Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 31, 2023
CASE NO(S).: OLT-22-002958
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Bridgebrook Corporation Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Reference Number: OPA 66 Property Address: 7370 Centre Road Municipality/UT: Uxbridge/Durham OLT Case No: OLT-22-002958 OLT Lead Case No: OLT-22-002958 OLT Case Name: Bridgebrook Corporation v Uxbridge (Township)
PROCEEDING COMMENCED UNDER section 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Reference Number: ROPA 2021-005 Property Address: 7370 Centre Road Municipality/UT: Uxbridge/Durham OLT Case No: OLT-22-003735 OLT Lead Case No: OLT-22-002958
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Reference Number: ZBA 2021-03 Property Address: 7370 Centre Road Municipality/UT: Uxbridge/Durham OLT Case No: OLT-22-002959 OLT Lead Case No: OLT-22-002958
PROCEEDING COMMENCED UNDER section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Reference Number: S-U-2021-01 Property Address: 7370 Centre Road Municipality/UT: Uxbridge/Durham OLT Case No: OLT-22-003736 OLT Lead Case No: OLT-22-002958
PROCEEDING COMMENCED UNDER subsection 10(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Township of Uxbridge Request for: Request for Directions Heard: November 24, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Township of Uxbridge | M. Joblin |
| Regional Municipality of Durham | K. Ryan/R. Woon |
| Bridgebrook Corporation | M. Flowers/G. O’Brien |
| South Reach Developments Limited | R. Cheeseman |
| Mason Homes Limited | J. Lanctot/J. Doris |
DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL
MOTION OF THE TOWNSHIP OF UXBRIDGE
1The matter before the Tribunal was a motion brought forward by the Township of Uxbridge (“Township”) requesting that the Tribunal give the following relief:
An Order of the Tribunal that the hearing of the appeals by Bridgebrook Corporation ("Bridgebrook") respecting applications made to the Regional Municipality of Durham (“Region”) for an amendment to the Region’s Official Plan (“ROP”) and approval of a plan of subdivision, and applications made to the Township for amendments to the Township’s Official Plan (“TOP”) and Township’s Zoning By-law be phased, to first hear those issues on the Issues List under Section A, dealing with General Issues related to Phase 2 Uxbridge Urban Area.
Such further and other relief as the Township may seek and the Tribunal may grant.
2The lands owned by Bridgebrook are described as Part of Lot 33, Concession 6, municipally known as 7370 Centre Road, (“Subjects Lands), that are located in the northern part of Uxbridge Urban Area as designated in the TOP. The Subject Lands are undeveloped and approximately 40 hectares in size. The TOP also designates the Subject Lands as part of the Phase 2 Future Residential Area. The Region designates the Subject Lands in the ROP as “Special Study Area 6”.
3Bridgebrook has brought forward amendments to the ROP, the TOP, the Township Zoning By-law, and a plan of subdivision to develop a proposed 506 dwelling units with a mix of detached and link, and townhomes on the Subject Lands.
4Official Plan Amendment No .19 was passed in July 1999 to amend the TOPS to include s. 2.2.7 that addresses Development Phasing. It was the submission of the Township that the TOP has established under s. 2.2.7.1 that:
Development in the Urban Area is conditional on the availability of municipal sewage and water services. The capacity of these services is limited and must be regularly monitored to ensure that development approvals do not exceed capacity. This is particularly true with respect to sewage treatment.
5The Township further submitted that s. 2.2.7.2 directs the priority of development be given to Phase 1 designated lands, the Uxbridge Urban Area, and that the development of Phase 2 lands only be considered in accordance with s. 2.5.7 of the TOP. Section 2.5.7 allows for the consideration of development of Phase 2 lands when there's sufficient additional sewage capacity for the proposed development, sewage capacity for the development in the Phase 1 lands, and 65% of the major vacant land development lands in Phase 1 have been registered for development.
6It is the position of the Township that the available sewage capacity at the Uxbridge Brook Water Pollution Control Plant sets the threshold for the rate of development of the Uxbridge Urban Area and is the key issue for the Tribunals consideration in this matter. Because of this, the Township has proposed to have the matter heard in phases to provide a discreet, fair, just, expeditious and cost-effective hearing.
7The proposed phased hearing approach would divide the Township and Region Issues List into the eight (8) issues related to the Phase 2 Uxbridge Urban Area and depending on the decision of the Tribunal of the first phase, schedule a second phase hearing of the merits of the 23 Subject Land issues related to the rezoning, and draft plan of subdivision.
8The Township submits that the first phase of the hearing deal with the discreet set of threshold issues of servicing allocation. The Township considers this to be the most fundamental question of whether any Phase 2 Uxbridge Urban Area development is appropriate at this time.
9By statute, the Township stated that the Tribunal has the power to determine its own procedures and practices. The Tribunal’s Rules of Practice and Procedure may at any time make Orders to establish a proceeding that offers that a hearing of the merits to be fair, just, expeditious, and cost-effective hearing of the merits.
10The Township submits that the phasing of the hearing could considerably shorten the overall length of the merit hearing. It is the anticipation of the Township that the first phase of the hearing would not be longer than ten (10) days in total. Depending on the first phase hearing decision of the Tribunal, the matter could proceed to the second phase with no increases to the matters hearing calendar days, or should the Tribunals first phasing decision order that development of the Phase 2 Uxbridge Urban Area is not considered appropriate at this time, the matter be entirely completed cancelling the need for the second phase hearing days.
11Should the Tribunal take a non-phased hearing approach, the Township believes that expense, time, and preparation to include the Subject Land specific issues proposed in the second phase, would be a waste of the resources of the Parties and Tribunal.
12The Township stressed that should the Tribunal approve the appeals of Bridgebrook, the phasing of the hearing will not likely result in a delay of the Subject Lands being developed as there remains no clear timeline on when servicing capacity of the Phase 2 Uxbridge Urban Area will be available. Therefore, any phasing of a hearing in the opinion of the Township would not be prejudicial to Bridgebrook.
SUPPORTING PARTIES
13In support of the Townships phased hearing motion, the Region, Mason Homes Limited (“Mason Homes”) and the South Reach Developments Limited (“South Reach”) appeared before the Tribunal.
14Mason Homes and South Reach are both parties that have lands that are located, although not necessarily adjacent, within the Phase 2 Uxbridge Urban Area. Their interest in this matter is purely with the general eight (8) issues related to the Phase 2 Uxbridge Urban Area that address servicing capacity. They support the phasing of the hearing and its potential efficiencies of dealing with the discreet issues first.
15The Region not only gave support to the motion but stressed with the Tribunal that the Uxbridge Water Pollution Control Plant has a current capacity rating for 15,000 people and is not sufficient to service the Phase 2 Uxbridge Urban Area lands. The Region confirmed that at this point there is no timeframe of when plant improvements addressing the servicing capacity at the Uxbridge Water Pollution Control Plant would begin.
RESPONSE OF BRIDGEBROOK
16In opposition response to the motion, Bridgebrook requested the following relief from the Tribunal:
An Order of the Tribunal dismissing the Motion in its entirety.
An Order of the Tribunal confirming that all issues included in the draft Procedural Order submitted to the Tribunal on September 22, 2022, will be adjudicated in the hearing provisionally scheduled for 20 days to commence on January 15, 2024.
Such other and further relief as Bridgebrook may request and the Tribunal will allow.
17It is the submission of Bridgebrook that the Tribunal should consider the applications in a comprehensive fashion as they had been submitted. Bridgebrook does not believe that there are “threshold” servicing capacity issues related to the Phase 2 Uxbridge Urban Area, that needs to be determined prior to hearing the merits for the issues directly related to the Subject Lands.
18It is the position of Bridgebrook that the ROP or the TOP do not contain any threshold policies that prohibits the development of Phase 2 Uxbridge Urban Area lands. The ROP policy for the Subject Lands that are part of Special Study Area 6, speak to consideration not prohibition in policy 12.1.3 that states:
Special Study Areas 5 and 6 apply to lands located within the Uxbridge Urban Area. An amendment to this Plan to designate these lands for development shall be subject to the consideration of the following:
a) the amount and rate of development that has occurred in the area designated "Living Area"; and
b) the availability of servicing capacity
19Bridgebrook submits that this policy directs the Region staff to consider whether or not there is an availability of servicing capacity. The Uxbridge Water Pollution Control Plant has a current capacity for 15,000 people. An expert analysis report conducted on behalf of Bridgebrook found that the current development committed to servicing capacity is approximately 13,746. Bridgebrook believes that they would be able to demonstrate that there could be enough capacity to potentially allow for the development of the Subject Lands.
20The TOP sets direction that priority of development be given to those lands located within the Phase 1 Uxbridge Urban Area. However, it is the opinion of Bridgebrook that the TOP policies state in s. 2.5.7 that development of Phase 2 Uxbridge Urban Area lands may be considered when:
a) There is sufficient additional sewage capacity for the proposed development, as well as for all potential development in the Phase 1 lands; and,
b) 65% of the major vacant development sites in Phase 1 have been registered for development.
21Bridgebrook submits to the Tribunal that the ROP policy contemplates development of complete applications be contemplated for approval, while keeping in consideration the servicing capacity. The Township’s Uxbridge Urban Area Servicing Allocation Policy 3.2 states that:
Conditions of draft plan of subdivision or condominium approval or provisional consent for development will contain a clause indicating that the Township is not obligated to provide water or wastewater servicing capacity allocation within the term of the draft approval or provisional consent and that the final allocation of water and wastewater servicing capacity will only occur following confirmation of such capacity by the Regional Municipality of Durham and a Resolution of Uxbridge Council allocating such capacity in accordance with this policy.
22The planning matters before the Tribunal are to be considered under s. 2.1 (2) of the Planning Act. The s. 51(34), 34(11), and 22(7) appeals are for the refusal, neglect, or failure of the approval authorities to make a decision. It is the opinion of Bridgebrook, that the Townships’ assertion that the phased hearing of these matters would save calendar time and resources based on a first phase decision of the Tribunal is incorrect. It is the position of Bridgebrook that these matters should be heard in a non-phased manner in order for the Tribunal to consider the s. 2.1(2) and consider the statutory requirements for the site-specific appeals that would not be heard until the proposed second phase.
23Throughout the process, Bridgebrook maintains that they have endeavored to work with the Township and Region. After obtaining their comments Bridgebrook resubmitted revised applications in May 2022. The Township and the Region have deemed applications by Bridgebrook only to be complete after Bridgebrook paid the various application fees and retained consultants to complete the required comprehensive studies and/or reports.
24In the opinion of Bridgebrook there is substantial overlapping evidence in the proposed hearing phases that may not be appropriate to separate. Counsel for Bridgebrook provided the Tribunal with several examples for issues raised, including issues identified in the Planning Act, Provincial Policy Statements, ROP, and TOP, that would cross over between the two phases. As a result, Bridgebrook would be required to summon their experts to give the similar testimony in both hearing phases.
25By phasing the hearing of the merits, Bridgebrook submits that they would suffer significant prejudice and contrary to the public interest, the potential final approval would be significantly delayed. Giving consideration for the first phase of the hearing to be heard in January 2024, a decision of the Tribunal to be rendered, and the scheduling of the second phase hearing, has the potential of delaying the appeals to be heard in its entirety for months, if not a year, given counsel’s experience with the current Tribunal calendar.
FINDINGS OF THE TRIBUNAL
26After considering the submissions of all parties the Tribunal dismisses the motion that this matter be heard by a two-part phased hearing. The Tribunal is satisfied that there is ample crossover in expert witnesses that would cause a redundancy in evidence to the Tribunal and does not expedite these proceedings. While servicing capacity will be a prevalent issue during the hearing of the merits, the Tribunal must consider all planning aspects of an application in its entirety, and it is appropriate that the Tribunal hear the evidence of the comprehensive Official Plan, Zoning By-law, and plan of subdivision applications together.
27Bridgebrook submitted to the Tribunal that phasing the hearing could cause an additional delay to their applications for potentially more than a year. The Township submits that there would not likely be a delay because there is no clear timeline for the capacity increase of the Uxbridge Water Pollution Control Plant. Both parties are likely correct in their assessment. No matter the decision of this motion, the timing of development is likely to be a considerable period of time away. However, the Panel is of the opinion that should the appeals of the various applications be successful, consideration of conditions could address the servicing capacity issues, but would provide a potentially ready for development project once the capacity is available that could potentially contribute to the goals and objectives of the Provincial planning regime to increase housing opportunities.
ORDER
28THE TRIBUNAL ORDERS that the motion by the Township of Uxbridge to phase the hearing is dismissed.
“Steven Cooke”
STEVEN COOKE VICE-CHAIR
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.