2810007 Ontario Ltd. (Essence Homes) v. Halton Hills (Town), 2023 CanLII 7743

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 1, 2023

CASE NO(S).: OLT-22-004243

PROCEEDING COMMENCED UNDER section 51(39) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: 2810007 Ontario Ltd. (Essence Homes)

Subject: Conditions of approval of draft plan of subdivision

Description: Conditions of a draft plan of subdivision to facilitate the development of 131 townhouse units

Reference Number: D12SUB18.001

Property Address: 11571-11605 Trafalgar Road

Municipality/UT: Halton Hills/Halton

OLT Case No: OLT-22-004243

OLT Lead Case No: OLT-22-004243

OLT Case Name: 2810007 Ontario Ltd. (Essence Homes) v. Halton Hills (Town)

Heard: January 11, 2023 by Video Hearing

APPEARANCES:

Parties 2810007 Ontario Ltd.

Counsel Denise Baker

Town of Halton Hills David N. Germain Katyrina Zielinski

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND SHARYN VINCENT ON JANUARY 11, 2023, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened a merit hearing on January 11, 2023 (“Hearing”) in the matter of an appeal by 2810007 Ontario Ltd., also known as Essence Homes (“Appellant/Applicant”), under section 51(39) of the Planning Act (“Act”). On July 4, 2022, the Town of Halton Hills (“Town”) granted conditional approval of a draft plan of subdivision to the Appellant/Applicant for the lands known municipally as 11571 – 11605 Trafalgar Road in the Town (“Subject Property”). The approved plan of subdivision will enable the development of 131 townhouse units on a private condominium road at the Subject Property (“Proposed Development”).

2The conditional approval of the Proposed Development included a list of eighty-four (84) conditions (“List of Conditions”). The Appellant/Applicant appealed conditions 26, 29, 30, and 31 pertaining to Halton Region (“Region”), and conditions 62-70 and 81 pertaining to Canadian National Railway (“CN”).

3At the Hearing, the Appellant/Applicant advised that the conditions pertaining to the Region were no longer at issue. The Appellant/Applicant further advised that some of the conditions pertaining to CN were also no longer at issue.

4The following conditions remained before the Tribunal as part of the appeal (“Contentious Conditions”):

a. Condition 67: Any proposed alterations to the existing drainage pattern affecting railway property must receive prior concurrence from the Railway and be substantiated by a drainage report to the satisfaction of the Railway.

b. Condition 69: The Owner shall enter into an Agreement with CN stipulating how CN's concerns will be resolved and will pay CN's reasonable costs in preparing and negotiating the agreement.

c. Condition 70: The Owner shall be required to grant CN an environmental easement for operational noise and vibration emissions, registered against the Property in favour of CN.

d. Condition 81: Final approval shall not be granted until CN Railway advises the Town of Halton Hills that conditions 62 to 70 have been satisfied.

5For reasons detailed below, the Tribunal ordered that conditions 67, 69, and 70 be removed from the List of Conditions, and that condition 81 be revised accordingly. The List of Conditions, as amended, is attached as Appendix 1 to this Order.

REQUESTS FOR STATUS

6The Tribunal received no requests for Party or Participant status in response to the Notice of hearing, served as required. Specifically, CN did not request to participate in the Hearing, and the Tribunal did not receive any communication from CN with respect to this appeal. Accordingly, the appeal proceeded with the involvement and participation of the Parties identified above.

SUBJECT PROPERTY

7The 2009 Region of Halton Official Plan (“Region’s OP”) designates the Subject Property as Urban Area (Georgetown). Under the Town of Halton Hills’ Official Plan (“Town’s OP”), the Property is within the area known as the Trafalgar Road Redevelopment Area (“TRRA”) subject to Residential Special Policy Area 5.

8The Subject Property has an area of approximately 3.16 hectares (“ha”) and a frontage of approximately 140 metres (“m”) along Trafalgar Road. The Subject Property was comprised of five separate parcels located on the east side of Trafalgar Road, immediately west of the CN Railway, until August 30, 2022, when these five parcels were merged. The original five parcels comprising the current Subject Property are described as follows:

a. 11571 Trafalgar Rd. – 0.79 ha – containing a single detached dwelling

b. 11583 Trafalgar Rd. – 0.25 ha – containing a single detached dwelling

c. 11597 Trafalgar Rd. – 0.14 ha – containing a single detached dwelling

d. 11603 Trafalgar Rd. – 1.61 ha – containing an industrial building

e. 11605 Trafalgar Rd. – 0.35 ha – containing a single detached dwelling

9The land uses surrounding the Property are as follows:

a. North: Georgetown Christian Reformed Church and Halton Hills Christian School

b. East: CN Railway, Halton Hills Drive and the Gallery Active Living life lease apartment building, and further east Maple Avenue and the Civic Centre Area including the Halton Hills Town Hall

c. South: Residential properties that are part of the Trafalgar Road Redevelopment Area Phase 2 lands and the CN Railway

d. West: The Trafalgar Sports Park, JS & Son Funeral Home, and the Robert C. Austin Operations Centre across Trafalgar Road

10Currently, storm water runoff from the Property drains to the ditch along the CN Rail corridor, and northward toward Princess Anne Drive, eventually flowing into the Hungry Hollow Wetland approximately 150 m to the east as measured in a straight line.

PROPOSED DEVELOPMENT

11The Proposed Development consists of a one-block Draft Plan of Subdivision with 131 townhouse units on a private condominium road at the Subject Property. Of the 131 townhouse units proposed, eighty-four (84) are proposed to be traditional units; thirty-two (32) are proposed to be back-to-back units; and fifteen (15) are proposed to be dual frontage units fronting on Trafalgar Road with garage entrances located off the private condominium road.

12The Proposed Development will create the necessary development block to facilitate enactment of a Part Lot Control Exemption By-law and approval of a Plan of Common Element Condominium to legally create the townhouse parcels and common elements. The draft plan for the Proposed Development also includes road widening blocks along Trafalgar Road (Blocks 2 and 3) required to be dedicated to the Region prior to final approval.

13The stormwater for the Proposed Development would be discharged to the same ditch, described in paragraph 10 of this Decision, that the existing site conditions drain to, thus maintaining the existing drainage sub-catchments and flow pattern.

BACKGROUND TO THE APPEAL

14In December 2018, the former owner of the Property, BV Georgetown GP Inc. (“Trolleybus”), submitted applications to the Town for a Zoning By-law Amendment (“ZBA”) and a one-block Draft Plan of Subdivision.

15On July 27th, 2020, Town Council approved the site-specific ZBA application to enable the Proposed Development. By way of By-law 2020-0041, Council rezoned the Property from Development (D) to Medium Density Residential Two Exception Holding (MDR2(103) (H6)) and Environmental Protection One (EP1). The portion of the Property rezoned Environmental Protection One (EP1) accommodates minimum development setbacks from natural features and hazards located on and/or adjacent to the Property.

16The Appellant/Applicant became the registered owner of the Subject Property on October 15, 2021.

17On January 7th, 2022, the Appellant/Applicant submitted a site plan application for the Proposed Development (“Site Plan Application”). The Site Plan Application, which is still being processed, included a Storm Water Management addendum report. CN provided comments on the Site Plan Application on April 28, 2022, indicating that drainage should be directed away from CN’s lands and toward Trafalgar Road, contrary to the scheme replicating the existing conditions, recommended by the consulting engineer for the project.

18In a staff report dated June 17, 2022 (“Staff Report”), Town staff recommended the approval of the Draft Plan of Subdivision with conditions. On July 4, 2022, Town council approved the subdivision application subject to the List of Conditions, including four Contentious Conditions proposed by CN, as set out in paragraph [4] of this Decision.

HEARING REGARDING THE CONTENTIOUS CONDITIONS

19Counsel for the Appellant argues that, as worded, the Contentious Conditions would have the effect of elevating CN, a private company, to the role of an approval authority, under the Planning Act, and contrary to the Act. To clarify, given that the Proposed Development is within 300 m of the CN corridor, CN is a Specified Person as defined in s. 1(1) of the Planning Act. S. 4(8)10 of Ontario Regulation 544/06 also indicates that CN is a Prescribed Person and must be provided notice of a complete application for approval of a plan of subdivision as per s. 51(19.4) of the Act. CN’s role with respect to land use planning matters is clearly defined through the relevant legislation. Namely, CN is a commenting agency and does not have the authority to approve how adjacent lands are to be designed and developed. The Contentious Conditions have the effect of providing CN with that authority, and are therefore, not appropriate or reasonable.

20In support of this position, and as evidence in the Hearing, the Tribunal received and marked the following as exhibits:

• Exhibit 1: The Affidavit of Service of the Notice of Hearing

• Exhibit 2: The Document Book of the Appellant/Applicant

• Exhibit 3: The Witness Statement of John McMulkin

21The Appellant/Applicant called one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty form for Robert Russell, Land Use Planner, which are found in Exhibit 2. Mr. Russell was qualified, on consent, to provide expert opinion evidence in the field of land use planning.

22Mr. Russell reviewed the Contentious Conditions, namely Conditions no. 67, 69, and 70, and testified that they are not reasonable as they defer approval authority to a private company; are not related to land use planning; and may impair the realization of objectives of the approval authority. Moreover, they are not consistent with and contradict the relevant legislative and policy documents, including:

a. Sections 2 and 51(25) of the Planning Act, which requires that conditions imposed on a draft plan of subdivision have to be reasonable;

b. The Provincial Policy Statement, 2020 (“PPS”);

c. The Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”);

d. The Region’s OP;

e. The Town’s OP;

f. The Town of Halton Hills Engineering Standards Manual;

g. The Credit Valley Conservation Authority Watershed Planning and Regulation Policies; and,

h. Guidelines for New Development in Proximity to Railway Operations.

23With respect to each condition, Mr. Russell testified as described in the paragraphs below.

Condition 67

24Condition 67 is: “Any proposed alterations to the existing drainage pattern affecting railway property must receive prior concurrence from the Railway and be substantiated by a drainage report to the satisfaction of the Railway.”

25Mr. Russell explained that the effect of this condition would be to grant CN approval authority over the stormwater management design despite not having been granted that authority by the Province of Ontario. Rather, CN must maintain its position as a commenting agency as the detailed design progresses under the Site Plan Application process.

26Mr. Russell further explained that policy 118(4) of the Region’s of OP requires that the recommendations of the Environmental Impact Study (“EIS”) be implemented through the conditions of planning approval. An EIS was prepared when the application for the Proposed Development was first submitted and was further revised in July 2019 to address comments provided by the Town and other commenting agencies. Section 7.1.2 of the EIS indicates that the Proposed Development will maintain the current overland flow conditions, and that there will be no major alterations to existing drainage boundaries. The detailed design of the Proposed Development, and as discussed in the Stormwater Management Report Addendum, is consistent with the recommendations of the EIS.

27CN’s position that they would not accept drainage from the Property, despite what was proposed by the detailed Proposed Development design, would conflict with the Region’s OP since the recommendations of the EIS could not be implemented.

28Mr. Russell concluded that Condition 67 does not meet the test of being reasonable as required by s. 51(25) of the Act. Moreover, Condition 67 is inconsistent with the applicable provisions of the PPS and fails to conform to the applicable provisions of the Growth Plan, the Region’s OP, the Town’s OP, the Town of Halton Hills Engineering Standards Manual, and the Credit Valley Conservation Authority Watershed Planning and Regulation Policies.

29Of note, the Appellant/Applicant provided an email from CN dated August 2, 2022, in which CN stated that they will now accept the drainage as proposed in the plan for the Proposed Development.

Condition 69

30Condition 69 is: “The Owner shall enter into an Agreement with CN stipulating how CN's concerns will be resolved and will pay CN's reasonable costs in preparing and negotiating the agreement.”

31The Appellant/Applicant raised the concern that such an agreement may include clauses that would require CN’s approval for the design of grading, design of acoustic barriers, and design of property fences. Such clauses would provide CN with the power to prevent or otherwise control the construction of these elements of the Proposed Development, even if the design of said features fully complies with the Approval Authorities’ requirements and standards.

32The Appellant/Applicant added that multiple requests have been made to CN to provide, for the Appellant/Applicant’s review, a draft copy of the CN Agreement for the Proposed Development. However, CN had not responded to those requests or provided a copy of the agreement. The prospect of continuing delay may affect the ability of the Town to advance the Subdivision Application to Final Approval and Registration.

33Moreover, Mr. Russell reviewed the Guidelines for New Development in Proximity to Railway Operations and highlighted:

a. Section 1.4, which summarizes the roles of the various stakeholders and states that municipalities are responsible for ensuring efficient and effective land use and transportation planning. CN’s position that the Appellant/Applicant must enter into a legal agreement with it will impact the Town’s ability to exercise their power in their role as an Approval Authority for land use and transportation planning.

b. Section 3.9.1, which recommends that municipalities use legal agreements registered on title to secure construction of required mitigation measures. This is anticipated to happen through the Site Plan Agreement, which will require that the recommendations contained in the Noise Study (that the Appellant/Applicant is required to submit as part of the List of Conditions) are implemented.

34Mr. Russell concluded that Condition 69 fails to comply with the Act, is inconsistent with the spirit and intent of the applicable policies of the PPS, and fails to conform with the applicable policies of the Growth Plan, the Region’s OP, and the Town’s OP.

35As indicated at paragraph [6] of this Decision, CN did not attend the Hearing to address the concerns raised by the Appellant/Applicant with respect to its request for an agreement or costs.

Condition 70

36Condition 70 is: “The Owner shall be required to grant CN an environmental easement for operational noise and vibration emissions, registered against the Property in favour of CN.”

37Mr. Russell clarified that CN has indicated that it requires this easement for its own operational concerns. While there are noise and vibration impacts to adjacent land uses caused by operational activities within the CN corridor by CN itself, these can be mitigated through the implementation of appropriate setbacks and construction of acoustic barriers as per the recommendations in the Noise Study. It is anticipated that the recommendations of the Noise Study will be enforced through the Site Plan Approval process and registered on title to the Subject Property as a component of the Site Plan Agreement. As such the land use planning component of CN’s concerns will be addressed through the Planning process.

38Moreover, Section 3.9.1 of the Guidelines for New Development in Proximity to Railway Operations indicates that municipalities should consider the use of environmental easements for operational emissions. As per this Guideline, it is the municipality who is to make this determination, not CN.

39Mr. Russell concluded that Condition 70 is not a land use planning Issue, and therefore it is not reasonable for it to be included in the List of Conditions. Moreover, Condition 70 is inconsistent with the spirit and intent of the PPS, and it fails to conform with the Growth Plan, the Region’s OP, and the Town’s OP.

40Of note, the ZBA was passed in 2020 and accounted for these operational concerns. CN did not appeal the ZBA and thereby seems to have accepted the uses of the land stipulated by the ZBA.

Condition 81

41Condition 81 is: “Final approval shall not be granted until CN Railway advises the Town of Halton Hills that conditions 62 to 70 have been satisfied.”

42Mr. Russell testified that Conditions 62 to 66 and Condition 68 were appropriate and reasonable land use planning matters. He recommended that the Tribunal maintain those conditions and that Condition 81 could appropriately refer to them as conditions that must be satisfied.

43However, given the challenges identified above with respect to Conditions no. 67, 69, and 70, the Appellant/Applicant would be unable to satisfy Condition 81. As such, Condition 81, as originally drafted, is unreasonable and does not comply with Section 51(25) of the Act. Mr. Russell recommended that Condition 81 be amended to account for the removal of Conditions no. 67, 69, and 70.

44The Appellant/Applicant added that it had concerns that CN would be unresponsive, as evidenced by numerous attempts to reach CN, detailed in Exhibit 2, which would delay the Appellant/Applicant’s ability to satisfy Condition 81. As such, the Appellant/Applicant requested that the Tribunal include a provision within Condition 81 that the Tribunal may be spoken to if final clearance from CN is unreasonably delayed. The Town agreed with such a revision of Condition 81.

FINDINGS AND DISPOSITION

45The Tribunal accepts the uncontradicted planning evidence and opinions of Mr. Russell and finds that Conditions no. 67, 69, and 70 are not appropriate and should be removed from the List of Conditions. As a result, the Tribunal further finds that Condition 81 must be revised accordingly.

ORDER

46THE TRIBUNAL ORDERS that:

1. Conditions 67, 69, and 70 are removed in their entirely from the List of Conditions;

2. Condition 81 is revised as follows: “That prior to final approval, CN Railway advises the Town of Halton Hills that conditions 62 to 66 and condition 68 have been satisfied. In the event that the final clearance from CN Railway be unreasonably delayed, the Tribunal may be spoken to.”

3. The List of Conditions is amended as set out in Appendix 1 to and forming part of this Order.

“Bita M. Rajaee”

BITA M. RAJAEE

MEMBER

“Sharyn Vincent”

SHARYN VINCENT

VICE-CHAIR

Ontario Land Tribunal

Website: www.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.

REVISED CN RAILWAY CONDITIONS OF DRAFT APPROVAL AND ACCOMPANYING CLEARANCE CONDITION FOR PLAN OF SUBDIVISION

FILE: D12SUB18.001 – 2810007 Ontario Ltd. (Essence Homes)

LEGAL DESCRIPTION

Part of Lots 18 and 19, Concession 8

Town of Halton Hills, Regional Municipality of Halton

11571-11605 Trafalgar Road (Georgetown)

The revised CN Railway conditions and accompanying clearance condition, which shall be fulfilled prior to final approval of this Plan of Subdivision, are as follows:

CN RAILWAY

62. Safety setback of habitable buildings from the railway rights-of-way to be a minimum of 30 metres in conjunction with a safety berm. The safety berm shall be adjoining and parallel to the railway rights-of-way with returns at the ends, 2.5 metres above grade at the property line, with side slopes not steeper than 2.5 to 1.

63. The Owner shall engage a consultant to undertake an analysis of noise. At a minimum, a noise attenuation barrier shall be adjoining and parallel to the railway rights-of-way, having returns at the ends, and a minimum total height of 5.5 metres above top-of-rail. Acoustic fence to be constructed without openings and of a durable material weighing not less than 20 kg. per square metre of surface area. Subject to the review of the noise report, the Railway may consider other measures recommended by an approved Noise Consultant.

64. Ground-borne vibration transmission to be evaluated in a report through site testing to determine if dwellings within 75 metres of the railway rights-of-way will be impacted by vibration conditions in excess of 0.14 mm/sec RMS between 4 Hz and 200 Hz. The monitoring system should be capable of measuring frequencies between 4 Hz and 200 Hz, ±3 dB with an RMS averaging time constant of 1 second. If in excess, isolation measures will be required to ensure living areas do not exceed 0.14 mm/sec RMS on and above the first floor of the dwelling.

65. The Owner shall install and maintain a chain link fence of minimum 1.83 metre height along the mutual property line.

66. The following clause should be inserted in all development agreements, offers to purchase, and agreements of Purchase and Sale or Lease of each dwelling unit within 300m of the railway right-of-way: “Warning: Canadian National Railway Company or its assigns or successors in interest has or have a rights-of-way within 300 metres from the land the subject hereof. There may be alterations to or expansions of the railway facilities on such rights-of-way in the future including the possibility that the railway or its assigns or successors as aforesaid may expand its operations, which expansion may affect the living environment of the residents in the vicinity, notwithstanding the inclusion of any noise and vibration attenuating measures in the design of the development and individual dwelling(s). CNR will not be responsible for any complaints or claims arising from use of such facilities and/or operations on, over or under the aforesaid rights-of-way.”

67. Condition deleted by order of the Ontario Land Tribunal.

68. The Owner shall through restrictive covenants to be registered on title and all agreements of purchase and sale or lease provide notice to the public that the safety berm, fencing and vibration isolation measures implemented are not to be tampered with or altered and further that the Owner shall have sole responsibility for and shall maintain these measures to the satisfaction of CN.

69. Condition deleted by order of the Ontario Land Tribunal.

70. Condition deleted by order of the Ontario Land Tribunal.

CLEARANCES

81. That prior to final approval, CN Railway advises the Town of Halton Hills that conditions 62 to 66 and condition 68 have been satisfied. In the event that the final clearance from CN Railway be unreasonably delayed, the Tribunal may be spoken to.