Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 19, 2024 CASE NO(S).: OLT-24-000834

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Losani Homes 1998 Ltd. Subject: Consent Description: To modify a condition to permit the development of a single-detached lot. Reference Number: B27-2024 Property Address: 463 Blackburn Drive Municipality/UT: City of Brantford OLT Case No.: OLT-24-000834 OLT Lead Case No.: OLT-24-000834 OLT Case Name: Losani Homes 1998 Ltd. v. Brantford (City)

Heard: October 28, 2024, by video hearing

APPEARANCES:

Parties	Counsel
Losani Homes (1998) Ltd.	William Liske
City of Brantford	Geoff Daley

MEMORANDUM OF ORAL DECISION DELIVERED BY GEORGE POLITIS ON OCTOBER 28, 2024, And ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was originally scheduled as a hearing to consider a settlement. The Hearing is for an appeal relating to the application for provisional consent (“Consent”) pursuant to s. 53(19) of the Planning Act (“Act”), to modify a condition to permit the development of a detached lot resulting in the denial at the Committee of Adjustment (“CoA”), in the city of Brantford (“City”). The appeal has been filed by Losani Homes (1998) Ltd. (“Applicant”) regarding the property located at 463 Blackburn Drive, Brantford (“Subject Property”).

PROPERTY OVERVIEW

2The Subject Property is located in the City on the west side of Blackburn Drive and has approximately 20.59 metres (“m”) of frontage on Blackburn Drive. The site area of the Subject Property is approximately 2,011 square metres (“sq m”). It is currently vacant and graded for development. The surrounding land uses in the immediate area include:

• To the north – single detached residential and vacant lands proposed for residential development;
• To the east – low rise, single detached residential;
• To the west – vacant lands; and
• To the south – low rise, single detached residential.

3There were no further Party requests.

4The Parties agreed that the proposed Consent is to be assessed under s. 53(19) of the Act and have agreed to resolve the appeal as set out in the minutes of settlement (“MOS”).

APPROVED CONDITIONS

5The conditions that were approved by the CoA on July 3, 2024, regarding this Consent application, B27-2024, are as follows:

1. Receipt of a registered reference plan showing the severed and retained parcels.
2. Receipt of a draft Transfer Deed for review (upon registration a final copy of the transfer deed shall be provided to the City), to the satisfaction of the Manager of Development Planning.
3. Receipt of confirmation that all taxes are paid up to date, to the satisfaction of the Manager of Development Planning or their designate.
4. Receipt of payment for cash-in-lieu of parkland (amount to be determined in accordance with City of Brantford By-law 139-2022).
5. Receipt of confirmation from the Manager of Development Engineering, or his/her designate, indicating that the deposited reference plan showing the severed and retained parcels of land has been received.
6. Receipt of confirmation from the Manager of Development Engineering, or his/her designate, indicating that a Wastewater Allocation Request Form has been submitted and approved.
7. Receipt of confirmation from the Manager of Development Engineering, or his/her designate, indicating that a Municipal Numbering Assignment Request Form to assign a municipal address number to the severed and/or retained parcel(s) has been submitted.
8. The Applicant shall provide a Servicing Plan to the satisfaction of the Manager of Development Engineering or his/her designate and the Manager of Capital and Development, Environmental Services, or his/her designate, indicating that the severed and retained parcels have been independently serviced with a sanitary and storm sewer connection, and that these services do not cross the proposed severance line and are connected directly to City infrastructure.
9. The Applicant shall provide a Grading and Drainage Plan prepared by a qualified Engineer, licensed in the Province of Ontario, to the satisfaction of the Manager of Development Engineering, or his/her designate.
10. The Applicant will be required to obtain a Right-of-Way Activity Permit prior to commencing any work within the City’s Road Right-of-Way.
11. The Applicant shall be responsible, financial and otherwise, to construct and/or restore the City’s Right-of-Way across the frontage of the severed and retained parcel to the satisfaction of the Manager of Development Engineering, or his/her designate.
12. Receipt of confirmation from the Manager of Development Engineering, or his/her designate, indicating that the above ground and below ground services of the Brantwest Phase 1 Subdivision have final assumption by the City.
13. That the above conditions be fulfilled, and the Certificate of Consent be issued on or before July 5, 2026, after which time the Consent will lapse.

PROPOSED CONSENT

6The proposed Consent application approved by the CoA, subject to the 13 conditions, were to permit the following:

• The severance of a parcel of land with a lot width of 10.29 m, and an area of 391.15 sq m. The retained lot would have a width of 10.30 m and an area of 1,620.30 sq m; and
• The creation of a residential lot for the construction of a single detached dwelling on the severed parcel (See location map below at paragraph [10]).

LEGISLATIVE TESTS

Consent to Sever

7As this is a Hearing de novo, in order to determine whether the revised condition of Consent is reasonable and appropriate for the nature of development pursuant to s. 51(25) of the Act, the Tribunal must:

I. Address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the City, and can proceed by way of application for Consent;

II. If the Tribunal is satisfied that a plan of subdivision is not necessary, s. 53(12) requires that regard be given to the criteria set out in s. 51(24) of the Act, which includes, inter alia: that the proposed Consent has regard to the effect that the Consent will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed Consent is premature or in the public interest; whether the Consent conforms to applicable Official Plans, which in this instance, is the Quinte West City’s Official Plan (“OP”); the suitability of the land for the purposes for which it is to be subdivided and the dimensions, and shapes of the proposed lot, and the adequacy of utilities and municipal services;

III. As required by s. 3(5) of the Act, be satisfied that the approval of the proposed provisional Consent is consistent with the Provincial Policy Statement, 2024 (“PPS”) and conforms to applicable provincial plans;

IV. Have regard to the decision of the Approval Authority relating to the Consent application that is before the Tribunal and the information and material that was before the Approval Authority in making the decision;

V. Under s. 53(12) of the Act, the Tribunal may consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed Consent, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and

VI. Whether the giving of provisional Consent to the Applicant, with any required conditions, represents good planning and is in the public interest.

HEARING EVIDENCE AND SUBMISSIONS

8The following were marked as Exhibits for the Hearing:

• Exhibit 1 – Affidavit of Dave Aston;
• Exhibit 2 – Minutes of Settlement; and
• Exhibit 3 – Acknowledgment of Expert’s Duty Form.

9Mr. Dave Aston was affirmed by the Tribunal following a careful review of his Curriculum Vitae and Acknowledgement of Expert’s Duty. Mr. Aston’s opinion evidence was presented by both Parties.

ANALYSIS AND DISPOSITION

10Mr. Aston provided the Tribunal with a high-level overview of the appeal and shared the overall description of the Subject Property and its current zoning. He went on to say that the provisional consent includes 13 conditions to be satisfied prior to final approval and legal severance of the lands. Mr. Aston stated that Consent condition No. 12 has been appealed and reads as follows:

• Receipt of confirmation from the Manager of Development Engineering indicating that the aboveground and belowground services of the Brantwest Phase 1 Subdivision have final assumption by the City of Brantford.

The Subject Property is zoned Residential Type 1D, Exception 6 (R1D-6) Zone in the Zoning By-law (“ZBL”) permitting the proposed single detached dwelling use on the Subject Property (See location map below).

11Mr. Aston’s evidence included all conditions that were supported by both the City and the CoA. As part of the settlement reached with the City, a revised modification to replace condition No. 12 has been agreed to and is included as Attachment 1 to this Order, and reads as follows:

No. 12. Receipt of formal acknowledgement from the Applicant acknowledging that the terms and conditions of the Brantwest Phase 1 Subdivision Agreement registered on April 20, 2021, continue to apply in full force and effect to both the severed and the retained lots. If any portion of the severed or retained lots is subsequently approved for development under Brantford Planning Application File No. PZ-13-24, or OP-01-24, 29T-16502 or if applicable a case number assigned by the Ontario Land Tribunal the terms and conditions of the Brantwest Phase 1 Subdivision will no longer apply to those portions of the Severed and retained lots.

12The witness went on to say that the difference between the original condition No. 12 and the modified condition is to recognize that the retained land is under an application within the larger plan of subdivision, which may result in the subdivision agreement needing to be modified, or a new or supplemental agreement being required, where site works may need to be deferred. Mr. Aston testified that the reason(s) for approval of B27-2024 are as follows:

• Having regard for the matters under s. 51(24) of the Act, City staff is satisfied that the proposed Consent application is desirable and compatible with the surrounding area, and will not result in adverse impacts on surrounding properties.

13Mr. Aston testified that the Application has regard to the provisions of the Act, including the criteria for plan of subdivision, as set out in Section 51(24) of the Act. Mr. Aston went on to say that s. 51(25) of the Act provides for an approval authority to impose such conditions to the approval of a plan of subdivision, or consent, and in his opinion the Approval Authority is reasonable, having regard to the nature of the development proposed for the subdivision.

14Mr. Aston stated that he reviewed the revised condition No. 12, as agreed to in the MOS, and in his professional opinion, it is reasonable and appropriate for the nature of development and provides for the necessary detailed plans and agreements for the development of the Subject Property. He went on to say that the revised condition No. 12 allows for the terms and conditions of the Subdivision Agreement to continue to apply, and for the lot to be created prior to fulfilment of the conditions of the agreement. He stated that the revised condition No. 12 does not impose any undue delay on the clearance of the conditions and final approval of the Consent.

15In his overall professional opinion, Mr. Aston testified that the nature of development proposed through the provisionally approved Consent application is maintained with the revised condition No. 12.

Provincial Planning Statement, 2024

16Mr. Aston explained that the PPS applies to planning decisions made on or after October 20, 2024. As a result, the PPS is applicable.

17Mr. Aston testified that the Subject Property is located within a settlement area. which shall be the focus of growth and development, and that the Consent application provides for development within a settlement area. He went on to say that the PPS provides policy direction for planning authorities to provide for a range and mix of housing options to meet projected needs of current and future residents. He stated that the Consent application provides for an additional residential unit in an area of residential development.

18In his testimony Mr. Aston went on to say that the PPS promotes housing densities which efficiently utilize land and resources, and optimize existing and planned infrastructure. Mr. Aston testified that the development proposed will provide for an increase in housing density on the lands which are serviced by municipal infrastructure.

19Mr. Aston stated that the Consent application and revised condition No. 12 are consistent with the PPS, including but not limited to Policies 2.2.1 and 2.3.1.2 of the PPS.

20In his overall professional opinion, Mr. Aston stated that the Consent application and revised condition No. 12 are consistent with the PPS.

City of Brantford Official Plan

21Mr. Aston explained that the City Official Plan (“COP”) came into effect on August 5, 2021. He went on to say that the Subject Property is located within a settlement area designated Neighbourhoods on Schedule 1 – Growth Management of the COP, and designated Residential on Schedule 4 of the COP. He went on to say that the Neighbourhoods and Residential designations permit residential units, including single detached dwellings, and that the proposed development of a single detached dwelling is permitted on the Subject Property and conforms to the permitted uses of the OP.

22In his professional opinion, Mr. Aston testified that the Consent application conforms to the COP.

City of Brantford Zoning By-law

23Mr. Aston stated that the City Zoning By-law (“ZBL”) No. 160-90 was enacted by City Council on October 9, 1990. He explained that the Subject Property is zoned Residential Type 1D, Exception 6 (R1D-6) Zone in ZBL No. 160-90, which permits the proposed single detached dwelling use on the Subject Property. The R1D-6 Zone requires a minimum lot area of 250 sq m, and minimum lot width of 9 m. Mr. Aston testified that the lot area and lot width of the severed and retained lands on the Subject Property, conform to the provisions of the R1D-6 Zone.

24In his professional opinion, Mr. Aston stated that the Consent application conforms to ZBL No. 160-90.

25Mr. Aston testified that the Consent application has regard to the Act and regard to matters of provincial interest, is consistent with the PPS, conforms to the COP, and maintains the intent of ZBL No. 160-90. In his professional opinion, he stated that the revised condition of Consent is reasonable and appropriate for the nature of development pursuant to s. 51(25) of the Act. He went on to say that the Consent application efficiently uses existing and planned infrastructure, provides for the orderly development of safe and healthy communities, and assists in the adequate provision of a full range of housing in an area planned for growth.

FINDINGS

26The Tribunal is satisfied with the uncontroverted evidence provided by Mr. Aston, through his written and oral testimony, that the proposed Consent, with the modified replacement of condition No. 12, have satisfied the legislative tests identified under ss. 53(1), 53(12), and 51(24) of the Act.

27The Tribunal accepts the evidence of Mr. Aston that the proposed Consent has regard to the effect that the Consent will have on matters of provincial interest set out in s. 2 of the Act, in particular;

(I) Through development utilizing existing municipal services, including municipal sewage, water, wastewater, and waste management systems;

(II) The orderly development of safe and healthy communities through modestly increasing density by way of one additional lot;

(III) The adequate provision of full range of housing through additional residential units and multi generational housing, increasing home ownership opportunities, and increasing new rental housing opportunities; and

(IV) The promotion of development that is designed to be sustainable, to support public transit and be oriented to pedestrians as the development site is located on a local road within proximity to collector roads and walking distance to connected transit and transportation infrastructure.

28The Tribunal accepts the evidence of Mr. Aston that the proposed Consent is not premature and is in the public interest as it provides modest intensification to an existing subdivision through one additional lot.

29The Tribunal accepts the evidence that the proposed Consent conforms with the policies and has regard for the intent of the COP, and the suitability of the land, and the purposes for which it is to be subdivided. According to the COP the Subject Property is located in an Urban System, where population growth and development are to occur. Regard has also been given to the suitability of the dimensions, the shapes of the proposed lot, and the adequacy of utilities and municipal services The proposed use also aligns with the Subject Property’s designation. Development of land is meant to be compact and efficient in form while maximizing available Municipal services to reduce overall costs, which aligns with the outcome of the proposed Consent.

30Accordingly, the Tribunal is satisfied that s. 3(5) of the Act establishes that the proposed Consent is consistent with the PPS and conforms with applicable provincial plans.

31The Tribunal acknowledges that proper regard has been given to the decision of the CoA relating to the proposed Consent application that is before the Tribunal and all the information and material that was before it.

32Finally, the Tribunal, under s. 53(12) of the Act, considers all the conditions collectively and individually. The Tribunal is satisfied with the modified condition No. 12 and the MOS to be reasonable, having regard to the nature of the proposed Consent as set out in s. 51(25) of the Act, and represents good planning in the public interest.

ORDER

33THE TRIBUNAL having been asked to consider an application that has been amended from the original application, and the Tribunal having determined as provided for in subsection 53(35.1) of the Planning Act that no further notice is required;

34THE TRIBUNAL ORDERS THAT the appeal is allowed, and that condition No. 12 to the decision of the City of Brantford Committee of Adjustment dated July 3, 2024, is amended, and replaces condition No.12 of the Provisional Approval (B27-2024), as set out in Attachment 1 to this Order.

“George Politis”

GEORGE POLITIS 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.

Attachment 1

Reference #12.

Condition Receipt of formal acknowledgement from the Applicant acknowledging that the terms and conditions of the Brantwest Phase 1 Subdivision Agreement registered on April 20, 2021, continue to apply in full force and effect to both the severed and the retained lots. If any portion of the severed or retained lots is subsequently approved for development under Brantford Planning Application File No. PZ-13-24, or OP-01-24, 29T-16502 or if applicable a case number assigned by the Ontario Land Tribunal the terms and conditions of the Brantwest Phase 1 Subdivision will no longer apply to those portions of the severed and retained lots.

Final Consent (City File B27-2024) is amended by replacing condition 12 with the following condition: