Tribute (Queensway) Limited v. Toronto (City), 2023 CanLII 97656

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 17, 2023

CASE NO(S).: OLT-21-001793

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

Applicant and Appellant: Tribute (Queensway) Limited

Subject: Application to amend Former City of Etobicoke By-law 11, 737 – Neglect or Refusal of application by City of Toronto

Purpose: To permit a three building, 1210 unit mixed-use development

Property Address/Description: 1325-1365 The Queensway

Municipality/UT: Toronto/Toronto

Municipal File No.: 20 176082 WET 03 OZ

OLT Case No.: OLT-21-001793

OLT Lead Case No.: OLT-21-001793

OLT Case Name: Tribute (Queensway) Limited v. Toronto (City.)

Heard: April 17-21, 2023 by Video Hearing and May 19, 2023 by written submissions

APPEARANCES:

Parties	Counsel/Representative*
Tribute (Queensway) Limited	Eileen Costello
City of Toronto	Sarah O’Connor Michelle LaFortune M.M. Billah (Student-at-Law)*

DECISION DELIVERED BY BITA M. RAJAEE AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Hearing concerned an appeal under section 34(11) of the Planning Act (“Act”) by Tribute (Queensway) Limited (“Applicant”) resulting from the City of Toronto’s (“City”) failure to make a decision within the statutory time frames regarding a Zoning By-law Amendment (“ZBA”) Application pertaining to a property known municipally as 1325-1365 The Queensway in the City (“Site”), owned by the Applicant. The purpose of the ZBA is to facilitate a redevelopment of the Site with a proposal described below.

2A Case Management Conference (“CMC”) took place on April 4, 2022, wherein it was confirmed that Notice had been adequately served. No requests for Party or Participant status were received on this matter. At the CMC, a ten-day Hearing was scheduled, but, due to scoping of the issues in dispute, only five days were needed.

SITE AND AREA CONTEXT

3The Site is generally square in shape, with frontages of approximately 98.48 metres (“m”) along The Queensway (a Major Arterial road) to the north and 77 m along Queensway Lions Court to the west. It has an area of approximately 8,627.35 square metres (“m²”). Currently, on the Site, there is a two-storey commercial building and a one-storey automotive building with surface parking, both to be demolished.

4The Site is designated as Mixed Use Areas in the City's Official Plan (“OP”). To the west, on both the north and south sides of The Queensway, it is surrounded by Employment Areas. To the east, the lands along The Queensway are also designated Mixed Use Areas, and east of Kipling Avenue, are subject to an Avenues overlay. The Site is located on the south side of an intersection which serves as a “gateway” to The Queensway, but is outside of the area depicted as an Avenue on Map 2 of the OP.

5The Site is subject to the former City of Etobicoke Zoning Code, which zones the Site as “Class 1 Industrial (I.C1)” and permits commercial, institutional, manufacturing, and retail uses. As explained by the two land use planners at the Hearing, the existing industrial zoning, which does not include permission for residential uses, is not in keeping with the Mixed Use Areas designation for the Site, and this is an opportunity to bring the zoning into conformity with the OP, in addition to bringing the lands into the City’s Comprehensive Zoning By-law 569-2013 ("City’s ZBL”).

6Currently surrounding the Site is the following:

1. North: There are auto dealerships and associated parking and vehicular circulation areas. These lands are subject to an approved rezoning application (the “KingSett Development”, described further below). The area north of The Queensway, east of Kipling Avenue, and west of Islington Avenue is generally characterized as a low-rise residential neighbourhood, and designated Neighbourhoods in the City’s OP.

2. East: Directly abutting the Site on the east side is a single-storey commercial building and associated surface parking (“TD Bank Site”). The City’s land use planner, Jaspreet Deol, indicated that this “is a potential redevelopment site.” Further east, on the south side of The Queensway, between Kipling Avenue and Zorra Street, is the Kipling Queensway Mall, a community shopping centre, and stand-alone buildings featuring retailers and restaurants. A used car dealership is located at the immediate southeast corner of Kipling Avenue and The Queensway.

3. West: On both the south and north side of The Queensway are Employment Areas, characterized by a number of industrial operations located on either side of the CP Rail line and single-storey motor vehicle dealerships with large surface parking areas.

4. South: There are two recently completed three-storey car dealership buildings fronting onto Kipling Avenue.

5. From a transportation perspective, the Site is in proximity to multiple Toronto Transit Commission (“TTC”) bus stops within approximately 110 m along The Queensway and Kipling Avenue.

KingSett Development

7The Kingsett Development factored significantly at the Hearing. On the northwest corner of the intersection of The Queensway and Kipling Avenue are lands known municipally as 1306-1310 The Queensway. Currently, two car dealerships are located there. Both properties are designated Mixed Use Areas. In March 2021, the City approved a ZBA to permit a new development by KingSett Capital Inc., comprised of:

1. A 35-storey tower on The Queensway, a 24-storey tower (located behind and directly north of the first tower), and a 10-storey mid-rise building (located along Kipling Avenue). There are to be a total of 840 dwelling units, with a Floor Space Index (“FSI”) of 5.72;

2. A 759 m² Privately-Owned Publicly Accessible Space (“POPS”) to be located between the buildings;

3. 1,018 m² of retail space; and

4. 1,575 m² of land zoned Open Space, for a proposed future public park (“Future KingSett Park”), to be located at the intersection of The Queensway and Kipling Avenue. As discussed below, this park is significant in the context of the subject appeal.

8The Applicant’s urban design witness, Mr. Michael Hannay, explained that to date no application for Site Plan Approval has been made for these lands, and to his understanding, the Future KingSett Park has not been conveyed to the City.

THE PROPOSAL

9The purpose of the ZBA before the Tribunal is to facilitate a proposal consisting of an 11-storey mid-rise building and two towers with heights of 35 and 46-storeys (“Proposal”). Some of the key statistics for the Proposal are:

Metric	Proposed Development	Total
Gross Floor Area (m2)	77,538 (Residential) 662 (Daycare) 660 (Commercial)	78,860 m2
Height (Storeys)	Tower 1 (East) – 46 storeys Tower 2 (West) – 35 storeys Mid-rise – 11 storeys
Height (Metres)	Tower 1 (East) – 148.78 + mech. penthouse Tower 2 (West) – 115.48 + mech. penthouse
Residential Units	Studio – 72 units – 6% 1 Bed/ 1 Bed + Den – 702 units – 59% 2 Bed/ 2 Bed + Den – 287 units – 24% 3 Bed/ 3 Bed + Den – 136 units – 10%	1,187 units
Amenity Space (m2)	Indoor – 2,374 Outdoor – 2,611	4,985 m2
Parking Spaces	712 (Residential) 178 (Non-Residential / Visitors)	890
Bicycle Parking Spaces	808 (Residential) 84 (Non-Residential / Visitors)	892

10The Applicant applied for a ZBA in August 2020. Since that time, it has revised its Proposal a number of times, through two complete resubmissions (July 2021 and November 2022), to address comments from the City. Mr. Michael Bissett, the planner who testified on behalf of the Applicant, explained that, among others, the following changes were made to the Proposal:

1. The most substantive change to the Proposal resulted from City Staff’s comment to separate the mid-rise 11 storey component from the tower components at the rear. City Staff’s position to create a separation resulted in the east and west mid-rise elements being reduced from 11-storeys (38.9 m) to four-storeys (17.5 m) allowing for a separation from the tower components, which would increase views through the Site and provide natural light for the interior facing dwelling units.

2. The orientation of Tower 1 and 2 and the distribution of height were adjusted. Tower 1 (east) was increased from 37 storeys to 46 storeys while Tower 2 (west) was reduced from 37 storeys and 44 storeys (the first two iterations of the Proposal) to 35 storeys. The redistribution of height was pursued to reduce shadowing on the proposed POPS of the KingSett Development and the Future KingSett Park, while still achieving an appropriate intensification of new housing units on the Site. According to Mr. Bissett, the increase in height to 46 storeys remains below a 45 degree angular plane from the nearest Neighbourhood, which was a criteria utilized by City Staff when assessing the height of the approved 35-storey building of the KingSett Development.

3. With respect to setbacks, the mid-rise building has increased its overall setbacks to 5.6 – 6.5 m from the north lot line, compared to the previous 1.5 – 2 m setback. This allowed for a substantial public realm of up to 10.45 m from the building face to the curb, which would support a double row of street trees, pedestrian walkways, and planters.

4. The connecting element of the podium between the towers has been reduced from six-storeys to three-storeys in an effort to increase sunlight access into the centralized courtyard, and to further distinguish the building elements.

5. In terms of distribution of units, as compared to the first iteration of the Proposal, studio units have increased by 44 units, one-bedroom units have decreased by 99 units, two-bedroom units have increased by 31 units, and three-bedroom units have increased by three units.

6. The current Proposal incorporates a Queensway road-widening of 0.78 m, as well as a 6 m corner rounding.

11The Applicant appealed the City’s non-decision on January 20, 2022.

LEGISLATIVE TESTS

12In making a decision on the ZBA presently before it, the Tribunal must be satisfied that it is consistent with the Provincial Policy Statement, 2020 (“PPS”), that it conforms to/does not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), and that it conforms to the applicable official plans. In this particular case, while the Issues List for the Hearing and the witness statements exchanged included consideration of Official Plan Amendment (“OPA”) 479 and OPA 480 (the current and most up to date Public Realm and Built Form policies of the OP, respectively), all the witnesses agreed that the updated policies remain thematically similar to the policies in force at the time of the Application, and that they did not materially change their opinions in terms of whether the Proposal conforms with the OP. Accordingly, the Parties, though they addressed the updated OPAs, focused mainly on the policies that were in force at the time of the Application.

13In making its decision, the Tribunal must have regard to the matters of Provincial interest set out in s. 2 of the Act. Moreover, in accordance with s. 2.1(1) of the Act, the Tribunal shall also have regard to the decision of the approval authority or Municipal Council and to any information and materials that Council considered in making its decision, though it is not bound by it.

14Lastly, the Tribunal must be satisfied that the proposed ZBA represents good planning and is in the public interest.

THE HEARING

15Due to the revisions made by the Applicant to the Proposal, the issues for adjudication by the Tribunal were significantly scoped. There was one area of dispute between the Parties: the height of the 46-storey building (“Tower 1”). The City and the Applicant were in agreement on all other aspects of the Proposal. Both Parties agreed that the Site is currently underutilized, with a challenged and limited public realm, and is an appropriate location for redevelopment and intensification in the form of tall buildings. Moreover, both sides agreed that the Proposal can serve as a gateway between the Employment Area to the west and The Queensway Avenue to the east, and that it is an appropriate location for mixed use redevelopment and significant new housing. Both also agreed that many aspects of the Proposal are appropriate, desirable, and would result in much needed enhancements to the public realm.

16However, with respect to Tower 1, the City’s position was that the height was too tall and suggested that it be reduced from 46 to 24 storeys. The basis for this was that the height of Tower 1 was too high for this particular location, it did not fit with its existing and planned context, and had unacceptable shadow impacts on the public realm. Moreover, the City indicated that, if Tower 1 remained as is, the Proposal would not satisfy the applicable legislative and policy tests.

17The Applicant’s position was that the height of 46 storeys was appropriate and the ZBA currently before the Tribunal should be approved. The Applicant indicated that a reduction of 22 storeys (and approximately 200 housing units) would be inappropriate, having ramifications on the Proposal that surpassed a simple reduction in height. Moreover, and contrary to the City’s position, the Applicant submitted that the height of Tower 1 was appropriate for the Site and the City’s concerns were not supported by the evidence.

18Both Parties requested that the appeal be allowed, in part, and the Tribunal issue an Interim Order. The Applicant requested an Interim Order approving the ZBA in principle, and that a Final Order not be issued until certain conditions were addressed to the satisfaction of the City. The City requested an Interim Order approving in principle a modified ZBA with a reduced height of 24 storeys for Tower 1, and that the Applicant then revise the Proposal accordingly, which would come back to the Tribunal within six months, with a Final Order being issued once the Tribunal received the revised plans and certain conditions were satisfied.

ISSUES AND WITNESSES

19The issues before the Tribunal, which are each addressed below, were, in general terms:

1. Does the ZBA in full, and mainly the height of Tower 1, satisfy the applicable legislative and policy tests, outlined at paragraphs [12] to [14] of this Decision?

2. Is the proposed height of Tower 1 appropriate and represent good planning, and does its scale and massing fit within the existing and planned context of the area?

3. Does the proposed height of Tower 1 cause shadow impacts on parks, open spaces, and adjacent streets that do not conform to the requirements of the City’s OP?

20Five witnesses testified at this Hearing. In support of the ZBA in full, the Applicant presented the following:

1. Michael Bissett, qualified by the Tribunal to provide expert opinion evidence in the field of land use planning;

2. Michael Hannay, qualified by the Tribunal to provide expert opinion evidence in the field of urban design; and

3. Paul Ferris, qualified by the Tribunal to provide expert opinion evidence in the field of landscape architecture.

21In opposition to the part of the ZBA pertaining to the height of Tower 1, the City presented the following:

1. Jaspreet Deol, qualified by the Tribunal to provide expert opinion evidence in the field of land use planning; and

2. Allison Reid, qualified by the Tribunal to provide expert opinion evidence in the field of urban design.

Does the ZBA in full, and mainly the height of Tower 1, satisfy the applicable legislative and policy tests, outlined at paragraphs [12] to [14] of this Decision?

Applicant’s Position

22The Applicant’s position was that the ZBA in full, including the proposed height of Tower 1, satisfied the applicable legislative and policy tests. Messrs. Bissett and Hannay provided written and oral testimony in that regard.

23Mr. Bissett opined that, from a planning policy perspective, the ZBA and the Proposal it will facilitate have regard to matters of Provincial interest listed in s. 2 of the Act, which he specifically cited and elaborated on. For example, he testified that, in accordance with s. 2(p) of the Act, the location is an appropriate one for growth and development. The Mixed Use Areas designation within the City’s OP, where the Site is located, is to accommodate the majority of the population and employment throughout the City. Additionally, as Mr. Bissett explained, in accordance with s. 2(r) of the Act, in terms of placemaking, the Proposal aims to establish a gateway character in tandem with the approved KingSett Development. A reimagined public realm along The Queensway has been proposed to emphasize the transition from industrial uses to the west, into a mixed use corridor that supports a more compact urban form. This placemaking effort will be reinforced through a 10.45 m public realm that will accommodate a double row of trees, varied pavers, and active uses such as retail at grade. The ultimate condition of the Site will result in an accessible, thoughtfully designed Proposal that will frame The Queensway and Queensway Lions Court with good proportion.

24Mr. Bissett further opined that the ZBA and the Proposal it will facilitate are consistent with the PPS. He cited numerous policies, such as Policy 1.1.3.3, stating that the Proposal is located in an area that is designated as a focus for growth in the City, and proximate to existing frequent transit along both The Queensway and Kipling Avenue. Thus, the proposed intensification of the Site from what is now a low-rise commercial property is appropriate and consistent with this Policy. Mr. Bissett also stated that the ZBA and the Proposal it will facilitate conform to the Growth Plan, which, according to Mr. Bissett, identifies the Site as located within a “strategic growth area.” This was a point of contention at the Hearing, and is discussed further below.

25Mr. Bissett testified that the ZBA and the Proposal it will facilitate conform with the planning policies of the City’s OP. The OP notes that Mixed Use Areas, where the Site is located, will absorb much of the new housing anticipated in the coming decades. Development in Mixed Use Areas will provide for new jobs and homes for the City’s growing population on underutilized lands. Moreover, the lands surrounding and including the Site were specifically converted from an Employment to a Mixed Use Area designation through OPA 231, in recognition that growth would be located there, at the gateway to The Queensway Avenue.

26Moreover, Mr. Bissett opined that the Proposal meets the intent of the policies in Policy 4.5 of the OP. Policy 4.5(2) sets out a number of criteria for development within Mixed Use Areas, which have been met in the Proposal in a number of ways by:

a. Creating a balance of high quality commercial, residential, and institutional uses in proximity to transit routes along Kipling Avenue and The Queensway;

b. Providing a mix of uses, such as the new childcare centre in particular, to contribute positively towards the needs of the local community;

c. Providing for new jobs and a significant increase in housing on an underutilized Site;

d. Locating and massing the buildings (the mid-rise element, a connecting podium, and two residential towers) so as to provide a transition from The Queensway corridor by locating taller elements in the rear, and by providing adequate separation and setbacks between towers and from adjacent properties;

e. Adjusting tower heights to eliminate shadow impacts on adjacent Neighbourhoods during the spring and fall equinoxes;

f. Providing a generous 10.45 m public realm, from the north building facade to the curb, which will be enhanced and landscaped;

g. Complementing the enhanced public realm with retail uses at the northwest corner of the mid-rise building and the proposed daycare space at the northeast corner;

h. Consolidating site access at the rear of the building and providing an appropriate number of vehicle and bike parking spots for residents and visitors;

i. Locating and screening the proposed parking, servicing, and loading areas to minimize the impacts on The Queensway and Queensway Lions Court; and

j. Providing a variety of programmed amenity spaces that include private rooftop terraces, indoor amenity areas adjacent to outdoor terraces, and a centralized landscaped courtyard.

27Lastly, Mr. Bissett opined that the ZBA and the Proposal before the Tribunal, constitute good planning, are in the public interest, and the ZBA should be approved as proposed.

28Mr. Hannay agreed and testified that the design of the Proposal, including that of Tower 1, conforms to the design-related guidelines of the Built Form Policies of the OP outlined in Policy 3.1.2. Moreover, the building appropriately implements the City’s various guidelines (“Guidelines”), such as:

1. The Avenue & Mid-Rise Buildings Study, which does not strictly apply as the Site is not located in an Avenue, but is informative with respect to “fit” as the Site is located adjacent to an Avenue;

2. The Tall Building Design Guidelines (“TBDG”), about which Mr. Hannay provided a significant amount of detail and opined that the proposed building is generally in keeping with, and implements, the applicable guidelines contained therein. Messrs. Hannay and Bissett agreed that the Proposal implements the TBDG as related to tower floorplate, separation distance between towers, and separation distances from lot lines;

3. The Queensway Design Guidelines and Street Improvements, about which Mr. Hannay stated that the design of the Proposal would support the envisioned gateway at the intersection of The Queensway and Kipling Avenue;

4. Growing Up: Planning for Children in New Vertical Communities; and

5. Pet Friendly Design Guidelines and Best Practices for New Multi-Unit Buildings.

29Mr. Hannay concluded that, from an urban design perspective, the Proposal’s design appropriately conforms to the relevant urban design policies of the OP. Moreover, it accomplishes this without generating wind, shadow, or overlook impacts on parks, open spaces, streets, or adjacent properties. As such, he recommended that the ZBA facilitating this Proposal be approved.

City’s Position

30In contrast, the City took the position that the proposed height of Tower 1 does not represent good planning and should not be approved, as it does not satisfy the applicable legislative and policy tests.

31Ms. Deol provided land use planning evidence in support of that position, opining that the height of Tower 1 should be reduced. She testified that, while the Proposal is generally consistent with the PPS and conforms with the Growth Plan in so far as it represents intensification of land within an urban settlement area, the height of Tower 1 is not consistent with all of the policies of the PPS, including, but not limited to, the framework recognizing the Municipal OP as the most important vehicle for implementing the PPS, and that it conflicts with several policy directives in the Growth Plan. In short, the Proposal, in its current form, fails to promote a level of intensification that is appropriate for this Site, resulting in a built form that is out of keeping with its existing and planned context, with unacceptable negative impacts on the public realm.

32Ms. Deol opined that the height of Tower 1 is inconsistent with several Provincial policy directives, stating:

While the PPS encourages intensification and efficient development, it recognizes that local context is important and that well-designed built form contributes to overall long-term economic prosperity. The proposed level of intensification is not consistent with the PPS when read as a whole.

33In closing submissions, the City’s Counsel referred to the Tribunal decision in K.P. Isberg Construction Inc. v. Toronto (City), 2020 CarswellOnt 7604 (L.P.A.T) (“K.P. Isberg Case”), wherein it was found that the intensification/optimization policies and objectives set out in the Growth Plan and PPS are not to be "utilized vigorously in every instance, as a matter of course, to justify greater size, mass, density or scale, irrespective of those other important policies which speak to fit, compatibility, transition and good design principles” (paragraph 53).

34Further, Ms. Deol testified that the height of Tower 1 does not sufficiently address the existing building stock or area. She referred to the OP, which implements the direction of the PPS to require appropriate built form to fit harmoniously into its existing and planned context, and opined that the Proposal is not consistent with this Policy as it is not in keeping with the planned structure for the City contemplated in the OP. She also referred to PPS Policy 1.5.1, which highlights the importance of protecting public spaces, such as parks and the public realm, in ways that promote social interaction, and testified that the proposed height of Tower 1 adds shadow impacts to the public spaces around it (including the Future KingSett Park), which would be contrary to Policy 1.5.1. Additionally, by providing a height of this scale that shadows the Avenue, the Proposal would be inconsistent with PPS Policy 1.7.1 (Long Term Economic Prosperity).

35Similarly, Ms. Reid agreed that the height of Tower 1 was inconsistent with the PPS, and specifically with the implementation and interpretation policies of the PPS, which identify the OP as the most important vehicle for implementation of the PPS. The height of Tower 1 would not appropriately relate to the local context or result in a well-designed built form, which requires appropriate built form to fit with its existing and planned context. Although the project represents intensification, which is encouraged in the PPS and the Mixed Use Areas designation in the OP, the height of the Tower 1 is not consistent with other objectives of the OP, notably the Public Realm and Built Form policies. Accordingly, she found that approval of the Proposal in its current form would not be in keeping with PPS Policies 1.1.3.2, 1.1.3.3, 1.5.1, 1.7.1, 4.2, and 4.6.

36With respect to the Growth Plan, Ms. Deol acknowledged that the Proposal would largely conform with the direction in the Growth Plan (intensification within the built-up area). However, she opined that the height and scale of Tower 1, which does not conform to the City's OP, conflicts with several policy directives in the Growth Plan, including Policies 2.2.1.2(c), 2.2.1.4(b), and 2.2.2.3(a)(b)(d)(f). She stated:

The question of conformity must also consider the policies about how much growth is appropriate and in what form, given the existing and planned context. In my opinion, the Growth Plan as implemented through the City's Official Plan, doesn't support this height and scale of development in this location. The proposed height of Tower 1 represents an inappropriate level of intensification at this location because there is an established context of appropriately scaled tall building heights that appropriately fit the built form context and minimize their impacts on the public realm, including planned open spaces.

37Ms. Reid agreed with Ms. Deol and adopted her evidence.

38With respect to conformity with the OP, the City’s position, as testified to by Ms. Deol and Ms. Reid, and as will be described further below, is that the height of Tower 1 does not conform to three main interconnected thrusts of policy woven throughout the OP, and in the TBDG, that are pertinent to the issues in this proceeding:

1. That the urban structure contemplates the tallest buildings in certain locations, which does not include the Site;

2. That a proposed development has to "fit" with its existing and planned context, but Tower 1 does not; and

3. That shadow impacts on the public realm should be minimized, which are not as a result of the proposed height of Tower 1.

39In short, Ms. Deol and Ms. Reid testified that the height of Tower 1 does not represent good planning and its approval would not be in the public interest. Additionally, Ms. Deol opined that such an approval could have a destabilizing impact on the area, including the Avenue and Mixed Use Areas to the east, and would have multiple negative impacts on the public realm in the vicinity.

40Ms. Deol and Ms. Reid recommended approval of a revised height of 24 storeys for Tower 1, opining that this revision would meet the legislative test for ZBA approval. The City’s Counsel, relying on the City’s witnesses, submitted that such an approval would appropriately balance the objectives encouraging intensification with those requiring good urban design and a high-quality public realm. Moreover, a height of 24 storeys would still achieve significant intensification within the urban area that would be consistent with the PPS, and would conform to the Growth Plan and the City's OP.

Issues in Dispute With Respect to Policy

41With respect to policy discussions, the following nuanced issues arose between the Parties:

1. Section 2.1 of the Act;

2. The hierarchy of planning documents; and

3. Whether the Site was located in a “strategic growth area” as defined in the Growth Plan.

Section 2.1 of the Planning Act

42Ms. Deol stated, in her witness statement, that the Tribunal is required to have regard to any decision made by a Municipal Council as it relates to a planning matter. In this case, City Council directed the City Solicitor and City Staff to attend the Tribunal in opposition to the ZBA. Moreover, she stated that City Council has not provided specific further direction in respect of the revised Proposal before the Tribunal, but City Council has made many related decisions in the vicinity that have consistently resulted in development approvals that maintain a relatively consistent expectation in terms of the heights of buildings in the area. She explained that the existing and approved building heights along The Queensway, around the area of The Queensway and Kipling Avenue to Islington Avenue, range from one to 42 storeys, with taller buildings being located further south, farther from the Avenue and Neighbourhoods, adjacent to the Gardiner Expressway. Thus, she opined that a Tribunal finding to reduce the height of Tower 1 would be more in keeping with and would have appropriate regard for the previous decisions of City Council. Ms. Reid adopted Ms. Deol’s evidence on this issue.

43In response to this, the Applicant’s Counsel submitted that Ms. Deol’s evidence on this issue should be disregarded. This was an appeal from the failure of Council to render a decision. There is no Council “decision" on the Proposal which is before the Tribunal. Section 2.1 of the Act requires the Tribunal to “have regard” for the decision of Council in respect of the same planning matter and the material before Council when it rendered its decision. Thus, Ms. Deol’s reliance on decisions of Council for other sites and development applications along The Queensway is not applicable. Though Ms. Deol attempted in her oral evidence to amend her opinion, the Applicant’s Counsel submitted in her closing that this was a fundamental error and an incorrect interpretation of s. 2.1 of the Act by the City’s planning witness, an error which should go to weight. Further, Ms. Reid's approach would also lead to an inappropriate interpretation with respect to precedent of prior Council decisions affecting the Tribunal’s role as an appeal body on planning appeals.

Hierarchy of Planning Documents

44The Applicant’s Counsel submitted that the City failed to provide the Tribunal with a separate and distinct opinion on consistency with the PPS, as a threshold test required by s. 3(5) of the Act. Instead, Ms. Deol in her written and oral evidence, collapsed her analysis of the PPS into an analysis of conformity with the OP, concluding that because, in her opinion, the Proposal did not conform to certain OP policies, it was therefore inconsistent with the PPS. That is an incorrect and inappropriate analysis. The Applicant’s Counsel further submitted that Ms. Deol’s Staff Report on this Proposal is also lacking in any analysis on the PPS and Growth Plan, providing only a list of applicable policies absent any analysis, and focused solely on OP conformity. Similarly, the Applicant’s Counsel submitted, Ms. Reid also assessed the PPS through the lens of conformity with the OP and relied on the fact that the OP “is the most important vehicle for implementation of the PPS.” This is an incomplete and incorrect analysis, and the evidence should be given little weight. As such, the Applicant’s Counsel submitted that the evidence of Ms. Deol and Ms. Reid on the matter of consistency with the PPS should be disregarded. In support of this position, the Applicant’s Counsel relied on previous Tribunal findings, such as Duncanson-Hales v. Greater Sudbury (City), 2020 CarswellOnt 19049 (L.P.A.T.) (“Duncanson-Hales Case”), which have established that consistency with the PPS is a standalone test, one that is separate from the determination of conformity with the OP.

45In conclusion, the Applicant’s Counsel submitted that Mr. Bissett’s opinion should be preferred, as he provided the Tribunal with comprehensive evidence in respect of the PPS, concluding that the ZBA is consistent with the PPS as it represents intensification of an underutilized land, which is serviced by infrastructure and will result in development which provides a mix of housing, employment, and improves the public realm.

46In response, the City’s Counsel submitted that the City agrees that there is a hierarchy in the planning documents, with the Provincial legislation, policies, and plans being paramount to the Municipal OP, which is a vehicle that implements Provincial policy. However, the City’s Counsel submitted that the City did indeed provide the Tribunal with a separate and distinct opinion on consistency with the PPS, and did consider the PPS as a whole. Contrary to the Applicant’s submissions, the City's analysis did not focus solely on OP conformity. The City’s Counsel submitted that Ms. Deol’s conclusion that the height of Tower 1 was inconsistent with the PPS resulted from not only a reference to the OP, but to a number of PPS policies that speak to appropriate locations for development where it can be accommodated, the importance of public open spaces such as parks, maintaining and enhancing the vitality and viability of downtowns and mainstreets, and encouraging a sense of place by promoting well-designed built form.

47Moreover, the City’s Counsel submitted that the hierarchy in planning documents does not mean that some of the Provincial direction and policies are to be ignored at the expense of others. Nor is it appropriate to give undue and selectively greater weight to the broader intensification policies in the PPS and Growth Plan without recognizing the OP as the vehicle to implement those intensification policies. The City’s Counsel referenced the Tribunal Decision Yonge Lawrence Dev LP v Toronto (City), 2017 CanLII 85742 (ON LPAT), where Vice-Chair Lanthier found (at paragraph 76) that giving undue and selectively greater weight to the broader intensification policies in the PPS and the Growth Plan, without recognizing the OP as the “vehicle” implementing those intensification policies, would fail to recognize the policy framework provided for in the PPS and the Growth Plan .

48Additionally, the City’s Counsel explained that, even if the Tribunal prefers the evidence of Mr. Bissett with respect to the higher order Provincial policies, the proposed height of Tower 1 should still be refused because it does not conform with the OP. As found in the K.P. Isberg Case at paragraph 57, a proposed development may achieve consistency with the PPS, and conform to the higher order intensification policies in the Growth Plan, but fail to conform to the local planning policies, which more specifically deal with site-specific development and design issues. As the Tribunal has previously found, a proposal that is consistent with Provincial policy can be refused for failing to conform with the OP. The City’s Counsel relied on the following cases: Fortress Charlotte 2014 Inc. v. Toronto (City), (October 10, 2018) PL161030 (L.P.A.T.), and Davenport Development Inc. v Toronto (City), (October 29, 2019) PL160330 (L.P.A.T.). In both cases, the proposed development was found to be consistent with the PPS and conform to the Growth Plan but was refused as it did not conform to the OP.

Strategic Growth Area

49The Parties disagreed as to whether the Site was located within a “Strategic Growth Area” (“SGA”), as defined by the Growth Plan, which states:

Within settlement areas, nodes, corridors, and other areas that have been identified by municipalities or the Province to be the focus for accommodating intensification and higher-density mixed uses in a more compact built form. Strategic growth areas include urban growth centres, major transit station areas, and other major opportunities that may include infill, redevelopment, brownfield sites, the expansion or conversion of existing buildings, or greyfields. Lands along major roads, arterials, or other areas with existing or planned frequent transit service or higher order transit corridors may also be identified as strategic growth areas. [emphasis added by the Tribunal]

50The Applicant’s position was the Site was located within a SGA. As Mr. Bissett testified:

1. The Proposal provides for new housing and retail space in an appropriate location for growth, with a significantly enhanced public realm. Thus, the Proposal would meet the SGA requirement of accommodating intensification and higher densities with a mix of uses in a more compact built form.

2. The Site meets the SGA requirement of being located near frequent transit service, which is defined in the Growth Plan as “a public transit service that runs at least every 15 minutes in both directions throughout the day and into the evening every day of the week”. In this respect, the Site is located on two Major Arterial roads and has existing frequent transit service: the 44 Kipling Bus Route that is part of the TTC’s 10 Minute Network connecting with Kipling Station and Kipling GO Station to the north. In fact, it is located at the intersection of two designated “Transit Priority Segments” on Map 5 (Enhanced Surface Transit Network) (Kipling Avenue and The Queensway) of the City’s OP.

3. The Proposal is located adjacent to an identified Avenue on the east side of Kipling Avenue and is designated Mixed Use Areas, which are anticipated to accommodate the majority of population growth and jobs as per the OP.

4. Lastly, senior City Staff, in their assessment of the KingSett Development located directly across the street from the Proposal, defined the area as a SGA. Thus, Mr. Bissett testified, and the Applicant’s Counsel submitted, if the City took such a position with respect to the KingSett Development, the same should apply to the Proposal.

51The City took the position that the Site is not within a SGA. Ms. Deol acknowledged that the Site, like the Kingsett Development, has the characteristics of a SGA, but drew a distinction that the Site is not within a delineated SGA, in contrast to other delineated SGAs, such as Urban Growth Centres and Major Transit Station Areas, which have been delineated in the OP. This is important as no specific growth targets have been ascribed to the area, contrary to what has been done for Urban Growth Centres, the Major Transit Station Areas, and some Secondary Plan Areas. Thus, according to Ms. Deol, the Proposal is within a SGA that has been identified but not delineated by the City. She referred to the OP, which highlights that growth areas are generally locations where good transit access can be provided along bus and streetcar routes and at rapid transit stations. Development along the Avenues is envisioned to be generally at a much lower scale than in the Downtown, and most often at a lower scale than in the Centres. While the OP contemplates (and the City supports) significant intensification and growth on the Site, this is not an area of the City, like the Downtown or Centres or within a Major Transit Station Area, that is well served by higher order transit where one would expect the tallest heights and most intense development.

52With respect to the KingSett Development being identified as within a SGA, the City’s Counsel explained that the KingSett Development is distinguished from the Site as it is located right on the corner of the intersection, with frontage on Kipling Avenue where frequent bus service runs. Moreover, in the Staff Report, it was identified as being within a SGA, but still not a delineated one. However, despite this, the City is supporting more units and a higher level of intensification on the Site, with a slightly higher height for Tower 2 than the tallest building of the Kingsett Development. Thus, the City is not treating the Proposal differently or worse than the KingSett Development.

53Ultimately, the City’s Counsel submitted in closing submissions that, despite this distinction, not much should turn on it at the Hearing, as even within a delineated SGA, the Growth Plan requires a municipality to plan for the type and scale of built form for a development to be contextually appropriate (Policy 5.2.4.5 of the Growth Plan). Moreover, despite their nuanced differences of opinion, both Mr. Bissett and Ms. Deol agree that the Site is appropriate for significant intensification, and only disagreed on whether the scale of the built form proposed is contextually appropriate.

54The Applicant’s Counsel, in her Reply submissions, emphasized that SGAs need not be delineated. As SGA is a defined term in the Growth Plan, a Provincial policy, the City’s OP must conform to it, not the other way around. While Mr. Bissett agreed that the area had not been delineated by the City through a Secondary Plan exercise, for example, he maintained that: (1) a SGA need not be delineated by the City to be a SGA for the purposes of the Growth Plan; (2) the area, including the Site, meets the definition; and (3) the City had explicitly identified the area as being a SGA in its Staff Report to Council with respect to the KingSett Development. As such, Mr. Bissett maintained that the level of intensification represented by the Proposal (including the height of Tower 1) was appropriate for a SGA.

Is the proposed height of Tower 1 appropriate and represent good planning, and does its scale and density fit within the existing and planned context of the area?

Existing and Planned Context

55As. Mr. Bissett explained, the Site’s designation of Mixed Use Areas in the OP is one of only four designations specifically targeted for growth and intensification, particularly residential intensification. There are no height, density limits, or other prescriptive standards in the City’s OP as it applies to the Site.

56The Queensway, at the location of the Site, is a six lane Major Arterial road with a challenged and limited pedestrian realm. As Mr. Bissett explained, Map 3 of the City’s OP notes The Queensway at the Site is planned to be an ultimate right-of-way width of 36 m. Further, Mr. Bissett opined that Map 5 of the City’s OP identifies Kipling Avenue and The Queensway as Transit Priority Segments. The Site is serviced by three bus routes operated by the TTC: Route 80 Queensway; Route 44 Kipling (a frequent bus route); and Route 944 Kipling Express, connecting the Site to Kipling Station on the Line 2 Bloor-Danforth Subway.

57The area to the east of the Site has been evolving and has been the subject of several planning applications and approvals, which are incrementally re-urbanizing and intensifying the Avenue and lands to the south. As explained by Ms. Deol, due to its location in the City, and in response to policy and regulatory changes applicable to the segment of The Queensway to the east of the Site, The Queensway, between Kipling Avenue and Islington Avenue, has been the focus of mixed use development with a number of mid to high-rise buildings proposed. The Queensway corridor has seen an influx of mixed use and residential development over the past 10 years, including proposals up to heights of 42 storeys to the east.

58Both Parties agreed that much of the Proposal represented good planning within the existing and planned context of the area. The following paragraphs will focus solely on the disagreement with respect to the height of Tower 1.

Applicant’s Position

59The Applicant’s Counsel submitted that the 46-storey height of Tower 1 was entirely appropriate in this location on this Site.

60Messrs. Hannay and Bissett testified that the proposed height of Tower 1, in tandem with the Proposal as a whole, fits harmoniously in the existing and planned context of area. As Mr. Bissett stated, significant care was taken to ensure that Tower 1 fit, as follows:

1. The tallest elements of the Proposal were strategically placed on the southern portion of the Site above a six-storey podium. The Towers were situated at the rear of the Site to provide The Queensway with an appropriately scaled mid-rise building reflecting its evolving urban corridor, while also creating a comfortable pedestrian experience;

2. The intent of positioning the Towers at the rear of the Site was to reduce massing and optimize sky views along The Queensway, as well as to minimize any potential shadow impacts on Neighbourhoods to the northeast of the Site, north of The Queensway and east of Kipling Avenue (approximately 150 m to the northeast). This design resulted in no shadows on these designated Neighbourhoods through March, June, and September; and

3. In further iterations of plans, the height of Tower 1 was increased as it was in a location which would result in no shadow impact on any Neighbourhoods and was set well back from The Queensway. The Planning Rationale Addendum Letter, dated July 23, 2021, which accompanied the revised Proposal, noted that the proposed height would respond well to the planned context, which, as of April 2021, included the approved 35-storey tower of the KingSett Development, which is located closer to the designated Neighbourhoods area to the northeast of the Site.

61Moreover, Messrs. Hannay and Bissett drew a clear distinction between the existing and planned context on the east side of Kipling Avenue along The Queensway, within the Avenues and subject to The Queensway Avenues Guidelines, and the west side which includes deep Mixed Use Areas designations on the north and south sides of The Queensway, bookended by Employment Areas. For both Messrs. Hannay and Bissett, the immediate and most relevant planned context to consider are the lands on the west side of Kipling, including the KingSett Development, located in the northwest corner. As Mr. Hannay explained: “These future buildings establish a pattern of increasing building heights with the lowest components at the north and the tallest components to the south away from the Neighbourhoods area.” The Proposal fits into this pattern. Under cross-examination, both Ms. Reid and Ms. Deol acknowledged that the most immediate planned context for the Site is the KingSett Development.

62The Proposal, according to Mr. Hannay, together with the KingSett Development, will form a cluster of tall and mid-rise buildings that will transition up from the two-storey Neighbourhoods area and the single-storey industrial buildings to 10 storeys, to 24 storeys, to 35 storeys, stepping down at The Queensway to 11 storeys, and rising again to 35 storeys and then up to 46 storeys. Mr. Hannay further explained that, with respect to the Proposal and the KingSett Development together:

The combination of the proposed tall buildings and the future tall buildings forms a progression of 28-storeys, 35-storeys, 35-storey, and 46 storeys. A similar existing pattern of building heights can be seen south of The Queensway and east of Zorra Street between The Queensway and the Gardiner Expressway.

63Mr. Hannay’s opinion was consistent with that of Mr. Bissett, who expressed the distinction in the following ways:

The current land use context along The Queensway is an auto-oriented corridor that is not pedestrian friendly… an influx of development within the corridor has begun to alter this condition as an emphasis on high-density development along arterial roads has developed… This transition in placemaking begins at the intersection of Kipling Avenue and The Queensway and will continue to transform The Queensway into a mixed-use node, in contrast to the employment uses to the west of the subject site.

The proposed development has an opportunity to act in tandem with the development application at 1306 The Queensway [KingSett Development] to facilitate a gateway treatment as vehicles and pedestrians alike enter this corridor. The proposed height of 35-storeys on 1306 The Queensway and 35- to 46-storeys on 1325 The Queensway would create a defined entry that is complemented by enhanced landscaping treatments along both sides of The Queensway creating a pedestrian oriented boulevard that is more conducive to mixed use development.

64With respect to the City’s assertion that the tallest buildings, such as the scale of Tower 1, should not be focused in this area, as it was not a Centre and was not adjacent to higher order transit, the Applicant disagreed. The Applicant’s Counsel submitted that there is no policy in the OP which restricts taller buildings to areas served by higher order transit. Moreover, under cross examination, Ms. Deol acknowledged that: (1) two of the areas which had been described as being serviced by the new Christie GO Station had developed prior to the GO Station being secured (the Motel Strip and the Park Lawn West corridor); and (2) The Queensway area today has more tall buildings than the closest identified Secondary Plan Area (Sherway). Finally, both Ms. Deol and Ms. Reid acknowledged that the Site has superior transit access in comparison to other existing and approved tall buildings east of Kipling Avenue and south of The Queensway. The Applicant’s Counsel submitted that the level of service available for the Site and the KingSett Development, as conceded by Ms. Deol in cross-examination, is superior to that which serves all of the development that has occurred along The Queensway, both on and south of the Avenue. The Applicant’s Counsel relied on the collective testimony of the witnesses, as well as on the City’s visual evidence, which demonstrated the collection of tall buildings in the immediate vicinity south of The Queensway, between Kipling Avenue and Islington Avenue, which have inferior access to higher order transit as compared to the Site.

65With respect to the scale of Tower 1, the Applicant agreed with the City that intensification should be in the form of appropriately scaled built form and an improved public realm. The Applicant’s Counsel submitted that the Proposal delivers that in the form of a greatly enhanced public realm on the south side of The Queensway and a mid-rise building which introduces a streetwall which responds to the six-lane cross section of The Queensway, completing the “gateway" to the Avenue to the east. Moreover, the Applicant responded to Ms. Deol’s analysis of the “net density” for approved/developed projects in the vicinity. Ms. Deol’s evidence was that this Proposal “with a resulting site wide density of 8.98 FSI is substantially taller and results in a substantially denser development than all of the other developments that have been approved” in the area. However, under cross examination, Ms. Deol acknowledged that the proposal at 30-44 Zorra Street has a “net density” of 9.40 FSI, once the dedications for the parkland and road conveyance to the City were deducted from the site area. Additionally, Ms. Deol acknowledged that, at 42 storeys, the proposal at 45 Zorra Street would be the tallest building amongst the buildings surveyed within the area. Further, as Mr. Hannay explained in cross-examination, while the OP directs the highest buildings with greatest intensity to typically occur Downtown, that is not necessarily reflected on the ground, as tall buildings are found in other areas of the City.

66In short, the Applicant submitted that the Proposal, as is, would meet the requirement of the City that intensification be in the form of appropriately scaled built form and an improved public realm, and would appropriately and harmoniously fit within the existing and planned context of the area.

City’s Position

67The City’s position, as testified to by Ms. Deol and Ms. Reid, was that the proposed height of Tower 1 is too tall at this location, does not reinforce the urban structure, and does not fit harmoniously with the heights of other tall buildings or provide for an appropriate transition in scale and good street proportion within the planned context. Moreover, Ms. Deol stated that its approval would set a negative precedent within the area, impacting future applications on other mixed use redevelopment sites, particularly those located on the south side of The Queensway.

68With respect to the height being too tall for this location, Ms. Deol testified that the Site is not in an Urban Growth Centre, a Major Transit Station Area, or a delineated SGA, and is not in proximity to higher order transit (existing or planned). While Mixed Use Areas are designated for growth, the OP contemplates that not all Mixed Use Areas will experience the same scale or intensity of development. The highest buildings and greatest intensity typically occur Downtown, particularly in the Financial District. The Centres are noted to develop at differing scales and densities, set out in their respective Secondary Plans and Zoning By-laws, reflecting the context of their surroundings and transportation infrastructure. Development along the Avenues is envisioned to be generally at a much lower scale than in the Downtown, and most often at a lower scale than in the Centres. Despite this, the City nonetheless supports the approval of two tall buildings on the Site, and even if Tower 1 was reduced to 24 storeys, the result would be approximately 924 new residential units.

69Moreover, even within the area itself, the City’s position was that the proposed height of Tower 1 is too high for this location (directly abutting The Queensway in close proximity to the Avenue). Ms. Deol testified that development approvals within the Mixed Use Area to the east (within the Avenue and the area south of The Queensway) generally have heights that range between 10 to 12 storeys along The Queensway frontage, with taller buildings placed further back, away from The Queensway Avenue. Tower heights generally range from between 17 to 42 storeys, with lower tall building heights closer to The Queensway, providing a transition in scale down to the mid-rise buildings along the street. The tallest buildings are located further south, closer to the Gardiner Expressway, at the greatest distances from the Avenue and the Neighbourhood. Ms. Reid agreed that the appropriate position for the tallest tower height should be furthest from the Avenue, the Future KingSett Park, and the Neighbourhood beyond, at the western edge of the Site. Of note, Ms. Deol did state, in her witness statement, that “some additional height and resulting density may be warranted in this location because it is outside of the Avenue.”

70With respect to the evidence regarding frequent transit, the City’s witnesses testified, and Counsel submitted, that in the broader context of the City, the Site is not particularly well served by transit. There is no higher order transit in the vicinity, or even within walking distance. While the Site is well served by the Kipling bus, there are no actual priority measures in place or currently planned for the bus service. While the location of the Site, with access to frequent and reliable bus service, does support intensification, it does not warrant the level of intensification proposed, as it would be at the expense of an appropriately-scaled built form and a high-quality public realm, and not in conformity with the OP.

71With respect to Tower 1’s harmonious fit within the existing and planned context of the area, the City’s position was that it did not do so and was contrary to the Built Form Policies in Chapter 3 of the OP. Ms. Reid opined that the proposed height of Tower 1 does not establish an appropriate built form relationship to the existing and planned context because the proposed height is not supported by the broader urban structure, nor does it fit with the established patterns of height and transition. As demonstrated by Ms. Reid, there is a clear, established pattern on the south side of The Queensway, with mid-rise built form framing the street, lower tall building heights behind (still within the angular plane measured from the north boulevard), and the tallest heights (also well within the angular plane) gradually transitioning and located furthest from the lower scale Avenue. All of the approved tall buildings fit within a 45 degree angular plane from the opposite side of the street, ensuring that they do not shadow the north sidewalk by midday at the equinoxes.

72Moreover, Ms. Deol testified that, with a resulting density of 8.98 FSI site wide, it would also set the precedent for the densest development in the vicinity of the Site. The approvals in the surrounding context generally have densities in the range of 3.22 to 7.62 times the area of the lot. This negative precedent could have a destabilizing impact on the Avenue and Mixed Use Areas to the east.

73The proposed height of Tower 1, at 46 storeys, immediately south of the proposed mid-rise building, would be a substantial departure from the established pattern, according to the City. The Proposal demonstrates no apparent relationship to the good street proportion along the street and would not transition down toward the lower scale of The Queensway. It would also not locate the tallest height with the greatest distance to the Future KingSett Park, as seen with the approved towers on Zorra Street. If approved, it would be the tallest height within the area’s context, at a location that is out of place in terms of the patterns observed, including the composition of building heights across the street, and the patterns of tall buildings south of The Queensway, where the tallest heights are located at the furthest distance from The Queensway.

74With respect to the KingSett Development, the City’s Counsel submitted that all the witnesses agreed that the KingSett Development is part of the planned context, and that together with the Proposal, they will form part of an emerging gateway to the Avenue. However, the approval of the KingSett Development does not justify a height of 46 storeys on the Site and the resulting impacts on the public realm.

75The Applicant had taken the position that a height of 46 storeys is not so much higher than the height of 42 storeys, and in fact, would likely not be “perceptible.” The City’s Counsel submitted that the approved but unbuilt 42-storey tower is located more than 200 m further south of The Queensway than the proposed Tower 1, adjacent to the Gardiner Expressway. The buildings approved at a similar distance from The Queensway to that of Tower 1 are all in the 17 to 24-storey range. Thus, Tower 1, at 46 storeys, would be a substantial deviation, and the difference in height would be perceptible, as would the difference between the 46 storeys proposed and the 35 storeys approved on the KingSett Development.

76The City submitted that its recommendation of 24 storeys for Tower 1 would fit harmoniously with the existing and planned context. The City’s Counsel submitted that the 35-storey west tower (Tower 2) would still be a departure from other approvals south of The Queensway, but it could serve as a gateway marker with a good height relationship to the KingSett Development’s tower at the northwest edge. Moreover, by reducing the height to 24 storeys, it would appropriately position the tallest tower height furthest from the Avenue, the Future KingSett Park, and the Neighbourhood beyond, and would present a range of heights that is more consistent with both the block context and buildings with similar location south of the street. Lastly, Ms. Deol estimated that this decrease in height would result in an overall approximate gross FSI of 7.1, and a net FSI of 7.2, which would be in keeping with approvals in the vicinity.

Does the proposed height of Tower 1 cause shadow impacts on Parks, open spaces, and adjacent streets that do not conform to the requirements of the City’s OP?

77Policies 3.1.2(3)(e) and (f) in the OP establish the threshold for development in Mixed Use Areas shadowing on neighbouring streets, properties, and open spaces, as well as neighbouring parks, as “adequately limiting any resulting shadow […] having regard for the varied nature of such areas” and “minimizing any additional shadowing […] as necessary to preserve their utility” respectively.

78The City and Applicant agree that the tests set out in the OP are: (1) whether new development adequately limits shadowing of neighbouring streets, open spaces, and properties, having regard for their varied nature; and (2) whether new development minimizes additional shadowing of parks to preserve their utility.

79The Applicant’s Counsel submitted that these threshold tests are distinct from a requirement to eliminate any net new shadow. Moreover, the OP, as it applies to the Site, does not contain any metrics, including number of hours of sunlight or shadow. This is in contrast to other areas of the City, which have introduced specific metrics related to shadow.

Applicant’s Position

80The Applicant’s position was that, with respect to shadows, the Proposal: (1) conforms to the OP policies; (2) appropriately implements the performance standards of applicable Guidelines; and (3) is consistent with the level of shadow deemed acceptable by the City in respect of the KingSett Development and other developments in the area.

81As explained by Mr. Hannay, the Applicant adjusted the Tower heights so as to minimize shadow on the Future KingSett Park and remove shadow from the Neighbourhoods. He further stated that, as demonstrated by the Shadow Study, the Proposal maintains full access to sunlight on the Future KingSett Park and POPS at all times of the day for more than 100 days, or nearly 1/3 of the year. There is no shadow during the peak season of summer. The Proposal does not shadow the Future KingSett Park until approximately 12:30 p.m. in the spring/fall equinox and is off the park again after 3 p.m. In total, the shadow from Tower 1 moves quickly across the Future KingSett Park and only affects it for a total of 2.5 hours. Mr. Ferris, the landscape architect for the parkland in question, agreed that the applicable OP tests for shadow were addressed in respect of the public realm, POPS, and the Future KingSett Park.

82As it relates to shadow, the TBDG speaks to implementing a variety of measures, including floor plate maximums, horizontal separations, and other mechanisms to “maintain access to sunlight and sky view for surrounding streets, parks, public or private open space and neighbouring properties.” The measures seek to achieve five hours of sunlight on the opposite side of the street from the base building. These standards are met by the Proposal.

83With respect to the three locations where shadow is a concern, the Applicant’s position was as follows:

Shadows on The Queensway – Adequately Limited Having Regard to the Nature of the Area

As it relates to the total amount of shadow which falls onto the Avenue (east of Kipling), Ms. Deol and Ms. Reid agreed in cross examination that:

a) There is no shadow from the Proposal on the Avenue until approximately 2:30 p.m. in the equinoxes;

b) The shadow never extends further than midway into the second block on the north side of the Avenue (a distance of approximately 140 m);

c) The shadow is not static and is continually moving through this time period; and

d) The shadow is completely off the north sidewalk on the Avenue just before 4:30 p.m.

The Applicant’s position was that it is not reasonable to suggest that a moving shadow, which never occupies more than the width of a City block and lasts a total of two hours, is an unacceptable shadow impact. It should not be the basis for a reduction of over 200 housing units.

Shadows on the POPS – Adequately Limited Having Regard to its Purpose and Design

The OP directs, and prior Tribunal Decisions have found, that consideration must be given to the nature of the area that is being shadowed, and the actual impact the shadow might have on that area. This is distinct from a simple “no net new shadow” approach.

In this instance, it was the uncontested evidence of Mr. Ferris that the POPS was not, in fact, designed as a space to be dedicated to the City but as a private passage through the Site to facilitate pedestrian movement. This access includes a passage through the mid-rise building, which fronts onto Kipling Avenue.

A review of the shadow analysis illustrates that the POPS area is in shadow for a considerable period of the day from the KingSett Development (from approximately 8:18 a.m. to after 11:18 a.m., and again from 2:18 p.m. onwards in the spring/fall equinox, and on June 21). This extent of shadow was deemed acceptable by the City. There is no evidence of any changes to the design or layout of either the POPS or the KingSett Development to mitigate these shadows, and the City Staff Report is silent on the extent of shadows from the KingSett Development on the POPS. It cannot be the case, the Applicant’s Counsel submitted, that such extensive shadow was deemed acceptable by the City in the case of the KingSett Development, but that the addition of minor shadow from the subject Proposal now results in unacceptable shadow impacts, especially when City staff neglected to advise Council on the shadow impacts arising from the KingSett Development when they recommended approval of the KingSett Development.

Moreover, in the evidence of Mr. Bissett that the level of shadow was acceptable, he was not only guided by the level of shadow deemed acceptable with respect to the KingSett Development, but also by the level of shadow the City deemed acceptable on the parkland on the south side of The Queensway from development approvals on Zorra Street.

Shadows on the Park – Minimized to Preserve Utility

As Mr. Hannay testified in his witness statement:

Having reviewed the shadows of the individual proposed buildings and the combined shadows produced by the proposed buildings and the future buildings on the KingSett lands it is my opinion that the location and design of the two proposed towers and the proposed mid-rise building protect adequate access to sunlight and sky view within the surrounding context of streets, parks, public and private open space on March/September 21st the spring and fall equinoxes as recommended in section 1.4 Sunlight and Sky View of the Tall Building Design Guidelines.

Moreover, the KingSett Development shadows the Future KingSett Park for a considerable period of time: from 3:18 p.m. through the entire afternoon and into the evening in the spring/fall equinox; and commencing at 2:18 p.m. and through the entire afternoon on June 21. Despite these shadow impacts, the City Staff Report on the KingSett Development is entirely silent on the matter of shadows on the Future KingSett Park or the POPS space.

Ms. Reid acknowledged on cross-examination that, in its review of the KingSett Development application, the City did not model or consider the shadow impacts from the subject Proposal or any other potential development sites, including the TD Bank Site at the southwest corner of the intersection or the large plaza site at the southeast corner. Ms. Reid did consider both of these sites in her evaluation of the shadow for the subject Proposal but provided no rationale or policy basis for this inconsistency. The position advanced by Ms. Reid in this Hearing, that a further analysis should be undertaken of possible developments on other lands, is inconsistent with the City’s own Terms of Reference and, most importantly, the City’s own established practice including its recent analysis of the KingSett Development.

It is important to note, the Applicant pointed out, that the Future KingSett Park was only a result of the on-site dedication of the KingSett Development. The City Staff Report, which recommended approval of the KingSett Development and the parkland conveyance was issued in March 2021, nearly a year following the submission of the subject Proposal, and a month following the initial City Staff Report on the subject Proposal.

84With respect to the City’s proposition that the height of Tower 1 be reduced, the Applicant’s Counsel submitted that the City’s position amounts to ensuring that there is no additional net shadow from Tower 1 in the afternoon on the sidewalk on the north side of The Queensway and, as a result, on the Future KingSett Park and POPS immediately to the north. However, there is nothing in the OP, as it applies to the Site, which would require this “drastic change.” Rather, the OP directs development to “adequately limit” shadow on the public realm and to “minimize” shadow on the parkland, so as to “preserve its utility.” The Proposal achieves this and meets this threshold. Lastly, Ms. Reid’s evidence on cross-examination was that additional height above 24 storeys could be achieved while still meeting the City’s threshold with respect to acceptable shadow.

City’s Position

85The City’s position was that the proposed height of Tower 1 would result in unacceptable shadow impacts on the surrounding public realm, including on the north boulevard of The Queensway across from the Site, on the Avenue to the east of the Site, and on the Future KingSett Park and POPS, which would be contrary to City’s OP.

86The City’s Counsel clarified that the City’s position is not that no net new shadow is allowed on the Future KingSett Park. The City acknowledged that this Site (in contrast to other areas of the City) does not contain any specific shadow metrics or identify a “no net new shadow” test. However, even if Tower 1’s height was reduced to 24 storeys, the Proposal would still result in additional shadow impacts on both the north boulevard and on the Future KingSett Park in the afternoon hours, caused by Tower 2 (35 storeys). These impacts were acceptable when balancing other objectives and goals of the PPS, the Growth Plan, and the OP, and recognizing that future as-of-right development on the underutilized lands to the east of the Site will also result in additional shadows in these locations in the morning.

87Rather, the City’s position was that the test set out in the OP is not met by the cumulative impact of a 35-storey (Tower 2) and a 46-storey tower (Tower 1) in this location. In fact, the Applicant had considered shadow impacts and access to sunlight conditions at inconsequential times of day and year, in a manner that was inconsistent with the direction in the OP and relevant Guidelines. Moreover, the City must account for other anticipated impacts from future development in the vicinity, which the Applicant had not done with this Proposal.

88Ms. Reid testified that, from an urban design perspective, the proposed height of Tower 1 would have an unprecedented impact, reducing sunlight access by nearly two hours on the north sidewalk and boulevard of the Avenue during the equinoxes in the afternoon hours, where the context has been extensively planned to maximize sunlight access and ensure continuous midday and afternoon sun in order to support pedestrian comfort and amenity. This sunlight standard has been upheld for development on the Avenue and in the surrounding Mixed Use Areas in order to support pedestrian comfort and amenity. As Ms. Deol explained, the Public Realm and Built Form policies in Chapter 3 of the OP highlight the importance of city streets as significant public open spaces, which connect people and places, and support the development of sustainable, economically vibrant, and complete communities. Sky view and sunlight are noted as important amenities that need to be considered when evaluating development applications. She opined that this is particularly important in the location of the Site, being adjacent to the entrance point of the Avenue.

89Ms. Reid stated that, if approved, this would be the first such impact on The Queensway Avenue to be permitted, and would undermine the planned context and good urban design emerging along this main street corridor. Moreover, as Ms. Deol stated, it would set a negative precedent for future tall building developments on sites in the vicinity, particularly on sites that are similarly located in Mixed Use Areas, outside of the Avenue, that have an ability to cast shadow on the Avenue. Ms. Reid agreed.

90The proposed tall buildings (Towers 1 and 2) would also cast shadow on a large portion of the north sidewalk and boulevard across from the Site during approximately four hours between 11:18 a.m. and 3:18 p.m. As explained by Ms. Reid, shadowing of the north sidewalk and boulevard on an east-west street in Toronto is expected until 11:18 a.m. from any well-proportioned mid-rise built form, which is why the critical times for evaluating the impact of proposed tall buildings located to the south of The Queensway is from 11:18 a.m. When combined with the morning shadows of the proposed mid-rise building, much of the sidewalk would be subject to shadow impacts throughout the day. This cumulative shadow impact throughout the midday and early afternoon hours would not adequately limit shadow and appropriately maximize sunlight on the street to support a comfortable pedestrian environment in this planned context.

91As Ms. Reid explained, Tower 1 would also cast a substantial midday shadow onto the Future KingSett Park and POPS. These public open spaces, given their location and exposure, can be made most comfortable during the shoulder seasons, around the midday, when the sun is at its peak height in the sky around 1:18 p.m., the very time that the Proposal causes the most shadow on these spaces, and they are most likely to be frequented as it corresponds with lunch breaks. Thus, the shadow impacts of the Proposal at this time of day (when one would most expect and benefit from sunlight) are contrary to policy objectives and guidelines. Such shadow impacts would not be adequately limited so as to preserve the utility of the Future KingSett Park.

92The City responded to the Applicant’s suggestion that the City should have tolerance for additional shadow on the Future KingSett Park because the KingSett Development itself casts shadow in these locations. As explained by Ms. Reid, and agreed to by Mr. Ferris, it would not be reasonable to expect an intensifying site providing an on-site park and POPS to have no impact on those spaces, though efforts are made to minimize the shadowing as much as possible.

93The City's recommendation of a 24-storey Tower would eliminate the afternoon shadow impact on the Avenue. This is appropriate given the nature of the area and its planned function as a vibrant main street. Moreover, it would be consistent with all other approvals on the south side of The Queensway, which have generally fallen within a 45 degree angular plane from the north boulevard. It would adequately limit the shadow impact on the Future KingSett Park, with Tower 2 causing some acceptable shadow in the afternoon, while still ensuring midday access to sun in the Future KingSett Park during the equinox. The reduction of height would also eliminate the shadow impact on the POPS, which is already significantly shadowed by the KingSett Development, and would ensure that it enjoys at least some access to sun throughout the day.

94In short, the City’s position, as testified to by Ms. Deol and Ms. Reid, was that the shadow impacts resulting from the height of Tower 1 do not represent good planning, and Tower 1 is not located and massed to maintain sunlight conditions on adjacent streets, sidewalks, parks, and open spaces. Both witnesses stated that a 24-storey tower would be more appropriate on the Site.

THE CITY’S ALTERNATE REQUEST

95The City put forward two alternate requests to the Tribunal:

1. That the height of Tower 1 be reduced to 24 storeys, which has been discussed extensively above; or

2. That the Tribunal provide the Parties with the opportunity to engage in further discussions and arrive at an alternate height agreement.

96The City’s Counsel submitted, in closing, that it is “common” for the Tribunal to direct changes to a proposal and to approve a modified development that differs from that advanced by an applicant. In these instances, the Tribunal has either ordered that the amending By-law be revised to reduce the number of storeys or has withheld its final order for a period of time, allowing the Parties to work together to bring forward a revised proposal that takes into account the Tribunal's findings on appropriate height. The City relied on the following cases, where the Tribunal found that the proposed height of a development was not appropriate and made a finding that an alternative height would be acceptable: Latch Developments Ltd. v. Toronto (City) (December 21, 2020) PL180105 (L.P.A.T.) (“Latch Case”); AnX 1 GP Incorporated v. Toronto (City) (December 07, 2017) PL141134 (O.M.B.); Queen Spadina Residences Corporation v. Toronto (City) (February 06, 2017) PL140705 (O.M.B.); K.P. Isberg Construction Inc. v. Toronto (City), 2020 CarswellOnt 7604 (L.P.A.T.); 2915 Bloor Street West Limited Partnership v.Toronto (City) (May 10, 2019) PL170069 (L.P.A.T.); The Elia Corporation v. Toronto (City) (April 27, 2017) PL150676 (O.M.B.); L. Richmond Corp v. Toronto (City) (March 21, 2018) PL160081 (O.M.B.).

97While the Applicant agreed with the City on the Tribunal’s jurisdiction, it disagreed with the options put forth by the City. Among what has been described above, the Applicant took the position that:

1. Ms. Reid arrived at a height of 24 storeys by applying a 45 degree angular plane taken from the north curb of The Queensway. However, there is no policy basis in the City’s OP as it applies to the Site for the application of the 45 degree angular plane, as was undertaken by the City.

2. A reduction in height to 24 storeys would be based solely on a massing model and shadow study, and without evidence that the resulting development could constitute good planning which meets all the applicable policy tests. The reduction in height by the City was not accompanied by an alternative development proposal, nor did the City assess the impact on the Proposal before the Tribunal, or whether the other objectives and goals of the PPS, Growth Plan, and OP were met. As Mr. Hannay explained, such a material change in height, and its implications for the actual Proposal, were unknown. Both Messrs. Hannay and Bissett testified that the Proposal met the Provincial policy direction to achieve intensification and the delivery of housing, while achieving good urban design and planning in the public interest. Mr. Hannay testified that the Proposal achieves the intent of the TBDG and Mid-rise Guidelines. There is no such evidence on the alternative the City has suggested.

3. Mr. Bissett testified that the reduction proposed by the City would result in the immediate loss of more than 200 housing units.

4. Lastly, with respect to the request that the matter be sent back to the Parties for further discussions, the Applicant’s Counsel submitted that such a ruling would subvert the jurisdiction of the Tribunal by putting the final decision, with respect to the outcome of this matter, with the City, rather than the Tribunal. Moreover, in the Latch Case, cited by the City, the Tribunal used an interim order to suggest the use of Tribunal-led mediation and to impose a timeline during which the applicant could submit a revised proposal and the other parties would review and provide comments, culminating in final written submissions to the Tribunal. However, in this case, the City has gone further than the Tribunal in the Latch Case by asking that the Tribunal not only impose a timeline for a revised proposal, but also that the Tribunal impose a maximum numerical height of 24 storeys for Tower 1.

98The City responded to the Applicant’s position as described above in this Decision. Additionally:

1. In response to the Applicant’s suggestion that the City failed to advance an "alternative development proposal,” the City’s Counsel submitted that, while it is not necessary, nor would it be appropriate, for the City to advance a completely revised development proposal for the Site, the City has expressly recommended a reduced height for Tower 1 for a development that is otherwise unchanged from the Proposal advanced by the Applicant, and nothing has been suggested that a reduced height for Tower 1 is not workable. As such, an alternative development proposal is, in fact, being advanced by the City.

2. In response to the concern that 200 housing units would be lost, the City clarified that an approval of the Proposal with a reduced height would still achieve significant intensification of over 900 new housing units in accordance with Provincial policy, but unlike the Proposal, would not come at the expense of a high quality public realm and a vibrant streetscape, as envisioned by the planned context and in force OP policies.

CONDITIONS OF APPROVAL

99A number of proposed conditions of approval were identified, and are attached to this Decision as Schedule B, which the Parties had agreed upon. These conditions were deemed appropriate by the witnesses. Thus, both Parties sought an Interim Order, requesting that any Final Order be withheld, subject to the conditions being satisfied.

ANALYSIS AND FINDINGS

100For the reasons that follow, the Tribunal accepts the planning evidence and opinions presented by the witnesses put forth by the Applicant, and finds that the ZBA, as proposed, satisfies the legislative tests detailed above, and warrants approval.

The City’s Proposal of 24 Storeys

101As was well pointed out by Messrs. Hannay and Bissett, as well as the Applicant’s Counsel, it is entirely unclear what impact the removal of 22 storeys (decreasing the height of Tower 1 from 46 to 24 storeys) would have on the development as a whole, save for the loss of more than 200 housing units. As the Applicant’s Counsel submitted in closing, the reduction in height by the City was not accompanied by an alternative development proposal, nor did the City assess the impact on the Proposal before the Tribunal, or whether the legislative test for a ZBA was met. The Tribunal does not agree with the City that the reduction of 22 storeys would be the sole change that this Proposal would need. Removing 22 storeys, and 200 housing units, would clearly impact the Proposal as a whole. For example, the amount of amenity space required would likely be impacted by this reduction. As such, the Applicant would have to reassess the Proposal as a whole, and it is not clear to the Tribunal what the ZBA would then look like.

102It was agreed to by both Parties, and described in significant detail above, that the Proposal would be an improvement to the existing condition on the Site, which was described as challenged and not particularly pedestrian friendly. Mr. Ferris, the landscape architect, demonstrated how The Queensway streetscape would be significantly improved by the Proposal, again as described above. Mr. Hannay testified extensively regarding the urban design of the building and the extreme care that was taken in the design, with consideration of numerous factors. The impact of the removal of 22 storeys on the improvements contemplated by the Proposal is unknown. As such, without further information, the Tribunal is unable to approve the revised proposal suggested by the City and is unable to approve the proposed height of 24 storeys.

The Issue to be Decided

103The question then is whether this matter should be sent back to the Parties for further discussions, or whether Tower 1’s height, as proposed at 46 storeys, warrants approval. To make that determination, the Tribunal continually returned to the legislative requirements for approval of a ZBA, outlined at paragraphs [12] to [14] of this Decision, and reflected on whether the Applicant had met those requirements.

104For the reasons that follow, the Tribunal finds that the ZBA as is, including Tower 1’s proposed height of 46 storeys, warrants approval.

Legislative Test

Section 2 of the Planning Act

105The Tribunal accepts the evidence of Messrs. Hannay and Bissett that the ZBA has regard to matters of Provincial interest as set out in s. 2 of the Act. Mr. Bissett provided detailed testimony in this regard, which was persuasive to the Tribunal. Specifically, the Tribunal was convinced that the location is appropriate for growth and development, and that Mixed Used Areas within the OP are to accommodate the majority of the population and employment throughout the City. Moreover, the Tribunal was convinced that, in accordance with s. 2(r), this Proposal was “well-designed,” encouraged “a sense of place,” and would provide “for public spaces that are of high quality, safe, accessible, attractive and vibrant.”

106With respect to the test under s. 2.1(1) of the Act, requiring the Tribunal to have regard to the decision of the approval authority or Municipal Council, as described at paragraphs [42] to [43] of this Decision, this was a point of contention between the Parties. The Tribunal understands that this appeal arose from the failure of Council to render a decision on this ZBA Application. The Tribunal agrees with the Applicant that there was no Council decision in this case for the Tribunal to have regard to. Council’s instructions to oppose the Appeal in part (only with respect to the height of Tower 1) subsequent to the filing of a non-decision appeal does not constitute a “decision” for the purpose of s. 2.1(1) of the Act, due to the fundamental difference in nature between an application submitted to the City and an appeal filed with the Tribunal. Moreover, as Ms. Deol stated, City Council had not provided specific further direction in respect of the revised Proposal before the Tribunal.

107The Tribunal disagrees that it should consider Council’s decision or position regarding other development applications in the area. Section 2.1(1) of the Act reads:

2.1 (1) When an approval authority or the Tribunal makes a decision under this Act that relates to a planning matter, it shall have regard to,

(a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and

(b) any information and material that the municipal council or approval authority considered in making the decision described in clause (a). [emphasis added by the Tribunal]

108This section is abundantly clear that Council’s decision must relate to the planning matter before it. Thus, the Tribunal agrees with the Applicant that Council’s position with respect to other Applications in the area are not relevant as it pertains to s. 2.1(1) of the Act.

109In short, the Tribunal finds that the ZBA, and the Proposal it facilitates, has regard to matters of Provincial interest as set out in s. 2 of the Act. In this case, s. 2.1(1) of the Act is not applicable as the appeal arose from Council’s failure to make a decision. The Tribunal further notes that, even if there was a Council decision here, the Tribunal is not bound by it, in order to preserve its role as an appeal body.

Consistency With the PPS

110First, with respect to the dispute regarding hierarchy of planning documents, the Tribunal agrees with the Applicant that consistency with the PPS is a standalone test. However, the City agreed with this as well. The Tribunal finds that the Applicant’s witnesses did provide more fulsome evidence with respect to the PPS. The City’s witnesses did refer to the PPS as well, however, contrary to the Applicant’s arguments. Moreover, PPS Policy 4.6 does identify “The official plan is the most important vehicle for implementation of this Provincial Policy Statement. Comprehensive, integrated and long-term planning is best achieved through official plans.” Thus, in organizing their evidence in the way that they did, the City’s witnesses did not fail to provide the Tribunal with a separate and distinct opinion on consistency with the PPS, as claimed by the Applicant. To clarify, the Applicant took the position that the City’s witnesses relied solely on PPS Policy 4.6 and claimed that lack of conformity with the OP was tantamount to inconsistency with the PPS. The Tribunal did not interpret the evidence in this way. Rather, the Tribunal finds that the City did provide (less fulsome) evidence on the PPS, as described above, and also claimed that lack of conformity with the OP was inconsistent with the Policies of the PPS. In other words, among other policies of the PPS, the Proposal was inconsistent with Policy 4.6 of the PPS, which requires the OP to provide a framework for comprehensive, integrated, and long-term planning.

111While the Parties referred to this particular dispute as a “hierarchy” of planning documents, the fact is that the test for a ZBA requires both consistency with the PPS and conformity with the OP. The Tribunal agrees with Vice-Chair Lanthier in the Duncanson-Hales Case that Provincial policy “identifies higher-order land use planning issues that must, of necessity, prevail in a comprehensive fashion across the Province” (paragraph 24). However, the Tribunal agrees with the City that conformity with the OP is a necessary aspect of the test. It is not likely that a Proposal that is consistent with the PPS but does not conform with the OP could be shown to represent good land use planning. In this case, the Tribunal did find, as described further below, that the Proposal conformed with the OP. If it had not found this, it is unlikely that the Tribunal would have been able to support a finding that the ZBA should be approved. In short, while the PPS provides over-arching policies for the Province as a whole, and consistency with it is a necessity, the OP must also be conformed with, and that aspect of the test is significant in determining whether a ZBA can be approved. Policy 4.6 of the PPS is an example of an instance in which the PPS itself acknowledges this.

112Second, with respect to the test itself, that is consistency with the PPS, the Tribunal accepts the evidence of Messrs. Hannay and Bissett that the ZBA and the Proposal it facilitates are consistent with the PPS. Based on the evidence provided, the Tribunal agrees that the Site is located in an area that is designated as a focus for growth in the City, consistent with the direction in the PPS, and is proximate to existing frequent transit. The Tribunal agrees that, as a result, the proposed intensification of the Site is appropriate and consistent with the policies of the PPS.

113The Tribunal agrees with the City, and the Tribunal’s finding in the K.P. Isberg Case, that the intensification policies of the PPS are not to be:

…utilized vigorously in every instance, as a matter of course, to justify greater size, mass, density or scale, irrespective of those other important policies which speak to fit, compatibility, transition and good design principles. (paragraph 53)

114That proposition is sound and a good guide to follow in assessing the appropriateness of intensification. However, the Tribunal finds that this is not the case here. As explained extensively by Mr. Hannay, the Proposal was carefully designed in such a way as to ensure that it fit within the requirements, guidelines, and performance standards of Provincial and Municipal policies.

115The Tribunal also agrees with the City that Provincial policies do not favour intensification at the expense of good urban design and a high quality public realm. However, the Tribunal finds that this is not the case with this Proposal. As all witnesses indicated, the Proposal is a good design and would provide a substantial improvement to the public realm, in contrast to what is on the Site now. The only area of disagreement between the witnesses was with respect to the height of Tower 1, and the Tribunal accepts the evidence of Messrs. Hannay and Bissett regarding the good urban design of that Tower, and the care that was taken in its design to ensure that its location and massing would contribute to a high quality public realm.

116The Tribunal does not agree with the City that the Proposal, in its current form, is not an appropriate level of intensification for the Site. Furthermore, based on the evidence provided, the Tribunal finds that the Proposal would not result in unacceptable negative impacts on the public realm and be inconsistent with PPS Policy 1.5.1 (which highlights the importance of protecting public spaces) or PPS Policy 1.7.1 (Long Term Economic Prosperity). In fact, the opposite was shown, namely that the Proposal would improve the public realm. The City did not establish that a reduction of the height of Tower 1 would not detract from the positive aspects of the Proposal. Lastly, the Tribunal does not agree with the City that the Proposal, as is, does not appropriately relate to the local planned or existing context. The Tribunal agrees with Messrs. Hannay and Bissett that the Proposal was designed to fit within the developing context of the area and would act as a gateway to the Avenue and the Neighbourhood. In this way, the Proposal implements the OP, which City witnesses identified as the most important vehicle for the implementation of PPS policies, as outlined in PPS Policy 4.6.

Conformity with the Growth Plan

117With respect to the Growth Plan, the Tribunal accepts the evidence of Mr. Bissett that the Proposal is located within a SGA, as the City also found with respect to the KingSett Development. The Tribunal finds that the area in which the Site is located meets the definition of a SGA. As Mr. Bissett explained: it is located in an area that the Municipality has identified as a focus for accommodating intensification and higher-density (especially as there are no height or density limits identified in the ZBL for the area); the Site is one of the “major opportunities” for redevelopment, such as this Proposal; it is located along major or arterial roads; and it is located near “existing or planned frequent transit service.” All of these characteristics are identified in the definition of SGAs in the Growth Plan, quoted at paragraph [49] of this Decision.

118The Tribunal does not agree with the City that the Site must be in a “delineated” area in the OP in order to be found to be within a SGA. It is sufficient that it meets the definition identified in the Growth Plan. In this sense, the Provincial policy is paramount to the OP, and how the Province defines a SGA can stand alone and be relied upon, regardless of whether the OP delineates an area as a SGA. In other words, when determining conformity with the Growth Plan, a planner can look at the Growth Plan alone, without relying on the OP to assist in identifying the area in a certain way. Ms. Deol opined that, since the area has not been delineated as a growth area by the City, no growth targets have been ascribed to the area, contrary to what has been done for Urban Growth Centres. However, the Tribunal finds that no maximums (heights or densities for example) have been ascribed to the area either, and, based on the numerous developments that have been contemplated for the area, growth is encouraged. The City pointed out that it did support intensification in the area, but that it is not an area where one would expect to see the tallest heights. Yet, the City has approved heights of up to 42 storeys in the area already, and the approval of 46 storeys is not significantly divergent from an approval of 42 storeys. Moreover, the City did not provide evidence on what constitutes the “tallest buildings” and how 46 storeys surpasses a threshold of being defined as part of the “tallest” category.

119It is important to note that the KingSett Development was found by City Staff to be part of a SGA. As the Applicant’s Counsel identified in the cross-examination of Ms. Deol, the KingSett Development, similar to the Proposal, is not located within a delineated Major Transit Station Area, is not in an Urban Growth Centre, and is served by the same level and type of transit as the Proposal (rather than by higher order transit). Thus, there is an inconsistency in the finding that one is located in a SGA and one is not. While Ms. Deol explained, in response, that the KingSett Development was distinguished from the Site due to its location and details of the Proposal, the Tribunal finds that those speak more to built form and design issues, and the requirements of the OP, rather than to whether the area meets the definition of a SGA. Both the Site and the KingSett Development site have characteristics that align with the Growth Plan definition of a SGA. The Tribunal thus finds that the Site is indeed located in a SGA.

120Additionally, the Tribunal agrees with the overall evidence of Messrs. Bissett and Hannay that the ZBA and the Proposal conform to the policies of the Growth Plan. Of note, the City’s witnesses also testified that the Proposal largely conforms with the Growth Plan, save for the height of Tower 1. However, the Tribunal does not agree that the growth or the form in which it is proposed was shown by the City to be inappropriate, and therefore not conform to the policies of the Growth Plan. Rather, the Tribunal agrees that the Applicant showed that the Proposal would meet the Growth Plan’s requirement of accommodating intensification and higher densities, with a mix of uses, in a more compact built form. The Tribunal was also persuaded that the Site’s location, in a Mixed Used Areas designation and located adjacent to an Avenue (both identified in the OP), are anticipated to accommodate the majority of population growth and jobs as per the City’s OP. The Proposal would meet this objective. As the Growth Plan’s Policy 2.2.2.3 requires the OP to implement specific intensification policies, the Tribunal finds that, contrary to the City’s position, the ZBA does conform to the Growth Plan, including Policies 2.2.1.2(c), 2.2.1.4(b), and 2.2.2.3(a)(b)(d)(f).

121Lastly, the City took the position that, regardless of any discussion of SGAs, the Growth Plan requires a municipality to plan for the type and scale of built form for a development to be contextually appropriate (Policy 5.2.4.5 of the Growth Plan). As the Tribunal has found that the type and scale of built form for this Proposal is appropriate, again conformity with the Growth Plan is met by the ZBA.

Conformity with the Official Plan

122The Tribunal accepts the evidence of all witnesses, who agreed that the Proposal, for the most part, conforms with the policies of the OP, and implements the performance standards outlined in the City’s Guidelines.

123With respect to Tower 1, specifically, the City’s position, in essence, was that the height of Tower 1 failed to conform with the OP because: its height was too high to fit harmoniously in the area and its scale was such that it did not provide an appropriate transition in scale within the area; and it had an unacceptable negative impact on its surroundings due to the shadow it would cast on the public realm.

124The Tribunal finds that the Proposal, including the height of Tower 1, does fit harmoniously in the area and is of an appropriate scale, and that its impact on its surroundings is not unacceptable.

Fit and Transition in Scale

125The Tribunal accepts Mr. Bissett’s evidence that the conversion of the lands where the Site is located, from an Employment to a Mixed Used Areas designation through OPA 231, was in recognition that residential and commercial growth would be anticipated in this area. Thus, the Proposal fits the type of development that is anticipated to occur within this area. The lack of any height, density limits, or other prescriptive standards in the City’s OP, as it applies to the Site, provides support that this area is seen as a developing one within the City, and growth is encouraged. The Tribunal agrees with the City that the lack of prescriptive standards does not mean that any type of growth can occur in the area. However, in this case, the growth that is proposed adequately fits within the area and conforms with the requirements of the OP.

126The Tribunal accepts Mr. Hannay’s evidence that the buildings of the Proposal form a special relationship with that of the KingSett Development, leading to a transition in heights from north to south in this section of the area, similar to the transition in height that occurs to the east of Kipling Avenue, in an area that is currently being developed. Mr. Hannay also explained, and the Tribunal agrees, that the Proposal implements the requirements of the City’s Avenue & Mid-Rise Buildings Study, which do not apply to the Site, but the Proposal’s implementation of same ensures that it harmoniously fits within the adjacent Avenue. Additionally, as explained by Mr. Hannay, the Proposal’s, including Tower 1’s, implementation of The Queensway Design Guidelines and Street Improvements would support the creation of the envisioned gateway at the intersection of The Queensway and Kipling Avenue.

127Moreover, the Tribunal is persuaded by Mr. Bissett’s evidence that the Proposal was organized and designed in such a way as to meet the requirements of Policy 4.5(2) of the OP, setting out the criteria for development within Mixed Used Areas. Specifically, it was shown that the Proposal was located and massed to provide a transition from The Queensway corridor by locating taller elements in the rear, and providing adequate separation and setbacks between towers and from adjacent properties. Moreover, the Tower heights, including Tower 1, were adjusted to eliminate shadow impacts on the adjacent Neighbourhoods. In short, the Tribunal finds that significant care was taken to ensure that both Towers, including Tower 1, fit harmoniously within the area.

128The Tribunal accepts Ms. Reid’s evidence, stated at paragraph 31 of her witness statement that:

The existing context is defined as ‘what is there now’ and the planned context is defined as what is ‘intended in the future.’ Since the Site is located in an area where growth and change are anticipated, the planned context prevails when interpreting the built form policies as they relate to height and density.

129Mr. Hannay also agreed with this statement in cross-examination. However, the City suggested that the Tribunal must also consider the as-of-yet undeveloped lands, such as the TD Site, as future development proposals are anticipated for those lands as well. The Tribunal is unable to do this and can only consider, in its analysis, the applications that have been submitted and approved. It is not clear whether any or what type of application will be submitted for other undeveloped lands, such as the TD Site. If one is submitted, then that new application must take the subject Proposal, presently before the Tribunal, into consideration, rather than the other way around.

130The Tribunal does not agree with the City, based on the evidence provided, that the height of Tower 1, as proposed, would have a destabilizing impact on the area or lead to multiple negative impacts on the public realm in the vicinity. Rather, based on the evidence provided, the Proposal would significantly improve the public realm as it currently exists on the Site and in the area.

131Lastly, with respect to scale, the Tribunal is persuaded by the evidence of Messrs. Hannay and Bissett that a building of Tower 1’s scale would be appropriate in this area. While the City’s position was that buildings in the scale of Tower 1 should be located in Centres and adjacent to higher order transit, the Tribunal agrees with the Applicant and finds that: being located adjacent to higher order transit is not a requirement in the OP for buildings of Tower 1’s height; the Site is located near frequent transit; The Queensway area today has more tall buildings than the closest identified Secondary Plan Area (Sherway); and the Site has superior transit access in comparison to other existing and approved tall buildings east of Kipling Avenue and south of The Queensway. Moreover, the Tribunal finds that Tower 1’s built form is appropriately scaled such that it will contribute to the Proposal as a whole, which will in turn contribute to a greatly enhanced public realm on the south side of The Queensway. With respect to the density of the Proposal, the Tribunal agrees with the Applicant that the density proposed would fit within the existing and planned context of the area, including the approved but unbuilt developments to come.

Shadow Impacts

132There is no shadow of a doubt that sunlight in Canada is a highly valued commodity, and its protection is entrenched in Provincial and Municipal policy. As such, the question of the shadow impact of Tower 1 was of great importance at the Hearing.

133With respect to the Site, it is important to note that the test for shadow in the OP is whether shadow is “adequately limited” and not whether any shadow is eliminated in full (“no new net shadow”). Moreover, with respect to parks, additional shadow must be minimized so as to preserve the park’s utility. Lastly, the OP, as it applies to the Site, does not contain any metrics, including number of hours of sunlight or shadow.

134The Tribunal agrees with the witnesses in support of Tower 1’s height, that: it conforms to OP policies and “adequately limits” shadows; it appropriately implements the performance standards of the applicable Guidelines; and it is consistent with the level of shadow deemed acceptable by the City in respect of the KingSett Development and other developments in the area. The Tribunal was persuaded by Mr. Hannay that care was taken with the design of the Proposal to ensure that shadows were adequately limited and minimized. He explained how when Tower 1 and Tower 2’s positions were switched, more shadow was cast, which is why each was positioned where it is currently. Moreover, Tower 2’s height was adjusted (and changed from the Proposal’s earlier iterations) to avoid the casting of any shadows on the Future KingSett Park.

135The test in the OP considers the following open spaces:

1. Public areas, such as streets;

2. Surrounding properties; and

3. Parks.

136With respect to shadow on public areas, the Tribunal finds that the shadow produced is adequately limited and not unacceptable as: there is no shadow until about 2:30 p.m. in the equinoxes; it never extends further than approximately 140 m; it is continually moving; and it is completely off the sidewalk just before 4:30 p.m. The Tribunal agrees that this amount of shadow is not sufficient reason to eliminate 22 floors from the Proposal (a reduction of approximately 200 units).

137With respect to surrounding properties, as Mr. Hannay explained, Tower 1 was adjusted to remove any shadow from the Neighbourhoods. The POPS of the KingSett Development maintains full access to sunlight for more than 100 days in the summer. The POPS, which is a private space within the KingSett Development, is in shadow from the KingSett Development for the majority of the day. This was deemed acceptable by the City when assessing the KingSett Development. The Tribunal finds, in this case, that the shadow cast by the Proposal on the POPS is not sufficient to warrant the elimination of 22 storeys from the Proposal.

138With respect to parks, the park in question is the Future KingSett Park. Of importance is that, as explained by Mr. Hannay, the Future KingSett Park was not identified as a park location by the City prior to the approval of the KingSett Development, and moreover, it is not identified in the City’s OP as a sunlight priority park. The Tribunal finds, in agreement with Mr. Hannay’s testimony, that the amount of shadow produced by Tower 1 does not cross the threshold of producing an unacceptable amount of shadow, as the shadow produced is fleeing and short in duration. The shadow produced is not of such an extent to warrant the elimination of 22 storeys from the Proposal. Additionally, the Tribunal is also persuaded by the submissions of the Applicant’s Counsel, namely that the Tribunal has rejected the notion that the considerations of “minimizing” shadow and protecting a park’s “utility” are met only by proposals that eliminate all net new shadow. In the K.P. Isberg Case, at paragraph 90, Vice-Chair Lanthier observed that shadows could be reduced further, but determined they were not unacceptable in their current form. Similarly, in this case, while 24 storeys may not cast any shadows on the Future KingSett Park or POPS, the shadows that would be cast by the 46-storey Tower 1 are not unacceptable. As Mr. Hannay observed when he undertook a cumulative shadow analysis of the KingSett Development and the Applicant’s Proposal:

In this case the future park receives uninterrupted direct sunlight for the full morning from 8:18am to 12:33pm across 100% of its surface area and in the afternoon receives an additional 2.25 hours of direct sunlight in the form of a contiguous area of direct sunlight that covering from 46% to 78.5% plus a further 45 minutes of direct sunlight between 12:48pm to 1:33pm covering 92% to 46% of the area of the future park.

139The Tribunal acknowledges the City’s position that it is important to minimize shadow during the spring and fall equinoxes as that is when sunlight is needed the most in Canada. However, as mentioned above, the test is not the elimination of shadow in full, but rather adequately limiting it so as to preserve the park’s utility. The Applicant’s Counsel referred to Oben Flats Sherbourne GP Inc. v. Toronto (City), 2019 CarswellOnt 1312 (L.P.A.T.) (“Oben Flats Case”), where, in assessing the shadow impact of the proposed development, Member Swinkin noted that the City’s witness could not point to the impact of the shadow on any activity in the park, and “to be defended, there should be a discernable impact which can be identified” (paragraph 119). The Tribunal was persuaded by this and agrees. In this case, it was not shown how the utility of the Future KingSett Park would be negatively impacted by the shadow cast by Tower 1. Of note, though there is shadow on this park from 12:30 p.m. to 3p.m. during the spring/fall equinoxes, it does not fully cover the park during those entire 2.5 hours, as the shadow moves along during that time.

140Of significance to the Tribunal’s finding was the testimony of Mr. Ferris, the landscape architect for the parkland in question, who explained that the applicable OP tests in respect of shadow were addressed in respect of the public realm, POPS, and Future KingSett Park. No opposing landscape architecture testimony was provided.

Good Planning and in the Public Interest

141For all the reasons outlined above, the Tribunal agrees with the testimonies of Messrs. Hannay and Bissett that the ZBA in full represents good planning. The Tribunal is also persuaded by the details provided by Mr. Ferris about the improvements to the area that this Proposal would result in. The Tribunal notes that the City’s witnesses also agree that the Proposal represents good planning and is in the public interest for the most part, save for the height of Tower 1. However, for the reasons noted above, the Tribunal finds that the height of Tower 1, as is, represents good planning and is in the public interest. In that regard, the evidence of Mr. Hannay was especially persuasive regarding the extra care that was taken in the organization, massing, and design of the building, in order to maximize the benefits that could be provided, while minimizing the building’s impact as much as possible.

City’s Concern Regarding Precedent Setting

142The Applicant’s Counsel, in her closing submissions, addressed this issue by relying on the Oben Flats Case. Though the Tribunal is not bound by this Decision, it was persuaded by it and agrees with the logic expressed. In that case, Member Swinkin dismissed the City’s concerns that permitting a development that cast a shadow on Allan Gardens Park would set a precedent for potential future applications in the vicinity, and stated at paragraph 121 that:

The Tribunal is not impressed with that argument as it takes absolutely no account of the reasons that inform this decision about the contexts and facts here and the matter of properly interpreting OP policy. There may well be other applications where, in the interest of achieving worthy and necessary OP goals some reconciliation of this policy will be required and some minimal shadow permitted.

143While the Tribunal acknowledges that this Proposal will inform the existing context of the area and future applications may be informed by such a context, the Proposal before the Tribunal was approved in part on the basis that it fit harmoniously within the context of the area. Thus, even if future applications are informed by the approval and future existence of this Proposal, they would not, theoretically, be outliers within the context of the area as a result. Moreover, each application before the Tribunal is considered on its own merits, and the particular aspects of each case are considered. In this particular case, the location of the Site, the features of the design of the Proposal, and its relation to the adjacent properties, including the KingSett Development, were all considered. Future applications, by virtue of being located on different sites in the area, will have their own particular hurdles to overcome. In short, the Tribunal is not persuaded that this ZBA approval will set a negative precedent for the area.

Conclusion

144In summary, the Tribunal accepts the evidence of all witnesses that the Proposal is, for the most part, appropriate for this Site. The Tribunal accepts the evidence of Messrs. Hannay, Bissett, and Ferris regarding the ZBA before the Tribunal, in full, including the height of Tower 1 as proposed, and finds that the requested ZBA: has due regard for matters of Provincial interest in s. 2 of the Act; is consistent with the PPS; conforms with the Growth Plan; and conforms with the City’s OP. Moreover, the Tribunal finds that the ZBA represents good planning and is in the public interest. The Tribunal also finds that the conditions proposed are appropriate.

INTERIM ORDER

145The TRIBUNAL ORDERS that:

1. The Applicant’s Zoning By-law Amendment appeal is allowed, in part, on an interim basis, contingent upon confirmation, satisfaction, or receipt of those pre-requisite matters identified in Schedule B to this Decision, and the Zoning By-law Amendment to the City of Toronto’s Harmonized Zoning By-law No. 569-2013 is hereby approved, in principle, as attached as Schedule A to this Decision.

2. The Tribunal will withhold issuance of its Final Order until the Tribunal has been advised in writing by the City Solicitor that the outstanding matters, attached as Schedule B to this Decision, have been completed and satisfied.

3. The Parties shall provide a written status update to the Tribunal by April 30, 2024 with respect to the finalization of the conditions for approval and whether the Tribunal can issue its Final Order. If the Parties fail to do so, the Tribunal may schedule, on a peremptory basis, a further Case Management Conference to address status matters.

146The Tribunal may be spoken to in the event that there are difficulties in satisfying the above conditions for the issuance of the Tribunal's Final Order.

147The Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the issuance of the Final Order.

“Bita M. Rajaee”

BITA M. RAJAEE

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.