ISSUE DATE: October 11, 2024

CASE NO(S).: OLT-23-000042

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

Applicant and Appellant: 15 Market Street Corp.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To incorporate the applicable woodlands policies to the lands for future development

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

OLT Case No.: OLT-23-000042

OLT Lead Case No.: OLT-23-000042

OLT Case Name: 15 Market Street Corp. v. Saugeen Shores (Town)

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

Applicant and Appellant: 15 Market Street Corp.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To rezone the property to facilitate development of a Plan of Subdivision on the lands

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

OLT Case No.: OLT-23-000043

OLT Lead Case No.: OLT-23-000042

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: 15 Market Street Corp.

Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision

Description: To permit development of 12 detached dwelling blocks and 2 apartment blocks

Property Address: Plan 296 Park PT Lot 13 & 15

Municipality/UT: Town of Saugeen Shores/County of Bruce

OLT Case No.: OLT-23-000044

OLT Lead Case No.: OLT-23-000042

Heard: November 14-23, 2023 by Video Hearing with final written closing submissions filed on January 22, 2024

Parties	Counsel/Representative*
15 Market Street Corp.	Scott Galajda
Town of Saugeen Shores	Tammy Grove
County of Bruce	Jack Van Dorp*

DECISION DELIVERED BY F. LAVOIE AND N. EISAZADEH AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The matter before the Tribunal is an Appeal by 15 Market Corp. (“Appellant”) pursuant to s. 22(7), 34(11), and 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), against the refusal of the Town of Saugeen Shores (“Town”) of its applications for an Official Plan Amendment (“OPA”), and Zoning By-Law Amendment (“ZBA”), and the failure of the County of Bruce (“County”) to make a decision regarding its Draft Plan of Subdivision (“DPS”) in relation to the property known as Plan 296 Park PT Lot 13 and 15, within the Town (“Subject Lands”).

2The collective applications have evolved since their initial submission back in 2019, to what is now before the Tribunal on the present Appeal and, if approved, would permit a development comprised of 12 detached dwelling lots (Lots 1 to 12), two apartment blocks containing 129 units (Blocks 14 and 15), and one block (Block 13) reserved as undevelopable and designated Open Space to be conveyed to the Town, which would recognize natural heritage features including, inter alia, Significant Woodlands/Candidate Significant Woodlands and Candidate Significant Wildlife Habitat, and be utilized for stormwater management, trails and conservation purposes.

3The proposed OPA is required to address a natural heritage policy contained in s. 2.6.8 of the Town’s Official Plan (“OP”), which applies to some Significant Woodland areas within the Town and restricts development. If approved, the effect of the proposed OPA would permit development on portions of the Subject Lands, subject to certain criteria including implementation of the recommendations within an Environmental Impact Study (“EIS”) and a Tree Retention Plan.

4The proposed ZBA seeks to rezone the Subject Lands from Residential First Density (“R1”), Open Space (“OS”) and Planned Development (“PD”) to Residential Second Density (“R2”), Open Space (“OS”) and Environmental Protection (“EP”), Residential Fourth Density Special (“R4-27”) and Residential Fourth Density Special (“R4-26”). Special provisions are also proposed on Block 15 which, inter alia, permit a frontage of 13.48 metres (“m”) within the R4-26 zone whereas 30 m is otherwise required by minimum R4 standards.

5The DPS reflects the 12 detached dwelling lots (Lots 1 to 12), two apartment blocks comprised of three, four-storey buildings with a total of 129 units (Blocks 14 and 15), and one block for stormwater management, trails, and conservation purposes (Block 13).

6The Town’s position on the present Appeals is that the proposed development cannot be supported for, mainly, three reasons: (i) there is a lack of appropriate regard for the environmental features on the site; (ii) it constitutes an overdevelopment of the Subject Lands; and (iii) it is incompatible with existing and planned uses, and out of keeping with the character of the area.

7The County took no position on the Appeals. This is because while the County is the approval authority for OPAs and DPS, the Town’s refusal of the applications did not allow an opportunity for the County to make a decision on the applications.

8There were no added Parties. There was one Participant Statement, from Pat Surman, who was granted Participant Status by prior Order of this Tribunal dated May 25, 2023, under a Panel differently constituted. Ms. Surman is a nearby property owner and is opposed to the proposed development, which she characterizes as “high-density” and inappropriate for an existing busy area near the beach and water, which will contribute to traffic issues and is incompatible with the neighbourhood.

DECISION

9For the reasons that follow, the Appeals are dismissed.

SUBJECT LANDS AND SURROUNDING CONTEXT

10The Subject Lands are a 4.2 hectare (“ha”) irregular shaped lot, located approximately 100 m East of Lake Huron, within an established residential neighbourhood. It is bounded by Market Street to the south, Geddes Street to the west, low density residential street to the north abutting Lord Elgin Place, and Nodwell Park to the East. Other than Nodwell Park, directly east of the Subject Lands, it is entirely surrounded by one to two-storey detached residential dwellings. Further north of the Subject Lands is a larger forested area, and further west is Port Elgin Harbour. Historically, the Town’s sewage treatment plant was located in the northeast corner of the Subject Lands. A former rail spur that formerly bisected the Subject Lands has evolved to what is now commonly used as a public pedestrian path traversing the site from the southwest corner heading north-easterly toward Nodwell Park, notwithstanding it being a private property. Decades later, the Subject Lands are now predominantly forested.

11Of significance to these Appeals, and as per the Agreed Statement of Facts from the Natural Heritage Planning Witnesses involved in the proceedings and identified in more detail below, the Subject Lands is located within Ecoregion 6E. The Parties agree that Provincially Significant Wetlands, Coastal Wetlands, Significant Valleylands and Significant Areas of Natural and Scientific Interest are absent from the Subject Lands and its 120 m radius. However, it is also agreed that, in this case, the Saugeen Valley Conservation Authority (“SVCA”) is the delegated public agency responsible for assessing and deeming significance of Candidate Significant Woodland, has done so here, and determined the forest cover on the Subject Lands to be a “Significant Woodland” feature given the ultimate determination that it measures greater than 4 ha in size. Additional natural heritage features acknowledged as present on the Subject Lands by the Appellant include Significant Wildlife Habitat features comprised of four seeps along the eastern edge of the Subject Lands, and a cold-water stream in the northern half of the Subject Lands. The Parties disagree on whether there are additional natural heritage features on the Subject Lands.

ISSUES

12The Appellant identifies the following as the overarching issues for these Appeals:

I. Does the development proposed give appropriate regard to the environmental features on the Subject Lands?

II. Is the density proposed by the development appropriate for the Subject Lands?

13In addition to the above two issues, the Town raises five further questions that it submits must be considered by the Tribunal as set out in its written closing submissions – collectively, which narrow the extensive Issues List within the Procedural Order. However, given the Panel’s findings on the above overarching two issues, which precludes development, no further analysis on the Town’s additional five issues is necessary.

LEGISLATIVE TESTS

14The overarching issues are grounded in the legislative tests for an OPA, ZBA and DSP, which require the Tribunal to consider the following:

I. Subsection 2.1(1) of the Act requires regard to matters of Provincial Interest as set out in s. 2 of the Act and to have regard to the information and materials that the Town received in relation to the matters under s. 2.1(2) of the Act and have regard to the decision of the approval authority.

II. In particular, the following matters of Provincial Interest under s. 2 of the Act are relevant for the purpose of the present Appeal:

(a) the protection of ecological systems, including natural areas, features and functions;

(n) the resolution of planning conflicts involving public and private interests;

(p) the appropriate location of growth and development; and

(r) the promotion of built form that,

(i) is well designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.

III. Section 3(5) of the Act requires that all decisions affecting planning matters shall be consistent with the Provincial Policy Statement, 2020 (“PPS”), in effect at the date of the Decision.

IV. A proposed lower tier OPA must, in addition to being consistent with the PPS, conform to the upper tier OP, in this case the County OP, and represent good planning.

V. A proposed ZBA, in addition to being consistent with the PPS, must conform to the applicable Official Plans, in this case, the County OP and the Town OP, as well as meet the intent and purpose of the Town’s ZBA, and represent good land use planning.

VI. In considering a DPS, regard must be had, among other things, to the criteria set out in s. 51(24) of the Act and a determination of whether the proposed conditions to the DPS are reasonable under s. 51(25), and in particular, as submitted by the Town, in this case:

(a) the effect of the development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes.

EVIDENCE, ANALYSIS, AND FINDINGS

15The Tribunal heard evidence from the following witnesses, with those qualified to provide expert opinion evidence as noted:

For the Appellant:

I. Ron Davidson, qualified without objection, to provide opinion evidence in the area of Land Use Planning;

II. John Morton, qualified without objection, to provide opinion evidence in the area of Natural Heritage and Ecology;

III. Matthew Nelson, qualified without objection, to provide opinion evidence in the area of Hydrogeology;

IV. John Slocombe, qualified without objection, to provide opinion evidence in the area of Civil Engineering;

V. Erica Bayley, qualified without objection, to provide opinion evidence in the area of Transportation Engineering;

VI. Daniel Kingsbury, former Senior Land Use Planner for the County, under Summons;

For the Town;

VII. Alan Ramsay, qualified without objection, to provide opinion evidence in the area of Land Use Planning; and,

VIII. Bradley Baker, qualified without objection, to provide opinion evidence in the area of Natural Heritage and Ecology.

Issue 1: Does the development proposed give appropriate regard to the environmental features on the Subject Lands?

16Section 2.1 of the PPS protects “natural heritage features and areas” by prohibiting development and site alteration in areas where these features are present or may be adjacent, unless it has been demonstrated “there will be no negative impacts on the natural features or their ecological functions”.

17The Parties are at odds as to the exhaustive list of the applicable natural heritage features and their ecological functions. The Appellant’s Counsel, Scott Galajda, submits that those for which the subject development proposal must have regard, in this case, are identified by the EIS authored by their Natural Heritage and Ecology expert, Mr. Morton, dated November 2017 (“2017 EIS”). The Appellant’s Counsel states they may be divided into three overlapping categories (by which the balance of the discussion on this issue is organized):

I. Impact of the proposed development on wildlife habitat;

II. Impact of the proposed development on the site’s natural environmental features; and,

III. Impact of the proposed development on the significant woodland features.

18The additional natural heritage features that the Town submits were omitted and required consideration are addressed below.

Sub-Issue 1(1): Impact of the Proposed Development on Wildlife Habitat

19Policy 2.1.5 d) of the PPS prohibits development and site alteration in a significant wildlife habitat unless it has been demonstrated there will be no negative impacts on the natural features or their ecological functions. Policy 2.1.7 of the PPS also prohibits development and site alterations in the habitat of endangered species and threatened species, except in accordance with provincial and federal requirements. County and Town OP policies mirror the requirements as stated in the PPS.

Evidence of the Appellant

20Mr. Morton authored the 2017 EIS wherein, and as confirmed by his oral testimony, he opined there were no rare or special concern fauna or flora Species-at-Risk within the Subject Lands. With regard to the impact of the development on any significant bat habitat, Mr. Morton opined that using guidelines in place at the time of the 2017 EIS, he had concluded there was no significant bat habitat on the site. He acknowledged that the Ministry of the Environment, Conservation and Parks (“MECP”) issued new guidelines since then, and that bat habitats can fluctuate over time, particularly as a result of the Emerald Ash Borer disease. He opined that a draft plan approval condition requiring the Appellant to seek clearance from the MECP with respect to the impact of development on any species-at-risk bat habitat was appropriate to address this factor.

21It was Mr. Morton’s conclusion that the proposed development would be in compliance with the applicable laws and policies protecting wildlife habitat, being the Endangered Species Act, policy 2.1.7 of the PPS, and policy 4.3.2.7 of the County OP.

Evidence of the Town

22Mr. Baker’s evidence was that further studies are necessary to assess Significant Wildlife Habitat on the Subject Lands. He stated that he requested data related to the studies performed for the 2017 EIS, which were not provided. Without this data, he states he cannot reach the same conclusion that Mr. Morton reached.

23Mr. Baker opined that based on his review of the 2017 EIS and the applicable schedules of the Significant Wildlife Habitat Technical Guide (2000), he expects candidate significant wildlife habitat to be present on the Subject Lands.

24He further testified that insufficient documentation was provided to demonstrate that a Habitat for Threatened Species or Endangered Species was not present on the Subject Lands. He explained that species such as endangered bat species, Whip-poor-will, and Eastern Massasauga Rattlesnake could be present on the Subject Lands. He also recommended that given the amount of time since the 2017 EIS had been completed, a contemporary review of the Subject Lands to identify whether there now is a Habitat for Threatened Species or Endangered Species should occur.

Analysis and Findings

25The Tribunal prefers the evidence of Mr. Morton to Mr. Baker’s with respect to the presence of wildlife habitat. One of Mr. Baker’s criticism of the 2017 EIS in his witness statement was that it “appears to include no consideration for species which are not regularly reported on NHIC [Natural Information Heritage Centre]”. On the contrary, the 2017 EIS indicates that in addition to the literature review of the NHIC, Mr. Morton conducted detailed site investigations and provided inventory listings of flora and fauna species, found at Appendices 2 and 3 of the 2017 EIS.

26With regards to the Eastern Massasauga Rattlesnake, Mr. Morton provided a range map for the species (Exhibit 17), which showed the Subject Lands were approximately 26 kilometers south of the species’ range. Overall, the Tribunal accepts Mr. Morton’s evidence that there are no Habitats for Endangered or Threatened Species on the Subject Lands.

27The Tribunal also accepts Mr. Morton’s evidence that due to the fluctuating bat habitat, a draft plan approval condition to seek clearance from the MECP would address that specific concern.

Sub-Issue 1(2): Impact of the Proposed Development on Natural Environmental Features

28Policy 4.3.2.1 of the County OP prohibits development within 30 m of the banks of a cold water stream:

No development shall be permitted within 30 metres of the banks of a cold water stream or 15 metres of a warm water stream. Landowners are encouraged to forest the area within 30 metres of any stream to maintain and improve fish habitat, ecological function of the stream and to increase natural connections.

[Emphasis added]

Evidence of the Appellant

29Within his 2017 EIS, and during his oral testimony, Mr. Morton identified two key significant wildlife features, the cold-water stream (“Stream”) and the four eastern seeps (“Seeps”). His evidence was that there were no species of conservation concern or wildlife habitat life cycle functions that are associated with the Seeps, and a 15 m EP zone would be sufficient to ensure the proposed development would have no negative impact on the Seeps.

30Mr. Morton’s evidence was that the Stream’s ecological functions consisted of a thermal regime, and nutrient loading, both of which were negligible. He described the Stream’s dimensions as approximately 3-5 centimetres (“cm”) deep, and 20 to 30 cm wide. The Stream eventually discharges into Lake Huron, but is screened to prevent fish access. Accordingly, he opined there were no fish present in the Stream.

31In his opinion, the Stream’s effect on Lake Huron was akin to “a grain of sand on the beach”. Further, nutrient loading from the Stream would have an area of influence of a few square metres (“sq m”) before dissipating within Lake Huron. He concluded that the re-alignment of the Stream using piping would have no negative impact.

32In the 2017 EIS, Mr. Morton referred to Policy 4.3.2.1 of the County OP, which requires 30 m setbacks from cold-water streams, stating, in his opinion, the 30 m setback was a recommendation and not a requirement. He then stated that through his investigation of the site, this setback was not required for natural heritage maintenance.

33When cross-examined on this issue, Mr. Morton maintained his opinion that Policy 4.3.2.1 of the County OP was a recommendation and did not prevent development within 30 m of a cold-water stream, since there were no fish in the Stream. When asked about his evidence whether the Stream was not a fish habitat, Mr. Morton clarified his evidence was that the Stream was not a direct fish habitat.

34In his planning report, Mr. Davidson, the Appellant’s Planner, did not comment on the cold-water stream setback requirement under Policy 4.3.2.1 of the County OP. Under cross-examination, he opined that a County OPA would not be required to permit the development within 30 m of a cold-water stream, which the County OP prohibits. He maintained that official plans allowed for some flexibility, and that the development maintained the purpose of the provision, which was to protect fish habitat.

35Mr. Nelson testified that the proposed development would have no impact on groundwater quantity. With respect to groundwater quality, impacts from stormwater run-off would be mitigated by the existing municipal stormwater systems, as well as a 15 m buffer area from the four groundwater seeps. He also recommended that standard best management practices, such as silt fence and erosion control, be utilized during construction.

36On cross-examination, Mr. Nelson opined that redirecting the Stream with underground piping would not impact the water quality. He maintained that, despite not having a finalized plan for the redirection of the Stream, his opinion would not be affected by the piping route, inlet location and outlet location. Pressed further, he candidly admitted that it was always a possibility that some impacts could exist once the final design was known, but that he had a high level of certainty, based on the low variability and highly consistent geological characteristics of the Subject Lands, that this was unlikely.

Evidence of the Town

37Mr. Baker’s evidence was that the following natural features exist, which need to be adequately considered:

I. Significant Woodlands and Candidate Significant Woodlands;

II. Candidate Significant Wildlife Habitat;

III. Confirmed Significant Wildlife Habitat in the form of four seeps;

IV. Fish Habitat;

V. Candidate areas of endangered and threatened species;

VI. A cold-water stream; and,

VII. Lake Huron is within 120 m of the Subject Lands.

38For simplicity, the consideration of additional potential natural heritage features other than the Stream and Seeps raised by the Town will be addressed in the discussion under sub-issue 4.

39With regards to the Stream, Mr. Baker agreed with Mr. Morton that no fish were present in the Stream. In his opinion, Lake Huron was a “direct fish habitat” and the Stream was an “indirect fish habitat”. Mr. Baker also noted that the definition of fish habitat pursuant to the Fisheries Act and the PPS did not differentiate between direct and indirect fish habitat, and that both were considered fish habitat.

40The Town’s planner, Mr. Ramsay, testified that Policy 4.3.2.1 of the County OP is prescriptive, and the options are to either comply with that provision or obtain a County OPA.

41For the Seeps, the Town did not advance evidence that the proposed 15 m EP zone was insufficient.

Analysis and Findings

42The Tribunal finds the proposal protects the Seeps through the EP designation and 15 m setback. The existence of the Seeps and the adequacy of their protection was not at issue in these proceedings.

43With regards to the Stream, the Appellant submits that the only reasonable interpretation of the setback requirement in Policy 4.3.2.1 is that it is not intended to be applied rigidly. They argue that to read otherwise would mean that the Town’s Zoning By-law itself does not comply with the County OP. They urge the Tribunal to adopt an interpretation that the setback can be adjusted on a case-by-case basis as long as the intent of the provision, to protect fish habitat, is maintained.

44The Town submits the proposed development does not conform with Policy 4.3.2.1 of the County OP. It further submits that the use of “shall” in Policy 4.3.2.1 does not allow for flexibility in applying the Policy, as suggested by the Appellant. The Town also submits that the Stream is a Fish Habitat, pursuant to the Fisheries Act and the PPS.

45The Tribunal agrees with the Town’s interpretation of Policy 4.3.2.1. The interpretation of an Official Plan is a question of law, and in doing so, the Tribunal should give the Official Plan a broad liberal interpretation with a view to furthering its policy objectives. Even broadly and liberally interpreted, the express words of the policy are clear – it prohibits development within 30 m of a cold-water stream. Nothing in the provision suggests the flexibility to modify the 30 m setback, as suggested by the evidence of Mr. Davidson and Mr. Morton. The Tribunal agrees that the intention of Policy 4.3.2.1 is to protect fish habitat. However, had the County intended to allow development within 30 m of a cold-water stream that did not qualify as a fish habitat, it could have carved out an exception. It did not do so.

46The Tribunal also finds that the Stream is not a Fish Habitat. The PPS adopts the definition of “Fish Habitat” as found in the Fisheries Act, meaning “spawning grounds and any other areas, including nursery, rearing, food supply, and migration areas on which fish depend directly or indirectly in order to carry out their life processes”. The Tribunal accepts Mr. Morton’s evidence that the nutrient loading, in other words food supply, provided by the Stream to Lake Huron has an area of influence of a few sq m. There was no evidence before the Tribunal that fish depend directly or indirectly on this food supply to carry out their life processes. Accordingly, the Tribunal finds the Stream is not a Fish Habitat.

47However, regrettably, the development proposal does not conform to the County OP. The proposal is contrary to the prohibition of development within 30 m of a cold-water stream and intends to redirect the Stream without demonstrating how the required 30-m setback would be met. The Applicant would have required a further application to amend Policy 4.3.2.1 of the County OP to obtain relief from the minimum setback set out therein. Because such an application was not before the Tribunal, this Panel is not able to make a determination on that matter.

Sub-Issue 1(3): Impact of the Proposed Development on Significant Woodland Feature

48Section 2.6.8.2(c) of the Town OP states:

Woodlands having an area of 4 hectares (10 acres) or greater are considered “significant woodlands”; development or site alterations shall not be permitted within these woodlands. Development may be permitted on adjacent lands in accordance with Section 2.6.11…

[Emphasis added]

49It was determined by the SVCA, in this matter, that the forested area on the Subject Lands measures greater than 4 ha and is, therefore, classified as a Significant Woodland pursuant to Section 2.6.8.2(c) of the Town OP. While some evidence was received from the Appellant's witnesses as to the nature of the connectivity of the Woodland such that it could be perceived as measuring under 4 ha, ultimately, this point was conceded to by the Appellant as its expert Ecologist and Land Use Planner both agreed for the purposes of this appeal that the lands in question constitute Significant Woodlands.

Evidence of the Appellant

50Mr. Morton’s evidence was that the woodlands on the Subject Lands (“Woodlands”) do not provide any critical ecological function. He described the Woodlands as disturbed from the former railroad and industrial activities, with minimal diversity, and only nominally above the Town’s own threshold of 4 ha. Further, Mr. Morton explained the link to other woodlands to the north was somewhat compromised by development to the north of the Subject Lands.

51Mr. Morton also testified that the proposed development, by retaining 46% of the tree canopy on the Subject Lands, was well in excess of the 30% tree retention traditionally required by the Town.

52The Appellant also relies on a letter from SVCA to Mr. Kingsbury, dated October 26, 2022, which evaluated the proposed development and OPA, and concluded the latter, “would be in general conformance with the significant woodland policies of the province and county, provided… the [EIS and Tree Preservation Plan] mitigation measures… are implemented”.

Evidence of the Town

53Mr. Baker testified that the Woodland, in addition to being a Significant Woodland pursuant to the Town OP, was a Candidate Significant Woodland, in accordance with the Province’s Natural Heritage Reference Manual (“NHRM”) Table 7-2 criteria for Significant Woodland Evaluation. He testified that two NHRM criteria were met by the Woodland, proximity to other woodlands or other habitats, and water protection. First, the Woodland is proximate, and indeed, surrounds the Stream and Seeps. Secondly, for water protection, woodlands should be considered significant if they are located near, among other things, a fish habitat.

54Mr. Baker was of the opinion that it was reasonable to expect that the development, as proposed, would have a negative impact on the Significant Woodland. He opined the removal of trees would reduce the Woodland’s size thereby degrading the feature.

55Mr. Baker stated that reducing a woodland that was greater than 4 ha, the Town’s threshold for “significant woodland”, to an amount less than 4 ha, would result in the woodland’s loss of this designation, and, therefore, be an impact on the woodland.

56In addition, Mr. Baker opined that the removal of 54% of the woodland would reduce its value for wildlife and make it more susceptible to weather and disease. He notes that consideration for other functions of the woodland has not been given.

Analysis and Findings

57The Town submits that Policy 2.6.8.2(c) of the Town OP prohibits development. In addition, the Town argues that any removal of trees will negatively impact this natural feature and its function.

58Conversely, the Appellant submits that the proposal, which includes a Town OPA allowing development by providing an exception to Policy 2.6.8.2(c) of the Town OP, is consistent with the Provincial, County and Town policies concerning woodland protection.

59The Tribunal accepts the evidence of Mr. Baker that in addition to being a Significant Woodland pursuant to the Town OP, the woodland is also a Candidate Significant Woodland by meeting two of the criteria in Table 7-2.

60Section 2.1.5 of the PPS disallows development in significant woodlands “unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions”. Section 4.3.2.6.3 of the County OP similarly restricts development unless an EIS demonstrates "the proposed development will not impact on the habitat/resource function of the wood lot”.

61The Tribunal finds the Appellant has met the burden of demonstrating no negative impact on the Woodland’s ecological functions based on Mr. Morton’s evidence, which the Tribunal accepts, that the Woodland does not provide any ecological functions. In addition, the Tribunal accepts Mr. Morton’s evidence that the Woodland, as a natural feature, is disturbed from previous uses on the Subject Lands. In other words, the health and integrity of the Woodland being already compromised, the removal of part of the Woodland would not further degrade, or negatively impact, this natural feature.

62The Tribunal is not convinced by Mr. Baker’s testimony that the EIS and Mr. Morton’s evidence improperly assessed the Woodland or its ecological functions.

63Therefore, the Tribunal finds the proposal conforms with the PPS and the County OP policies for significant woodlands.

Sub-Issue 1(4): Consideration of Additional Potential Natural Heritage Features and the 2017 EIS

64At the crux of the Towns’ argument that the proposed development does not consider additional potential natural heritage features is the inadequacy of the 2017 EIS. The Town challenges the adequacy of the 2017 EIS on a number of grounds: the time elapsed since the 2017 EIS took place, that it was prepared for a previous owner, that it does not consider the development proposal in its analysis, and the unavailability of underlying data.

Evidence of the Appellant

65Mr. Morton testified that matters of ecological concern have been adequately addressed by the 2017 EIS for the Subject Lands, and its review by the SVCA. He opined that the use of EP zoning covering the Seeps and a 15 m setback protects the environmental features on the Subject Lands.

66On whether the 2017 EIS should be updated since it was prepared, Mr. Morton opined that while the same application is moving forward, a Conservation Authority would not request a further EIS, even if quite some time had elapsed. Mr. Davidson agreed that, to his knowledge, an EIS did not have a specific “shelf life”, at which point it had to be updated or completed again, as long as planning discussions were ongoing.

67When cross-examined on whether he provided the data he used to prepare the 2017 EIS to Mr. Baker, Mr. Morton testified that his recollection was that it had not been requested.

Evidence of the Town

68Mr. Baker disagreed with the Appellant’s experts that the 2017 EIS adequately addressed matters of ecological concern. He opined that for an EIS to be complete, it would need to consider the impacts based on a development plan. In this instance, because the 2017 EIS was prepared for a previous owner and did not contemplate impacts of a development plan, it is incomplete. He further states that the time elapsed since the report, which was completed in 2017, was sufficiently long to warrant an update. In his opinion, the forest could have changed since the last assessment.

69Mr. Baker also stated that he did not have the dataset, which Mr. Morton relied on to produce the 2017 EIS. Mr. Baker opined that the absence of this underlying data is further indication that the 2017 EIS did not sufficiently investigate the presence of Significant Wildlife Habitat, among other things.

Analysis and Findings

70The Tribunal finds the 2017 EIS is acceptable. First, the Tribunal prefers the evidence of Mr. Davidson and Mr. Morton that an EIS does not have a “shelf life” when submitted for a proposal. There was no evidence before the Tribunal of any policies which provide an expiry date for an EIS, or that a new EIS would be required after a specified amount of time. The Tribunal finds that, in this case, the 2017 EIS is not inadequate by reason alone that seven years have elapsed since its preparation.

71Second, the Tribunal finds the 2017 EIS did consider a “residential subdivision development” on the Subject Lands in its analysis. The 2017 EIS did include a description of the proposed undertaking and concluded that site development would have no anticipated negative impacts or loss of ecological function to the Natural Heritage features or ecological functions assessed within the Subject Lands, with the implementation of recommended mitigative measures. It recommended the following mitigative measures: avoiding the development of the Seeps including a buffer zone of 15 m, and constraints to the Tree Clearing activity period. With regards to the 2017 EIS having been prepared for a previous owner, the Tribunal was provided no authorities indicating a requirement that the EIS be prepared for the current applicant.

72Third, the Tribunal finds that the absence of underlying data for the 2017 EIS should not result in a negative inference towards the EIS’ conclusions. There was no documentary evidence before the Tribunal that a request for the underlying data was made. In addition, if the Town’s position was that the Appellant has refused to provide information both necessary and relevant to the disposition of the issues in the proceeding, it was open to file a notice of motion for an order for discovery (pursuant to Rule 9.1 of the Ontario Land Tribunal Rules of Practice and Procedure). The Town chose not to do so.

73As the Tribunal finds the 2017 EIS is adequate, the Tribunal also finds that the natural heritage features on the Subject Lands are restricted to the Significant Woodland, Significant Wildlife Habitat (the Seeps), and the Stream. Mr. Baker’s opinion that there could be Candidate Significant Wildlife Habitat and Candidate areas of endangered and threatened species were premised on the inability to review the underlying data from the 2017 EIS. As previously noted, it was open to the Town to request this information by way of motion. As it did not, there was no evidence before the Tribunal suggesting flaws in the methodology, data collection, or otherwise. Accordingly, the Tribunal finds the possibility of missed significant wildlife or threatened species speculative.

Summary on the Proposal’s Regard for the Environmental Features on the Subject Lands

74In summary, while the Panel finds that the proposed development generally had sufficient regard for environmental features, it also finds that the Stream was not adequately considered in terms of setbacks that conform to Policy 4.3.2.1 of the County OP. Accordingly, the Panel cannot make a finding that the proposal as a whole has sufficient regard for the environmental features, nor that it is consistent with the County OP and thereby, the PPS.

Issue 2: Is the Density proposed by the Appellant appropriate for the Subject Lands?

Evidence of the Appellant

75With respect to the appropriateness of the proposal’s density, the Appellant tendered the evidence of Mr. Kingsbury and Mr. Davidson.

76Mr. Kingsbury, in the course of his employment as a senior planner for the County, reviewed the subject applications and prepared his planning report dated November 21, 2022, wherein he recommended that Council approve the applications.

77Mr. Kingsbury’s testimony explained that the proposal promoted a number of policies in the Town’s OP such as: supporting a wide range of housing types, including a target of 30% of all new residential development to be in the form of medium to high density and that a minimum of 10% of new development be directed to already built-up areas through intensification. With regards to the compatibility between low-density and high-density development, Mr. Kingsbury opined that the proposal used adequate setbacks and vegetation buffers, making adverse outlook or privacy impacts “unlikely”.

78Mr. Davidson opined that the ZBA contemplates a maximum height of 12 m for the apartment buildings, which was only 2 m higher than the 10 m maximum permitted for detached dwellings.

79Mr. Davidson testified that the proposed density is an efficient use of land and infrastructure, being on currently vacant land in an existing built-up area of the Town. The proposed density of 31.6 units per ha achieves the minimum targeted density of 15 units per ha.

80He also explained that schools were within walking distance, the Subject Lands were near recreational facilities such as Nodwell Park and Port Elgin Beach, and the Subject Lands’ size and natural features provide for substantial buffering and landscaping for the apartment blocks.

Evidence of the Town

81With respect to the appropriateness of the proposal’s density, the Town called Mr. Ramsay to provide his evidence.

82In Mr. Ramsay’s opinion, the proposed development is not in keeping with the low-density character of the surrounding area, and is not compatible with the adjacent dwelling developments located to the north and south of the Subject Lands. The scale and massing of the proposed development, with buildings of a proposed 60-80 m length and 12 m in height, is a compact urban form that is not appropriate in an area defined by low-rise development. In his opinion, the proposal would result in undue privacy, overlook and nuisance impacts.

83He also disagreed with Mr. Davidson, with respect to the proximity of schools and amenities. Mr. Ramsay admitted that Nodwell Park and a church were proximate, but said that the nearest schools were approximately 1.6 kilometres (“km”) and 2 km in distance, and commercial uses along Goderich Street were 1.6 km away. His testimony was that, as a rule of thumb, a reasonable walking distance was about five minutes or 400 to 800 m in distance.

Analysis and Findings

84On the issue of density, the Tribunal prefers the evidence of Mr. Kingsbury and Mr. Davidson to Mr. Ramsay’s. The proposed 12-m high apartment building closest to the residential lots north of the Subject Lands is set back 29 m from that lot line, with the second building 10 m further south. The Tribunal finds this proposed setback is more than sufficient to ensure compatibility of the apartments with the adjacent low-density residences. This Tribunal also notes the significant vegetative buffer that will further mitigate impacts, if any, with adjacent uses.

85On the issue of proximity to amenities and schools, it is unnecessary for the Tribunal to rule on whether the schools or Goderich Street are “within walking distance”. The relevant Town OP section 3.4.3.3.1, which provides for development criteria for high density residential, requires that this development be “located in close proximity to community facilities such as schools, shopping and recreation facilities”. The Tribunal is satisfied that 1.6 km or 2 km is in “close proximity” and does not need to rule on whether these are “walking distances”.

86Accordingly, the Tribunal finds the density proposed by the Appellant is appropriate for the Subject Lands.

CONCLUSION

87Given the Panel’s findings, made in respect of Policy 4.3.2.1 of the County OP requiring mandatory compliance with the 30-m setback from cold-water streams and that no such application was before this Panel for further OP amendment, the Tribunal must dismiss the subject applications in their entirety, and notwithstanding, the findings that, otherwise, the applications do constitute good planning, have sufficient regard for matters of Provincial Interest, are consistent with the PPS, and conform with the balance of the Town OP and County OP.

ORDER

88THE TRIBUNAL ORDERS that the Appeals are dismissed.

“F. Lavoie”

F. LAVOIE

MEMBER

“N. Eisazadeh”

N. EISAZADEH

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.