wildlife will prefer to go all the way around within the existing forested areas to avoid the cleared strip, the Appellants’ proposal to build an eco-passage and protective fencing suggests that measures are necessary to protect animals that are inclined to move between the NW and SW lobes.

49Both of the Appellants’ witnesses, Mr. Stephenson and Mr. Martens, testified that the elevated design of the roadway with eco-passage will serve critical functions in terms of maintaining wildlife movement and linkages of the NHFA, including in relation to vulnerable species, such as Blandings Turtles and other reptiles, amphibians and small mammals. Their testimony also referenced design considerations concerning larger mammals that are too big to use the eco-passage, which would instead be capable of crossing over guardrails and the roadway itself. The Tribunal finds such testimony to be at odds with Mr. Stephenson’s answer to the Tribunal’s question, insofar as he stated that interference with wildlife movement between the NW and SW lobes of the NHFA will be minimal because wildlife currently avoids crossing at this point.

50Mr. Konze’s answer to the same question was more direct and lacked inconsistencies. He testified that, while the non-forested strip of cleared land is not ideal for safe passage by certain animals, due to exposure to predators (depending on the existence of crops which provide seasonal cover), animals will still travel across it more readily compared to if there is a raised roadway built through it. Furthermore, he opined that eco-passages, which can be an effective mitigation tool in situations where there are no other options (i.e., no option to avoid development altogether), are known to create “kill-zones” where predators will learn to pick off prey that are funnelled into a concentrated and predictable area. Summarily, he opined that the construction of the roadway will negatively impact the NHFA and its ecological functions, and linkages for wildlife movement between the NW and SW lobes in particular.

51The Tribunal prefers Mr. Konze’s evidence, finding Mr. Stephenson’s opinion to be questionable insofar as he testified that the construction of the roadway “will improve” the environmental attributes of the NHFA. While the Tribunal is sensitive to not anthropomorphize animals’ behaviour by assuming animals will take the shortest path from one area to another, the Tribunal nevertheless finds, upon considering all of the evidence from the ecology experts, that it is more likely than not that at least some animals which currently traverse the relatively narrow strip of cleared lands between the NW and SW lobes of the NHFA will be negatively impacted in terms of movement by the existence of a raised roadway.

52The Tribunal notes that the Appellants claim that Mr. Konze’s analysis is flawed because, they submit, his opinion is premised on an assessment of impact based on the existence of functioning habitat (mature forest) within the cleared strip of land as a starting point. The Tribunal does not accept this, particularly because the Tribunal asked Mr. Konze directly to provide his opinion based on existing conditions. His answer, as described above, was unequivocal insofar as he opines that the roadway will have a negative impact on current conditions.

53In addition to finding that the physical roadway itself will negatively impact the features and ecological functions of the NHFA as an impediment to wildlife movement, the Tribunal also finds that the construction of the road will also likely negatively impact the NHFA as a consequence of pollution run-off. The Appellants’ witnesses, who testified about the virtues of their plan to manage sodium and other road-related pollutants, acknowledge the reality that roadways are inherently a source of potential pollutants. While the Tribunal is willing to accept that the Appellants’ plan aims to mitigate the negative impacts of such pollutants to the greatest extent possible, it does not accept that the plan satisfies the high threshold set by the PPS insofar as it must demonstrate that it is more likely that not that there will be “no negative impact” [emphasis added]. The Appellants’ plans depend on steady and reliable management of potential pollutants on an ongoing basis forever into the future – and all of this must be carried out privately without municipal oversite given that the proposed roadway is in private hands. These same concerns were expressed by Ms. Amyot. The Tribunal similarly finds that it is unlikely that such management will continue forever without failure or even without frequent failure.

54On a final note, the Tribunal recognizes that other parts of the PPS provide direction to make lands available for development of a wide range of housing and other development needs. The Tribunal further acknowledges that no one principle of the PPS trumps another or all other PPS policies. The Tribunal confirms that it has reviewed all of the relevant provisions of the PPS, including those which encourage the general sort of development being proposed by the Appellants (as highlighted by the Appellants’ witnesses in particular), but it nevertheless comes to the conclusion that the development of Block 1 Stage 5 cannot proceed because it would run afoul of the specific directive language of policy 2.1. The Tribunal notes that such a decision is not inconsistent with other PPS policies that encourage development, given that the development of Block 1 Stage 5 represents only 14 units of housing which, as the planning witnesses confirmed, can be accommodated in other ways through infills or very minor increases in density elsewhere (including within the balance of the proposed development). To be clear, the Tribunal concludes that the decision to not approve these 14 units will not result in an expansion of the urban boundary or measurably impact planning decisions elsewhere in the City.

55In summary and conclusion, the Tribunal prefers the evidence of the City insofar as it finds, as a fact, that it is more likely than not that the establishment of a roadway, transcending the NHFA to provide access to the development of Block 1 Stage 5, will negatively impact the surrounding NHFA protected features. Such impacts include interference with the NHFA’s ecological functions, including linkages between the NW and SW lobes, as well as probable deleterious impacts on the NHFA’s features due to pollutant run-off from the private roadway.

Conformity with the Growth Plan and City’s OP

56Given the above findings of inconsistency with the PPS, the Tribunal finds that it is not necessary to carry on with a conformity analysis with respect to the Growth Plan or the applicable municipal plans (regarding the ZBA application). Nevertheless, in brief, the Tribunal notes that it finds that the developability of Block 1 Stage 5 also cannot proceed because it lacks conformity with those plans.

57As submitted by the City, the Tribunal finds that the ecological provisions of the Growth Plan, the Region’s OP and the City’s OP essentially echo those of the PPS. Similar to the PPS, the Growth Plan places a high priority on natural heritage features and functions. This is recognized at policy 1.2.1, which includes the “[protection] and [enhancement of] natural heritage, hydrologic, and landform systems, features, and functions” as “Guiding Principles”. As it relates to the City’s OP, policy 8.2.4(5) adopts much of the language directly from the PPS:

Development or site alteration will only be permitted on lands contiguous to Core Natural Features if it is demonstrated through an [EIS] or other appropriate study accepted by the City and the other public agencies having jurisdiction, in accordance with Section 8.2.11, that there will be no adverse environmental impacts on the feature or its ecological functions. [emphasis added]

Policy 7.C.10 of the Region’s OP provides similar provisions.

58For principally the same reasons that the Tribunal finds that the proposed development of Block 1 Stage 5 is inconsistent with the PPS, the Tribunal finds that it also lacks conformity with the above environmental policies of the Growth Plan, the Region’s OP and the City’s OP.

59The Tribunal further finds that the proposed development lacks conformity with policy 8.2.4(3)(c) of the City’s OP because the proposed private roadway is not essential. The Tribunal does not accept the Appellants’ submissions that the roadway is essential simply by virtue of it being essential to the development of Block 1 Stage 5. The Tribunal further finds that a Low Density Residential designation, which applies to Block 1 Stage 5, may provide for an opportunity to develop the subject lands, but this does not automatically make the development essential. The Tribunal accepts Mr. Lauder’s opinion insofar as he testified that such a designation does not presume development, but rather opens the door to the possibility of development, depending on the outcome of a variety of studies (including environmental studies).

60The Tribunal finds that the proposed development of Block 1 Stage 5 must first be deemed to be essential, in light of the relative housing needs of the municipality/province, before the infrastructure designed to serve it may be deemed essential. This is clearly not the case here. The Tribunal finds that the proposed development of Block 1 Stage 5 is not essential because it only constitutes 14 units, and the Tribunal accepts Mr. Lauder’s evidence insofar as such a small number of units can be accommodated elsewhere in the City, including potentially within the balance of the proposed development.

61It is noteworthy that the fact that the proposed roadway happens to be a private roadway makes no difference in the Tribunal’s findings – the Tribunal would have come to the same conclusion if it was a public roadway being proposed. In the circumstances, a public roadway to serve the proposed development of Block 1 Stage 5 would still not be essential given that the development itself is not essential for the purposes of conformity with policy 8.2.4(3)(c) of the City’s OP.

Other Issues Raised by the Parties

62The Tribunal notes that the parties raised other issues as part of their submissions concerning the developability of Block 1 Stage 5, such as fire protection and engineering challenges associated with the Block. The parties also made submissions on the City’s allegations of illegal tree cutting which, the City submitted, should have an impact on the Tribunal’s assessment of the NHFA boundaries and the presence of protected features of the NHFA within the cleared strip. The Tribunal considered all of these other issues; however, given its finding that Block 1 Stage 5 cannot otherwise be developed as proposed, the Tribunal finds that it does not need to make a determination on these issues.

Conditions of Draft Plans Approval

Conveyance of Blocks 1 and/or 2 of Stage 5

63As part of their request for approval to develop Block 1 Stage 5, the Appellants do not oppose a condition to convey the entirely of the NHFA/Block 2 Stage 5 to the City for its care, protection and management. However, if they are not permitted to develop Block 1 Stage 5, then the Appellants rescind their offer to convey said lands. As stated by the Appellants, if the proposed development of Block 1 Stage 5 is not approved, the Appellants would not register a final plan of subdivision in relation to the Stage 5 lands, all of these lands would be retained by the owner, and there would therefore be no obligation to convey either Block 1 or 2 to the City.

64Given the Tribunal’s finding to refuse development of Block 1 Stage 5, it must now determine whether it is appropriate to order the conveyance of both or either Blocks 1 and 2 of Stage 5. The City takes the position that it is policy supportive to convey Block 2 in order to protect and manage the NHFA lands under public ownership. They also take the position that the conveyance of these lands factor into the calculations of parkland dedication, and the Appellants will be deficient in this regard if the lands are not conveyed. Regarding Block 1, the City takes the position that it should be conveyed as a prospective restoration area, used to enhance, improve and contribute to the surrounding NHFA.

65The Appellants take the position that a requirement to convey either Block 1 or 2 of Stage 5 is expropriation without compensation, which is not authorized through the Planning Act or otherwise by law. Counsel cited the well accepted principle that “the taking of property by the state must be authorized by law and triggers a presumptive right to compensation which can be displaced only by clear statutory language showing a contrary intention” (Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 at para. 21).

66The Appellants deny that the City has legislative authority to demand conveyance of Blocks 1 and 2 of Stage 5 for purely environmental purposes, but acknowledge that the Planning Act contains two different sources of authority to require dedications of parkland that will apply in distinct circumstances. The first is under section 42 of the Act, which allows a municipality to require a conveyance of parkland as a condition of development pursuant to a By-law passed for such a reason:

42(1) As a condition of development or redevelopment of land, the council of a local municipality may, by by-law applicable to the whole municipality or to any defined area or areas thereof, require that land in an amount not exceeding […] 5 per cent of the land be conveyed to the municipality for park or other public recreational purposes.

67The Appellants further acknowledge that the City has enacted “Parkland By-law 2011-024” under this section which requires:

3.1.1. Residential Development or Redevelopment, having a density of 50 units per hectare or less (based on the Net Land Area), shall convey parkland at a rate of five percent (5%) of the Net Land Area [Net Land Area = total area of all lands that are the subject of a development minus the land area of any Environmental Features and associated buffers within the Gross Land Area that are being conveyed to the City at no cost]

68The second source of authority available to require dedications of parkland is under section 51.1 of the Planning Act which allows an approval authority to require a conveyance of parkland as a condition of development or redevelopment. Section 51.1(1) provides as follows:

51.1(1) The approval authority may impose as a condition to the approval of a plan of subdivision that land in an amount not exceeding […] 5 per cent of the land included in the plan shall be conveyed to the local municipality for park or other public recreational purposes or, if the land is not in a municipality, shall be dedicated for park or other public recreational purposes.

69The Appellants further acknowledge that s. 51(25) of the Planning Act also applies:

51(25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement,

(a) that land be dedicated or other requirements met for park or other public recreational purposes under section 51.1;

70The Appellants note that the Planning Act recognizes a limited relationship between the provisions at s. 42(7), which effectively prohibits ‘double-dipping’ in terms of parkland dedication under the two sections. In other words, if parkland is required to be dedicated under Draft Plans conditions pursuant to s. 51.1, no additional dedication requirements are allowed under s. 42 in respect of the same lands.

71The Appellants submit that the powers under ss. 42 and 51.1 are distinct, with s. 51.1 applying as a condition where land is being subdivided, and s. 42 applying by virtue of a dedicated By-law where land is being developed but not necessarily subdivided.

72Citing Mavis Valley Developments Inc. v. Mississauga, [2003] CarswellOnt 960, the Appellants take the position that there is meant to be a distinction between ‘development lands’ and ‘subdivision lands’. The distinction, the Appellants submit, means that the City can only require a dedication of up to 5% of the total subject lands minus Blocks 1 and 2 of Stage 5 (and also minus the lands for roads, stormwater ponds, schools, parks, pumping station blocks, etc.) under the authority provided by s. 42 of the Planning Act (and resulting City’s Parkland By-law), while a conveyance of up to 5% of the entire subject lands (including Blocks 1 and 2 of Stage 5 and all other contiguous lands of the proposed subdivision) can be demanded pursuant to the authority provided by s. 51.1 of the Act.

73The Tribunal notes that Ms. Dewar’s evidence was clearly premised upon an understanding that there is no difference between ‘development lands’ and ‘subdivision lands’ in the context of a case such as this. It was further her evidence that, once the conveyance of Block 2 Stage 5 is withdrawn, the proposed dedication of parkland falls below 5% of the entire lands and the balance of the Appellants’ proposed development is therefore at odds with the City’s Parkland By-law.

74The Appellants emphasize that the amount of land that must be conveyed as a condition of Draft Plans approval is ultimately decided by the Tribunal, and the City cannot fetter the Tribunal’s s. 51.1 authority to make such a decision by way of a By-law passed under section 42. The Appellants further submit that, under s. 51(25), all conditions of Draft Plans approval must be reasonable, and the Tribunal is not obligated to require a conveyance of 5% for parkland purposes – the legislation allows a conveyance of up to 5%.

75To be clear, the Appellants do not suggest that the Tribunal cannot practice its discretion and impose the same 5% requirement as set out in the City’s Parkland By-law, pursuant to its authority under s. 51.1 of the Planning Act. The Appellants merely contend that the Tribunal is not obliged to require 5%, and the amount determined would not be pursuant to the City’s Parkland By-law. The Appellants further submit, however, that the Tribunal should not impose such a high percentage because they argue that it is unreasonable, given the relatively large area occupied by the NHFA which, they submit, does not contribute to a demand for additional parkland.

76The Appellants further emphasize that, if development of Block 1 Stage 5 is not approved, the Appellants would not register that Stage of the plan and, consequently, there would be no conditions of Draft Plans approval in relation to Stage 5 and no parkland dedication would resultingly be required.

77The Tribunal has considered the evidence and submissions of the parties and finds that there are two key issues to determine. First, whether the Tribunal has authority to require conveyance of both or either Blocks 1 and/or 2 of Stage 5 for purely environmental purposes. Second, if the conveyance of Block 2 is not provided, whether enough parkland has been dedicated for the balance of the development. For the reasons that follow, the Tribunal finds the answer to be “no” in both instances.

78On the first point, the Tribunal accepts the well-established presumption that lands cannot be taken by the State without compensation, absent clear statutory language showing a contrary intention. None of the parties directed the Tribunal to such clear statutory intention in relation to the conveyance of either Blocks 1 or 2 for purely environmental purposes, and so the Tribunal finds that it does not have authority to require such a conveyance. While the Tribunal recognizes that the PPS and other provincial and municipal policies may support such an approach, these policies do not amount to legislative authority to grant the relief that the City is seeking. However, as acknowledged by the Appellants, ss. 42 and 51.1 of the Planning Act do provide such clear statutory language for the purpose of conveying parkland.

79The Tribunal largely accepts the Appellants’ approach insofar as how these sections operate. The Tribunal accepts the Appellants’ submission that s. 42 operates by way of the City’s Parkland By-law in relation to development, but it does not apply to fetter the Tribunals discretion to determine reasonable conditions of Draft Plans approval. The Tribunal accepts that s. 51.1 provides the Tribunal with jurisdiction to require up to 5% be conveyed to the City for parkland as a condition of approval for a Draft Plan of Subdivision. Meanwhile, s. 42(7) makes it clear that a Parkland By-law passed under s. 42 does not apply on top of such conditions. As a result, the Tribunal finds that s. 42 of the Act and the City’s Parkland By-law have no application in the present case.

80The question therefore comes down to reasonableness, which blends into the second issue, being whether enough parkland is proposed to be conveyed/dedicated for the balance of the development if the conveyance of Block 2 is not voluntarily provided by the Appellants. As will be described in greater detail below, the Tribunal finds that it faces a number of challenges to determine this question, including gaps in the evidence as a result of the parties not comprehensively contemplating the ramifications of withdrawing the conveyance of Block 2 Stage 5 from the conditions of Draft Plans approval. In other words, the Appellants have opened the proverbial ‘can of worms’ by introducing a new variable in the matter through rescinding its offer to convey the entirety of the NHFA as a condition of Draft Plans approval.

81Through the City’s submissions and Ms. Dewar’s evidence, it is abundantly clear that the City’s initial assessment of the adequacy of parkland dedication was premised upon the presumption that the NHFA (Block 2 Stage 5) would be conveyed to the City. On that assumption, the City was satisfied that the Appellants were going above and beyond what it believed was the necessary 5% threshold. The Tribunal finds that the Appellants essentially did the same thing, basing its principal submissions and evidence on a presumption that Block 2 would be conveyed along with an approval to develop Block 1 of Stage 5.

82Neither party, however, fully contemplated the consequences concerning parkland dedication in the event that the development of Block 1 Stage 5 was denied and Block 2 Stage 5 was not voluntarily conveyed to the City. The Tribunal received unsatisfactory evidence from both parties to conclusively determine what percentage of lands are planned to be conveyed by the Appellants for parkland dedication purposes in the event that Block 2 is not conveyed. Efforts were made to provide the math in this regard ‘on the fly’ during the hearing, but the Tribunal remains unsatisfied apart from accepting Ms. Dewars’ evidence that it currently falls short of 5%.

83It is noteworthy that the Appellants argue that the dedication of Block 2 Stage 5 is not to serve parkland purposes and suggests that this fact is proof positive that what it is proposing is satisfactory without including Block 2 Stage 5. While the Tribunal is willing to accept that the conveyance of Block 2 Stage 5 may not actually change the percentage of parkland dedication, the Tribunal does not accept that the conveyance of Block 2 Stage 5 does not play a role in assessing how much parkland should be conveyed to the City. The Tribunal finds the City’s position reasonable insofar as it may accept less land specifically dedicated to parkland if it is contingent upon a significant conveyance of other greenspace lands (i.e., the subject NHFA).

84Upon considering the submissions and evidence of the parties, the Tribunal finds that it is reasonable to require the City’s requested minimum of 5% to be conveyed to the City for park or other public recreational purposes, calculated based on the area of the entire subject lands. The Tribunal notes that it alternatively finds that the amount currently planned for parkland dedication is enough if the parties can come to an agreement for the Appellants to convey Block 2 Stage 5 to the City. However, if this is not the case, then the balance of the development and the subject Draft Plans will need to be revised to account for a 5% dedication for parkland purposes (or more, if the parties agree).

85Regarding Block 1 Stage 5, the Tribunal finds that it has no authority to order conveyance of this portion. The Tribunal notes that the Appellants have submitted that Block 1 will be effectively useless if it cannot be developed, since it would be impractical to farm it when it is surrounded by a subdivision. They argue, if it cannot be developed, this amounts to constructive expropriation. The Tribunal does not accept this, because such a result will be the consequence of the Appellants’ decision to develop the surrounding property, not due to the actions of the City. If the Appellants wish to continue to farm Block 1 along with the rest of the property, as it does now, they are free to do so for as long as they wish.

86It is therefore the finding of this Tribunal that the parties are essentially left with two options (the Tribunal finds both to be reasonable): (1) agree for the Appellants to transfer ownership of the NHFA lands to the City (i.e., by conveyance, sale or a combination thereof) as a condition of the approval of the DPS; or (2) revise the balance of the proposed subdivision to incorporate a 5% dedication for parkland purposes (or more, if the parties agree), calculated by including the entirety of the subject lands (including Blocks 1 and 2 of Stage 5). The Tribunal notes that it does not support the fragmentation of the NHFA/Block 2 as part of any revisions to the Draft Plans.

Other Conditions of Draft Plans Approval

87Aside from the above noted conveyances requested by the City, the Appellants contest several other conditions of the Draft Plans approval. The manner in which the City has presented its conditions has been in the form of a list of ‘standard’ DPS conditions, plus various site-specific DPS conditions for each of the eastern and western portions of the subject lands, plus another list of conditions specific to the DPVLC. In total, therefore, there are five separate lists of conditions to consider.

88The following analysis will begin with a review of some of the general principles applicable to these issues, followed by specific applications to the impugned conditions and findings regarding each.

89The Tribunal notes that it has not considered proposed revisions to the subject Draft Plans conditions which relate to the development of Block 1 Stage 5 for obvious reasons.

The Test for Reasonableness

90Section 51(25) of the Planning Act states the following:

The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision […]

91The question that the Tribunal must answer is, therefore, whether or not the municipality’s condition(s) are reasonable (i.e., relevant, necessary and/or equitable). If they are, then the analysis ends there and the Tribunal will order the condition(s). However, if the municipality’s condition(s) are found to be unreasonable, then the Tribunal can either order the condition to be deleted or revised.

Costs of Local v. Broader Services

92The Appellants submit that ss. 59 and 59.1 of the Development Charges Act, 1997 (“DC Act”) restrict the services that a landowner can be required to fund as a condition of the approval of a DPS imposed under s. 51 of the Planning Act:

59 (1) A municipality shall not, by way of a condition or agreement under section 51 or 53 of the Planning Act, impose directly or indirectly a charge related to a development or a requirement to construct a service related to development except as allowed in subsection (2) 1997, c. 27, s. 59 (1).

Exception for local services (2) A condition or agreement referred to in subsection (1) may provide for,

(a) local services, related to a plan of subdivision or within the area to which the plan relates, to be installed or paid for by the owner as a condition of approval under section 51 of the Planning Act;

(b) local services to be installed or paid for by the owner as a condition of approval under section 53 of the Planning Act. 1997, c. 27, s. 59 (2).

No additional levies 59.1 (1) A municipality shall not impose, directly or indirectly, a charge related to a development or a requirement to construct a service related to development, except as permitted by this Act or another Act. 2015, c. 26, s. 8.

93The Tribunal accepts these submissions insofar as the DC Act stipulates that a developer may only be required to fund local services related to its plan or the area to which the plan relates as a condition of the approval of a DPS.

94The Appellants further submit that s. 2(5) of the DC Act is also relevant, stating that “[a] development charge by-law may not impose development charges with respect to local services described in clauses 59 (2) (a) and (b)”. Accordingly, the Tribunal finds that a municipality is prohibited from funding local services through its development charges scheme. Working together, ss. 59 and 2(5) of the DC Act clearly delineate how municipalities may recover infrastructure costs, with costs of local development-specific services being born by or recoverable from developers through DPS or consent conditions under ss. 51 and 53 of the Planning Act, respectively, and the costs of broader services being recoverable on a broader basis through development charges spread out throughout the municipality. Generally, this set up is designed to avoid ‘double-dipping’ by the municipality to pay for or recover costs of various public services.

95In its submissions on this point, the Appellants drew the Tribunal’s attention to the Local Planning Appeal Tribunal (“LPAT”; as the Tribunal was known then) decision of Ocean Club Residences Inc. v. Toronto, (2020) 11 O.M.T.R. 189. However, just days after the Appellants’ final oral submissions, the Divisional Court reversed this LPAT decision, in part, on other grounds (See City of Toronto v. Ocean Club Residences Inc., 2023 ONSC 898. The Tribunal considered whether it should re-open submissions from the parties, given the reliance on Ocean Club (LPAT) by the Appellants and eventual outcome of the case before the Divisional Court. However, upon examining the Divisional Court ruling, the Tribunal finds that it did not materially affect the points made by the Appellants insofar as it relates to distinguishing the difference between costs of local services versus services which serve the broader area. As a result, no further submissions are required.

96More particularly, the Tribunal finds that the Divisional Court decision did not impact the LPAT’s finding in Ocean Club at paras. 135-137, where the LPAT rejected the City of Toronto’s argument that because the road improvements in question were adjacent to the development, they were local in nature. Instead, the LPAT confirmed that the question of what constitutes local depends on the function of the road, and whether it principally serves the subject proposed development or a broader area beyond. The LPAT held that the improvements were not local because, even though the arterial road in question serviced the development in question, it also serviced other developments and a broader area of the City of Toronto. It also rejected the argument that the services were local because they would not have been constructed but for the development.

97The Appellants further noted that the Ocean Club (LPAT) case relied on Marjerrison v. Ottawa (City), 2016 CarswellOnt 21544 (O.M.B.R. 264). At para. 83 of that case, the Ontario Municipal Board (as the Tribunal was known then) found that road improvements, including sidewalks and multi-use pathways on arterial or major collector roads adjacent to a development, that are for the benefit of the City as a whole, were also not local services.

98The Tribunal accepts these submissions and finds that it is obliged to distinguish between the costs of local services versus services which serve the broader area, and only those which primarily serve the subject subdivision may be subject to conditions where the Appellants bear the costs through conditions of the approval of the DPS. Due to explicit statutory language, any DPS conditions which purport to burden the Appellants with services costs of a non-local nature is prima facie unreasonable by operation of law.

The Conditions at Issue

99The following headings describe the conditions at issue, followed by the Tribunal’s analysis and findings regarding each.

Funding of Boulevard Works in Beaver Creek Road and Conservation Drive

100The City is seeking to impose Draft Plans conditions requiring the Appellants to reimburse the City for the costs of constructing boulevard works within Beaver Creek Road and Conservation Drive, including sidewalks, landscaping, cycling facilities and streetlighting. The Appellants contend that these conditions are not legal because they involve works that are not local in nature, and instead provide broader public benefits that are covered under development charges.

101The parties’ evidence identified Beaver Creek Road and Conservation Drive as existing City roads that are designated “Minor Collector” and “Major Collector” in the City OP and which abut the Appellants’ lands. As confirmed by Ms. Amyot, the City is proposing to reconstruct these roads throughout the Beaver Creek Meadows District and beyond the District. Ms. Amyot confirmed that these projects and associated costs are listed in the Capital Programs in the City’s Development Charge Background Study.

102It was Mr. Martens’ opinion that the proposed works within Beaver Creek Road and Conservation Drive are not local services, considered in light of the City’s Local Service Policy which is included as a schedule to its Development Charge Background Study.

103The Tribunal accepts Mr. Martens’ opinion and evidence and the Appellants submissions, finding that these works, including boulevard works, sidewalks, cycling lanes and streetlights, serve the broader needs of the City and the costs of these are therefore unreasonable to impose upon the Appellants by operation of law.

104The Tribunal finds the same associated with related utility relocation clauses (standard conditions 8.2.6, 8.3.3 and 12.12.2)

Recreational Trails within the Subdivision (pedestrian bridge across Beaver Creek)

105A number of the conditions of the Draft Plans approval proposed by the City require the Appellants to construct and pay for the cost of recreational trails in buffers throughout the subdivisions, including the cost of a pedestrian bridge across Beaver Creek. Such conditions are found in both the site-specific conditions, as well as the standard conditions (1.7, 5.8, 7.3) proposed by the City (all of which will be dealt with here).

106Unlike the Appellants’ complaints concerning the costs associated with boulevard works described above, the costs associated with recreational trails and the pedestrian bridge all relate to services fully contained within the proposed subdivision. Given this fact, the Tribunal finds that it would need to be presented with compelling evidence that these services are not considered local in nature.

107The Appellants submit that such trails provide a community-wide benefit and are therefore not local. They acknowledge that the City’s Local Service policy is unclear with respect to the treatment of recreational trails. Mr. Hawkins, however, noted in his evidence that the City is funding at least some recreational trails in the area through development charges.

108Ms. Dewar testified that the trails proposed to be built within the Appellants’ subdivision will be primarily used by the subdivision residents, but other residents in the broader area are also likely to use them.

109The question before the Tribunal therefore comes down to determining the function of the trails, including the pedestrian bridge, and whether it principally serves the subject proposed development or a broader area beyond.

110The Tribunal finds that these trails and bridge will, more likely than not, principally serve the needs of the proposed development. It is therefore in accordance with the law and furthermore a reasonable condition of Draft Plans approval.

Conveyance of Lands for Road Widenings, Pumping station and Other Services

111The Appellants are largely concerned with the timing presumed respecting this condition. The Appellants submit that the Tribunal has no jurisdiction to order the Appellants to convey lands within any particular timeframe prior to final approval of a subdivision. They drew the Tribunal’s attention to s. 51(58) of the Planning Act which states:

51(58) Upon presentation by the person seeking to subdivide, the approval authority may, if satisfied that the plan is in conformity with the approved draft plan and that the conditions of approval have been or will be fulfilled, approve the plan of subdivision and, once approved, the final plan of subdivision may be tendered for registration.

112Nevertheless, in this instance, the Appellants have stated that they are prepared to work with the City regarding the subject conveyances. They point out, however, that the imposition of a condition that purports to benefit a third party is unreasonable.

113On this point, the City acknowledges that the condition in question is being imposed because the conveyance of lands for road widenings, pumping station and other services are required for the orderly development of the greater Beaver Creek Meadows District. As such, the Tribunal finds, the impugned condition purports to impose a condition requiring the Appellants to provide a property interest over its lands for the benefit of a third party.

114The Tribunal therefore accepts the Appellants’ position insofar as the condition is unreasonable for being inequitable. The condition will therefore need to be revised to reflect the Tribunal’s finding that it will be up to the Appellants, the City and the other interested landowners in the District to come to an agreement in relation to the conveyance of these lands and associated cost sharing.

Boulevard Trees within the Vacant Land Condominium (“VLC”)

115The City is proposing site-specific conditions requiring that the private roadway in the VLC to be widened to accommodate street trees within a boulevard of the private roadway. The Appellants contend that this is unnecessary and therefore unreasonable, given that the boulevard will be privately owned. They submit that there is no practical or planning reason to make the vacant land units shallower and the private roadway wider for the purposes of accommodating trees.

116The City did not provide any satisfactory planning rational to require the trees on a private boulevard, as opposed to private lots, so the Tribunal finds this condition to be unreasonable for being unnecessary.

Reimbursement of Third Parties by the City (standard conditions 1.1.3 and 1.1.4)

117This standard City condition requires the Appellants to provide the City with letter of credit security, which the City may draw down in the event that the City incurs an expense as a result of the owner not fulfilling its obligations under the subdivision agreement or conditions of Draft Plans approval. The Appellants do not have an issue with this.

118However, the Appellants take issue with the scope of the condition, which purports to allow the City to draw down the security to pay “anyone else” the City determines is owed money by the owner “relative to” the Draft Plans. The Appellants submit that there is nothing in the Planning Act to provide the City with authority to extract funds from a landowner for payment to a third party. To be reasonable, the Appellants submit that any condition of Draft Plans approval has to relate directly to the matters set out in s. 51 of the Act or the consequences of development. The City did not provide a compelling response on this point.

119The Tribunal accepts the Appellants’ submissions and finds that this condition is unreasonable for being inequitable by purporting to provide a benefit to a third party. The Tribunal finds the same as it relates to the similar condition associated with the VLC conditions.

Fees for Non-Local Services (standard condition 1.5)

120This standard condition requires the Appellants to pay a 5% engineering fee to the City in relation to “development charge projects required to develop the Lands which are funded, in whole or in part, by the Owner.” The Appellants again oppose this condition because it purports to require payment associated with non-local services contrary to the Act and DC Act. The City did not provide a compelling response on this point.

121The Tribunal agrees with the Appellants and finds standard condition 1.5 unreasonable by operation of law.

External Services and Trails and Bridges (1.7 and 3.10)

122The Appellants submit that these standard conditions contain blanket provisions requiring the owner to construct at its expense all infrastructure “required to develop the Lands” including service upgrades beyond the limits of the subdivision. The Appellants expressed concern that the language is too broad and may include costs associated with external infrastructure of a non-local nature.

123While the Appellants acknowledge that external services could potentially be local services, they submit that any external infrastructure of a local nature should be itemized to ensure the provision does not run afoul of the Act and DC Act.

124The Tribunal finds that the Appellants’ issue with this condition is mainly concerned with interpretation and its complaints about what they may or may not be charged are premature. The Tribunal declines to change the condition but notes that the Appellants should not be liable for costs associated with external services of a non-local nature.

City Legal Costs (1.12)

125This condition requires the owner to pay “all legal fees and disbursements incurred by the City with respect to Draft Plan of Subdivision.” The Appellants are concerned that the City will attempt to use this provision to seek its legal costs associated with the present appeals and submits that only the Tribunal has the jurisdiction to award such costs.

126Once again, the Tribunal finds that the Appellants’ issue is mainly concerned with interpretation and its complaints about what they may or may not be charged are premature. The Tribunal declines to change the condition, but nevertheless notes that the Appellants should not be liable for the City’s legal costs associated with these appeals unless ordered by the Tribunal.

Servicing in the Public Interest (3.8)

127This standard condition of the City provides that where the City determines it to be in the public interest to provide infrastructure to be constructed by the owner “to secure orderly development and/or public health and safety, the City may at its sole discretion proceed with the engineering and construction of such works, services and infrastructure at the Owner’s expense.” The Appellants argue that this condition is not reasonable because it would impose an obligation on the owner that is not directly related to the development of the land within the subdivision, contrary to s. 51 of the Planning Act.

128Once again, the Tribunal finds that the Appellants’ issue is mainly concerned with interpretation and its complaints about what they may or may not be charged are premature. The Tribunal again declines to the change the condition but notes that costs (if any) must be limited to those that are local in nature.

Access to Adjacent Owner’s Lands (11.1)

129The Appellants complain that this condition is not reasonable unless it recognizes that they are subject to access being granted by the adjacent owner on request. The Tribunal declines to adjust this condition, noting that it is implied that it is dependant upon access being granted by the adjacent owner, acknowledging that permission is dependant upon a third-party.

Land Conveyances (18.1)

130This standard City condition requires that the conveyance of both lands and easements must be free of encumbrances. While this makes sense with respect to lands being conveyed, the Appellants complain that it does not make sense with respect to easements, given that such easement rights would be ensured despite any mortgage. The City did not provide a compelling response on this point.

131The Tribunal finds that this condition, as it relates to easements, is unreasonable for being unnecessary.

Refusal of Building Permits on Default (18.7)

132This standard condition purports to give the City the right to refuse building permits “except at the discretion of the City’s Commissioner of Integrated Planning & Public Works” if the owner is in contravention of any term of the subdivision agreement.

133The Appellants argue that the Building Code Act (“BCA”) governs the issuance of building permits and the Chief Building Official is statutorily obligated to exercise their duties pursuant to the BCA. The Chief Building Official further cannot fetter their authority to another City Commissioner. The Appellants highlight that s. 8(2) of the BCA requires the Chief Building Official to issue a building permit unless the proposed building or structure would contravene the Planning Act or any other applicable law.

134Submitting that a subdivision agreement does not constitute “applicable law” on which a building permit can be refused, the Appellants argue that the City cannot by agreement alter the statutory obligations of the Chief Building Official. Consequently, they submit, this condition is unreasonable by operation of law. The City did not provide a compelling response on this point.

135The Tribunal accepts the Appellants’ submission and similarly finds that this condition is unreasonable by operation of law. The issuance of building permits cannot be leveraged in the manner proposed by the City.

Estoppel (18.8)

136This standard condition purports to prohibit an owner from calling into question “directly or indirectly in any proceedings whatsoever in law or in equity or before any administrative tribunal” the City’s right to enforce all provisions of the subdivision agreement. The Appellants argue that it is unreasonable to attempt to require the Appellants to contract out of any legal rights that may exist in relation to Draft Plans conditions or the enforcement of a subdivision agreement. The City did not provide a compelling response on this point.

137The Appellants note that the Tribunal has the power to change the Draft Plans conditions at any time prior to final approval. They further argue that the apparent purpose of this condition is to fetter the Appellants’ right to seek changes to conditions, or interpretations of conditions by the Tribunal.

138The Tribunal accepts these submissions and similarly finds that this provision unreasonably attempts to interfere with the legal rights of the Appellants as described above.

Assignment Clause (18.8)

139This standard condition requires the City’s consent to the transfer of land and the execution of an assignment agreement by all transferees. The Appellants submit that the effect of this clause is to give the City the power to approve all transferees of the lands and even goes so far as to require the City to approve the transfer of shares of the companies that own the lands.

140The Appellants argue that this represents a restriction on the alienation of the owner’s lands which is not authorized by the subdivision control provisions of the Planning Act. Furthermore, they submit, s. 51(26) of the Act provides that subdivision agreements can be enforced against all subsequent owners of the land, making this condition unreasonable by being unnecessary. The City did not provide a compelling response on this point.

141The Tribunal accepts these submissions and similarly finds that this condition is unreasonable for being unnecessary, noting that it unduly burdens the Appellants’ rights as a landowner and to conduct its business.

Lapsing Condition of the VLC Conditions

142The City proposes that the VLC must be registered within three years of the later of the registration of Stage 3 of Draft Plan of Subdivision 30T-17401 and Stage 1 of Draft Plan of Subdivision 30T-17402. The Appellants submit that three years is an unreasonably short period of time for which the City provided no justification.

143The Appellants note that, before the VLC can be finally registered, all of the infrastructure supporting the VLC has to be fully constructed, which cannot occur until all detailed engineering drawings for the infrastructure has been reviewed and approved by the City and Region. This means that the timing of the registration is not entirely within the Appellants’ control, so more time is justified to be reasonable.

144The Tribunal finds that the City did not adequately justify the three year period, as proposed, and finds it unreasonable as a matter of practicality. The Tribunal further accepts Mr. Hawkins opinion that a five year period is necessary and consequently finds that it is reasonable.

Location of Trail Connection

145Given that Block 1 Stage 5 is not approved, the location of the Trail connection envisioned at the end of the VLC private roadway becomes an issue. The City wants a block to be conveyed to provide access to buffers/trails behind the VLC at the turning circle at the end of the road. The Appellants propose an easement instead, arguing that conveyance of a block could cut off their access to their lands that lie beyond (i.e., Blocks 1 and 2 of Stage 5). However, they acknowledge that an easement in their favour imposed upon such a block transferred to the City can satisfy their access issues.

146The Tribunal finds that it is reasonable to require conveyance of a block to the City, to provide access to the buffers/trails behind the VLC. However, an easement in favour of the Appellants must also be included to provide them with access to any and all lands that they retain beyond the VLC.

Summary of Findings regarding Conditions

147The Tribunal finds that the following conditions shall be modified or deleted to reflect the above decisions:

• Funding of Boulevard Works in Beaver Creek Road and Conservation Drive

• Conveyance of Lands for Road Widenings and Other Services

• Boulevard Trees within the VLC

• Reimbursement of Third Parties by the City (standard conditions 1.1.3 and 1.1.4)

• Fees for Non-Local Services (standard condition 1.5)

• Land Conveyances (18.1)

• Refusal of Building Permits on Default (18.7)

• Estoppel (18.8)

• Assignment Clause (18.8)

• Lapsing Condition of the VLC Conditions

• Location of Trail Connection

148The Tribunal finds that the following conditions are reasonable and may remain as a condition of Draft Plans approval.

• Recreational Trails within the Subdivision (pedestrian bridge across Beaver Creek)

• External Services and Trails and Bridges (1.7 and 3.10)

• City Legal Costs (1.12)

• Servicing in the Public Interest (3.8)

• Access to Adjacent Owner’s Lands (11.1)

Summary and Conclusion

149The above findings of the Tribunal lead it to a decision whereby it approves, in principle, the requested planning instruments necessary for the proposed development, except in relation to Block 1 Stage 5. Block 1 Stage 5 is not approved because, principally, the Tribunal finds, as a fact, that the proposed roadway to connect the development of Block 1 Stage 5 will most likely negatively impact the protected features of the NHFA and/or the ecological functions of said features. This would be inconsistent with provisions of policy 2.1 of the PPS and, consequently, a decision to allow it would be contrary to s. 3(5)(a) of the Planning Act.

150The Tribunal has also assessed the reasonableness of a number of conditions being proposed by the City, finding many but not all to be unreasonable as set out above. Of particular note, the Tribunal finds the City’s requested condition to order conveyance of Blocks 1 and 2 of Stage 5 without compensation is contrary to well-established legal principles.

151Relatedly, the Tribunal finds that the City’s request to have 5% of the total subdivision be dedicated as parkland and conveyed to the City is reasonable. However, this adds a wrinkle to the Tribunal’s approval of the Draft Plans, since it will either require the parties to revise the Draft Plans to make up the 5%, or the parties must come to an agreement on how to transfer ownership of Block 2 Stage 5 to the City. Contingent upon either solution, the Tribunal finds that the proposed development is policy-supportive.

152As a consequence of the above findings, the Tribunal has elected to conditionally approve the requested planning instruments, but only in principle as set out in the below Order, and to give the parties time to refine the wording of the proposed ZBA, details of the Draft Plans, and language of the Draft Plans’ conditions, to reflect the findings of this decision.

ORDER

153THE TRIBUNAL ORDERS that:

1. Northgate Land Corp’s appeal of certain provisions of the City of Waterloo’s 2012 Official Plan is dismissed for being unnecessary, finding in favour of the Appellants on the question of the interpretation of “essential infrastructure” in the 2012 Official Plan;

2. The appeals concerning the requested Zoning By-law Amendment, Draft Plans and related Conditions are allowed in part, in principle, subject to the exceptions and revisions described above, and contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in subparagraph 3 below.

3. The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:

a. The Tribunal has received and approved the Zoning By-law Amendment submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b. The Tribunal has received and approved the Draft Plans of Subdivision regarding the subject lands submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

c. The Tribunal has received and approved the Draft Plan of Vacant Land Condominium submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

d. The Tribunal has received and approved the Region’s and the City’s conditions of Draft Plans approval submitted in a final form, confirmed to be satisfactory to the Chief Planner and Executive Director, Region Planning and the Region Solicitor, and Chief Planner and Executive Director, City Planning and the City Solicitor, respectively;

4. The Panel Member will remain seized for the purposes of reviewing and approving the final drafts of the Zoning By-Law Amendment, Draft Plans of Subdivision, Draft Plan of Vacant Land Condominium, conditions of Draft Plans approval and the issuance of the Final Order.

5. If the Parties do not submit the aforementioned final drafts and do not request the issuance of the Final Order, within 90 days of the issuance of this Order, the parties shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the drafts and issuance of the Final Order by the Tribunal. In the event that the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeals.

6. The Tribunal may, as necessary, arrange the further attendance of the parties by video hearing or telephone conference call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“K.R. Andrews”

K.R. ANDREWS

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.

Footnotes

1. 1The term “Natural Heritage Features and Areas” is defined in the Provincial Policy Statement as including “significant wetlands”, “significant woodlands”, “significant wildlife habitat”, and/or “habitat of endangered species and threatened species”. There is no contest between the parties insofar as each of these features have been identified within the wooded/vegetated lands surrounding Block 1 Stage 5.
2. 2Figure 1 is provided for illustrative purposes only and does not represent any particular findings of the Tribunal, apart from showing the general shape and location of Block 1 Stage 5 within the surrounding NHFA. The lines illustrated in the image may be ignored for such purposes.
3. 3There is no contest between the parties insofar as the subject NHFA also constitutes a “Core Natural Feature” pursuant to policy 8.2.4 of the City’s OP.
4. 4The City led evidence to suggest that agents of the Appellants allegedly illegally pre-emptively clear-cut trees twelve years ago to widen the access route to Block 1 Stage 5. However, it was confirmed that no charges were laid and no convictions were rendered.