ISSUE DATE: October 16, 2024

CASE NO(S).: OLT-22-004762

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant: Blacks Point Development Inc.

Appellant: Canadian National Railway Company

Appellant: 742824 and 742825 Ontario Ltd. (Lammer Development Group)

Subject: Proposed Official Plan Amendment

Description: To permit the development of residential and commercial uses and permit a maximum height of 10 storeys for lands municipally known as 211 & 215 Queen Street West.

Reference Number: OR01/21

Property Address: 211-215 Queen Street West

Municipality/UT: City of Cambridge/Region of Waterloo

OLT Case No.: OLT-22-004762

OLT Lead Case No.: OLT-22-004762

OLT Case Name: Blacks Point Development Inc. v. Cambridge (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Blacks Point Development Inc.

Appellant: Canadian National Railway Company

Appellant: 742824 & 742825 Ontario Ltd. (Lammer Development Group)

Subject: Zoning By-law Amendment

Description: To permit the development of a mixed-use residential and commercial development through reuse of existing buildings and the development of a new 10-storey residential building.

Reference Number: OR01/21

Property Address: 211-215 Queen Street West

Municipality/UT: City of Cambridge/Region of Waterloo

OLT Case No.: OLT-22-004686

OLT Lead Case No.: OLT-22-004762

Heard: April 15-23 and 26, 2024 by Video Hearing

APPEARANCES:

Parties Counsel/Representative

Blacks Point Development Inc. Peter A. Hertz Chris Manning

City of Cambridge Brian Duxbury Nicole Auty

Region of Waterloo Fiona McCrea

742824 & 742825 Ontario Ltd. (Lammer Development Group) Scott Snider Shelley Kaufman

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

Link to Final Order

INTRODUCTION

1A Hearing took place regarding appeals pursuant to ss. 34(19) and 17(36) of the Planning Act (“Act”) arising from the approval of a Zoning By-law Amendment (“ZBA”) by the Council of the City of Cambridge (“City”) and the approval of an Official Plan Amendment (“OPA”) by the Regional Municipality of Waterloo (“Region”) for the properties municipally known as 211-215 Queen Street West (“Subject Lands”). Blacks Point Development Inc. (“Blacks Point”) is the Applicant for both planning instruments.

2Blacks Point’s Appeal is exclusively of the holding provision contained at s. 6(b) of the ZBA passed by the City (“Holding Provision”), which states:

6. The Holding (H) provision applying to the lands zoned (F)RM2CS5 “s.4.1.424” and OS1 “s.4.1.424” may only be lifted:

a) Once the City of Cambridge and the Regional Municipality of Waterloo is satisfied that an acceptable stationary noise study that assesses noise impacts from on-site and off-site sensitive uses and, if necessary, suggests appropriate mitigation measures, has been prepared in accordance with Ministry of the Environment Publication NPC-300; and

b) Once the City of Cambridge is satisfied, prior to Site Plan Approval is given, that the realignment of an existing access easement that provides appropriate access to abutting properties has been secured; and

c) Once the City of Cambridge and Regional Municipality of Waterloo is satisfied that a Record of Site Condition and Ministry of Environment, Conservation and Parks Acknowledgement Letter has been submitted.

[Emphasis added by Tribunal.]

3Two Appeals were brought forward by 742824 and 742825 Ontario Ltd. (Lammer Development Group) (“Lammer”) and Canadian National Railway Company (“CN”), on the basis that the approval of these instruments was premature.

4Three Case Management Conferences (“CMC”) previously took place on this matter. At the first CMC on February 16, 2023, it was confirmed that Notice had been appropriately served and no further Notice was required; Dr. Derek Coleman was granted Participant Status; and the OPA Appeals (OLT-22-004762) and the ZBA Appeal (OLT-22-004686) were consolidated in accordance with Rule 16 of the Tribunal’s Rules of Practice and Procedure. At the second CMC on May 1, 2023, there was some discussion regarding the Issues List, with directions provided by the Tribunal. At the third CMC on June 23, 2023, a Hearing was scheduled to span 25 days from March 25, 2024, and continuing to May 1, 2024.

5On February 8, 2024, the Tribunal received a letter from CN’s Counsel, advising that CN was withdrawing its Appeal as it had entered into a private rail crossing and CN development agreement with the Applicant, which addressed CN’s concerns with access and with the development of sensitive uses in close proximity to the CN rail line.

6As a result of CN’s withdrawal, the Hearing time was revised from 25 days to what ultimately took eight days, spanning April 15-19, 22, 23, and 26, 2024.

DECISION

7The Tribunal agrees with the expert testimony that the development facilitated by the OPA and ZBA is appropriate. The sole issue before the Tribunal was how it should address the access between the Subject Lands and the lands adjacent to it at 241 Queen Street West owned by Lammer (“Lammer Lands”).

8The Tribunal ultimately finds that it is appropriate to add a Holding Provision to the ZBA, as requested by the City. The Holding Provision is supported by the City’s OP. Moreover, it is good planning in the public interest.

9The Tribunal further finds, with respect to Lammer’s Appeal, that there is no need to revise the OPA to include a requirement for the provision of access between the two properties. Moreover, the Tribunal finds that approval of the OPA and the ZBA (with the inclusion of the Holding Provision) is not premature.

SUBJECT LANDS

10The Subject Lands comprise two parcels with a combined site area of approximately 6 acres. The Subject Lands are irregular in shape, and have a total frontage of approximately 478 metres (“m”) and a depth of approximately 120 m. Currently, the Subject Lands are comprised of the following:

a. The western portion is municipally known as 215 Queen Street West, and is approximately 2.4 acres. This parcel contains portions of the former Dominion Woollens building, which was constructed in 1864 and is designated under Part IV of the Ontario Heritage Act (“Textile Factory”).

b. The eastern portion is municipally known as 211 Queen Street West, and is approximately 3.6 acres. It contains three existing buildings that are being used for limited commercial uses as well as open space lands along the eastern property limit.

11The surrounding land uses in the immediate area include:

a. North: Speed River and Chilligo Conservation Area on the opposite side of the river;

b. East: Open space and natural features, and commercial uses further to east as part of the Hespeler Core Area;

c. West: Open space and natural features, the Lammer Lands (discussed further below); and

d. South: the CN corridor, Queen Street West, and a residential neighbourhood consisting of existing single detached dwellings and townhouse dwellings south of Queen Street West.

12The Subject Lands run parallel to Queen Street, but a rail-line owned by CN separates them from Queen Street. Winston Boulevard, which is perpendicular to Queen Street, is the only Street that directly provides access to the Subject Lands. It does so by way of a parcel referred to as “Part 7” at the Hearing and shown on the map below at paragraph [16] of this Decision. Part 7 extends from Queen Street West over CN’s rail-line and provides an entrance into the Subject Lands.

13The Subject Lands are well connected to the road network, via the Part 7 exit, which connects them to Queen Street West. Queen Street West then connects to Hespeler Road (Highway 24), which is an arterial road and provides connection to Highway 401 eastbound and westbound. An existing public transit route and stop is directly adjacent to the Subject Lands.

Lammer Lands

14The Lammer Lands, as mentioned, are located adjacent to the west of the Subject Lands. They are approximately 24 acres in size. Historically, the Lammer Lands and the Subject Lands were part of one land holding, and part of a large textile manufacturing plant. The property was sold in distress and then divided.

15The only access to both the Lammer and Subject Lands is across the CN railway line at the intersection of Winston Boulevard and Queen Street West. Both parcels are otherwise landlocked. Access to the Lammer Lands is then across an easement that is discussed further below.

The Easement

16At one time, the Subject Lands and the Lammer Lands were owned by Waterloo Textiles Limited. In 1985, Waterloo Textiles Limited granted an easement over a small portion of its lands to the City for the purpose of establishing a public laneway (“Easement”). The Easement was across a small portion of the lands now owned by Blacks Point and described as Part 8, as shown on this map:

17At its narrowest point, the width of the Easement is about 4.5 m wide and at its widest point, it is about 13.3 m. The Easement’s narrowest point is immediately adjacent to the Textile Factory (the heritage building discussed above).

18Part 7, the access from Winston Boulevard / Queen Street West into the Subject Lands and over the rail-line, extends to Part 8, the Easement. The Easement traverses the Subject Lands westward to the boundary of the Subject Lands and into the Lammer Lands. The Lammer Lands have no frontage and access to a public right of way because, similar to the Subject Lands, the CN railway corridor poses a barrier between the Lammer Lands and Queen Street West. The Easement, and the Part 7 access route, are the only way that Lammer has access to a public road.

19It was agreed that the Easement (Part 8) specifically speaks to the granting of ingress and egress of all persons and vehicles to and from the Lammer Lands.

20Of note, there was some speculation at the Hearing regarding the validity of the Easement. Blacks Point’s Counsel submitted that the question of who claims what Easement rights as between Lammer and the City remains unclear. Moreover, it is not clear whether either has any rights over Part 7. However, the validity of the Easement is not before the Tribunal. Moreover, it has not been challenged elsewhere. No issue on the Issues List challenged the nature, terms, or validity of the Easement. There was ample evidence provided at the Hearing of the longstanding historical use of both the Easement and the Part 7 access point by Lammer. Additionally, in his closing submissions, Blacks Point’s Counsel stated, “To be clear, BPD [Blacks Point] does not propose anything that would impede Part 7 or Part 8 or otherwise change the status quo and recognizes the City’s ability to ensure this via site plan control.” The witnesses at the Hearing agreed that the OPA and ZBA simply propose to redesignate and rezone the Subject Lands and are not changing any details of the existing Easement.

21The Tribunal does not make a decision on the validity of the Easement. If the Easement is indeed not valid, Blacks Point would be required to challenge that through other means, and not at a Tribunal Hearing. Moreover, sufficient evidence was not provided for the Tribunal to flag this as an issue that would prevent it from being able to make a decision on this matter at all. As a result, the Tribunal has made its Decision with the assumption that the Easement is a valid historical and existing fact.

22The City’s Land Use Planner confirmed that the City was a party to both the creation of the Lammer Lands as a separate parcel of land, and the state of access to the Lammer Lands. The Tribunal has not engaged in a discussion of ownership. Rather, it has treated the Easement as resulting from the City’s solution to creating two parcels of land, one of which would have been land-locked without the Easement.

PROPOSED DEVELOPMENT AND APPROVAL OF INSTRUMENTS

23The purpose of the OPA and ZBA is to permit redevelopment of the Subject Lands for mixed uses. Specifically:

a. The OPA changes the land use designation from Business Industrial to High-Density Residential; and

b. The ZBA rezones the Subject Lands from General Industrial ‘(H)M3, s.4.1.24’ Zone and Open Space ‘OS1’ to ‘Multiple Residential, Local Shopping Centre (H) (F) RM2CS5, s.4.1.424’ and ‘(H) OS1, s.4.1.424’.

24The redevelopment includes the adaptive reuse of the heritage Textile Factory and existing buildings on the Subject Lands with a mix of residential apartment units and commercial uses. A new residential building is proposed on the eastern portion of the Subject Lands, as well as surface parking, landscaping, and amenity space.

25City Staff recommended to Council on July 19, 2022 that the requested instruments be approved. However, in the recommendation report that was provided to Council, the City’s planner had raised the following concern:

At the present time, the City has an access easement over a portion of the Subject Lands to provide access to lands not owned by the applicant to the west; however the existing easement does not provide adequate access to the adjacent site and therefore needs to be satisfactorily realigned. This realigned access easement will be obtained through a future Site Plan Agreement process to ensure that the property immediately to the west of 215 Queen St West can secure access to a public road in the future, as the property to the west currently has no frontage and access to a public right-of- way as a consequence of the barrier posed by the CN railway corridor.

26When Council approved the OPA and ZBA, it included the Holding Provision with the ZBA, quoted at paragraph [2] of this Decision. Provision (b) of the Holding Provision was Council’s attempt to address the concern raised by City Staff.

POSITION OF THE PARTIES

27The main issue at the Hearing related to the provision of access through the Subject Lands to the Lammer Lands.

28Blacks Point’s position was that the Holding Provision serves no purpose other than to require Blacks Point to grant rights over its lands for the benefit of the neighbouring property owner. This Holding Provision was not appropriate at this stage, and any issues pertaining to the Easement and access could and should be appropriately dealt with at the Site Plan Approval stage. Blacks Point requested that the OPA and ZBA be approved without the Holding Provision, as they constitute good planning and meet the legislative tests. Moreover, Blacks Point submitted that certain issues are to be decided between the City and itself, such as Site Plan issues, and Lammer’s Appeal is an attempt to get involved in something that should only be decided privately between the municipality and the applicant. The Tribunal is not able to impose such a restriction like the Holding Provision, as doing so would be interfering in commercial relations between two private landowners. Rather, the City has the authority, at the Site Plan Approval stage, to ensure that any laneway or other development does not interfere with the existing right-of-way to the Lammer Lands.

29The City took the position that the Holding Provision was appropriate and that the issue of access should and could be dealt with appropriately at the ZBA stage. The City requested that the Tribunal dismiss the Appeals and maintain the OPA and ZBA in the form approved by Council, which included the Holding Provision.

30Lammer’s Appeal was primarily focused on the suitability of the Holding provision as it affects the future use of their lands. Lammer’s position is that the issue of access from the Subject Lands to their Lands should be addressed in the OPA. The Tribunal can and should ensure that interconnected access will be available to meet current and projected needs. Doing so would be in accordance with provincial policies and the Act. Approval of the instruments is premature until the issue of interconnected access is resolved and codified in the OPA. Lammer requested that the Tribunal modify the OPA (or withhold its Order until the Parties have modified it) to require that interconnected access be secured with appropriate cost-sharing prior to any future land use approvals such as the proposed ZBA or a future Site Plan.

31The Region had identified some measures that it required be included in the OPA and ZBA to protect its interests. These matters of interest are:

a. A regulation prohibiting habitable floor space below the Regulatory Flood Elevation of 287.5 m;

b. A regulation setting a minimum distance separation of 15 m between the railway right-of-way and habitable residential floor space;

c. A Holding Provision for completion of a detailed stationary noise study to assess noise impacts on on-site and off-site sensitive uses (Provision 6(a) in the Holding Provision quoted at paragraph [2] of this Decision); and

d. A Holding Provision for the completion of a Record of Site Condition and Acknowledgment letter from Ministry of the Environment, Conservation and Parks (Provision 6(c) in the Holding Provision).

32The Region’s involvement was limited to ensuring the protection of those measures, and to seek that the Tribunal maintain those two regulations and the Holding Provisions in the ZBA. The other Parties did not take issue with those provisions. All witnesses testified that they were appropriate. The Tribunal agrees and will keep those provisions in the instruments before it.

WITNESSES

33The following witnesses testified at the Hearing:

Land Use Planner

• Applicant – David Aston
• City – Nick McDonald
• Region – Melissa Mohr
• Lammer – Nick Wood

Transportation Engineer

• Applicant – Rajan Philips
• City – Stephen Brook
• Lammer – Alexander Fleming

Transportation Safety Engineer

• Applicant – Alexandre Nolet

34The Curriculum Vitae and Acknowledgement of Expert Duty form for each witness were provided and confirmed their expertise in the fields noted above. Without objection, each witness was qualified to provide expert opinion evidence in the fields of expertise noted above.

AGREED FACTS AND ISSUES

35All witnesses agreed that the Subject Lands are located within the City’s existing delineated built-up area on lands where the City’s Official Plan (“OP”) anticipates a transition of use from employment uses to mixed uses. The witnesses also agreed that the proposal was consistent with the many Provincial, Regional, and City policy directions to build healthy, sustainable communities and policy directives regarding intensification within the built-up area. The Subject Lands provide an opportunity for an appropriate residential infill redevelopment that will deliver a range of housing options in the community in a manner that maximizes the use of existing infrastructure available in the area. The proposed development is consistent with the Provincial Policy Statement, 2020 (“PPS”), and is in conformity with the policies of the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), Regional Official Plan (“ROP”) and City’s OP. Moreover, it meets the overall general intent and purpose of the City of Cambridge Zoning By-law No. 150-85. The Proposal would be an improvement and, as testified to by Mr. Aston, “provide an opportunity for completion of the surrounding neighbourhood and street network” (Witness Statement, Exhibit 5A, paragraph 77).

36In short, it was agreed amongst the experts that the Subject Lands are within a Regeneration Area near the downtown of Hespeler, which is a Strategic Growth Area within the meaning of the Growth Plan, and it is in the public interest to optimize the use of those Lands to provide housing for the City. In fact, the Growth Plan prioritizes intensification in such areas, as noted for example in Policy 1.2.1. This also applied to the Lammer Lands, as all experts agreed.

37The Tribunal also agrees that the proposed development represents good land use planning and meets the required legislative tests, warranting the approval of the OPA and ZBA that facilitate its development.

38The question before the Tribunal was limited to the addition or removal of the Holding Provision. The main issues at the Hearing for the Tribunal to decide were:

a. Is the Holding Provision appropriate and supported by the OP policies?

b. Is the Holding Provision good planning and in the public interest?

c. Does the Holding Provision achieve its end or should the issue of interconnected access between the two properties be dealt with through the OPA? Are the OPA and ZBA premature?

ANALYSIS AND FINDINGS

ISSUE 1: Is the Holding Provision appropriate and supported by the OP policies?

39In considering this issue, a number of sub-issues are discussed. Namely:

a. What is the reason that the Holding Provision is required?

b. Can a Holding Provision be imposed in these circumstances?

c. Can the problem giving rise to the Holding Provision be dealt with at the Site Plan stage?

d. Is the language of the Holding Provision clear or is modification required? Moreover, should a phased approach for the development be imposed?

What is the reason that the Holding Provision is required?

40As indicated above, the evidence at the Hearing confirmed that there is only one access to the Lammer Lands, which is through the Subject Lands. An Easement was created when the two Lands were severed to provide access to the Lammer Lands through the Subject Lands.

41Second, the evidence confirmed that the width of this Easement varies from about 13.3 m to the west to 4.5 m in the east, where a vestibule of the Textile Factory limits the space. Moreover, since the building has been designated a heritage building, it will retain its current condition. At the Hearing, the (approximately) 4.5 m portion of the Easement was referred to as its “pinch point.”

42Third, the transportation experts agreed that a minimum 6 m wide laneway is required to safely allow for two-way traffic. However, due to the pinch point, 6 m cannot be accommodated by the Easement. A laneway has been proposed in the proposal, which is 6 m but a part of it lies outside of the Easement. This means that Lammer would not have legal entitlement to use a small portion of the laneway.

43The City submitted that it was in the public interest for both the Subject Lands and the Lammer Lands to retain the opportunity to redevelop for more intensive and residential use. As a result, it was determined that a realignment of the access point (Part 7) and Easement would be required to correspond with the proposed laneway. This is what gave rise to Council’s decision to impose the Holding Provision on the ZBA.

Can a Holding Provision be imposed in these circumstances?

44The Tribunal was convinced by the case put forth by the City that the Holding Provision in these circumstances is a correct implementation and solution as contemplated in s. 36 of the Act, as well as the City’s OP policies.

45As Mr. McDonald, the City’s Land Use Planner, explained, the City has the authority to impose a Holding Provision, in accordance with ss. 36(1) and 36(2) of the Act. These sections allow for the using of holding provisions (s. 36(1) of the Act) as long as the municipality’s Official Plan contains provisions relating to the use of the Holding provision (s. 36(2) of the Act). In this case, s. 10.7(e) of the City’s OP states:

10.7 Holding Provisions

1. By-laws using the holding symbol “(H)” or “(h)” will specify the purpose for the holding symbol and will include a statement outlining conditions under which the holding symbol shall be removed by amendment to the City’s Zoning By-law. An amending by-law to remove the holding symbol may be considered when the applicable issues are addressed: …

(e) Transportation analysis leading to improvements including widenings, extensions, interconnected access or new roadworks;

46Mr. McDonald testified that this particular section of the OP references “interconnected access” and provides the basis for the use of the Holding Provision in this case, since securing an appropriate interconnected access to the Lammer Lands is in the public interest (as will be further discussed below). The Tribunal was convinced by Mr. McDonald and the submissions by Counsel for the City, and finds that the language of s. 10.7(1)(e) of the OP is straightforward and fits the present circumstances. The Tribunal agrees that access to the Lammer Lands is critical and interconnected access between the Subject Lands and Lammer Lands is necessary.

47Mr. Aston testified that s. 10.7(1)(e) does not apply because it refers to “interconnected access,” which would require that both properties rely on an interconnection for access, and the Subject Lands do not rely on the Lammer Lands for access purposes. As a result, the OP does not permit the Holding Provision. However, the Tribunal agrees with Mr. McDonald that the need for interconnected access is quite clear in this case. The long-standing existence of the Easement is itself a testament to that fact. A plain reading of “interconnected” means joined or connected. When these two lands were created, it was contemplated that their access point would be interconnected or joined. That is precisely why the Easement was created. It is true that the entrance is through Blacks Point, and Blacks Point does not currently need to go through the Lammer Lands to get to its lands. However, it is also true that the access point, when it was created, was contemplated to serve both properties, which is why the Tribunal finds that it meets the definition of “interconnected access.” Moreover, the Tribunal did hear evidence from transportation experts, specifically from Mr. Brook and Mr. Fleming, that interconnected access was required between the two properties.

48The Tribunal also heard from Mr. Philips, the Applicant’s Transportation Engineer, who testified that it was not appropriate to consider the Lammer Lands in the Transportation Impact Study (“TIS”) he prepared for the Subject Lands, or to consider the Subject Lands and the Lammer Lands together. If it had been appropriate, the City would have directed him to consider traffic from the Lammer Lands in his analysis, but the City did not do so. The City did not require him to consider it as no development application has been submitted by Lammer, so there was nothing to consider in his analysis. He further explained that the City would have had to direct him because of the significance of the new roads that would be required for the Lammer Lands (which are four times larger than that Subject Lands).

49The Tribunal understands both viewpoints here. The Tribunal does not expect Blacks Point to consider the entire traffic impact arising from a property where no development proposal has been submitted and it is not entirely confirmed that the level of expected development is feasible. However, the issue of access does not require extensive analysis. It was identified as an issue as early as when the Easement was created (and it was the reason it was created). It was also identified in Mr. McDonald’s staff report (quoted at paragraph [25] of this Decision), without it having been included in the TIS, because it was an obvious issue. Thus, the Tribunal finds that, simply by relying on the language in the OP, requiring a way through the Subject Lands to the Lammer Lands is an example of interconnected access contemplated by s. 10.7(1)(e). Thus, the Holding Provision is an appropriate implementation of s. 36 of the Act when utilizing a plain reading of these policies and the statute.

50Moreover, Mr. McDonald testified that the critical factors to the appropriate use of a Holding Provision is when the principle of development is supportable and secondly, when there is a good prospect of removing the Holding Provision by way of implementation. This is in accordance with the criteria outlined in the 2206211 Ontario Inc. v. Pickering (City), 2016 CarswellOnt 12724 (“Pickering Case”), which the City referred the Tribunal to. In the Pickering Case, the Ontario Municipal Board (“OMB”), a predecessor to this Tribunal, outlines the relevant criteria for the use of a holding provision (at paragraph 45). Of note, these criteria were quoted from the decision of the OMB named City of Toronto Official Plan Amendment 333, [19856] O.M.B.D. No. 3. In essence, the criteria highlighted by the Board in that case were as follows:

a. The need for the Holding Provision has been demonstrated;

b. The OP must contain policies relating to the use of the Holding Provision;

c. The ZBA should be sufficiently complete to allow for appropriate zoning controls for the lands when the Holding Provision is removed; and

d. The ZBA regulations are consistent with proper principles of community planning. To clarify, potential use impacts, conflict problems, and servicing deficiencies of the proposal have been identified, and are addressed either in the ZBA or through feasible measures within the powers of Council.

51The Tribunal agrees that the Holding Provision satisfies all of the criteria enunciated in the Pickering Case. First, the Tribunal agrees that there is a problem needing to be addressed (as outlined at paragraphs [40] to [43] of this Decision), namely, to ensure that reasonable access to the Lammer Lands is secured. Second, the OP policy relating to the use of a Holding Provision for interconnected access has been outlined above, and a plain reading of it indicates that it applies here. Third, the ZBA and its wording concisely state the requirement to be satisfied and represent an appropriate zoning control for the Subject Lands when the Holding Provision is removed. Finally, and as discussed below, the use of the Holding Provision in this case is consistent with proper principles of community planning and by its application properly identifies the conflict and deficiencies that remain unresolved without the realignment of the access. In this regard, the Tribunal was convinced by Mr. McDonald’s testimony and the closing submissions of the City’s Counsel.

52Moreover, the Tribunal agrees that resolution of the conflict through a simple realignment is a feasible, reasonable, and a relatively simple measure to execute. As Mr. McDonald testified, and the Tribunal agrees, resolving the requirements of the Holding Provision are achievable with the simple and clear requirement expressed in the Holding Provision for a realignment of the Easement. Blacks Point did not provide adequate evidence to show that removing the Holding Provision would not be possible or that the realignment of the Easement is not feasible. The Tribunal agrees that the Holding Provision makes the steps required for removal quite clear, and the evidence at the Hearing showed that the realignment was possible and feasible without undue adverse impact on the Applicant.

53Of note, as the City pointed out, the material factor in this case is the Easement. The Tribunal agrees that the Easement is fundamental to an understanding of this case, and the Holding Provision is appropriately expressed in light of that Easement. To clarify, the Tribunal finds that the Holding Provision is supported by the OP and the Act as there is “interconnected access” to be considered here. In addition, the existence of the Easement adds to the appropriateness of the Holding Provision.

Should the problem giving rise to the Holding Provision be dealt with at the Site Plan stage?

54Blacks Point’s central position at this Hearing was not to oppose the realignment. Rather, its position was that it should not be attached to the ZBA, but should be something that is dealt with later in the process, such as at Site Plan Stage. Counsel for Blacks Point submitted that this “is not an appeal about any particular site plan or detail therein - the issue on this hearing is about what uses are appropriate for the Subject Lands, not the details of how it will be built.” The Tribunal must only assess whether the proposed land use (OPA and ZBA) are good planning, and not what the site details will look like.

55The City disagreed, however. When cross-examined, Mr. Aston, the Applicant’s planner, conceded that the City cannot require the Applicant to provide additional lands as part of the Site Plan requirement, especially in this particular circumstance where the laneway is not a public road and no public road is intended or identified in the OP for this location. The Tribunal agrees that the Site Plan process will deal with matters of design, but will not resolve the principle of access. Contrary to the Applicant’s assertion, resolving the principle of access is exactly what the Holding Provision is to do. It is precisely the function and purpose of the Holding Provision to deal with access.

56A number of conceptual Site Plans were presented to the Tribunal for review. While the issue of the Site Plan Approval was not before it, the Tribunal found the Site Plans informative in that the only Conceptual Plan by Blacks Point that addressed the pinch point problem in the Easement was provided through Mr. Aston’s Reply Statement, dated March 31, 2024, shortly before the commencement of the Hearing. Blacks Point did not confirm whether this would be the Concept Plan that would be presented for Site Plan Approval or that it would support the realignment of the Easement at a later stage.

57Town Staff, in their Report to Council regarding this Proposal, had not recommended the inclusion of a Holding Provision, even though the pinch point problem had been identified (in the recommendation quoted at paragraph [25] of this Decision). As Mr. McDonald testified, the issue of access to the Lammer Lands was an important element in Staff’s consideration and recommendation of approval, but Staff at the time did think that the realigned access Easement could be obtained through a future Site Plan agreement. Council chose to include the Holding Provision based on submissions received and an assessment of the factors at play, including the particular positions of each Party. As the City’s Counsel pointed out, the evidence demonstrated that Council was wise in requiring a Holding Provision to ensure that interconnected access is provided through the Subject Lands to the Lammer Lands.

58The Tribunal, when assessing a planning instrument, must have regard to the Decision of Council and the information considered by it in the course of making that Decision. The same Parties appeared at the Hearing that had previously appeared before Council. Based on the evidence and occurrences at the Hearing, the Tribunal agrees that leaving this matter to a future Site Plan Agreement would be risky and not in the public interest. As the City’s Counsel pointed out in his closing submissions, “The nature of the cross-examination of several witnesses demonstrates that the resolution of access down the road in a site plan process is highly problematic and unlikely.”

59The Tribunal is not to get involved in private discussions between the Parties. However, the Tribunal does have to make planning decisions that will assist in the development process. In this case, the nature of the Hearing itself demonstrated that this topic likely cannot be dealt with as efficiently as Blacks Point hopes. Rather, a requirement such as the Holding Provision could assist in resolving this matter more efficiently, in the interest of all involved and the public (as discussed further below), instead of leaving it to the Site Plan stage. As Mr. McDonald stated, the Staff Report included “a bit of a leap of faith” that the Parties could work it out. Council chose to remove that risk and impose the Holding Provision. The Tribunal agrees with this approach and has regard to the decision of Council.

60Blacks Point’s position was that, by adding the Holding Provision, the City was attempting to make the developer do something that benefitted another landowner, when it was something that should only be addressed by Blacks Point and the City, who are the appropriate Parties to be involved at the Site Plan stage. The Applicant’s Counsel cross-examined Mr. McDonald on the City’s attempt to use this Holding Provision to “incentivize” it to give some land to Lammer as part of the realignment. In response, the City’s Counsel submitted that using tools that are appropriately grounded in the Act to sort out land use planning issues (such as conflicts between property owners) is available to a municipality. If grounded in the Act, such tools can be used to achieve a fair, equitable, and reasonable outcome.

61In this case, it has been shown that the Holding Provision is grounded in the Act. The Tribunal agrees that this tool is therefore available to the City. Moreover, the Tribunal agrees that this tool will result in a fair, equitable, and reasonable outcome. If the tool that is being used is grounded in statute and achieves a result that is good planning in the public interest, then that tool is appropriate. The Holding Provision here is such a tool. Therefore, the Tribunal finds that it is appropriately dealt with at the ZBA stage rather than at the Site Plan stage.

Is the language of the Holding Provision clear or is modification required? Moreover, should a phased approach for the development be imposed?

62This issue contemplates whether the language of the Holding Provision is impermissibly vague. As Mr. Aston explained, the access issue relates to access to adjacent lands to the west and the specific use of the Easement. The Holding Provision, therefore, should not be applied to the entirety of the Subject Lands or the overall proposed development.

63The Holding Provision reads: “…that the realignment of an existing access easement that provides appropriate access to abutting properties has been secured.” The Tribunal finds that this statement is clear, with a straightforward path to resolution. The location involved is the existing access Easement. The goal is the provision of appropriate access to abutting properties. The way to do so is through a realignment. These are very clear instructions. In this finding, the Tribunal agrees with Mr. McDonald, who stated in his Witness Statement: “the Holding provision is clear enough in identifying what needs to be satisfied to the City’s satisfaction............................................................................................ ”

64Various Concept Plans were presented to the Tribunal with options for the implementation of this Holding Provision. As a result, the Tribunal has evidence before it to demonstrate that its removal is feasible, and options are available to the Applicant to achieve the goal of the Holding Provision. A reading of the Holding Provision also meets the requirements outlined in the Pickering Case (described at paragraph [50] of this Decision). The wording represents an appropriate zoning control for the Subject Lands when the Holding Provision is removed. Thus, the Tribunal finds that the wording of the Holding Provision is not vague and does not require modification.

65The Applicant suggested the idea of applying a partial or scoped Holding Provision, which would allow the development to proceed while the Parties were finalizing the details of the Holding Provision. The Applicant’s Counsel provided the example of school sites in the context of a plan of subdivision and suggested that these sites are set aside until later in the planning process, while the development proceeds.

66Mr. McDonald was asked about this approach. He testified that he was open to this as long as the Holding Provision would still meet the desired result of Blacks Point taking meaningful steps towards its removal. He was concerned about modifying the Holding Provision in a way that would no longer provide adequate motivation for Blacks Point to resolve it. Moreover, with respect to school sites, he stated that the development of school sites is often part of the staging and sequencing plan of a secondary plan and that development of residential uses would still be required to be coordinated with that plan (even if the location is set aside until later).

67The Tribunal was persuaded by Mr. McDonald, and the submissions made by the City’s Counsel and Lammer’s Counsel. In some instances, it may be appropriate to implement a phasing approach, especially when all Parties agree to the fundamentals of the development (such as a school being required). In this case, the Parties do not appear to be in full agreement that a realignment is necessary. Moreover, the Tribunal finds that the Holding Provision can be adequately resolved prior to the development commencing. Implementing a phased approach would be quite similar to leaving the issue of access to be dealt with at the Site Plan stage. The Tribunal finds that neither would be appropriate in this case. As detailed below, it would be in the public interest for this matter to be dealt with as part of the ZBA.

ISSUE 2: Is the Holding Provision good planning and in the public interest?

68The ultimate test for the approval of planning instruments is whether they represent good planning and are in the public interest. As confirmed in City of Ottawa v. Minto Communities Inc., 2009 CanLII 65802 (ON SCDC), [2009] O.J. No. 4913, a case provided by the City, appeals at the Tribunal are a process requiring the Tribunal “to exercise its public interest mandates” (paragraph 30). The decision of the Tribunal “transcends the interests of the immediate parties” (paragraph 30).

69In this case, the Tribunal finds that the instruments, as approved by the City’s Council, represent good planning and are in the public interest. For clarity, the Tribunal finds that the ZBA with the inclusion of the Holding Provision and the OPA without modification are approved.

70The Tribunal makes this finding because the ZBA with the Holding Provision is in the broader public interest as it allows for coordinated planning for growth, it is an easy solution to a recognized problem, it minimizes costs and delays, and it provides long- term benefits for the City as well as the individual land-owners involved.

Coordinated Planning for Growth

71When considering the broader public interest, the Tribunal must consider how the proposed development will affect the development of surrounding lands as well as the orderly development of the municipality. This includes a consideration of the adequate provision of a full range of housing. The planners at the Hearing agreed that these are among the matters of provincial interest identified in s. 2 of the Act (specifically s. 2(h) and s. 2(j)) that the Tribunal must have regard to. The planners also noted the Growth Plan’s emphasis, in Policy 2.1, on optimizing the use of the existing urban land supply. They further agreed that this requires consideration of the lands in the community as a whole. Moreover, Policy 1.6.1 of the PPS requires planning for infrastructure to be coordinated and integrated with land use planning and growth management so that infrastructure is available to meet current and projected needs. Mr. Aston testified that the proposed development does this.

72In this case, the City has identified both the Subject Lands and the Lammer Lands as prime locations for growth. Mr. McDonald confirmed that the OP specifically permits the transition of the Lammer Lands from employment uses to mixed use development. He testified that this area of the City is a significant area for regeneration and redevelopment for residential uses, including more intensified uses. Mr. Aston testified that the Subject Lands, located in a regeneration area, could allow for “much needed housing units” and could contribute to people living and working within or in close proximity to core City areas. The Tribunal is persuaded by the evidence that the same applies to the Lammer Lands, which have the same designation and geographical location as the Subject Lands. PPS policies require protection and promotion of provincial interests (in the Preamble of the PPS, and Policies 1.0, 1.1.1(e), and 1.1.1(g)), such as intensification in appropriate areas. Thus, the instruments that the Tribunal approves must protect and promote the ability for intensification in appropriate areas such as this one.

73The City’s Counsel submitted that there is a strong public interest in ensuring that interconnected access between the two properties is provided without ambiguity or doubt. The Tribunal agrees that ensuring the feasibility of the Lammer Lands, by confirming interconnected access, would be in the public interest of those living in the City, and in the long-term interest of the City and the province as a whole.

74Of note, Blacks Point raised the idea that the City has already met its housing needs and that the Lammer Lands have not demonstrated that they will be able to feasibly provide the housing contemplated for them. As Mr. Aston pointed out, a host of studies would be required before that could be determined. In making its decision, the Tribunal did not engage in a calculation of the City’s housing needs and whether that has been met. Rather, the Tribunal relied on land use planning evidence that indicates that the Lammer Lands, like the Subject Lands, are designated for regeneration and growth, and that these are in line with provincial interests.

75Additionally, as Lammer’s Counsel submitted, ensuring interconnected access through the Subject Lands to the Lammer Lands would improve the transportation system and feasibility of the Lammer Lands, which is also in the public interest. In fact, Mr. Aston acknowledged this in his Witness Statement, stating at paragraph 43 that the OPA and ZBA “…facilitate the improvements to the access and the rail crossing that would also ultimately assist in consideration of the potential development of the Lammer lands.” The Tribunal agrees with Mr. Aston that the impact of the proposal on the development potential of the Lammer Lands is a relevant consideration in evaluating the planning merits of the OPA and ZBA. In this case, the Holding Provision, which impacts the feasibility of the development of the Lammer Lands, is therefore in the public interest and also a reason why the OPA and ZBA are good planning.

76In his Reply Witness Statement, Mr. Aston stated that the Tribunal needs only to be satisfied that the OPA and ZBA do not “impede” the ability for an interconnected access, rather than to mandate that it be confirmed (by way of the Holding Provision). He opined that the Tribunal had regard for provincial interests (in the Act, the PPS, and the Growth Plan) if it was satisfied that the OPA and ZBA do not prevent a range of “feasible” options for access. However, the Tribunal finds that the Holding Provision is indeed in the public interest. The Tribunal is not satisfied that the feasibility for interconnected access would not be impeded without the Holding Provision. As found above, the Holding Provision is appropriate and there is a risk that it would not be efficiently resolved at the Site Plan stage. As Mr. Aston acknowledged, the City cannot compel a realignment through the Site Plan Approval. Thus, the Holding Provision would ensure that the OPA and ZBA allow for feasible options to be considered for access. The Tribunal was convinced by Mr. Wood’s testimony that the public interest in interconnected access and the optimal use of lands within the Regeneration Area of the City should not be left uncertain or to procedures outside of the Act.

77It is notable that Blacks Point at times hinted at the validity of the Easement, as discussed at paragraphs [20] to [22] of this Decision. While this has not been disputed outright, it does show that some clear direction would be helpful here as part of the ZBA, rather than leaving it to a later stage. The Tribunal is confident that if the Easement was not valid, legal disputes would have commenced long before this, and is confident that making a decision regarding the Holding Provision is within its purview. What is clear is that some direction is needed and would be in the public interest as to what is to be done with this Easement and the access issue.

Easy Solution to a Recognized Problem

78Interconnected access overall is good planning because it resolves the pinch point problem noted at paragraph [41] of this Decision. It also provides for safe and legal two-way traffic through the Subject Lands to the Lammer Lands. The idea that interconnected access is required here has been recognized since the Easement was created in the first place (in or around 1985). In other words, the existence of the Easement itself demonstrates the need for interconnected access. The Holding Provision which resolves this pinch point problem is therefore good planning.

79The Tribunal was convinced by the City’s position that a slightly realigned driveway, by way of realigning the Easement, provides an easy and straightforward solution. As the City’s Counsel pointed out, the 6 m driveway is a driveway that Blacks Point itself would require to access portions of the Subject Lands, including the intended redevelopment of the historical Textile Factory. In other words, this 6 m driveway is not only for the purpose of allowing for interconnected access between the two lands, but for the purpose of the development itself. As such, the solution does not require action outside of what Blacks Point would consider for its own development.

80As the planners agreed at the Hearing, the PPS requires that transportation systems address projected needs and be provided efficiently (Policy 1.6.7.1). The Tribunal finds that the Holding Provision allows for that as it efficiently resolves a significant problem at the start of the process. Blacks Point’s position was that none of these PPS policies on transportation systems expressly require the granting of private property rights or expressly require or permit the realignment of private easements. The Tribunal agrees that the PPS does not specifically require this. Rather, the Tribunal must look at the Act, the overall policies of the PPS, and the OP. In this particular case, the Act allows for the Holding Provision, the overall policies of the PPS support the end achieved by it, and the OP specifically outlines its use.

Minimization of Costs and Delay, and Beneficial to All Parties

81With respect to costs, the planners agreed that the PPS provides clear direction to pursue efficiency, cost-effectiveness, and the minimization of servicing costs. In this case, the Holding Provision provides such a solution. As described below, it allows for an agreement to be achieved amongst the Parties, the Applicant could be left with more land than previously, and it is more efficient than other solutions.

82With respect to the Holding Provision, the Tribunal was convinced by Mr. McDonald’s testimony that the removal of the Holding Provision is not a complicated process and can be achieved in a relatively short timeline. Moreover, the Tribunal was not provided with testimony to the contrary. The Applicant did not demonstrate that this Holding Provision would add to its costs of the development or that removing the Holding Provision would lead to adverse cost consequences.

83The alternatives presented to the Tribunal to achieving the same result as the Holding Provision were: to leave it to Site Plan stage or expropriation. As indicated above, leaving this matter to Site Plan stage is risky, as it could lead to a scenario where the Parties have to come back to the Tribunal for a Site Plan Appeal on this issue. As pointed out by the City’s Counsel, expropriation would involve significantly more costs and delays to this development than removing the Holding Provision.

84With respect to the cost of the realigned Easement, Lammer’s witnesses testified that Lammer is prepared to pay its proportionate share of any costs for the realigned Easement and usage of that Easement including improvement and maintenance costs. For example, Lammer is prepared to share in the cost of improving the rail crossing (required by the CN Crossing Agreement), and paving and maintaining the 6 m laneway. Since the Lammer Lands are much larger (24 acres versus 6 acres), this would mean that Lammer’s proportionate share would be greater. Thus, realigning the Easement would be a cost-effective solution for the pinch point problem.

85Blacks Point’s Counsel submitted that cost-sharing does not factor here because Lammer has not incurred any costs and the proposed development can proceed on its own merit without any impact or reliance on Lammer. However, as the Tribunal has found, without the Holding Provision, there are likely more costs involved. Moreover, a discussion of the future costs of this laneway is relevant as it must be determined whether a realigned laneway would cause an adverse impact to Blacks Point in the future. In this case, the Tribunal is not convinced that there will be.

86One problem that was raised by Blacks Point was that the Lammer Lands would accommodate a significant development, as about 1800 units were contemplated. This would lead to significant traffic, which the access point on the Subject Lands could not accommodate. All witnesses agreed on this. However, no development proposal by the Lammer Lands has been submitted to the City and none was before the Tribunal. What the witnesses did know is that Lammer will have to have a second access point somewhere to accommodate a development on its Lands. Thus, traffic would be addressed by way of a second access point. This in itself provides a positive solution for the Blacks Point development because, as the Lammer witnesses confirmed, those living on the Subject Lands would have access to two access points and a much wider area of the City in a more efficient way. Lammer confirmed that it would make this road and access point through its property available for Blacks Point’s use at no cost to it.

87Ultimately, the Tribunal finds that issues or concerns regarding traffic volume or how Lammer can achieve a second access point are matters that can and will be dealt with if Lammer actually submits a development application. If Lammer does so, it will have to overcome the usual hurdles in a development process of demonstrating that adequate responses exist to traffic and access concerns. If not, the development will not be approved and Blacks Point will not have to worry about traffic.

88Lammer and the City suggested a solution, namely that they would release lands from the Easement that were not required for the realignment to Blacks Point for its unencumbered use. As Mr. Wood, Lammer’s planner, testified, the existing Easement occupies 1,893 square metres (m2) of land. Of this, 1,053 m2 could be released to Blacks Point. What would be needed from Black’s Point current property would 168 m2 of land in the vicinity of the rail crossing. This amount of land would address the pinch point problem. Overall, Mr. Wood opined, this would result in a net gain of 885 m2 of land for Blacks Point, and would reduce the amount of encumbered land by 47%.

89This discussion was akin to settlement discussions between the Parties, which the Tribunal does not get involved in at a Hearing. However, it demonstrates that solutions can be contemplated and achieved that are beneficial to all Parties involved and would result in a net gain for all.

90In short, the Tribunal finds that the proposed Holding Provision requiring a realignment is beneficial to all Parties in that it would:

a. Not require any additional physical changes to the proposed development beyond what Blacks Point must already do to service its own development. It would simply ensure that a paved laneway already intended to be used for vehicular traffic is available to provide an interconnected access to Lammer;

b. Include Lammer in covering a significant proportion of the costs to construct and maintain the proposed laneway and to make the necessary safety upgrades to the rail crossing that are required;

c. Provide Blacks Point with access to a future road connection at Lammer’s second access point, which will improve the transportation system, provide better access and improve overall safety in the community; and

d. May leave Blacks Point with more land unencumbered by the Easement than is currently the case.

ISSUE 3: Does the Holding Provision achieve its end or should the issue of interconnected access between the two properties be dealt with through the OPA? Are the OPA and the ZBA premature?

91This issue speaks to the particular nature of Lammer’s Appeal. Lammer’s position was that the laneway is in the public interest. Thus, Lammer requested that the Tribunal not approve either instrument on the basis of prematurity, or to exercise its authority under s. 16 of the Act and approve only the OPA but direct that it be modified to include provisions regarding the issue of interconnected access and cost-sharing on a fair and equitable basis. Lammer submitted that:

a. Amending the OPA to include provisions regarding interconnected access would remove any discussions regarding whether there is authority to impose a Holding Provision under s. 36 of the Act. There is no doubt, according to Lammer’s Counsel, that s. 16 of the Act provides the authority to include such provisions, because an OPA can include a description of the measures and procedures to attain goals, objectives, and policies to manage physical change (in accordance with s. 16(2) of the Act).

b. As stated in the PPS, municipal official plans are the “most important vehicle for implementation of provincial policy.” This is a circumstance that requires the Tribunal to use that “most important vehicle” to ensure provincial interests in orderly development and good community planning are implemented.

c. This issue is so significant and in the public interest that the Tribunal should not take a risk on it. By modifying the OPA to ensure interconnected access and clarify cost-sharing issues, before any additional approvals can be granted, the principle of the proposed use would be settled.

d. If interconnected access is only secured by way of a Holding Provision in the ZBA, Lammer will not be involved, and it will be left only between the City and Blacks Point to determine how the Holding Provision is addressed. Lammer must be involved, however, because it needs to participate in discussions around fair and equitable cost-sharing.

92The Tribunal is not persuaded that this matter needs to be codified in the OPA. The Holding Provision sufficiently addresses what is required here. Moreover, the Tribunal agrees with Mr. McDonald’s testimony and the City Counsel’s submissions that the approval of the OPA and the ZBA are not dependent on the access issue. In other words, the access issue does not impact whether the OPA and ZBA meet the legislative tests for approval. Also, the OPA and ZBA approvals in and of themselves do not have an impact on the potential for access to be provided to the Lammer Lands across the Subject Lands. Thus, the Holding Provision is the correct mechanism by which to achieve this end.

93With respect to the position that the OPA is required to ensure the implementation of provincial interests, the Tribunal finds, as explained in detail above, that the Holding Provision already does that. Additionally, the Tribunal does not find that it is putting the public interest at risk by approving the ZBA with the Holding Provision, rather than modifying the OPA. The Holding Provision achieves the end it seeks. Lastly, with respect to Lammer being unable to get involved in the removal of the Holding Provision, the Tribunal trusts that the City will advance the interest of its public, including Lammer, as it has done so at this Hearing. Moreover, where discussions of costs are involved, the Tribunal trusts that Blacks Point will communicate with Lammer directly to receive proportionate costs. It is unlikely that a Party will not pursue receiving costs from another Party. Thus, Lammer will likely not be excluded from discussions that involve it paying Blacks Point for its proportionate costs.

94There is obvious planning merit to both the OPA and the ZBA as confirmed by all the witnesses at this Hearing. The Tribunal will not take the step of not approving these instruments. Rather, the Tribunal will approve them in the form that Council did, as that resolves the problem that required this Hearing.

Are the OPA and the ZBA Premature?

95Lammer’s overall Appeal related to the entire OPA and ZBA, submitting that both were premature and should not be approved until it was confirmed that Blacks Point’s proposed development would not impact the development potential of its lands.

96On this point, the Tribunal agrees with Blacks Point that the development potential of the Lammer Lands has not been established. While the Lands have been designated as appropriate for development, numerous technical studies are required. Moreover, other than the access issues, it was not established at the Hearing how the Blacks Point development would adversely impact a potential Lammer development. The Tribunal was not convinced that it would do so.

97Lammer had also raised the issue, on the Issues List, of whether the proposed development is appropriate from a traffic and safety perspective without a second access point (since the development proposal has only one access point). The Tribunal was convinced by the evidence at the Hearing, as testified to by Mr. Philips, Mr. Nolet, and Mr. Brook, that the access to the Subject Lands was adequate, and a secondary access point was not required. In fact, Mr. Nolet testified that, with respect to safety measure relating to the rail crossing, the access exceeds what he believes to be necessary. Ultimately, the Tribunal finds that the proposed development’s access arrangements constitute good planning.

98Thus, the Tribunal finds that the OPA and ZBA are not premature, and agrees with the witnesses from Blacks Point and the City that the instruments warrant approval.

DISTINGUISHING SOME OF THE CASES RAISED BY THE APPLICANT

99Blacks Point relied on a number of cases in support of its position.

100Blacks Point’s Counsel referred to Dunpar Developments Inc. Re 2007 CarswellOnt 5769 (Ont. Div. Ct.) (“Dunpar Case”), where the Divisional Court agreed (at paragraph 16) with the principle finding of the OMB. The Divisional Court phrases that finding at paragraph 13, as follows:

13 The Board held that the imposition of conditions on one private landowner to provide guarantees or assurances to another private landowner for future development of its lands is both unreasonable and without planning justification.

16 …I am of the view that the Board’s decision is correct.

101The Dunpar Case is a Divisional Court case and therefore binding on the Tribunal. Blacks Point used this case to argue that the Tribunal could not impose such conditions and it would be unreasonable to do so. It should be noted, as Lammer’s Counsel pointed out, that the principal quoted above does not specifically state that the Tribunal does not have jurisdiction to impose such a condition. Rather, it says that imposing such a condition is bad planning and unreasonable. Regardless, the Tribunal wholeheartedly agrees with the principle. In this subject case, however, the Tribunal is not imposing a condition on a private landowner for assurances to another private landowner. Rather, the Tribunal is imposing a Holding Provision whose purpose is to ensure a safe two-way access road is available for public use, including the public who may one day live on the Lammer Lands. For clarity, in the Dunpar Case, the issue before the Tribunal was whether a condition should be imposed on a private developer to benefit another developer’s future development of its lands. In this case, the issue is whether the City’s imposition of a Holding Provision to have an existing Easement realigned is appropriate. In the Dunpar Case, the condition to be imposed was the granting of an Easement. In the current case, the Easement already exists. In the Dunpar Case, the Municipality took no position before the Division Court. In this case, it is the City who is seeking the Holding Provision, and it is the City with whom the Tribunal agrees. The principle stated in the Dunpar Case is why the Tribunal is not Ordering the relief that Lammer is seeking.

102Additionally, as the City’s Counsel pointed out, the Dunpar Case is a s. 51 decision pertaining to appropriate Draft Plan of Subdivision Conditions, where preparing appropriate lands was not something within the purview of the Act. In this case, it is s. 36 of the Act that applies, which enables the creation of Holding Provisions if grounded in the OP, such as in the subject proceeding.

103Blacks Point’s Counsel then relied heavily on 2589618 Ontario Inc. and 2613598 Ontario Inc. v. Guelph (City), 2024 CanLII 38869 (ON LT) (“Exquisite Case”), stating that this case is directly on point and provides the blueprint the Tribunal should follow here. In that case, the issue was whether the approval of Exquisite’s proposed development would preclude the future development of lands of the neighbouring developer, Fusion, and whether that was contrary to principles of good planning and Provincial and local policies with respect to the efficient and optimal use of land.

104First, this is a Tribunal decision and is not binding on the Tribunal. Second, the Tribunal distinguishes it from the present case as follows:

EXQUISITE CASE	PRESENT CASE
The City had refused the ZBA.	The City has approved it with a holding provision.
The City ultimately withdrew its objection to the ZBA entirely.	The City has maintained that the Holding Provision is necessary.
The proposal was adjacent to a Natural Heritage System, including a Provincially Significant Wetland.	The proposal and the Lammer Lands are in a Regeneration Area primed for development.
The issue before the Tribunal was: “…whether approval of the proposed development and implementing ZBA would preclude the future development of Fusion’s lands, contrary to principles of good planning and Provincial and local policies which speak to the efficient and optimal use of land.”	The issue is whether the Holding Provision is supported by the OP and whether it is good planning. It is not whether the future development of the Lammer Lands would be precluded if the Holding Provision is removed. The development of the Lammer Lands was raised as something that is in the City’s interest. However, it was not the issue before the Tribunal the way that it is in the Exquisite Case.
Fusion’s land-locked condition was a result of its own doing, a result of the approval of a prior development application and conveyance of land to the City. The approval of Exquisite’s application did not create that condition. The planner in support of Exquisite’s proposal opined that Exquisite should not be obligated to remedy the land-locked situation by ensuring that Fusion will have a right of access through Exquisite’s lands.	Lammer is landlocked because of an agreement that was made years ago under different safety and transportation guidelines when the Easement was created. The landlocked nature was created due to the splitting of the lands and an Easement was put in place to prevent that specifically. This Holding Provision simply speaks to the intent of the original Easement – namely that safe and proper access be provided to the Lammer Lands. The Tribunal is not creating the Easement here. Rather, it is maintaining the original purpose of the Easement that had been created.
No plan was in place for any potential access points other than through Exquisite.	All experts indicated that if Lammer is to be developed, a second access point is needed, and that access point would be beneficial to both Lammer and Blacks Point, and these multiple access points would ultimately be in the public interest.
The most and detrimental distinguishing factor between the two cases is that Fusion was asking the Tribunal to grant an easement. In fact, it is stated at paragraph 12 of the Fusion case: While it was acknowledged that the Tribunal lacks jurisdiction to grant an easement over the Subject Properties, counsel for Fusion argued that the Tribunal does have the jurisdiction and the responsibility, to ensure orderly development and good planning. To that end, he requested the Tribunal approve the proposed ZBA, subject to the imposition of a Holding symbol (“H”) requiring Exquisite to coordinate its development with the development of Fusion’s lands. Suggested scenarios for achieving such coordination include the private granting of an easement in favour of Fusion, revisions to the proposed layout of the Subject Properties to allow for mutual access, or some other solution permitting the collective development of both Fusion’s and Exquisite’s lands.	An Easement already exists. The Tribunal is not being asked to grant an Easement. The City is asking the Tribunal to put a Holding Provision on the ZBA until the issue of access is addressed. This – namely, whether a Holding Provision should be imposed on the ZBA – is within the jurisdiction of the Tribunal. The Tribunal need only find that it is supported by statute, which it is in this case. Of note, Lammer is asking the Tribunal to stray beyond that limited jurisdiction, which the Tribunal is not prepared to do and has not done in this case. There was also no suggestion that a solution be achieved to allow for the collective development of both Lammer and Blacks Point lands. This development is entirely Blacks Point’s development. The City has determined that for the orderly development of the Municipality and good planning, this right of way must be realigned. The Tribunal agrees.
At paragraph 13, Exquisite’s concern is noted as follows: It was argued that Fusion’s requested H is simply an attempt to accomplish indirectly what it cannot otherwise accomplish directly, given that the endgame of any Tribunal-ordered coordination would be a requirement for Fusion and Exquisite to enter into a private agreement whereby Exquisite either provides an easement in favour of Fusion, or purchases the lands currently owned by Fusion.	This is the crux of Black’s Point argument, namely that the Holding Provision requires an agreement between it and Lammer, and the Tribunal lacks the jurisdiction to force such an agreement. The difference, however, is that the City supported Exquisite’s proposal, and it was indeed another private landowner that was spear-heading the Holding Provision. In this current case, it is the City who is spear-heading it and with whom the Tribunal agrees. The City is required to consider its Municipality as a whole and make decisions that ensure its orderly development. In this case, the City deemed it necessary to impose the Holding Provision. The Panel, who sat through the Hearing but also managed this case through Case Management Conferences prior to the Hearing, agrees with the City that in this case, for the orderly development of the Municipality, it is necessary for this Holding Provision to be applied here. As a result, the Tribunal is not mandating a private agreement between two land-owners, as was the case in Exquisite. Rather, the Tribunal is requiring the developer to work with the City to ensure the orderly development of the Municipality. Again, it is noted that Lammer had requested the OPA be revised, which is not being granted here. The fact that the Tribunal is not mandating a private agreement between two Parties is confirmed by Lammer’s position that imposing the Holding Provision instead of amending the OPA would eliminate it from being involved in the process of removing the Holding Provision as it would be only between the City and Blacks Point.
No evidence was led in support of the position taken by Fusion, which presented its case solely through submissions and cross-examination of the witnesses called by the Appellant and the City. The only evidence before the Tribunal was that the ZBA, as is, was appropriate, met the legislative test, and was good planning.	The Tribunal was provided with ample land-use planning and transportation evidence in support of the position that realigning the right of way would be good planning and that the Holding Provision is appropriate, supported by statute, and in the public interest.
There were significant natural heritage considerations at play. As a result, the site layout for the proposal had been developed with careful consideration and strategic placement of the proposed built forms (taking mitigation measures into consideration). Fusion was asking for revisions to the proposed development and layout to allow mutual access, without presenting any evidence that revisions would be feasible or appropriate (in fact, the land use planning evidence suggested that “only very slight adjustments might be possible” [paragraph 23]). It was demonstrated that the Holding Provision would have the effect of delaying or impeding the efficient use of Exquisite’s lands, requiring revisions and updated studies.	Evidence was not provided that any revisions to the Blacks Point development proposal is required. In fact, the evidence demonstrated that the realigned access point is going to be used as an access point regardless of the Tribunal’s decision. (The Blacks Point development requires a minimum 6 m-wide paved laneway extending across the front of the historic Textile Factory.) No physical changes to what Blacks Point requires for its own development would be needed to accommodate the interconnected access with Lammer. It has not been demonstrated that the Holding Provision would have the effect of delaying or impeding efficient use of Blacks Point’s lands.
The issue was whether the approval of the proposal would preclude Fusion’s ability to develop its lands.	That is not the issue here.
The only planner at the Hearing opined that Fusion’s lands are designated within the OP as a combination of Low Density Greenfield Residential and Significant Natural Areas & Natural Areas, and are zoned Urban Reserve. This posed problems regarding whether the Fusion property was developable.	It was agreed amongst the experts that the Lammer lands are considered for development based on their designation in various provincial and municipal policies. Of note, as the City’s Counsel pointed out, s. 36 of the Act and s. 10.7(e) of the OP do not require that it be shown that the Lammer Lands are developable. The interconnected access discussed in s. 10.7(e) does not need to be to a developable land.
Technical studies would be required to determine “whether interconnectivity with Exquisite’s development makes sense.”	From the very creation of these two plots of land, interconnectivity was a fact of their existence. An Easement was put in place for specifically that purpose. As a result, no studies are required to understand that this is a fundamental fact of the existence of these two properties.
There is no analysis of any OP policies that may or may not enable the Holding Provision (as required by s. 36 of the Planning Act).	Extensive evidence was provided at the Hearing regarding the Act and the OP enabling the Holding Provision.

105Blacks Point argued that the Exquisite Case provides an outline to the Tribunal that it cannot make a decision here as it is outside its jurisdiction to mandate an agreement between two landowners. However, at paragraph 36 of the Exquisite Case, the Tribunal stated: “Based on the available evidence, the Tribunal finds an H is neither appropriate nor necessary to ensure efficient/optimal use of lands and good planning.” Thus, the Tribunal DID make a decision on the H, and is doing so again in this subject case. As the factual circumstances are different in this case than in the Exquisite Case, the Tribunal finds that a Holding Provision is both appropriate and necessary to ensure efficient / optimal use of the lands and good planning.

106Blacks Point’s Counsel also referred to the Tribunal decision of High Meadow Ltd. v. Cambridge (City) 1999 CarswellOnt 5277 (“High Meadows Case”), wherein the City sought to impose condition, under s. 41(7) of the Act, to require the property owners to provide an interconnection with adjoining properties to the north and to the south, via its side yards. In that case, it was found, at paragraph 8, that:

…there is nothing contemplated within the confines of section 41(7) of the Planning Act that specifically requires the free giving of a right-of-way to adjoining properties that are privately owned. While in planning terms and from a traffic planning perspective the interconnection may make good sense, issues of jurisdiction and property rights must take a superior position in this regard.

[Emphasis added by Tribunal.]

107This case is distinguishable from the present case. First, the High Meadow Case is a s. 41(7) appeal (Site Plan Agreement), while Black’s Point’s Appeal is a s. 34(19) one (ZBA). In this case, it was shown how the Act and the OP support the inclusion of the Holding Provision. Second, as stated in paragraph 9 of the High Meadows Case, the OMB was not provided with evidence regarding the necessity of the interconnection “for emergency purposes or to provide an easement for a right-of-way for municipal services and no claim for possessory title was advanced on behalf of the municipality or the adjacent owners.” In the present case, the Tribunal heard evidence that a realignment was necessary for emergency access, an Easement already exists, and the ownership of the Easement is shared. Of note, the City’s Counsel pointed out that the High Meadow Case demonstrates that one cannot achieve a realignment of an Easement through the Site Plan process, contrary to Blacks Point’s position at this Hearing. The Tribunal agrees.

108Black’s Point’s Counsel relied on Erin Mills Development Corp. v. Peel (County) Board of Education, 1988 CarswellOnt 3445 and Georgina (Township) Zoning By-law 911-86-336, Re, 1986 CarswellOnt 6139, for the principle that the imposition of a condition with adverse financial consequences, whether in the form of required conveyances or otherwise, must be expressly set forth in the Act in the clearest of terms. He also referred to the Supreme Court of Canada case of Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36 for the principle that statutes must not be interpreted as providing the ability to take away property without compensation absent clear language.

109In this case, it was not shown that imposition of the Holding Provision would lead to adverse financial consequences for Blacks Point. Blacks Point did not demonstrate how or what adverse financial consequences it would suffer. In response to the Tribunal’s question, Black’s Point’s Counsel stated that some of the uses for the Easement that were being discussed would not be in the interest of the Subject Lands. However, it was not shown what uses or in what way they would cause adverse consequences. Thus, the Tribunal is persuaded by the evidence provided that it would be cost-effective and more efficient for all Parties involved to maintain the Holding Provision. This has been discussed above at paragraphs [81] to [89] of this Decision.

110Blacks Point argued that the City is attempting to grant another commercial Party an undue benefit, which is specifically prohibited by s. 106 of the Municipal Act, 2001, and by the binding Court of Appeal case of Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273 (“Friends Case”) at paragraph 49. At this Hearing, it was not demonstrated how Lammer would get an undue benefit, nor was it demonstrated that the City was unduly favouring Lammer. Rather, the City’s position was that the realigned access would be in the interest of its public. The Tribunal has found that the citizens of the City as a whole would benefit from the Holding Provision, not simply Lammer, the private developer. In fact, the Tribunal is persuaded that Blacks Point itself may benefit from the Holding Provision. Thus, no “undue benefits” (or “unmerited windfall,” as stated at paragraph 49 of the Friends Case”) exist here.

111Blacks Point’s Counsel also discussed the jurisdiction of the Tribunal on holding a development until a certain condition had been complied with. Here, he used the example of a School Board requiring a condition where the transfer of a school block had been confirmed before the development could proceed. In the case of Brian Domm Farms Ltd. v. Cambridge (City), 2018 CarswellOnt 12634 (“Brian Case”), it was found that the Tribunal had “no jurisdiction, or appetite, to enter into the domain of the negotiation of terms relating to the acquisition of the school site block” (paragraph 106). However, the Tribunal is not entering those negotiations in this case. It is imposing a Holding Provision that is supported by the Act and the OP. The Parties are left to engage in those negotiations on their own. Moreover, unlike the Brian Case, it has not been shown that the imposition of this Holding Provision would cause an indeterminate hold on the development. Rather, based on the evidence and the conduct of the Parties, the Tribunal has been persuaded that not having the Holding Provision would lead to that result and make the process more inefficient. For example, as discussed above and expressed by the City, not having the Holding Provision would likely lead to a disputed Site Plan process and the possibly of another appeal before the Tribunal.

SUMMARY AND CONCLUSION

112For the reasons outlined above, the Tribunal finds as follows on the issues discussed at the Hearing:

a. Is the Holding Provision appropriate and supported by the OP policies? The Tribunal finds that it is appropriate and supported by the OP.

i. What is the reason that the Holding Provision is required? There is a pinch point in the current Easement, caused by the location of the Heritage building (Textile Factory), that does not allow for safe two-way traffic. It needs to be realigned to be at least 6 m wide and allow for legal two-way access to the Lammer Lands.

ii. Can a Holding Provision be imposed in these circumstances? S. 36 of the Act allows for Holding Provisions if the OP supports them. In this case, the OP allows for Holding Provisions that have to do with interconnected access (s. 10.7(e)). The Tribunal finds that the proposed Holding Provision meets this specific definition, and is supported by the OP and therefore the Act.

iii. Can the problem giving rise to the Holding Provision be dealt with at the Site Plan stage? In this case, Council of the City determined that it could not leave this issue to be dealt with at the Site Plan stage. It made this decision based on its knowledge of the Parties involved as well as the needs of the City as a whole. In agreeing with Council, the Tribunal has regard for Council’s decision and the information before it (which is part of the legislative test for approval of a ZBA). Moreover, based on the Hearing itself and the information presented by the Parties, the Tribunal is persuaded that addressing this matter by way of a Holding Provision is more cost-effective, efficient, and beneficial.

iv. Is the language of the Holding Provision clear or is modification required? Moreover, should a phased approach for the development be imposed? The language of the Holding Provision is clear as it outlines what is required to be done without imposing a specific solution on Blacks Point. A phased approach for the development is not necessary as the Holding Provision can achieve the desired end without unreasonably holding up the entire development.

b. Is the Holding Provision good planning and in the public interest? The Tribunal finds that it is good planning and in the public interest, including the Parties involved in this Appeal.

i. Is the Holding Provision in the broader public interest as it allows for coordinated planning for growth? The Holding Provision allows for consideration of both the Subject Lands and the Lammer Lands, and the projected growth needs of the City. In this way, it is consistent with the policies of the PPS and conforms with the policies of the Growth Plan and the City’s OP. Moreover, it allows for improvements to the City’s transportation system.

ii. Is the Holding Provision an easy solution to a well-recognized problem? It is an easy solution. The Easement already exists and there is a Heritage building that has now caused a pinch point problem. The solution of realignment is the easiest and most efficient solution to this problem.

iii. Does the Holding Provision minimize costs and delays, and provide long term benefits for the City as well as the individual land-owners involved? The Holding Provision minimizes costs as it allows for a cost-efficient solution to a well-recognized problem. Other solutions would likely be more costly. The Holding Provision allows for solutions between the Parties that involve cost-sharing or conveyance of land to Blacks Point. Realigning the access would provide for a more efficient transportation system for the City and its public.

c. Does the Holding Provision achieve its end or should the issue of interconnected access between the two properties be dealt with through the OPA? Are the OPA and the ZBA premature? The Holding Provision achieves its end and it does not need to be dealt with in the OPA. Moreover, the OPA and ZBA are not premature.

113Overall, with respect to the OPA and the ZBA, the Tribunal is persuaded by the numerous witnesses that these instruments, and the development they facilitate, meet the legislative tests, are good planning and in the public interest, and warrant approval.

ORDER

[114] THE TRIBUNAL ORDERS that:

a. The Appeal by Blacks Point Development Inc., pursuant to s. 34(19) of the Planning Act (“Act”) is dismissed, and the City of Cambridge (“City”) Zoning By-law No. 22-050 remains in effect.

b. The Appeal by 742824 and 742825 Ontario Ltd. (Lammer Development Group) of the City’s Official Plan Amendment No. 52, pursuant to s. 17(36) of the Act, is dismissed.

c. The Appeal by 742824 and 742825 Ontario Ltd. (Lammer Development Group) of the City’s Zoning By-law No. 22-050, pursuant to s. 34(19) of the Act, is dismissed.

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“S. Bobka”

S. BOBKA 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.