Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 20, 2024

CASE NO(S).: OLT-23-001194

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

Applicant/Appellant: Caivan (Richmond South) Limited

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

Description: Draft Plan of Subdivision to create 186 units comprised of a mix of ground-oriented detached and townhouse dwellings

Reference Number: D07-16-20-0016 D07-16-21-0011

Property Address: 6305 Ottawa Street West

Municipality/UT: Ottawa/Ottawa

OLT Case No: OLT-23-001194

OLT Case Name: Caivan (Richmond South) Limited v. Ottawa (City)

Heard: October 1 to 11, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Caivan (Richmond South) Limited (“Applicant”)

Brendan O’Callaghan Patrick Harrington Anna Lu

City of Ottawa (“City”)

Tim Marc

Mattamy (Jock River) Limited (“Mattamy”)

Robert Miller Grace O’Brien

DECISION DELIVERED BY jean-pierre blais AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Applicant seeks to develop a site known municipally as 6305 Ottawa Street West in the City (“Subject Lands”) to construct 186 residential units, comprised of a mix of ground oriented detached dwellings (108) and townhouses (78). To this end, the Applicant submitted to the City in June 2020 a draft Plan of Subdivision application (“SPA”). The appeal is brought pursuant to section 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), due to the City’s failure to decide within the prescribed timeframe.

2The Applicant had also submitted concurrently a Zoning By-law Amendment (“ZBA”) as well as an SPA with respect to lands known municipally as 6295, 6303, 6363, 6409 and 6335 Perth Street in the City (“Green Lands”). Neither the ZBA nor the Green Lands are before the Tribunal in this Appeal.

SUBJECT LANDS AND SURROUNDINGS

3The Subject Lands, also referred to as the Laffin Lands, are currently undeveloped lands having previously been used for agricultural purposes. The approximately 7.12 hectare parcel has about 55 metres of frontage on Ottawa Street West, a designated Rural Collector Road in the City’s Official Plan (“OP”), and 38 metres of frontage on an unopened segment of Queen Charlotte Street.

4Most of the southern and eastern edges of the Subject Lands are bordered by existing residential dwellings. To the west and north, the Subject Lands abut lands subject to an approved draft SPA by Mattamy, an added Party in this Appeal pursuant to Rule 8 of the Tribunal’s Rules of Practice and Procedure.

5The Subject Lands are in the southwestern area of the Village of Richmond, one of the 26 villages in the City. The area surrounding the Village is characterized by rural agricultural and undeveloped natural lands, with sparse residential and commercial development.

6The Subject Lands are designated Village Residential 1 and form part of the Western Development Lands in the Village of Richmond Secondary Plan (“Richmond SP”). The Village Residential 1 designation of the Richmond SP provides direction for the establishment of ground-oriented, low density residential uses, with permission to incorporate some ground-oriented townhomes. The applications for the Subject Lands and the Green Lands represent the final parcels in the Western Development Lands, the balance of the lands having been previously draft-approved or constructed.

7The Master Drainage Agreement (“MDA”) approved and updated in 2020 contemplates two stormwater management (“SWM”) ponds for the Western Development Lands as a whole. Through the application process, the Applicant proposed the removal of the pond 2 on the Subject Lands (“SWM pond 2”) and the use instead of an alternative stormwater management approach in the form of a Low-Impact Development (“LID”), including a treatment train, as a substitute for the quality control function. An amendment to the MDA would be required and the Applicant has prepared a new version of the MDP (version 8) dated August 2023. The Applicant’s proposal would result in additional lots being available for housing development on the Subject Lands.

8Stormwater flows would eventually discharge, after collection and water quality treatment, into the Jock River. The Jock River meanders approximately 300 metres to the east of the Subject Lands.

9Mattamy, as the owner of the lands to the east, south and west of the Subject Lands, and which are also within the Western Development Lands, is subject to the same MDP as the Applicant. Mattamy’s phases 3 to 6 lands were draft plan approved in 2021 under the 2020 MDP, which contemplates that the lands would drain to SWM pond 2 on the Applicant’s Subject Lands. Counsel for Mattamy explained that, earlier in 2024, the City approved an interim LID stormwater management solution on parts of the Mattamy lands, being phases 3 to 5, and indicated that, in the future, if it is determined that the interim stormwater solution is appropriate as a long-term solution, the MDP would be amended. As part of the interim solution on the Mattamy lands, 33 lots were reserved for a temporary SWM pond to be constructed if the mandatory monitoring showed that the LIDs solution did not meet the total suspended solids (“TSS”) removal criteria, namely the removal of 80 percent of the TSS.

ISSUES

10There are two central issues in this Appeal, namely:

a. Whether the stormwater treatment approach proposed by the Applicant is appropriate; and,

b. Whether the number and type of dwellings being proposed by the Applicant are appropriate and in conformity with the Richmond SP.

POSITION OF PARTIES

11The Applicant seeks an interim Order approving the draft Plan of Subdivision with no SWM pond and with no units “sterilized” from being developed for possible future use as a SWM pond. The Applicant calls upon the Tribunal to withhold its final Order for a period of 60 days to permit the Parties to jointly prepare and submit to the Tribunal a list of proposed conditions pursuant to section 51(25) of the Act. Any disputes could, in its view, be resolved by the Tribunal pursuant to section 51(56) of the Act. Once the conditions are finally determined, the clearing of those conditions would revert to the City pursuant to section 51(56.1) of the Act. The Tribunal would remain available should there be any difficulties in the interpretation or implementation of the conditions.

12With the threshold issue of whether an SWM pond is required, and the layout and contents of the plan being decided, the Applicant submits that the Parties can proceed to work cooperatively towards the creation of the list of appropriate conditions pursuant to section 51(25) of the Act.

13The Applicant does not want to leave the door open to the City to attempt to impose conditions like the ones that were imposed on Mattamy, whereby, in its view, the City sterilized lots for years while the treatment train approved for that subdivision is monitored for its effectiveness.

14The Applicant advances that it has provided sufficient land use planning and water resource engineering evidence that not only will its proposed treatment train meet or exceed the agreed-upon long-term water quality target, but there are available adjustments within the proposed treatment train such that reserving lots is not required. In its view, such a reservation would be unnecessary and wasteful of designated development land. It submits that as many as 64 new residential units could be sterilized or lost if the City were given the discretion to determine whether the SWM pond is required. The Applicant submits that this outcome is supported by the evidence and the applicable policy context.

15The Applicant argues that if the Applicant’s proposed stormwater quality controls need adjustments or refinements, such as the use of higher performing Oil and Grit Separators (“OGS”), this can be addressed through changes to the proposed updated MDP or through conditions of approval. It submits that the proposed subdivision layout constitutes good planning and aligns with the applicable policies, and the concerns of the City with respect to stormwater management are implementation issues rather than true planning issues. The Applicant claims that these are issues of detailed design and construction and not a matter of planning for the Tribunal to decide at this stage.

16The City is not in disagreement, in principle, with development of the Subject Lands. However, the City raises two objections. First it argues that the proposed stormwater solution advanced by the Applicant would not meet the requirement of removing 80 percent of the TSS. As a result, the subdivision layout should be revised to provide a SWM pond in accordance with the MDP of 2020. For the City, the proposed solution has not been demonstrated to be viable and feasible. Second, the City argues that the Richmond SP prevents the proposed mix of dwellings.

17Mattamy supports the approval of the SPA in accordance with the MDP proposed by the Applicant, subject to the conditions to be decided upon by the Parties and submitted to the Tribunal for approval. Mattamy submits that it is entitled to actively participate in the finalization of the conditions of approval.¹ It argued thatthe unimpeachable evidence of the Applicant’s stormwater management expert witness is that the LID solution proposed for the Subject Lands is the same as that proposed and approved by the City on an interim basis on the MDP. This would change Mattamy’s ultimate stormwater solution for its development by eliminating SWM Pond 2.

EVIDENCE

18The Tribunal considered the evidence of the following witnesses:

a. Brian Casagrande, a partner with Fotenn Consultants Inc., who was retained by the Applicant and qualified by the Tribunal to provide expert witness evidence in the field of land use planning;

b. Marc Pichette, a professional engineer with David Schaeffer Engineering Ltd., who was retained by the Applicant and qualified by the Tribunal to provide expert witness evidence in the field of civil engineering;

c. Jean-François Sabourin, founder and president of JFSA Canada Inc., who was retained by the Applicant and qualified by the Tribunal to provide expert witness evidence in the field of water resource engineering;

d. David Gilbert, president of the Paterson Group, who was retained by the Applicant and qualified by the Tribunal to provide expert witness evidence in the field of geotechnical engineering;

e. Robert Kell, a professional geoscientist with Dillon Consulting Limited, who was retained by the Applicant and qualified by the Tribunal to provide expert witness evidence in the field of hydrogeology;

f. Alexandra Chan, an environmental engineer with Dillon Consulting Limited, who was retained by the Applicant and qualified by the Tribunal to provide expert witness evidence in the field of hydrogeology;

g. Hiran Sandanayake, the Manager of the Water Resources Planning and Engineering Branch of the City, who was qualified by the Tribunal to provide expert witness evidence in the field of infrastructure asset management;

h. Kevin Hall, a Senior Project Manager with the City, who was qualified by the Tribunal to provide expert witness evidence in the field of development review infrastructure;

i. Michael Venhuis, a Senior Hydrogeoscientist with SLR Consulting (Canada) Ltd., who was retained by the City and qualified by the Tribunal to provide expert witness evidence in the field of hydrogeology;

j. Chris Denich, President of Water Recourses and Green Infrastructure at Aquafor Beach Limited, who was retained by the City and qualified by the Tribunal to provide expert witness evidence in the field of water resource engineering with specialization in low LID; and,

k. Sarah McCormick, a Planner with the City and who was qualified by the Tribunal to provide expert witness evidence in the field of land use planning.

19The Tribunal did not consider the evidence of Anthony Francis, a potential expert witness in the field of ecology, because the Parties had resolved all issues relevant to his evidence.

ANALYSIS

A. Stormwater Treatment

20Mr. Sabourin explained that various potential LED stormwater treatment options were investigated for the Subject Lands including options and combination of options such as street sweeping, curb cuts with grass swales, curb cuts with infiltration trenches, catch basin inserts, deep sump catch basins, below ground infiltration/filtration trenches and end-of-pipe alternatives such as OGS and so-called JellyFish filters.²

21The stormwater management approach proposed by the Applicant is comprised of two components for the subdivision. First, for the rear yards, roof runoff directed to grass surfaces, dry swales, infiltration pipes and an OGS would be used. Second, for the front yards (including the driveways, and the streets), Catch Basin Shields^TM, deep sumps, infiltration trenches and OGSs would be used. These components were chosen to remove sediments, including particulates and heavy metals from vehicles that attach to particulates. Mr. Sabourin explained that the components were chosen in part on their ability to contribute to the removal of TSS considering the site conditions and with cost considerations in mind.

22For the front yard, the Applicant is proposing to remove sediment from stormwater runoff through a treatment train process as opposed to a single end of pipe facility, such as a stormwater management pond. The proposed treatment train system is designed to be in series, meaning, that stormwater needs to pass through each process before entering the natural environment. Furthermore, the components upstream of the OGS are spatially distributed throughout the catchment. Catch Basin Shields^TM are manufactured devices that promote the capture of sediment within the catch basin and pretreat runoff prior to entering the exfiltration system. Mr. Sabourin explained that, in his opinion, the deep sump allows for a greater amount of sediment capture reducing maintenance frequency. He testified that the exfiltration system provides two benefits to quality treatment first providing volume for the temporary detention of stormwater runoff allowing for finer particles to settle, and second providing an opportunity for stormwater to be infiltrated into the ground.

23Mr. Sabourin and Mr. Denich agreed that no one element of the treatment train needs to provide the full 80% TSS removal. They work in concert and in series, such that the first component of the treatment train removes a certain percentage of suspended solids, and the second component treats the remaining suspended solid, and so on. This is mathematically represented thus:

Total TSS Removal (%) = 1 – [(1 - %TSS Removal Method #1) x (1 - %TSS Removal Method #2) x (1 - %TSS Removal Method # n)]

For Mr. Sabourin not every element of the treatment train needs to operate to its full capacity at all times of the year.

24After the treatment train, stormwater runoff would flow through a storm sewer network to reach the Jock River outlet. The runoff from the rear yards and the front yards would be kept separate until they are mixed within the stormwater sewer. This approach ensures that the clean runoff from the rear yards is not mixed with the dirty runoff from the front lots and roadways.

25As Counsel for the City pointed out, the question of stormwater management often raises a quantitative concern. This is not the case in this Appeal. Nor is this, in his opening and closing submissions, a climate change case related to possible or likely increases in stormwater volume in the future. The sole issue is whether the stormwater treatment solution advanced by the Applicant will likely meet the qualitative requirement of removing 80% of the TSS. Mr. Sabourin confirmed that there is no need for on-site quantity controls because the Subject Lands are within the watershed of the Jock River. All Parties agree that the qualitative goal is 80% removal of TSS as provided for in the Ministry of the Environment’s Stormwater Management Planning and Design Manual (2003), the draft Ministry of the Environment, Conservation and Parks (“MECP”) Low Impact Development Stormwater Guidance Manual (2022) and the City’s draft MECP Consolidated Linear Infrastructure Environmental Compliance Approval. This is a long-term average.

26The planning policy framework in Ontario and in the City strongly supports the exploration and the use of LID solutions to stormwater management.³ The City admits that both the Provincial Planning Statement (“PPS 2024”) and the City’s OP promotes the use of LID solutions. Developers are encouraged to explore LID solutions. Indeed, two witnesses called by the City, Ms. McCormack and Mr. Denich, agreed that there was a policy preference for LID solutions and that the Province was moving towards greater support for LID solutions as an innovative state-of-the-art approach to managing stormwater.

27Rather, the City argues that (a) the components of the proposed treatment train are not LID solutions; (b) the rear yard solution is beyond the control of the City; (c) the LID solution is not financially viable with respect to capital and maintenance costs over the life cycle of the asset; and (4) the proposed design will not be effective in achieving the total suspended solid removal objective.

28The City also cited Policy 2.2.3 (6) of the City’s OP with respect to LID solutions arguing that LID solutions must be “feasible”. However, that specific Policy, under the heading “Energy and Climate Change”, is in the context of precipitation volume because of climate change, which the City admitted was not at the centre of this Appeal.

29The Tribunal will consider the City’s other arguments seriatim.

(a) Is the Applicant’s Proposed Stormwater Management Solution a LID solution?

30PPS 2024 defines LID as an “approach” to stormwater management that seeks to manage rain and other precipitation as close as possible to where it falls to mitigate the impacts of increased runoff and stormwater pollution. It “typically” includes a set of design strategies and distributed small-scale structural practices to mimic the natural hydrology to the greatest extent possible through infiltration, evaporation, harvesting, filtration and detention of stormwater.⁴ LID can “include” bioswales, vegetated areas at the edge of paved surfaces, permeable pavement, raingardens, green roofs, and exfiltration systems.

31The City argues that the only LID element to the proposed SWM treatment are the infiltration trenches. The City distinguishes the proposed infiltration trenches and the balance of the proposed treatment train. The City submits that only the dry swales and the infiltration trenches constitute true LID solutions. The other elements of the treatment train are, for the City, manufactured treatment devices. This includes the Catch Basin Shields^TM, the deep sumps and the OGS.

32In response, the Applicant contends that the City is making a distinction that is without a policy importance. It submits, for example, that grass is a LID solution, but underscores that SWM ponds clearly are not.

33The Tribunal agrees with the Applicant that the City’s interpretation of what constitutes a LID solution is too narrow. The definition of LID in the PPS 2024 is open textured and non limitative. It is meant to be an “approach” rather than a list of specific means to achieve a result. The Applicant’s proposed treatment train provides for infiltration, harvesting, filtration and detention, which are elements of the PPS 2024 definition. The Tribunal finds that the Applicant’s treatment train, with each component operating and performing in series and in concert, is a LID solution.

(b) Does a LID have to be in the Control of the City?

34The proposed front yard treatment train would be in the public right-of-way and thus under the control of the City. However, the City argues that the rear yard swales and infiltration pipes are located on the dwelling owners’ property. Thus, the continued maintenance, presence and operation of these features cannot be assumed to continue indefinitely. For the City, over the long term, the OGS will become critical for the TSS removal for rear yard precipitation.

35The Tribunal agrees with the Applicant that the policy guidance documents do not require a LID solution to be owned and controlled by a municipality. A property owner may very well modify their rear yards to the detriment of the effectiveness of a LID solution, and such modification may not easily be seen by others including City inspectors. However, other methods, such as a by-law standard requiring a minimum percentage of porous landscaping or even targeted public education, could be explored to ensure the long-term effectiveness of the rear yard LID solutions. The innovative nature of LID solutions for stormwater management may require broader innovative thinking. In any event, the proposed LID solution includes an OGS to contribute to the removal of TSS.

(c) Are the Construction and Maintenance Costs Appropriate and Cost Effective?

36The City submitted that the planning for infrastructure must be financially viable over the asset’s life cycle.⁵ The Applicant did not disagree that the costs of the LID solution, including the ongoing maintenance costs, were a relevant consideration. Instead, the Applicant argued there was no evidence clearly establishing that a SWM pond was less expensive to maintain, and that a LID approach is not cost effective.

37Counsel for the City submitted that a SWM pond is a one-time event. Whilst maintenance will be required, in his view, the pond itself will be able to serve its purpose over a “very long time”. There was, however, no expert evidence from the City in support of this conclusion. The evidence from Mr. Senanayake and Mr. Pichette establishes that the eventual replacement of the infiltration trenches in the right-of-way will, at some point, require excavation of the road. There would be a cost associated with this, and such costs may very well be higher than the greenfield installation of those trenches. There would also be costs associated with the periodic cleaning of a SWM pond and the maintenance of the LID solution, particularly the infiltration trenches.

38Mr. Denich’s expert evidence was that the proposed design will require excavation and replacement work in the streets. In his view, there will be an accumulation of sediments and premature clogging in the trenches that will shorten their life span. He came to this conclusion based on his view of the proposed high impervious (I) to pervious (P) trench area. He testified that the ideal maximum I:P ratio is 10:1 where drainage is received from the roads. This is based on Version 1.0 of the Low Impact Development Stormwater Management Planning and Design Guide prepared by Credit Valley Conservation and Toronto & Region Conservation Authority in 2010.

39The Tribunal notes that the evidentiary record, from both the City and the Applicant, with respect to the initial and ongoing maintenance costs was far from perfect. The Tribunal would have benefited from the contribution of economic expertise or expertise in municipal financing. For instance, there was uncertainty as to the City’s care of roads in winter (the use of sand, grit or de-icing material) which could have an impact on the maintenance of the trenches. Similarly, there was uncertainty whether City crews need to enter the CB Shield ^TM area to execute flushing. Moreover, there was uncertainty as to street sweeping practices which will also have an impact on the performance of the trenches. All these activities and associated costs could be impacted by the specifications chosen for the components of the treatment train, including, for instance, the depth of the sump pump which would influence how often maintenance was required.

40Mr. Casagrande testified that Ms. McCormack’s cost analysis failed to consider additional tax revenues derived from the additional construction. Mr. Sandanayake, the Manager of the Water Resources Planning and Engineering Branch of the City, testified that a SWM pond approach is to be preferred if the maintenance costs of a treatment train were greater. He did not, however, testify that this was the case. By contrast, Mr. Pichette, as an expert in civil engineering, provided his opinion on the anticipated maintenance costs. In his view, the infiltration trenches will not require replacement within the 50-year period of operation. In his opinion, in addition to maintenance costs, there are other important factors in a lifecycle cost analysis including land value, opportunity costs, construction costs and servicing strategies. The Policy documents brought to the attention of the Tribunal, through the cross-examination of Mr. Sandanayake, suggest that the annual maintenance costs of an infiltration trench chamber are somewhat less than the annual maintenance costs of a SWM pond.⁶

41Based on this imperfect evidence that was not successfully contradicted by the City’s witnesses, the Tribunal finds that, on a balance of probabilities, the Applicant’s proposed treatment train is cost effective and financially viable. The Tribunal was persuaded in particular by Tables 1 through 6 contained in Mr. Pichette’s Reply Statement, dated September 6, 2024, which set out detailed calculation of estimated construction and maintenance costs for both a SWM pond and a LID treatment train.

42The Tribunal acknowledges that the City has not had extensive experience with LID-based stormwater management solutions, including their construction and maintenance. City staff seemed to have a better grasp of and a higher comfort level with the construction costs and the annual maintenance costs of SWM ponds rather than the innovative approach inherent in a LID solution. Mr. Sandanayake is seeking a solution with a “track record”, that is already “well understood”, and has a “long history”.⁷ Orally he testified that SWM ponds are “mature and well known”.

43The Tribunal agrees with Mr. Sabourin’s perspective that the City seems “skittish” about LID solutions. This does not absolve the City to examine a proposed LID-based stormwater management solution when it is proposed by a developer. The evidence in this Hearing suggests that the City did not seek outside hydrogeological and water resource expertise until June 2024, which was very late in the review process. The Tribunal reiterates that the policy environment, both provincially and municipally, favours the exploration of LID solutions.

44Contrary to the assertion of Mr. Sandanayake at paragraph 19 of his Witness Statement, the absence of City design guidelines for LID solutions is irrelevant. Mr. Denich clearly testified that other guidance documents and manuals are available. As Mr. Sandanayake admitted under cross-examination, gaps in LID solution guidelines can be dealt with through conditions for the approval of a Plan of Subdivision. Mr. Sandanayake’s view, set out at paragraph 25 of his Witness Statement, that buried infrastructure must be effective for a period “in the order of 100 years” would have the effect of frustrating, from day one, the provincial and municipal policies favouring the exploration of LID solutions in favour of previous technologies such as SWM ponds.

(d) Will the Proposed Treatment Train be Effective in Achieving the Target?

45Section 11 of the City’s OP notes that, while it provides general guidance to Ottawa’s growth and development, further non statutory guidance may be found in other guidelines or documents. Mr. Denich explained that there are a variety of guideline documents and manuals related to LID design, construction and monitoring which are widely accepted across the industry and by approval agencies. Many of these are in draft form or are drawn from other jurisdictions. Whilst the City does not have its own municipal LID design standards, the Tribunal underscores that even if such design standards existed, they would be subject to review pursuant to the “have regard” test in section 2.1(2) of the Act, and not the standard of either consistency or conformity for applicable policies contained in the PPS 2024 and the City’s OP.

46Initially, the Applicant’s expert witness expected the treatment train to provide 91.6% removal for the front yard, driveways and streets. Through the evidentiary stage of this Appeal, including in his reply Witness Statement, Mr. Sabourin reduced this estimate to a minimum of 88.3% which was still in his opinion a conservative estimate, which exceeds the 80% TSS removal rate required for this site. This is based on a 90.8% removal for the front yards and an 85% removal rate in the rear yards. Mr. Sabourin testified during his cross-examination that rear yard TSS removal are not typically looked at by municipalities.

47Except for a laconic allegation in Mr. Senanayake’s Witness Statement at paragraph 26, the City did not provide any evidence in support of a SWM pond model’s effectiveness or need to include it in the SDA to achieve the quality control target. Instead, through the evidence of Mr. Denich, supported by the underlying evidence of Mr. Venhuis, the City was critical of the proposed treatment train advanced by the Applicant. Generally, Mr. Denich testified that the site conditions would limit or reduce the functionality of the proposed treatment train.

48The Parties agree that the Subject Lands have hydrogeological conditions that are characterized by clay soils, relatively shallow bedrock and high ground water elevations, which can influence the efficacy of LID solutions. Mr. Sabourin testified, however, that not the entire site has highwater conditions. The evidence demonstrates that large swaths of the City have high ground water and high bedrock. Despite this, the City’s OP nevertheless encourages developers to explore LID solutions.

49Mr. Denich testified that high ground water elevations would prevent infiltration from occurring generally and seasonably (especially in late winter and spring seasons), and that the soil characteristics (namely clay, silty sand, sandy silt soils) would limit or reduce the functionality of the infiltration components of the treatment train. In his opinion, during periods of high groundwater, the water table would be located within the CB infiltration trenches and that there is little or no capacity for storage within the CB infiltration trench system resulting from the effects of groundwater mounding. He based his conclusions of the other experts, although selectively so.

50Mr. Venhuis testified for the City that groundwater levels can be expected to be significantly higher than the levels advanced by the Applicant’s experts and the anticipated decrease in ground water levels after construction is not likely.

51By contrast, Ms. Chan and Mr. Kell undertook water mounding height analyses that concluded that the proposed treatment train, including the infiltration-based LID, could proceed without concern as to their effectiveness. They concluded in particular that the mounding height is not significantly higher and the LID solution will function as designed. They noted that that the proposed LID measures will be constructed at or above existing grade and will therefore be above the existing current seasonal high-water table.

52The Tribunal prefers the evidence of the Applicant’s expert witnesses Mr. Gilbert, Ms. Chan and Mr. Kell over the evidence of the City’s expert witness Mr. Venhuis because the expert evidence of the former is based on area specific experience and field work. Moreover, the Tribunal accepts Mr. Kell’s evidence that stormwater can still move horizontally and radially even if does not move downward during periods of higher ground water. For the Tribunal, whilst the LID solutions will continue to function at reduced efficiency when groundwater levels are above the base of the LID, the design redundancies implicit with a treatment train approach will mitigate periods of reduced LID performance efficiency over the longer-term.

53The Agreed Statement of Facts concludes that groundwater levels during the seasonally high-water period, generally extending between December and May will be near the base or within the proposed infiltration trenches at some of the proposed locations of the Subject Lands. The Tribunal, however, accepts Mr. Sabourin’s evidence that the proposed system is more robust to failure than a single point of treatment, where numerous components at numerous locations would need to fail for the system to fail as a whole. The Tribunal also accepts Mr. Sabourin’s expert evidence that the TSS removal goal need not be achieved during every period of the year, as the goal is a long-term average.

54Overall, the Tribunal finds that Mr. Denich’s downward recalculation of the effectiveness of certain components of the treatment train was overly conservative and cannot be supported.

55Mr. Gilbert’s company has been involved in geotechnical analysis and advise on the Western Development Lands for the past five years and he has direct experience with the surrounding developments. Based on this, his expert evidence is that levels of recorded groundwater are likely to go down after development and that the soil conditions encountered across the Subject Lands are not inherently prohibitive to the proposed LID solution being proposed. Mr. Gilbert’s company completed 30 in situ permeameter tests at 10 locations on the Subject Lands.

56By comparison, Mr. Venhuis confirmed on cross-examination that he did not do his own data collection and presumed the use of native soils. He acknowledged that he essentially conducted a peer review. He also acknowledged under cross-examination that, unlike Mr. Gilbert’s company, he has not done any work in the Western Development Lands.

57The Tribunal agrees with Mr. Gilbert that the new fill to be imported into the development can, through the type and porosity chosen, positively impact the concerns with respect to high ground water. Moreover, the City, through the clearing of conditions, will review and approve the proposed fill, the construction and sediment controls and the grading plans for the site. Native soils will not be used around the road right-of-way as they are not suitable for geotechnical requirements which require non-cohesive soil, which have higher hydraulic conductivities than native soil.

58Overall, the Tribunal finds the evidence of Mr. Gilbert to be persuasive and precise, and certainly to be preferred over the evidence of Mr. Venhuis.

59On cross examination, Mr. Denich confirmed that his expert evidence was based on the evidence of the City’s experts to the exclusion of the Applicant’s expert evidence. As a result, the Tribunal has concerns with the selective basis for Mr. Denich’s opinion.

60However, it is significant for the Tribunal that Mr. Denich, the City’s only expert in the field of water resource engineering, was not advocating for the use of a SWM pond. Rather he supported that a LID solution should be explored. He is concerned, however, that the proposed design of the treatment train on the Subject Land would not meet the removal objective. Mr. Denich was comparing the proposed treatment train configuration to other possible treatment train configurations, and not to the use of a SWM pond.

61Based on the evidence of the Applicant’s qualified experts, the Tribunal finds that a treatment train approach, with various components working in concert, will, on a balance of probabilities, demonstrably achieve the qualitative objective of 80% TSS removal over time. The Tribunal’s conclusion is not based on the treatment train exactly as proposed by the Applicant because the specific proposed treatment train is not before the Tribunal for approval. The site conditions present challenges but the Applicant has demonstrated that they are not insurmountable.

62The Applicant submits that the MDP is not a statutory instrument and is not referred to in the Act. It argues that the Tribunal must have regard to the MDP pursuant to section 2.1(2) of the Act, that this does not amount to meeting a standard of consistency or conformity, and that the Tribunal need not amend the MDP if the Tribunal concludes that the Appeals should be allowed. The Tribunal agrees.

63There are opportunities for improvements within the treatment train at the detailed design stage. For instance, Mr. Sabourin suggested increase in the proposed sump depth, an increase in trench size and resizing of the proposed OGS units. Further, the Tribunal finds that SWM pond 2 is not required to meet the provincial and municipal policy framework with respect to stormwater management and a draft Plan of Subdivision without SWM pond 2 may be appropriately approved. The Tribunal concludes that this result aligns with the City’s and the Province’s policies for LID solutions and would increase the availability of housing by redirecting land use for a SWM pond to additional dwellings.

64It appears to the Tribunal that in this Hearing it has been drawn down a proverbial rabbit hole, although in this instance the “rabbit hole” is a stormwater treatment trench. Planning by the City and developers at one point envisaged the use of a SWM pond through the non statutory MDP. The MDP is not a static document. It has had seven previous versions, some of which were at the request of the City. The true planning issue for the Tribunal is whether replacing a SWM pond with a LID treatment train is in alignment with the provincial and municipal policies. The Tribunal finds that it is indeed in alignment. How exactly that treatment train is designed is first and foremost a matter for the experts to resolve based on the site conditions. The specific design chosen will be the subject of conditions. It is premature for the tribunal to rule on such design consideration at this stage.

65The experts on both sides agreed in an Agreed Statement of Fact that the appropriate LID system for the Subject Lands should consider the guidance provided in the Report entitled Low Impact Development Technical Guidance Report, Implementation in Areas with Potential Hydrogeological Constraints (Dillon and Aquafor Beech, 2021). It is very interesting for the Tribunal that the 2021 Report referred to in the Agreed Statement of Facts was prepared by consulting firms that find themselves on opposing sides of this Appeal.

66For the Tribunal, the City is attempting to elevate to the level of planning what is not reasonably a matter of planning and is more appropriately characterized as a question of detailed design and execution, which should be left to the experts in the field of engineering, water resource management and hydrogeology in developing the required conditions for final approval of the SDA. It is unfortunate that this was not done before the Applicant had to file an Appeal due to the City’s repeated insistence, as illustrated in the evidence of Mr. Hall, to only consider a SWM pond as contemplated in the MDP of 2020.

67For the Tribunal, the evidence of Mr. Hall strongly suggests that City officials closed their minds to a LID solution for the Subject Lands.⁸ As early as August 2021, the Applicant advanced the replacement of the SWM pond by a LID solution. Yet, Mr. Denich and Mr. Venhuis, the City’s external water resource and hydrologist water experts, were only retained in June 2024, once the Appeal had been launched in November 2023. Indeed, it is concerning that City officials were applying a standard of “compliance”, “conformity” or “consistency” to the MDP.⁹ Nothing required the Applicant “to follow” slavishly the previously approved MDP. Proposed changes to the MDP should have been received with an open mind. Yet, Mr. Hall admitted under cross-examination that, two weeks before the Applicant filed its Appeal, there was no detailed review of the proposed changes to the MPD to replace the SMW pond with an LID solution other than the perfunctory conclusion that the Applicant’s proposal “just didn’t match the MDP”.

B. Density

68The Western Development Lands overlay of the Richmond SP identifies land that will form a new neighbourhood within the western portion of the Village of Richmond. This community is anticipated to be built with a variety of housing typologies, with policies set out in the Richmond SP identifying maximum density requirements by residential unit type as well as unit mix percentages for the Western Development Lands as a whole.

69The City argues that the Richmond SP prevents the proposed mix of dwellings. The City submits that Policy 29 of the Richmond SP provides for a limited number of townhomes, subject to a zoning amendment. Moreover, with respect to the Western Development Lands as a whole, given past approvals, these lands would under the Applicant’s proposal exceed the mandatory upper end for the number of units set out at Policy 38 of the Richmond SP. Essentially, the City advances that the Applicant’s proposal results in an excess number of townhomes. The exceedance of units may be as high as 24 units. Ms. McCormick, the City’s land use planning expert witness, testified that the numbers of townhouses and large lot units exceed the density cap by approximately 10 and 14 units respectively. However, under cross-examination Ms. McCormick conceded that back-to-back townhouses or rear lane townhouses would be in conformity given paragraphs (d) and (e) of Policy 38 of the Richmond SP.

70The City ostensibly shares the Applicant’s and the Province’s concern about the need for more housing. However, it submits that the Applicant must seek an Official Plan Amendment (“OPA”) before its ZBA is deliberated by City Council and invited the Applicant to do so within days of the end of this Hearing. Ms. McCormick testified that, although she could not bind Council’s discretion, she would be supportive of such an OPA and that it could be considered on an expedited basis, which under cross-examination she estimated could be in 120 days.

71The Applicant disagrees that the SPA does not conform to the Richmond SP. The Applicant argues that the City is taking an overly rigid and technical interpretation of the Richmond SP which is out of step with Provincial and City policies. The Applicant acknowledges that conformity is an applicable test for an SPA pursuant to section 51(24)(c) of the Act. However, Mr. O’Callaghan argues for the Applicant that section 6.1.7 of the new PPS 2024 provides that, where the Tribunal must decide on a planning matter before an OP has been amended to be consistent with the PPS 2024, it must still make a decision consistent with PPS 2024. The Applicant posits that the City’s OP must be read as a whole and that OP favours intensification of housing. Moreover, the Applicant submits that the concern with the exceedance of units only became known six weeks before the start of the Hearing and four years after the SPA was submitted to the City for approval. And finally, the Applicant is concerned about cost (including professional fees) and the delays inherent in an additional OPA process.

72Mr. Casagrande testified that he agreed with Ms. McCormick that if the draft Plan of Subdivision had proposed the same number or more townhouses in a different typology for Blocks 11 to 15 inclusively, such as rear lane or back-to-back townhouses, over the same general area of the draft Plan of Subdivision, all the unit types proposed would have conformed with all the density maximums.

73The City crystalized its density concerns for the first time through Ms. McCormack’s Witness Statement in July 2024. Whilst this may seem shockingly late in the process, the Tribunal agrees that an OPA would appear to be required to construct townhouses which are capped at 45 units per hectare given Policy 38(c) of the Richmond SP.

74Even if the Applicant’s argument with respect to Policy 6.1.7 of the PPS 2024 is correct (which the Tribunal need not decide), the Tribunal does not agree that the City’s OP and the Richmond SP are clearly inconsistent with PPS 2024. For instance, read as a whole, the Richmond SP does favour more housing and intensification. Indeed, the designation of the Western Development Lands for development supports that policy’s objectives. But, read as a whole, the City’s OP and the Richmond SP also favours a mix of housing, maintaining the rural character of the Village and ensuring appropriate transition between larger existing lots and new development. The Applicant did not demonstrate how those objectives are inconsistent with the PPS 2024, including Policy 2.5 of the PPS 2024 which relates to rural areas in municipalities. The Subject Lands are part of the Rural Transect on Schedule A of the City’s OP.

75The Tribunal finds that, in the absence of a clear and unambiguous inconsistency of a City’s OP with the PPS 2024, the Applicant’s argument is unsuccessful due to the polycentric nature of a municipal official plan and the PPS 2024.

76Considering this and given section 51(24)(c) of the Act, the Tribunal will withhold its Final Order pending the resubmission of a draft Plan of Subdivision clearly providing for back-to-back or rear lane townhouses for Blocks 11 to 15 inclusively. The Tribunal notes that this may require further consequential amendments to the draft Plan of Subdivision. It is open to the Applicant to seek an OPA if it continues to seek approval for simple townhouses for those Blocks.

CONDITIONS

77Often the conditions pursuant to section 51(25) of the Act are before the Tribunal during an SPA Appeal. This is not the case in this instance. As a result, all Parties have not had the opportunity to advance evidence and speak to the appropriateness of the potential conditions.

78All Parties to the Appeal, including Mattamy, are to participate in the finalization of the draft plan conditions of approval, with Mattamy’s involvement in the finalization of the conditions being limited to those conditions related to stormwater management, including any conditions relating to the LID solution and the MDP. Specifically, Mattamy should receive all drafts of the stormwater management conditions for review and comment in advance of their finalization and submission to the Tribunal for approval and issuance of a Final Order.

79The use of SWM ponds, a land-intensive stormwater management solution is in apparent conflict with other policy objectives such as growth and intensification of housing. However, one must keep in mind that infrastructure, including stormwater management infrastructure, is built and maintained to allow for more housing. Thus, the dichotomy between the use of SWM ponds versus the development of more lots for housing is overly simplistic. Infrastructure cannot take a back seat to housing; rather both must work in tandem. A LID solution must be well chosen, planned and constructed. The conditions with respect to the LID solution should have that as their objective.

CONCLUSION

80The Tribunal finds that that the layout of the Draft Plan of Subdivision, without SWM pond 2, is appropriate and that the MDP can appropriately be modified by the Parties.

81With respect to the SDA itself, the Tribunal finds that it has regard to matters of provincial interest at section 2 of the Act, has regard to the various criteria set out at section 51(24) of the Act, is not premature, is consistent with the PPS 2024, has regard to the Village of Richmond Community Design Plan (2010), and has regard to the City’s Design Guidelines for Rural Villages. The SDA also generally conforms to the City’s OP and the Richmond SP if back-to-back or rear lane townhouses are provided for Blocks 11 to 15 inclusively. It represents good planning and is in the public interest.

82The Tribunal accepts the submission of the Applicant that the Tribunal Order provide an interim approval. The Tribunal will withhold its Final Order for a period of at least 60 days to permit the Parties to jointly prepare and submit to the Tribunal a list of proposed conditions pursuant to section 51(25) of the Act. Any disputes could be resolved by the Tribunal pursuant to section 51(56) of the Act. Once the conditions are finally determined, the clearing of those conditions would revert to the City pursuant to section 51(56.1) of the Act. The Tribunal would remain available should there be any difficulties in the interpretation or implementation of the conditions.

83The Tribunal notes that the implementation of the proposed Plan of Subdivision would require an amendment to the City’s Comprehensive Zoning By-law. However, approval of a ZBA is currently pending. As discussed above, the Tribunal will also withhold its Final Order pending the resubmission of the draft Plan of Subdivision providing for back-to-back or rear lane townhouses for Blocks 11 to 15.

84Nothing in this Decision should be interpreted as a prohibition of the use, on a temporary basis, of a stormwater pond during the construction phase of the project. Indeed, the use of a stormwater pond during the construction phase might very well protect the long-term efficiency of the LID solution on completion. The City specifically requested that if the Tribunal concluded that a permanent stormwater pond was not required on an ongoing basis, the Tribunal should not eliminate the possibility of a temporary stormwater pond during construction. The Applicant agreed. For clarity, the Tribunal does not envisage an interim SWM pond during a monitoring period like the one described in this Decision with respect to the Mattamy lands.

ORDER

85THE TRIBUNAL ORDERS that the appeal is allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in the following paragraph, and the Draft Plan of Subdivision set out in Attachment A to this Interim Order, is hereby approved in principle.

86The Tribunal will withhold the issuance of its Final Order until:

a. The Parties have jointly prepared and submitted to the Tribunal a list of proposed conditions pursuant to section 51(25) of the Act;

b. The Applicant has confirmed that the Draft Plan of Subdivision for Blocks 11 to 15 inclusively shall be comprised of either back-to-back townhouses, rear yard townhouses or both; and,

c. The Tribunal has received, and approved, the Draft Plan of Subdivision submitted in a final form, as well as the proposed conditions pursuant to section 51(25) of the Act.

87The Member will remain seized for the purposes of reviewing and approving the final draft of Draft Plan of Subdivision and the section 51(25) conditions, and the issuance of the Final Order. The Member will remain available should there be any difficulties in the interpretation or implementation of this Interim Order.

88If the Parties do not submit the final draft Plan of Subdivision, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in the paragraph above have been satisfied, and do not request the issuance of the Final Order, by Friday, March 7, 2025, the Parties shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the Draft Plan of Subdivision, the proposed conditions and issuance of the Final Order by the Tribunal.

89The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call or otherwise to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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 A

Footnotes

1. 1Clublink v. Ottawa (City), 2022
2. 2The options are summarized at Table 1 of JFSA Canada Inc. report dated July 26, 2023.
3. 3Policy 3.6 (8) PPS 2024; Policy 4.7.1.3 City’s OP.
4. 4Section 8 “Definitions”, PPS 2024.
5. 5Policy 3.1(1)(a) PPS 2024.
6. 6Ministry of the Environment and Climate Change, Low Impact Development Stormwater Management Guidance Manual, (Draft 1.0, April 20, 2017).
7. 7See paragraph 32 of his Witness Statement.
8. 8See paragraph 6, 7, 8, 10 and 11 of his Witness Statement.
9. 9See for example paragraphs 23, 102 of Ms. McCormack’s Witness Statement; paragraph 30 of Mr. Sandanayake’s Witness Statement.