National Capital Commission v. Ottawa (City), 2023 CanLII 53894

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 13, 2023

CASE NO.: OLT-22-002882

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: National Capital Commission

Subject: Request to amend the Official Plan – Refusal of request

Description: OPA and ZBA to permit the development of a diplomatic precinct of up to five embassies and a federal park

Reference Number: D01-01-19-0011

Property Address: 1 and 19 Sir John A. MacDonald Parkway

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-22-002882

OLT Lead Case No: OLT-22-002882

OLT Case Name: National Capital Commission v. Ottawa (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Subject: Application to amend the Zoning By-law – Refusal of application

Reference Number: D02-02-19-0072

Property Address: 1 and 19 Sir John A. MacDonald Parkway

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-22-002883

OLT Lead Case No: OLT-22-002882

Heard: May 5, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
National Capital Commission	Ursula Melinz
City of Ottawa	Garett Schromm
Mechanicsville Community Association	Kristi Ross

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This is an appeal brought by the National Capital Commission (“NCC”) pursuant to s. 22(7) and s. 34(19) of the Planning Act (“Act”) following the refusal of the City of Ottawa (“City”) of applications for an Official Plan Amendment (“OPA”) and for a Zoning By-law Amendment (“ZBA”) to amend the City’s Zoning By-law 2008-250 (“ZBL”) (together, “Applications”). The NCC is seeking these amendments to permit the development of a diplomatic precinct of up to five embassies and a federal park on lands known municipally as 1 and 19 Sir John A. Macdonald Parkway (“Subject Site”).

2Pursuant to a Tribunal Case Management Conference decision, dated September 21, 2022 (“CMC Decision”), the Mechanicsville Community Association (“MCA”) was made a Party to this proceeding.

3The CMC Decision had originally set down this matter for a five-day merit hearing commencing on Monday, May 1, 2023. The fifth day of that hearing was converted into a settlement hearing when the Parties came to an agreement on all outstanding issues (“Proposed Settlement”). The Three-Party Minutes of Settlement, fully executed on May 2, 2023, was marked as Exhibit 1. Those elements of the Proposed Settlement within the jurisdiction of the Tribunal – namely the OPA and ZBA – are now before the Tribunal for approval.

4The uncontested and extensive evidence in support of the Proposed Settlement was provided by Allison Hamlin, Acting Manager of the West Branch of Development Review with the City’s planning department, who was qualified as an expert in land use planning. Ms. Hamlin’s written evidence, in the form of an Affidavit sworn on April 21, 2023, including various attachments, was marked as Exhibit 2.

SUBJECT SITE AND SURROUNDINGS

5The Subject Site is located south of the Sir John A. Macdonald Parkway, between Slidell Street to the east and Parkdale and Forward Avenues to the west. Burnside Avenue is located to the south. The Embassy of Indonesia is located on the adjacent lot to the west. The Ottawa River is located to the north beyond the Parkway and federal open space lands. To the south, the Mechanicsville neighbourhood includes a mix of uses but is predominantly residential.

6The Subject Site is irregular in shape and approximately 3.7 hectares in size. On-site vegetation includes grass and trees and there are informal pathways but no programmed recreational space.

7The NCC was not expected to construct the embassies but was proposing to position the lands from a policy and zoning perspective to ready the lands for development by others, possibly other nations. Specific nations had not been identified.

BACKGROUND

8The NCC had undertaken the Capital Urban Lands Plan between 2010 and 2015 which noted that certain parkway corridor lands may be redesignated in support of a future diplomatic precinct or other political land uses within the Urban Lands, should additional study identify the need for a dedicated land base. Subsequently, the NCC undertook development of the Ottawa River South Shore Riverfront Park Plan (“ORSSRPP”) in 2015. Through this process, the Subject Site was identified and labelled as “Future Diplomatic Mission”.

9The ORSSRPP specifically states that the NCC intends to use the Subject Site for diplomatic missions and identified the following action:

Allocate NCC lands adjacent to the park along Burnside Avenue for potential future diplomatic missions consistent with their Capital function, where direct access from the parkway to the site is prohibited under the NCC parkways policy, and include sufficient visual and security vegetative buffering between the site and parklands.

10A diplomatic mission is defined as a foreign country’s representation to Canada’s Capital. It is a location to obtain services and information about other countries. Diplomatic missions include embassies, high commissions, chancelleries, and diplomatic residences.

11The ORSSRPP was approved by the NCC Board of Directors in July 2018.

12The Applications were filed by the NCC with the City in June 2019. City staff recommended approval of the Applications in a report dated September 10, 2021. The City’s Planning Committee endorsed those recommendations on September 23, 2021. However, on February 9, 2022, City Council refused the Applications.

13The main differences from the relief sought through the Proposed Settlement and the initial Applications (which were ultimately refused by City Council) are:

i. necessary changes to the amendments to the text of the Official Plan to reflect that, because of the coming into force of the City’s new Official Plan, the amendment will amend the new Official Plan;

ii. in the Scott Street Secondary Plan:

i. addition of a requirement that development will provide for a pathway connection between Forward Avenue and Hinchey Avenue;

ii. addition of a requirement to make best efforts to replace removed trees on the subject property;

iii. permitting parking above the first floor if it is integrated into the principal building and not visible from outside of the building;

iii. in the ZBA:

i. change “minimum” setback from Forward Avenue, Hinchey Avenue and Burnside Avenue to “maximum”;

ii. clarify application of the wording of the rear yard setback;

iii. clarify that the maximum number of principal buildings is five (i.e., these buildings may contain more than one diplomatic mission/embassy office use);

iv. adjust Official Plan and Zoning mapping to align the Open Space portion of the Subject Site with the lands identified in the Community Design Plan as open space (i.e., those lands east of the extension of the easterly boundary of Stonehurst Ave).

EVIDENCE AND ANALYSIS

14Although this was a Settlement Hearing, the Tribunal must nevertheless be satisfied that the Settlement Proposal meets all legislative tests. In particular, the Tribunal must be satisfied that Settlement Proposal:

i. has regard to matters of provincial interest in s. 2 of the Act;

ii. is consistent with the Provincial Policy Statement 2020 (“PPS 2020”) pursuant to s. 3 of the Act;

iii. conforms to the City’s Official Plan (“City’s OP 2022”) pursuant to s. 24 of the Act (with respect to the ZBA); and,

iv. conforms to the Scott Street Secondary Plan pursuant to s. 24 of the Act (with respect to the ZBA).

15Ms. Hamlin testified that, in her professional opinion, the proposed OPA and ZBA, to permit the development of the Subject Site in accordance with the Proposed Settlement, represents an appropriate and desirable form of land use planning and was in the public interest and met all the legislative tests. The following is an account of his uncontested evidence, which is accepted by the Tribunal.

Matters of Provincial Interest

16In her oral evidence, Ms. Hamlin testified that the Applications had regard to matters of provincial interest set out in s. 2 of the Act.

Provincial Policy Statement

17Ms. Hamlin explained that, as part of her review and assessment of the Applications, the proposed development was reviewed against the relevant policies of the PPS 2020.

18In her professional opinion, the OPA and ZBA are consistent with the relevant policies of PPS 2020. She noted that the proposed development promotes efficient development and land use patterns and assists in accommodating a range and mix of institutional land uses. The proposed office and diplomatic mission efficiently use lands and resources, are appropriate for the infrastructure available, support active transportation, and are transit supportive. In her view, the proposed park will promote healthy and active communities. The proposed development improves the mix of uses and availability of services and employment close to existing residential uses, which has the potential to reduce commuting and decrease traffic congestion. Active transportation facilities such as sidewalks and pathways are enhanced. Existing trees are protected, where possible, or replaced where they cannot be saved.

City’s Official Plans

19Since the appeal was filed, a new Official Plan for the City has been approved by the Province of Ontario. Section 2 of By-law 2021-386 repealed the old Official Plan 2003 (“OP 2003”) on November 24, 2021, and Section 2 came into force when the Minister approved the new Official Plan on November 4, 2022 (“City’s OP 2022”). As the applications were refused between adoption of the City’s OP in November 2021 and enactment following provincial approval in November 2022, Ms. Hamlin’s evidence referred to both the old and the new Official Plan policies in her evidence. However, as the OP 2003 has now been repealed, the amendments set out by the Tribunal in this Decision and Order are to the City’s OP 2022.

OP 2003

20Ms. Hamlin explained that OP 2003 affirms that Ottawa must fulfill both Capital and local needs. It notes that Capital functions and Capital buildings such as embassies and other buildings of national importance define the Capital image. She explained further that OP 2003 states that the City must partner with the provincial and federal governments, including the National Capital Commission, on issues related to transportation infrastructure, management of natural resources, economic development, and more.

21Ms. Hamlin testified that OP 2003 supports the development of lively and complete mixed-use communities within the urban area that respect the established characteristics of the community. In general terms, compatible development means development that, although it is not necessarily the same as or similar to existing buildings in the vicinity, can enhance an established community through good design and innovation and coexists with existing development without causing undue adverse impact on surrounding properties.

22Ms. Hamlin testified that under OP 2003, the City is to ensure, to the extent possible, that the design and character of development adjacent to greenspaces enhances the visibility and accessibility of the public lands, but also notes that public access is not required and that federal lands must follow federal approval processes. Development adjacent to greenspaces and waterways are guided by policies that enhance the visibility and accessibility of these public lands and contributes to their connection to the Greenspace Network through several means, including the use of multi-use pathways or other greenspace connections.

23Ms. Hamlin explained that the majority of the Subject Site is designated Major Open Space with the balance of the lands, a 0.46-hectare rectangle of land near Forward Avenue, being designated General Urban Area. The Major Open Space designation includes large parks, open space corridors along the Ottawa and Rideau Rivers and the Rideau Canal, parkway corridors, and corridors reserved for rapid-transit and major roads. Major Open Spaces are a key component of the Greenspace Network which contributes to the quality of life in neighbouring communities as well as to the overall integrity of the natural environment. The General Urban Area designation permits the development of a full range and choice of housing types to meet the needs of all ages, incomes, and life circumstances, in combination with conveniently located employment, retail, service, cultural, leisure, entertainment, and institutional uses.

24Ms. Hamlin further explained that under OP 2003, the Sir John A. Macdonald Parkway is designated as a ‘Scenic-Entry Route’ which forms part of a network that links major tourist, recreation, heritage, and natural environment destinations in and beyond Ottawa. Scenic-Entry Routes include a variety of roads, such as highways, parkways, arterial roads, and local streets. Many Scenic-Entry Routes, such as the Sir John A. Macdonald Parkway, contribute to the continuity of the Greenspace Network through the design of their corridors.

25Given the foregoing, Ms. Hamlin testified that, in her professional opinion, the proposed OPA is appropriate and would have resulted in development that met the intent of the applicable policies contained within the City’s OP 2003. She also opined that the ZBA is in conformity with OP 2003.

City’s OP 2022

26Under the City’s OP 2022, the Subject Site is designated Greenspace. Ms. Hamlin testified that the Greenspace designation identifies a network of public parks, other spaces within the public realm and natural lands that collectively provide essential ecosystem services to Ottawa’s residents, support biodiversity, climate resilience, recreation, and healthy living. The City’s OP 2022 recognizes that lands owned by partner agencies such as the NCC contribute to the City’s inventory of green spaces.

27Ms. Hamlin explained that an amendment to Schedule B2 – Inner Urban Transect of the City’s OP 2022 would be required to redesignate the lands from Greenspace to Evolving Neighbourhood. Additionally, an amendment would be required for a portion of the subject lands to no longer be shown as Open Space. The proposed federal park would remain Greenspace within Schedule B2 – Inner Urban Transect, and Open Space within Schedule C12 – Urban Greenspace.

28Ms. Hamlin testified that the City’s OP 2022 provides direction on enhancing or establishing an urban pattern of built form, site design and mix of uses. She explained that the policies support development into integrated neighbourhood centres by requiring permanent and high-quality public pedestrian networks. Moreover, due to the prioritization of walking, cycling, and transit within, as well as to and from, the so-called Inner Urban Transect, where new development proposes to include parking, such parking would be hidden from view of the public realm by being located behind or within the principal building, or underground; and would be accessed by driveways that minimize the impact on the public realm and on distinctive trees.

29Ms. Hamlin explained that low-rise buildings are permitted in the Neighbourhood designation and that the evolution of neighbourhoods is generally directed towards the City’s OP 2022 model of 15-minute Neighbourhoods and Ms. Hamlin opined that neighbourhoods form the cornerstone of liveability in Ottawa. As a result, the use proposed in a development must be adequately integrated within the Neighbourhood and contribute to the goals of the designation.

30In Ms. Hamlin’s professional opinion, diplomatic missions and offices for embassies are an appropriate land use within Neighbourhoods. Diplomatic missions are residential uses. Embassies may include both residential and non-residential uses (such as offices) but can be designed to blend in with existing built forms. Many desirable, established neighbourhoods in Ottawa have embassies located along local streets and within larger, often heritage, homes, and their operations do not pose an adverse impact to their surroundings. The five buildings proposed at 1 and 19 Sir John A. Macdonald are located at the edge of the Mechanicsville neighbourhood, which already contains a mix of building forms and land uses. Given the foregoing, she opined that the Applications, including the ZBA, are in conformity with applicable policies contained within the City’s OP 2022.

Scott Street Secondary Plan

31Ms. Hamlin explained that the Subject Site is part of the Scott Street Secondary Plan, which was approved in January 2015. At the time, the Subject Site was not studied in detail as federal planning processes were underway concurrently. It was expected that the NCC would eventually approach the City should updates be required to align with federal plans. The Scott Street Secondary Plan was integrated in Volume 1 of the OP 2003 and has now been integrated to Volume 2A of the City’s OP 2022.

32The Subject Site is designated Open Space – Existing on Schedule A – Land Use Plan. Except for the portion of the Subject Site proposed to be a federal park, this designation would be replaced with a new category called ‘Institutional – Embassies’ with associated policies. The proposed federal park would remain ‘Capital Greenspace’ within the Scott Street Secondary Plan within the City’s OP 2022, Volume 2A.

33The proposed amendments introducing a new land use category called Institutional – Embassies would achieve the following:

i. limit the height of the proposed buildings to a low-rise form;

ii. require buildings to be built close to the public street to frame the public realm, with main entrances facing the local roads and with parking located behind the buildings and screened by vegetation;

iii. require improvements to pedestrian and cyclist connections. Additionally, the amendments specify that future development will provide an improved intersection at Slidell Street and the Sir John A. MacDonald parkway for all modes for greater safety and aesthetics;

iv. stipulate maximum heights for fences, to be more compatible with the residential context, unless exceptional security measures are a requirement of the embassy;

v. protect or enhance landscaping; and

vi. prohibit parking and access routes between the buildings and local street and encourage parking to be underground or screened from view.

34In Ms. Hamlin’s professional opinion, the proposed amendments to the Scott Street Secondary Plan are appropriate and support direction within that Plan for managing growth, protecting and enhancing greenspace, and improving the area for existing and future residents. She also opined that the ZBA is in conformity with the Scott Street Secondary Plan, which forms part of both OP 2003 and the City’s OP 2022.

Position of MCA

35MCA, the only other Party to the proceeding, does not object to the Proposed Settlement. It is a signatory to the Proposed Settlement. It declared itself particularly satisfied with the outcome as it related to the continued availability of green spaces, as well as the addition of sidewalks and walking paths.

CONCLUSION

36In summary, based on the foregoing uncontested evidence, the Tribunal finds that the amended Applications meet all the legislative tests, namely:

i. the OPA (including the amendments to the Scott Street Secondary Plan) and ZBA have regard to matters of provincial interest in s. 2 of the Act;

ii. the OPA (including the amendments to the Scott Street Secondary Plan) and ZBA are consistent with the PPS;

iii. the ZBA conforms to the City’s OP 2022;

iv. the ZBA conforms to the Scott Street Secondary Plan; and,

v. the ZBA has regard to OP 2003.

37Furthermore, considering the Proposed Settlement has been endorsed by the City, the Tribunal makes its findings while exercising regard for the decision of the City pursuant to s. 2.1(1)(a) of the Act.

38The Tribunal finds that the amended Applications are appropriate, in the public interest, and constitute good planning.

ORDER

39THE TRIBUNAL ORDERS that:

i. the appeal is allowed;

ii. the Official Plan for the City of Ottawa as amended as set out in Schedules A1, A2, A3 and A4 to this Order is hereby approved;

iii. By-law 2008-250 of the City of Ottawa as amended as set out in Schedules B1 and B2 to this Order is hereby approved and the Tribunal authorizes the municipal clerk of the City of Ottawa to assign a number to this By-law for record-keeping purposes.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS 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.

Schedule A1

Official Plan and Scott Street Secondary Plan Amendments

i. Volume 1 of the Official Plan, is hereby amended by modifying Schedule B2 – Inner Urban Transect to re-designate Area A on Schedule A2 from ‘Greenspace’ to ‘Evolving Neighbourhood’;

ii. Volume 1 of the Official Plan, is hereby further amended by modifying Schedule C12 – Urban Greenspace to remove the ‘Open Space’ designation from the area indicated on Schedule A3; and

iii. Volume 2a, Urban Secondary Plans: 16. Scott Street Secondary Plan is hereby amended:

a. By adding a new policy in Section 4.0 Land Use Designations, Building Heights and Locations, as follows:

“4.7 Institutional - Embassies Designation

The Institutional - Embassies designation applies to those areas indicated on Schedule A - Land Use Plan. This designation is intended to permit the development of up to five principal buildings containing diplomatic missions and offices (limited to embassy uses). Parks and open space uses are permitted until redevelopment occurs. Through the development application process, the applicant shall demonstrate how the proposed development meets the applicable guidelines contained in the Scott Street Community Design Plan in addition to the following applicable policies:

Built Form

1. The maximum building height shall be three storeys.

2. Buildings should be oriented with main entrances facing Forward Avenue, Hinchey Avenue, or Burnside Avenue and windows facing streets and public space.

3. Building massing and site configuration should reflect and enhance adjacent natural settings, open space networks, streets and the public realm, and urban patterns of built form and density.

Public Realm and Mobility

4. Development will provide for an improved connection for pedestrian and cyclists along Burnside Avenue to the intersection of Slidell Street and the Sir John A. MacDonald Parkway; and

5. Development will provide an improved intersection at Slidell Street and the Sir John A. MacDonald parkway for pedestrians, cyclists and vehicles.

6. Development will provide for a pathway connection between Forward Avenue and Hinchey Avenue, to be located generally along the shared lot line with the property municipally known as 89 Forward Avenue.

7. As a condition of development approval, the City may require enhanced streetscape measures along public streets.

Landscaping

8. Security fencing should not exceed 1.0 metre in height in a front yard or 2.0 metres in any other yard, unless exceptional security measures are a requirement of the embassy: and

a. Fencing should be minimized. A combination of low wall (below 0.5 metres) and fence is preferred.

b. Fencing may not be solid or opaque (other than a low wall and stone columns if they are part of the design).

9. A vegetative buffer within the rear yard setback abutting Sir John A. MacDonald Parkway will be encouraged.

10. Existing landscape features such as mature trees should be retained, except where removal is unavoidable for site remediation or construction, or where they are unhealthy or hazardous, and best efforts shall be made to replace removed trees on the Subject Property.

11. Rock outcrops should be preserved, where possible.

12. Development will provide a gateway to the community near Slidell Avenue and Burnside Avenue with a distinctive corner treatment.

Parking

13. Surface parking, driveways and aisles are not permitted between the building and the street.

14. Parking is encouraged to be underground, parking at grade is to be sensitively screened, and if parking is located within a building above the first floor, then it is to be integrated into the principal building and shall not be visible from outside of the building.

b. By modifying Scott Street Secondary Plan, Schedule A – Designation Plan, to re-designate Area A on Schedule A4 from ‘Capital Greenspace’ to a new designation ‘Institutional – Embassies’

Schedule A2

Modifications to Official Plan, Vol. 1, Schedule B2

Schedule A3

Modifications to Official Plan, Vol. 1, Schedule C12

Schedule A4

Amendment to Official Plan Vol. 2A, Scott Street Secondary Plan, Schedule A

Schedule B1

Zoning By-law Amendment

Zoning By-law 2008-250 is hereby amended as follows:

1. Rezone the lands as shown in Schedule B2, as follows:

a. Area A from R5B H(37)-h to I1A[XXXX]-h

b. Area B from O1L [310]-h to I1A[XXXX]-h

c. Area C from O1L [310]-h to O1A

2. Add a new exception [XXXX] to Section 239, Urban Exceptions, to add provisions similar in effect to the following:

a. In Column II, Applicable Zoning, add the text, “I1A [XXXX]-h”

b. In Column III, Exception Provisions – Only the following land uses are permitted, add the following text:

i. Diplomatic Mission

ii. Office, limited to embassy uses

iii. Park

iv. Environmental Preserve and Education Area

v. Place of Assembly, accessory to a permitted use

c. In Column IV, Exception Provisions – Land Uses Prohibited, add the following text:

i. All uses other than Park and Environmental Preserve and Education Area and all buildings until the holding provision is removed.

d. In Column V, Exception Provisions – Provisions, add the following text:

i. Maximum Setback from Forward Avenue, Hinchey Avenue and Burnside Avenue: 3m

ii. Minimum Rear Yard Setback: 15m for lots abutting the Sir John A. MacDonald Parkway

iii. The defined rear lot line shall abut the southern curb of the Sir John A. MacDonald Parkway for any lot abutting the Parkway.

iv. Minimum Interior Side Yard Setback: 6m

v. Maximum Driveway Width: 3.6m

vi. A maximum of five principal buildings are permitted

vii. Section 109 (3) (b) does not apply to diplomatic missions or offices, limited to embassy uses

viii. No person shall park any motor vehicle in the required or provided front yard, the required or provided corner side yard or the extension of a required and provided corner side yard into a rear yard

ix. An amendment to this by-law to remove the holding provision, in part or in full, is permitted once an application for Site Plan Control under the Planning Act for the subject lands is approved, which addresses the following to the satisfaction of the General Manager of Planning, Real Estate and Economic Development:

1. A Transportation Impact Assessment that includes:

a. a detailed design for sidewalks along Hinchey Avenue and Burnside Avenue, within the adjacent street frontages and connecting to the sidewalk at the intersection of Slidell Street and Burnside Avenue; and

b. an active transportation connection, which may include use by pedestrians, from the north side of the intersection of Burnside Avenue and Slidell Street to the north side of the intersection of Slidell Street and the Sir John A. MacDonald Parkway

2. The provision of a Servicing Study, addressing municipal servicing and easements for underground municipal infrastructure

x. Add the following provision after the holding symbol criteria:

“Partial removal of the holding symbol may be considered to provide for phased development. The submission and approval of an application to lift the holding provisions on a phased basis may be considered provided the requirements for that development phase satisfy the requirements for the lifting of the holding zone specified above.”

Schedule B2

Zoning By-law Amendment Location Map