Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 28, 2023
CASE NO(S).: OLT-22-002078
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: 1816568 Ontario Ltd.
Subject: Proposed Official Plan Amendment No. 123
Municipality: Town Of Whitby
OLT Case No.: OLT-22-002078
OLT Lead Case No.: OLT-22-002078
OLT Case Name: 1816568 Ontario Ltd. v. Whitby (Town)
Heard: August 3, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1816568 Ontario Ltd. | Annik Forristal |
| Town of Whitby | Andrew Biggart |
| Region of Durham | Robert Woon |
MEMORANDUM OF DECISION DELIVERED BY ASTRID J. CLOS ON AUGUST 3, 2023 AND ORDER OF THE TRIBUNAL
Link to Final Order
1The Tribunal convened a Written Hearing with respect to the appeal brought pursuant to s. 17(24) of the Planning Act (“Act”) by 1816568 Ontario Ltd. of Official Plan Amendment No. 123 (“OPA”) in relation to the property municipally known as 951 Dundas Street East (“Subject Property”) located in the Town of Whitby.
2The OPA requires a 45 metre (“m”) right-of-way (“ROW”) along Dundas Street East that fronts onto the Subject Property. The Applicant requested that an exception be included in OPA 123 to permit a 42 m ROW due to technical constraints of the Subject Property and neighbouring properties.
3The Town Council adopted the OPA by passage of By-law No. 7833-21. The OPA did not provide for the exception requested, therefore, the Applicant subsequently filed an appeal of OPA 123.
4On July 11, 2022, the Tribunal held a Case Management Conference (“CMC”) at which the Region of Durham requested and was granted Party status.
5The Parties advised that a settlement had been reached and jointly requested that a Written Hearing be convened. A Written Settlement Hearing was administratively scheduled for August 3, 2023.
6The proposed settlement requested that the following policy be added to OPA 123:
8.1.5 Special Provisions
Notwithstanding any other provisions of this Plan to the contrary, for lands identified by Assessment Roll No. 18-09-040-027-11200-0000, and municipally known as 951 Dundas Street East, a reduced right-of-way width of 42 metres shall be permitted, measured at 21 metres from the existing centreline as of June 1, 2023, to the property at 951 Dundas Street East.
LEGISLATIVE TESTS
7The Tribunal, in carrying out its responsibilities, shall have regard to matters of Provincial interest as set out in s. 2 of the Act.
8When deciding a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority, and any information and material considered by a council or approval authority in making the decision as set out in s. 2.1 (1) of the Act.
9A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with or shall not conflict with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”) as set out in s. 3(5) of the Act.
PLANNING EVIDENCE
10The Parties filed the Affidavit of Edward William Belsey in support of the proposed settlement. The Tribunal reviewed the education, experience, and credentials of Mr. Belsey, and qualified him as an expert able to provide opinion evidence in the discipline of land use planning with respect to the modified OPA requested for approval by the proposed settlement. The Affidavit of Edward William Belsey, sworn August 11, 2023, was entered as Exhibit 1.
Matters of Provincial Interest, Planning Act
11The Tribunal reviewed evidence from Mr. Belsey that the OPA implementing the proposed settlement had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act; in particular, items (f) adequate provision and efficient use of transportation, sewage and water services and waste management systems, (h) orderly development of safe and healthy communities, (m) co-ordination of planning activities of public bodies, (n) resolution of planning conflicts involving public and private interests and, (p) appropriate location of growth and development.
12Mr. Belsey provided his opinion that the inclusion of Special Provision 8.1.5 in OPA 123 (para. 6), will allow for the adequate provision and efficient use of the Town’s transportation systems, will allow the orderly development of Dundas Street East, is a co-ordinated resolution of the issue between public and private interests, and will allow for appropriate growth and development.
13Mr. Belsey provided his professional opinion that the OPA with the inclusion of Special Provision 8.1.5 requested by the proposed settlement, has had regard to the matters of Provincial interest.
Provincial Policy Statement (“PPS”)
14Mr. Belsey reviewed his analysis related to the consistency of the OPA and Special Provision 8.1.5 with the PPS. He stated that the settlement will provide a transportation system which facilitates the movement of people and goods, including corridor protection and rights-of-way for infrastructure. Further, it uses existing and planned infrastructure efficiently, improves connectivity among transportation systems, including connections which cross jurisdictional boundaries, and in his opinion, is consistent with the PPS.
Growth Plan for the Greater Golden Horseshoe (“GP”)
15Mr. Belsey provided his opinion that the OPA and Special Provision 8.1.5 provides connectivity among transportation modes for moving people and for moving goods, offers a balance of transportation choices that reduce reliance upon the automobile, promotes transit and active transportation, improves safety, and places a high priority on transit planning in the overall network and, therefore, conforms to the GP.
Region of Durham Official Plan (“ROP”)
16Mr. Belsey explained in his Affidavit, that the Region of Durham is the upper-tier municipality for the lower-tier municipality of the Town of Whitby. He stated that the ROP, as amended by ROPA 171, includes policies regarding transportation matters, and requires and directs area municipalities to incorporate appropriate transportation related policies into area municipal OP to implement the ROP, as amended by ROPA 171.
17Mr. Belsey advised that the specific purpose of the OPA was to conform to and implement the ROP as amended by ROPA 171. He further stated that the required ROW width in the Durham Regional Official Plan (“ROP”) for Dundas Street East adjacent to the property municipally known as 951 Dundas Street East is 45 metres. Mr. Belsey pointed out that, Table E7 of the ROP outlines exceptions that would allow for consideration of a reduced ROW in certain circumstances:
…if the intent of [the ROP] is adhered to, and following adequate study to the effect that such provisions are impractical and cannot be implemented precisely, the authority having jurisdiction on such roads may deviate from these provisions without the need for an amendment to [the ROP]” and “The right-of-way width requirements shall apply, unless it can be demonstrated, in consultation with the Region, that exceptions to the right-of-way widths are appropriate for specific sections of arterial roads. The exceptions shall be incorporated into the area municipal official plan.
18Mr. Belsey provided his opinion that OPA 123 and Special Provision 8.1.5, conforms to the ROP, as amended by ROPA 171, by implementing key transportation network and policy changes as recommended in the Region’s 2017 Transportation Master Plan.
19Mr. Belsey explained that based on preliminary design information for this portion of Dundas Street East, provided by the Appellant during settlement discussions and reviewed by staff at the Region of Durham and Town of Whitby, it was his understanding that all Parties are accepting of a 42 m ROW width of Dundas Street East adjacent to the property municipally known as 951 Dundas Street East.
20Mr. Belsey provided his concluding land use planning opinion that OPA 123 as adopted by Town of Whitby Council on December 13, 2021, with the addition of Special Provision 8.1.5:
- Has had appropriate regard for the applicable matters of Provincial interest under s. 2 of the Planning Act,
- Is consistent with the Provincial Policy Statement,
- Conforms to the Growth Plan for the Greater Golden Horseshoe,
- Is in conformity with the Region of Durham Official Plan, as amended by ROPA 171,
- Is in conformity with general purpose and intent of the Town of Whitby Official Plan (“TOP”), and
- Represents good planning and is in the public interest.
TRIBUNAL FINDINGS
21The Tribunal accepts the uncontested planning opinion evidence of Mr. Belsey in its entirety. The Tribunal finds that OPA 123, as adopted by Town of Whitby Council on December 13, 2021, with the addition of Special Provision 8.1.5 (included in para 6) as requested by the proposed settlement, meets all the relevant tests of s. 2 of the Act the Provincial Policy Statement, the Growth Plan, is in conformity with the ROP and the general purpose and intent of the TOP, represents good planning and is in the public interest.
22The Tribunal considered the information available to Council and Council’s adoption of the OPA and support of the proposed settlement.
23The Tribunal finds that OPA 123 as adopted by Town of Whitby Council on December 13, 2021, with the addition of Special Provision 8.1.5 satisfies the required legislative tests and is approved with reasons that include the following:
- The ROP includes a policy permitting exceptions to the ROW width to be incorporated into the local OP without an amendment to the ROP if such exceptions are appropriate in consultation with the Region. The Region was consulted and is in support of the Special Provision permitting this exception.
- Preliminary design information for the relevant portion of Dundas Street East was reviewed by Region of Durham and Town of Whitby staff who accepted the 42 m road allowance width for the Subject Property.
- The Parties worked together to reach a settlement that accommodated both public and private considerations and interests.
ORDER
24THE TRIBUNAL ORDERS that the appeal is allowed, and Official Plan Amendment No. 123 for the Town of Whitby is approved as amended by the addition of:
8.1.5 Special Provisions
Notwithstanding any other provisions of this Plan to the contrary, for lands identified by Assessment Roll No. 18-09-040-027-11200-0000, and municipally known as 951 Dundas Street East, a reduced right-of-way width of 42 metres shall be permitted, measured at 21 metres from the existing centreline as of June 1, 2023, to the property at 951 Dundas Street East.
“Astrid J. Clos”
ASTRID J. CLOS 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.