Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 18, 2024

CASE NO(S).: OLT-24-000878

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

Appellant: Gina Koutsaris

Appellant: James McEwen

Appellant: Steve Hennessey

Appellant: Susan Segers

Subject: Proposed Official Plan Amendment

Description: To change land designation to permit development to meet the housing supply needs of Clarington

Reference Number: Amendment #126 to the Clarington Official Plan

Property Address: 2371 Nash Road

Municipality/UT: Clarington/Durham

OLT Case No: OLT-24-000878

OLT Lead Case No: OLT-24-000878

OLT Case Name: Hennessey et al. v Durham (Region)

Heard: November 20, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Steve Hennessey

Self-represented*

Gina Koutsaris

Self-represented*

James McEwen

Self-represented*

Municipality of Clarington

Robert Maciver Colin Lyon

Regional Municipality of Durham

Samantha Whalen Adam Patel

Brookhill North Landowners Group Inc.

Chris Barnett

MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON November 20, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was the first Case Management Conference (“CMC”) pertaining to the Appeals filed by (1) Steve Hennessey, 2265 Bowmanville Avenue, (2) Gina Koutsaris, 2454 Bowmanville Avenue, (3) James McEwen, 2325 Bowmanville Avenue, and (4) Susan Seger, 2371 Nash Road, against Official Plan Amendment 126 (“OPA 126”) approval to update the Brookhill Neighbourhood Secondary Plan (“BNSP”), in the Municipality of Clarington (“Clarington”), in the Regional Municipality of Durham (“Durham”). The primary reason for these appeals pertains to the land use designations of their property.

2The Tribunal received and marked the Affidavit of Service of the Notice of the CMC, sworn by Alexander Harras as Exhibit 1. There were no issues with the Notice of CMC, and as such, no further notice is required.

3At the commencement of the CMC, Appellant Susan Seger was not present. The Tribunal commenced the CMC following a period of 15 minutes in accordance with Rule 3.3 of the Tribunals Rules of Practice and Procedure. Susan Seger did not attend the CMC.

STATUS REQUEST

4The Tribunal received one Party Status request from the Brookhill North Landowners Inc. (“BNL”). Chris Barnett, Counsel for BNL explained that BNL represents approximately 61 hectares within BNSP and provided submissions in support of the BNSP during and leading up to the adoption of the BNSP.

5Durham stated they had no objection, and Clarington stated they consented to the request.

6Mr. Hennessey and Mr. McEwen both objected to the request. The reason for the objection was due to the submission date of the Party Status Request form, which was not 10 days in advance of the CMC. They went on to argue that other appeals were denied due to filing outside the appeal period, and that the same rules should apply to status requests.

7Mr. Barnett communicated to the Tribunal that 10 days in advance of the CMC fell on a weekend, followed by Remembrance Day on the Monday, November 11, 2024, which led to the “late” filing of the Party status request. The Tribunal accepts Mr. Barnett’s explanation.

8The Tribunal considered the submissions of the Parties & BNL and determined that BNL has a direct interest in the BNSP and can assist the Tribunal in adjudicating this matter. Furthermore, the Tribunal recognizes that there is not a statutory requirement nor rules to submit a Party status request at least 10 days prior to the first Hearing event. The Party Status Request form states it is “expected” to be provided at least 10 days in advance”.

9The Tribunal grants Party Status to BNL.

10Additionally, the Tribunal confirmed statutory Party Status to Clarington.

VALIDITY OF APPEALS

11Robert Maciver, Counsel for Clarington questioned the validity of the four appeals, which were filed under Section 17 (36) of the Planning Act (“Act”), which states:

Appeal to Tribunal

(36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Tribunal by filing a notice of appeal with the approval authority:

1. A specified person who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

1.1 A public body that, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council.

1.2 The registered owner of any land to which the plan would apply, if, before the plan was adopted, the owner made oral submissions at a public meeting or written submissions to the council.

2. The Minister.

3. In the case of a request to amend the plan, the person or public body that made the request. 2006, c. 23, s. 9 (6); 2017, c. 23, Sched. 5, s. 80; 2024, c. 16, Sched. 12, s. 3 (3).

12Mr. Maciver communicated that the four Appellants are not a specified person, public body, nor the Minister, and they did not request to amend the plan. Therefore, he communicated that only Section 17 (36) 1.2 may apply to the four appeals; the Tribunal agrees.

13Mr. Maciver proceeded to submit the reasons for which each appeal was not valid:

Steve Hennessey & James McEwen

14Mr. Maciver argued that the lands that Mr. Hennessey and Mr. McEwen individually own are not within the BNSP. Mr. Maciver went on to explain that Council for Clarington deferred a portion of the lands label as Future Block Master Plan and Low Density Residential on Schedule A of the BNSP. He went on to explain that landowners within that area may wish to submit an Official Plan Amendment to determine their designation.

15Mr. Hennessey and Mr. McEwen communicated to the Tribunal that their lands are within the Future Block Master Plan and stated that the block was “carved out” at the last minute.

16The Tribunal confirmed with Mr. Maciver the boundary of the BNSP, which include the lands of Mr. Hennessey and Mr. McEwen. The Tribunal sought further clarification regarding Mr. Maciver’s submissions that an Official Plan amendment application could be filed by the landowners. More specifically the Tribunal questioned if the BNSP would be amended, or Clarington’s Official Plan. Clarington was unsure, which plan would be amended and reiterated that those lands were deferred.

17The Tribunal considered the submissions of the Parties and has found that the lands of Mr. Hennessey, and Mr. McEwen seem to be within the BNSP boundary. However, it was unclear from the submission by Mr. Maciver what the intent of the deferral is and if the deferral implies that the BNSP no longer applies to Mr. Hennessey and Mr. McEwen’s lands.

18If Clarington wishes to pursue the validity of the appeals of Mr. Hennessy and Mr. McEwen, they will be required to submit a motion.

Gina Koutsaris

19As it relates to the appeal of Ms. Koutsaris, Mr. Maciver submitted that Ms. Koutsaris is not the registered owner of 2454 Bowmanville Avenue, and therefore requested that this appeal be deemed invalid.

20Ms. Koutsaris communicated to the Tribunal that 2454 Bowmanville Avenue is in the estate of her late mother, and that she is the beneficiary and/or trustee of the estate. She went on to state that she would obtain any further legal documents required to confirm her connection to the estate if necessary.

21The Tribunal communicated to Mr. Maciver that if they wish to pursue the validity of the appeal of Ms. Koutsaris, they will be required to submit a Motion.

Susan Seger

22Mr. Maciver communicated to the Tribunal that Ms. Seger had not provided oral submission at the public meeting, or written submission to Council prior to the adoption of the BNSP.

23Ms. Seger did not attend the CMC.

24The Tribunal reviewed the Municipal Record and concurred with Mr. Maciver that Ms. Seger was not listed on the public record and did not submit written submissions. Given the fact that Ms. Seger did not attend the CMC nor was there a record of oral or written submissions, the Tribunal determined that Ms. Seger’s appeal was not valid and dismissed her appeal.

25If Ms. Seger wishes, the Tribunal will allow Ms. Seger to submit a Participant Status Request for consideration at the subsequent CMC. The request must be submitted at least 10 days in advance of the CMC.

REQUEST TO CONSIDER APPROVAL

26Mr. Maciver requested that the Tribunal approve and confirm that the balance of the BNSP be approved, as well as be in full force and effect.

27Durham and the BNL supported the request, stating the appeals are site-specific.

28The Tribunal considered the request and directed that the Parties work collaboratively to produce the Draft Procedural Order and Issues List (“IL”) to be presented at the subsequent CMC. At that time, the Tribunal will have a clearer understanding of which policies are under appeal as determined by the IL, and a request to approve the balance of OPA 126 to be in full force and effect can be considered.

MEDIATION

29All the Parties expressed their interest in mediation to resolve the appeals.

30The Parties were directed that, should they wish to pursue Tribunal-assisted mediation, they may do so making a written request to the Tribunal through the Case Coordinator for those services.

31Samantha Whalen, Counsel for Durham suggested that mediation discussions take place following the second CMC as the IL will be determined at that time.

SECOND CASE MANAGEMENT CONFERENCE

32The Tribunal scheduled a second Case Management Conference to commence on Friday, February 7, 2025.

33The CMC is scheduled to proceed by video on Friday, February 7, 2025 at 10 a.m.

34Parties and/or Participants and/or Observers are asked to log in to the event at least 15 minutes before it begins, to test their video and audio connections:

Zoom: https://us06web.zoom.us/j/83966915987?pwd=TBAPagcvmoZY35o0OLXa8jCPwUKgOj.1

Meeting ID: 839 6691 5987

Access code: 864523

35Parties and/or Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at Zoom.

36Persons who experience technical difficulties accessing the Zoom application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 647 374 4685 or (Toll-Free) +1 647 558 0588. The access code is: 864523.

37Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.

ORDER

38THE TRIBUNAL ORDERS THAT:

a. Party status is granted to the Municipality of Clarington and the Brookhill North Landowners Group Inc.

b. The second CMC will commence at 10 a.m. by video on Friday, February 7, 2025, which may be converted to a Motion hearing date;

c. the Procedural Order and IL are to be submitted to the Tribunal on or before Friday, January 31, 2025;

d. any Motion filed to be in accordance with the Tribunal Rules of Practice and Procedure;

e. the appeal of Susan Seger is dismissed;

f. Susan Seger may submit a Participant Status Request on or before 10 days prior to the second CMC; and

g. the Tribunal may be spoken to in the event of any issue arising from this Order.

39There is no further notice and the Member is not seized.

“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.