Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 13, 2024

CASE NO(S).: OLT-24-000366

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

Applicant/Appellant: Huntingwood Trails (Collingwood) Ltd.

Subject: Request to amend the Official Plan – Refusal of request

Description: To permit a 69-unit residential development

Reference Number: D0840223

Property Address: 5 Silver Creek Drive

Municipality/UT: Collingwood/Simcoe

OLT Case No: OLT-24-000366

OLT Lead Case No: OLT-24-000366

OLT Case Name: Huntingwood Trails (Collingwood) Ltd. v. Collingwood (Town)

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

Subject: Application to amend the Zoning By-law – Refusal of application

Reference Number: D0840223

Property Address: 5 Silver Creek Drive

Municipality/UT: Collingwood/Simcoe

OLT Case No: OLT-24-000367

OLT Lead Case No: OLT-24-000366

OLT Case Name: Huntingwood Trails (Collingwood) Ltd. v. Collingwood (Town)

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

Subject: Proposed Plan of Subdivision – Refusal of application by Approval Authority

Reference Number: D1201223

Property Address: 5 Silver Creek Drive

Municipality/UT: Collingwood/Simcoe

OLT Case No: OLT-24-000368

OLT Lead Case No: OLT-24-000366

OLT Case Name: Huntingwood Trails (Collingwood) Ltd. v. Collingwood (Town)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Collingwood (Town)

Request for: Request for Dismissal Without a Hearing

Heard: November 19, 2024, by Video Hearing

APPEARANCES:

Parties Counsel

Huntingwood Trails (Collingwood) Ltd. Kyle Gossen Susan Rosenthal Liam Valgardson

Town of Collingwood Steven O’Melia

County of Simcoe Will Thomson

DECISION DELIVERED BY KURTIS SMITH AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal convened and converted this Case Management Conference (“CMC”) to a Motion Hearing and deferred all other aspects of the CMC to a subsequent CMC if necessary.

2The Tribunal received a Notice of Motion (Exhibit 1a) from the Town of Collingwood (“Town”) to dismiss the appeals filed by Huntingwood Trails (Collingwood) Ltd. (“Huntingwood”) pursuant to subsection 19(1)(c) of the Ontario Land Tribunal Act, 2021, (“OLTA”) on the basis that they have no reasonable prospect of success. More specifically, the Town has two threshold concerns (1) the potential location of the Collingwood Bypass (Attachment 2 – potential bypass location) (“Potential Bypass”), and (2) the proposed road construction within the conservation authority regulated area.

3The Notice of Motion also includes an alternative request to phase the appeals so that the Official Plan appeal (“OPA Appeal”) and Zoning By-law appeal (“ZBA Appeal”) be addressed and decided by the Tribunal before determining whether it is necessary to consider the details of the proposed draft plan of subdivision (“DPS”).

4The Notice of Response to Motion (“Motion Response”) (Exhibit 3) by Huntingwood sought the following relief on the motion:

1. An Order dismissing the Town’s Motion in its entirety;
2. An Order scheduling a hearing on the merits of the appeals assigned OLT Case Nos. OLT-24-000366, OLT-24-000367 and OLT-24-000368 (the “Appeals”), without phasing;
3. An Order that, within 30 days of the Tribunal’s decision, the parties submit to the Tribunal an agreed-upon Procedural Order (“PO”) and Issues List (“IL”) or advise the Tribunal of their areas of disagreement regarding the PO and IL; and
4. Huntingwood’s costs of the Motion.

BACKGROUND

Appeals Before the Tribunal

5The appeals before the Tribunal would permit the development of a 69-unit residential development (Attachment 1 – draft plan of subdivision) on the land’s municipally known as 5 Silver Creek Drive (“Subject Lands”) in the Town, in the County of Simcoe (“County”). The three appeals are as follows:

1. Official Plan Amendment Appeal

• The OPA seeks to add permission to provide vehicular access and servicing from the portion of the Subject Lands to the west, which requires the construction of a new road and crossing through the watercourse and natural hazard area that separates the western and eastern developable portions of the Subject Lands. Through previous Tribunal Orders the Town’s Official Plan provides that the eastern portion of the Subject Lands may only be accessed from the abutting lands to the east.

2. Zoning By-law Amendment Appeal

• The ZBA seeks to rezone portions of the Subject Lands from Environmental Protection (EP) zone to various site-specific development zones, and to rezone the existing Rural (RU) zone to Environmental Protection (EP).

3. Plan of Subdivision Appeal

• The proposed DPS aligns with the OPA and ZBA to develop the Subject Lands with a 69-unit residential development, comprised of single detached dwellings on the western portion and semi-detached dwellings and street townhouses on the easterly portion.

6The Council of the Town refused the three applications based on the results of the initial technical review and the number of concerns raised that could impact the overall development, feasibility and design. Those concerns relate to natural heritage, natural hazard matters, and provincial transportation interests.

Motion Process Dispute – Ministry of Transportation Affidavit

7A dispute arose between the Town and Huntingwood regarding an affidavit and supporting materials that were supplied to the Town by the Ministry of Transportation (“MTO”) following the Motion response from Huntingwood.

8The Town explained that following the review of the Motion response the Town supplied the Affidavit of Alexander Fleming (Exhibit 5a), whom is Huntingwood’s transportation expert to the MTO. Mr. O’Melia, Counsel for the Town argued that the affidavit was opinion and not evidential facts and that there was incorrect information contained in the affidavit and as such provided it to the MTO. That action caused the MTO to gather, prepare, and submit the Affidavit of Jin Wang (Exhibit 9a) (together the “MTO Submission”), Team Lead and System Planning Branch of the MTO. The Town submitted that the Mr. Wang is not their expert, and that the Town did not request that an affidavit be supplied. Although he took the position that the response of the MTO is proper reply evidence to the Motion Response, is the most up to date information from the MTO regarding the Potential Bypass matter and should be accepted into evidence.

9Huntingwood argued that the MTO affidavit and supporting materials are not proper reply and should not be considered. Huntingwood stated that if the Town wished to include affidavit materials from the MTO that they should have included those in the Notice of Motion.

10In addition to the above, the Town and Huntingwood already scheduled cross examinations scheduled for their witnesses. The MTO Submission was supplied the morning prior to the commencement of those cross examinations. However, Mr. Wang was cross-examined by Huntingwood on a without prejudice basis as they submit, that Mr. Wangs Affidavit is improper reply and should not be admitted as evidence.

11The Tribunal considered the submissions of the Town and Huntingwood and accepted the MTO Submission into evidence for the following reasons: (1) section 18 of OLTA, provides the Tribunal discretion to require a party to produce evidence, or require a person other than a party who has made submissions to produce evidence, (2) the Tribunal’s interest and value in hearing necessary information and the best information to resolve an issue, and the MTO position directly addresses the Potential Bypass transportation issue, and (3) Huntingwood had an opportunity to review the reply evidence, are able to address it in their oral submissions, and had the opportunity to test the evidence through cross examination.

THRESHOLD QUESTIONS AND ANALYSIS

12The Town has two threshold concerns that they argue to be “showstoppers” to the appeals, which lead to the Motion to Dismiss.

Potential location of the Collingwood Bypass

13The Town relies on the communication from MTO (Exhibit 1a, page 62-65) (“MTO 2023 Letter”) to support their position that the “Subject Lands are at a critical location that would affect all route options of a future Collingwood/Stayner bypass (see attachment 2)”. The MTO 2023 Letter goes on to state that the MTO requests that the Town defer the Applications until the Province, Town, and County are satisfied they will not negatively affect the route planning of the proposed bypass.

14The MTO Submissions expanded on the MTO 2023 Letter further stating that “it is important to ensure that corridor options for the bypass identified by the MTO not be precluded before the preferred alignment is determined by the MTO through future studies”.

15Mr. Wang explained that the 2015 MTO Study (Exhibit 9d) identified three route options for the bypass and that all three options converge at the Subject Lands. He went on to state that the MTO is actively pursuing a “planned corridor” for the Potential Bypass. Most recently in 2023 the MTO undertook a transportation planning update for the area (“Highway 26 Transportation Study”), conducted planning information updates in 2023, and have met with all local municipalities to share the aforementioned information and to discuss interim corridor protection through municipal planning.

16Additionally, Mr. Wang and through the Town and the Town relies on policies contained in section 3.3, Transportation and Infrastructure Corridors of the Provincial Planning Statement, 2024 (“PPS”), more specifically 3.3.1 and 3.3.3 which states:

3.3.1 Planning authorities shall plan for and protect corridors and rights-of-way for infrastructure, including transportation, transit, and electricity generation facilities and transmission systems to meet current and projected needs.

3.3.3. Planning authorities shall not permit development in planned corridors that could preclude or negatively affect the use of the corridor for the purpose(s) for which it was identified. New development proposed on adjacent lands to existing or planned corridors and transportation facilities should be compatible with, and supportive of, the long-term purposes of the corridor and should be designed to avoid, or where avoidance is not possible, minimize and mitigate negative impacts on and adverse effects from the corridor and transportation facilities.

17The Town submits that the Potential Bypass is a planned corridor with all three options converging on the Subject Lands and therefore being a “showstopper” and the appeals should be dismissed.

18Huntingwood argues that the Potential Bypass is simply that, potential, and that it is not a planned corridor as defined in the PPS:

Planned corridors: means corridors or future corridors which are required to meet projected needs, and are identified through provincial transportation plans, preferred alignment(s) determined through the Environmental Assessment Act process, or identified through planning studies where the Ontario Ministry of Transportation, Metrolinx, Ontario Ministry of Energy and Electrification, Ontario Northland, Ministry of Northern Development or Independent Electricity System Operator (IESO) or any successor to those ministries or entities is actively pursuing, or has completed, the identification of a corridor. Approaches for the identification and protection of planned corridors may be recommended in guidelines developed by the Province.

19Huntingwood takes the position that it remains unknown if the Potential Bypass will ever proceed, that a route has not been selected and alternate routes could be identified that were not contemplated in 2015, and moreover the MTO refers to the Potential Bypass as “conceptual” or “potential”.

20Furthermore, Huntingwood communicated that the portions of the Subject Lands which are proposed to be residential development have been designated since 2014. Huntingwood went on to state that even if the Potential Bypass was a planned corridor, the requirements are currently unknown. Moreover, Huntingwood asserts that the proposed development and the Potential Bypass could co-exist.

21The County Provided brief oral submissions stating that the Subject Lands are the fundamental cornerstone to the Potential Bypass and “if this isn’t overcome, the house of cards goes”, meaning if the development proceeds the Potential Bypass may not be able to proceed.

22The Tribunal considered the extensive submission of the Parties regarding the Potential Bypass and accepts the submission of Huntingwood. The Potential Bypass is not a planned corridor, by definition. An environmental assessment has not been completed and a final route has not been identified. The MTO has identified three routes options in 2015 and Tribunal notes that each of the three potential routes contemplate the Subject Land. However, as a decade has almost come to pass since the 2015 MTO Study and without a clear understanding of when or if the next steps of the process will proceed, as outlined in the recommendations of the Highway 26 Transportation Study. The Tribunal does not agree with the Town and the Appeals are not dismissed on the basis of a Potential Bypass.

Construction within the Conservation Authority Regulated Area

23Through the Application review process the Nottawasaga Valley Conservation Authority (“NVCA”) reviewed and provided comment. The Town submits that the response from NVCA is more extensive that what is typically provided by NVCA, indicating their overwhelming concern. The Town submits that NVCA’s concerns are the second “showstopper” to these Applications.

24The 12-page letter dated January 29, 2024, from NVCA (Exhibit 1a, pages 83-95) (“NVCA Letter”) concluded by stating:

At this time NVCA staff have concerns with the natural hazard studies submitted, and note that approval of the OPA and ZBA for the subject site would establish planning provisions for the applicant to install a watercourse crossing, for which the NVCA has regulatory authority conferred by the Conservation Authorities Act to authorize or prohibit alterations to watercourses. The applicant has not demonstrated that the proposed development is consistent with the natural hazard policies within the PPS, nor have they demonstrated that the proposed watercourse crossing would be a candidate for authorization under Section 28 of the Conservation Authorities Act. Therefore, the establishment of planning provisions through this application for a watercourse crossing and residential development on the subject lands is considered by NVCA staff to be premature. Based on the above noted concerns, NVCA staff are not supportive of the proposed development on the subject lands.

25The Town argues that “this could be all for not” if NVCA does not grant a development permit to Huntingwood for the construction of the road and watercourse crossing over environmental sensitive lands. The Town takes the position that Huntingwood should submit a permit to determine the outcome.

26Huntingwood argues that where a section 28 permit is required, it is obtained after the Planning Act approvals and before a building permit is issued. Huntingwood went on to state that the permit would most likely be required while clearing conditions of the draft plan approval.

27Moreover, Huntingwood states that NVCA has not communicated that they would refuse to issue a permit, they have communicated that they have concerns at this time. Huntingwood explained that the permit will be sought in the future based on more detailed information.

28The Tribunal inquired with the Town and Huntingwood as to why access from the abutting easterly parcel is no longer a viable option. The Parties explained that the eastern property has obtained development applications and access is no longer obtainable.

29Upon review of the oral and extensive written submissions of the Parties, the Tribunal agrees with the submissions of Huntingwood. NVCA has provided comments on the Applications and has determined that the proposed development is premature based on the information that it has at this time. NVCA review and conclusion states that they have concerns, however those concerns do not imply that the appeals have no reasonable prospect of success.

ALTERNATIVE RELIEF – PHASED HEARING

30Alternatively, the Town has requested that the appeals be phased. By hearing the OPA and ZBA in advance of any consideration of the DPS. The Town communicated that by phasing the hearing would result in a more efficient use of time for the Tribunal to first determine whether the development should be permitted in the eastern portion of the Subject Lands. From there the Town takes the position that if the development is permitted the settling of subdivision details would simplified. If the answer is no, or if such consideration is found premature the consideration of such details would not be required.

31Huntingwood communicated to the Tribunal that a phased hearing is inappropriate in these circumstances. Huntingwood states that phasing would not result in efficiencies, as Huntingwood would need to call on the same witnesses as the OPA and ZBA resulting in unnecessary costs and delays. Furthermore, Huntingwood argues that the Subject Land designations already exist as they are located within a settlement area, designated residential with specific housing types and densities permitted as ordered through a 2014 Ontario Municipal Board decision.

32The Tribunal concurs with Huntingwood that a phase hearing would not be appropriate in these circumstances. Hearing the appeals in a single comprehensive hearing would allow for a fair, just, expeditious and cost-effective resolution of the merits of the proceeding.

ORDER

33THE TRIBUNAL ORDERS THAT:

1. The motion to dismiss the appeals is denied and that there is no order as to costs for the Motion to Dismiss or the Response to Motion.
2. The Parties contact the Case Coordinator to schedule a subsequent Case Management Conference within 10 days of this order being issued.
3. The subsequent Case Management Conference be heard within 90 days of this order being issued.
4. The draft Procedural Order be submitted to the Case Coordinator 10 days prior to the subsequent Case Management Conference.

“Kurtis Smith”

Kurtis Smith

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

Attachment 2