Drewlo Holdings Inc. v. London (City), 2023 CanLII 80611

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 26, 2023

CASE NO(S).: OLT-22-004106

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

Applicant/Appellant: Drewlo Holdings Inc. Subject: Request to amend the Official Plan – Refusal of request Description: OPA/ZBA/SD to facilitate development of 1300 unit subdivision Reference Number: OZ-9473 Property Address: 1140 Fanshawe Park Road E Municipality/UT: London/Middlesex OLT Case No: OLT-22-004106 OLT Lead Case No: OLT-22-004106 OLT Case Name: Drewlo Holdings Inc. v. London (City)

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

Subject: Application to amend the Zoning By-law – Refusal of application Description: OPA/ZBA/SD to facilitate development of 1300 unit subdivision Reference Number: 39T-07502 Property Address: 1140 Fanshawe Park Road E Municipality/UT: London/Middlesex OLT Case No: OLT-22-004107 OLT Lead Case No: OLT-22-004106 OLT Case Name: Drewlo Holdings Inc. v. London (City)

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 Description: OPA/ZBA/SD to facilitate development of 1300 unit subdivision Property Address: 1140 Fanshawe Park Road E Municipality/UT: London/Middlesex OLT Case No: OLT-22-004108 OLT Lead Case No: OLT-22-004106 OLT Case Name: Drewlo Holdings Inc. v. London (City)

Heard: July 10, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Drewlo Holdings Inc.	Analee Baroudi
City of London	Christina McCreey Aynsley Hovius (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER ON JULY 10, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This matter involves the Appeals by Drewlo Holdings Inc. (“Appellant”) pursuant to s. 22(7), 34(11) and 51(34) of the Planning Act against the City of London’s (“City”) refusal of the Official Plan Amendment (“OPA”), the Zoning By-law Amendment (“ZBA”) and the absence of a decision regarding the Appellant’s draft Plan of Subdivision (“SUB”) for the lands municipally known as 1140 Fanshawe Park Road East in the City (“site”).

2The site is located north of Fanshawe Park Road East, south of Sunningdale Road East, west of Highbury Avenue North and east of Adelaide Street North. The property is irregular in shape, has an area of approximately 48.68 hectares (“ha”) and includes approximately 615.092 metres (“m”) of frontage along Sunningdale Road East and a total depth of approximately 1,370.16 m. The Subject Lands are presently designated Low Density Residential, Multi-Family, Medium Density Residential, and Open Space. Through the London Plan the property is primarily designated ‘Neighbourhoods’ with the exception of Green Space areas.

3The planning instruments would permit a subdivision consisting of 18 low density residential blocks, six medium density, multi-family density blocks; two school blocks; three open space blocks, including one open space block for the compensation and relocation of an existing wetland that is presently identified as being provincially significant; seven access points at Sunningdale Road East, Savannah Drive, Nicole Avenue, Devos Drive, Blackwell Boulevard, Stackhouse Avenue and Fanshawe Park Road East as well as five internal streets.

4The Applicant filed the original applications in 2007 requesting an OPA and ZBA for the site. In August of 2007, the applications were put on hold until a revised Environmental Impact Study (“EIS”) was submitted, given the failure of the initial study to recognize and address Grenfell Wetland’s inclusion in the original EIS. This revised EIS was provided to the City in July 2008. This dispute between the Appellant and the City continued until 2022. A new EIS was completed in 2021 and submitted by the Applicant, as required by the City. The new EIS was in support of the revised Applications. In 2022, the Applicant submitted a revised draft OPA, ZBA and SUB.

5The OPA and ZBA were refused by City Council on May 24, 2022, and consequently, the City did not make a decision on the SUB. The Applicant then filed formal appeals to the Ontario Land Tribunal concerning all three planning instruments.

6The Tribunal received correspondence from the Appellant in advance of the Case Management Conference advising that the Parties have reached a settlement on the issues and the correspondence from the Appellant requested that the merits hearings be converted to a settlement hearing.

7In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.

LEGISLATIVE FRAMEWORK

8When considering appeals filed pursuant to s. 22(7), 34(11) and 51(34) of the Act, the Tribunal must have regard to the matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must be satisfied that the Applications conform with the City’s Official Plan (“LOP”) and the City’s Zoning By-law (“ZBL”).

9In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Applications represent good planning and are in the public interest.

SUBMISSIONS

10At the beginning of the Hearing, the Upper Thames River Conservation Authority (“UTRCA”) made a request to change its status from a Party to that of a Participant for this matter. The Tribunal granted this request and the Tribunal noted that the UTRCA’s participant statement was received and would be accepted for consideration during the proceedings of today’s matter. The Tribunal accepted the Participant statement of Tridon Group, which was deferred at the previous Case Management Conference.

11Prior to the commencement of the hearing, the Tribunal received the Affidavits of Melanie Vivian, a Site Development Planner with the City, and of David Hayman, a Senior Biologist with MTE Consultants. Both Affidavits were in support of the settlement. The parties presented both witnesses at the hearing to provide expert opinion evidence in their respective area of expertise. Ms. Vivian was affirmed and qualified to give expert opinion evidence in the form of her affidavit along with oral testimony in the area of land use planning. Mr. Hayman was affirmed and qualified to give expert opinion evidence in the form of his affidavit along with oral testimony in the area of biology and natural heritage. The Settlement Hearing Record, which includes the Affidavits of both witnesses and the draft planning instruments, was marked as Exhibit 1 to the hearing.

The Applications

Planning Evidence of Ms. Melanie Vivian

12Ms. Vivian provided background information to the site, the surrounding area and a history of the applications for the benefit of the Tribunal.

PPS

13Ms. Vivian gave opinion evidence that the Applications are consistent with the PPS Policy 1.1.1(b) as it will provide a wide range of residential housing types and will provide for institutional uses by providing uses for two future school blocks, a park block and an open space as a wetland compensation area. The Applications will offer a mix of residential densities ranging from medium to low-density. There will be a total of 18 low-density residential blocks and six medium-density blocks. The unit count for the Applications is approximately 1,100 residential units.

14In Ms. Vivian’s opinion, the Applications are consistent with Policy 1.1.3.6 of the PPS as the proposal is within the Urban Growth Boundary and is taking place in a designated growth area adjected to an existing built-up area.

15Ms. Vivian gave opinion evidence that the Applications meet Policy 2.1.1 and 2.1.4 of the PPS as natural heritage features and areas shall be protected for the long term. Through the EIS report, the Grenfell Wetland was determined not to be a Provincially Significant Wetland (“PSW”) due to the Ontario Wetland Evaluation System (“OWES”) policy change, which came into effect on January 1, 2023. Significant wetlands are described in the PPS as “an area identified as “Provincially Significant” by the Ministry of Natural Resources and Forestry (“MNRF”) using evaluation procedures establish by the Province, which may be amended from time to time. Since the Grenfell Wetland has been re-evaluated to not be designated as a PSW, the Applications meet the Policies listed above.

LOP

16Ms. Vivian opined that the Applications conform with the LOP as the applications are within the Urban Boundary and are a part of the “Neighbourhoods” designation which permits a wide range of dwelling types, including single detached homes and townhouses. The proposal will redesignate “Green Space” lands to “Neighbourhoods” as the relocated wetlands will be designated “Green Space” to accommodate the residential uses.

17Ms. Vivian opined that the proposal conforms with Polices 60 and 61 of the LOP which encourage street networks that are pedestrian friendly, provides street patterns that are efficient and easy to navigate and minimizes the number of cul-de-sacs and dead-end streets. Sidewalks will be provided on both sides of all streets where possible.

18Due to the latest EIS report findings, the Grenfell Wetland was found to no longer be a PSW. As such, policy 1334 of the LOP allows for non-PSWs to be replaced on a one-to-one basis. The proposal before the Tribunal demonstrates that the replacement of the Grenfell Wetland will be made at the one-to-one ratio.

19The EIS has been completed in conformity to the LOP and Environmental Guidelines to the satisfaction to the City. The EIS addresses the concerns of the City pertaining to required buffers needed during all phases of the development.

20Overall, Ms. Vivian’s opinion was that the Proposal conforms with the LOP.

ZBL

21Concerning the ZBL, it was Ms. Vivian’s opinion that the proposal, in its presented form, conforms to the ZBL. The proposed site-specific changes allow for the residential special provisions in each block area which will allow an efficient development of the Lands and provide a wide range of housing options. The proposal also provides for open public spaces and for future institutional lands that may be used for additional education needs.

SUB

22Ms. Vivian was asked by the Tribunal to provide context concerning the SUB and the attached conditions. It was Ms. Vivian’s opinion that the conditions are needed in order for the City to have proper control mechanisms to protect the interests of the City, the public and the environment. In Ms. Vivian’s opinion, the conditions are appropriate for the proposal before the Tribunal.

Summary Opinion

23In conclusion, it was Ms. Vivian’s opinion that the proposal before the Tribunal was consistent with the PPS, conforms to the LOP and the ZBL. The proposed draft plan conditions are appropriate and the proposal represents good land use planning.

Biology and Natural Heritage Evidence of David Hayman

24Mr. Hayman provided the Tribunal with further background on this matter from a natural heritage perspective. Mr. Hayman confirmed that he was the author of the EIS in support of the planning instruments in 2021. Through conversations between the City and the Appellant, the EIS was revised and resubmitted in 2023 based on two factors, firstly the comments from the City on the 2021 submission and secondly to address changes to the OWES and Conservation Authority legislation, which, as mentioned above, came into effect on January 1, 2023.

25Mr. Hayman states that under the revisions to the OWES, the MNRF is no longer the authority for administering wetland evaluations. The revisions allow a trained and qualified evaluator to complete a report on the wetlands in question and submit it to the approval authorities – in this case, the City of London. The approval authority can then use this report when making decisions under the Planning Act. The submission of the report is considered final and approval authorities cannot reject or request changes to the wetland evaluation(s).

26Mr. Hayman further stated that the EIS submitted in 2023 determined that the Grenfell Wetland was not a PSW based on the revised OWES and Conservation Authority legislation. With the findings of this report, the City was able to determine that the relocation of the Grenfell Wetland can take place under Policy 1334 of the LOP in a one-to-one ratio.

27The Grenfell Wetland will be relocated to an approximately 6.96 ha compensation and enhancement area in the southeast portion of Block 29 of the draft plan of subdivision as well as an approximate 1.0 ha area in the northeast portion of Block 27.

28It was Mr. Hayman’s opinion that the relocation of the wetlands would end up as a net gain of wetland function through the creation of a Significant Wildlife Habitat (“SWH”) for creatures such as Terrestrial Crayfish and snake hibernacula. This newly created wetland area will allow for the retention of water balance functions, growth of regional rare floral species, invasive species management and improved wildlife movement corridors.

29In Mr. Hayman’s opinion, the proposal before the Tribunal will not cause a direct impact to the feature and functions of the adjacent significant natural heritage features and wetlands. Appropriate setbacks and buffers have been recommended to mitigate any direct or indirect impacts to these features and wetlands. There will be a two-phase monitoring plan implemented during the construction and an evaluation of the habitat creation and naturalization plan after construction is complete.

Summary Opinion

30It was Mr. Hayman’s conclusionary opinion that the 2023 EIS demonstrates that the Grenfell Wetlands do not qualify as a PSW. The City’s implementation of Policy 1334 for the relocation of the Grenfell Wetlands is appropriate and will provide for a net gain of overall wetlands in the proposed development. Mr. Hayman’s opinion is that the proposal before the Tribunal will protect the ecological systems on the Subject Lands including natural area features and functions.

Participant Statements

31The Tribunal asked the Parties to comment on the Participant statements received by the Tribunal and if their concerns have been taken into consideration during the settlement process. The Parties confirmed that the only Participant statement against the development was that of the UTRCA. The UTRCA was originally requesting to be a Party to this matter, however, due to the OWES regulation changes, it decided to be a Participant only in this matter, as was determined at the start of this hearing. The Parties advised the Tribunal that the UTRCA maintains jurisdiction over the issuance of a necessary permit under s. 28 of the Conservation Authorities Act. If the UTRCA staff are not satisfied with the proposal when the permit application is completed, then the permit application can be escalated to the UTRCA’s Hearing Committee. If the permit is not issued at the Hearing Committee level, then the permit Applicant can appeal that decision to the Ontario Land Tribunal under the Conservations Authorities Act. The UTRCA permit application process is under a different Act and not a part of this Planning Act appeal.

ANALYSIS AND FINDINGS

32The Tribunal accepts the uncontroverted evidence provided by Ms. Vivian and Mr. Hayman.

33The Tribunal finds that the proposed development will provide for an appropriate form of mixed housing use and intensification in an area that is within the Urban Boundary and will be well served with adjacent municipal infrastructure. The Tribunal finds that the proposed development has taken into consideration the existing and adjacent wetlands and that the moving of the Grenfell Wetlands to another area of the property will provide more overall wetland diversity on the Subject Lands.

34The Tribunal finds that the proposed development will ensure compatibility with the adjacent existing developments, will be an efficient use of the land and will help achieve the policy directions of the PPS by promoting appropriate intensification in an urban area.

35The Tribunal finds that the proposed development will provide ample monitoring during the construction process to ensure that the wetlands are not affected in a negative way and the recommendations of the EIS will protect the ecological systems on the land.

36The Tribunal finds that the draft plan of subdivision conditions are appropriate and provide for the protection of the wetlands, surface water and groundwater on the site.

37The Tribunal finds that the proposal before the Tribunal has sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Planning Act. The Tribunal finds that the proposal is consistent with the PPS and conform to the policies of the LOP.

38The Tribunal finds that the draft zoning instrument will appropriately implement the Official Plan policy and the forms of development. The Tribunal finds that the proposal is good land use planning.

39The Tribunal notes that it has taken into consideration the Participant statements. The Tribunal was in receipt of three Participant statements in favour of the Applicant in this appeal, North Glen Land Corporation, who is the developer to the west of the subject lands, Henry and Blanche Komarek, and Tridon Group who are adjacent property owners to the site. The Tribunal is aware that the UTRCA was the only Participant in opposition. However, the UTRCA did vacate their Party status at the beginning of the hearing. The UTRCA may voice their concerns during the s. 28 of the Conservations Authorities Act permit application process, which is required as the Subject Lands are regulated under the UTRCA in accordance with regulation 157/06.

ORDER

40THE TRIBUNAL ORDERS that the appeal is allowed in part and the Official Plan of the City of London is amended as set out in Attachment 1 to this Order.

41THE TRIBUNAL ORDERS that the appeal against Zoning By-law Z-1 of the City of London is allowed in part and By-law Z-1 is amended as set out in Attachment 2 to this Order.

42THE TRIBUNAL ORDERS that the appeal is allowed, and the draft plan shown on the plan prepared by Archibald, Gray and McKay Limited dated April 10, 2023, comprising Part of Lots 9 and 10, Concession 5 of the City of London is approved subject to the fulfillment of the conditions set out in Attachment 3 of this Order.

43THE TRIBUNAL ORDERS that pursuant to subsection 51(56.1) of the Planning Act, the City of London shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act. In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Tribunal may be spoken to.

“S. deBoer”

S. deBOER MEMBER

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.