Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 28, 2024

CASE NO(S).: OLT-22-004551

PROCEEDING COMMENCED UNDER section 28(15) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended

Appellant: Brent Peebles

Respondent: Toronto and Region Conservation Authority

Subject: Refusal to grant permission for construction of a single-family dwelling

Property Address: 270 Stegman’s Mill Road

Reference Number: 1491/21/VAUG

Municipality/UT: City of Vaughan/ Regional Municipality of York

OLT Case No.: OLT-22-004551

OLT Lead Case No.: OLT-22-004551

OLT Case Name: Peebles v. Toronto and Region Conservation Authority

Heard: October 11-23, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Brent Peebles	Arkadi Bouchelev
Toronto and Region Conservation Authority	Tim Duncan

DECISION DELIVERED BY N. Eisazadeh AND S.L. Dionne AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Brent Peebles (“Applicant”) applied for permission from the Toronto and Region Conservation Authority (“TRCA”) to undertake development to facilitate the construction of a single-detached home on his property located at 270 Stegman’s Mill Road (“Subject Property”), in the City of Vaughan (“City”). Mr. Peebles’ desire is to construct a two-storey detached home (“Proposed Development”) for his son and daughter-in-law on a currently vacant lot, which has existing permitted residential zoning over a portion of the property.

2Given its location within a Heritage Conservation District and the historical district of Kleinburg, which imposes historical design guidelines, the Proposed Development utilizes Usonian architecture which acts as an homage to renowned Architect Frank Lloyd Wright’s “Falling Water” project. The architectural objective is to harmoniously integrate the dwelling into its existing natural environment with a net-zero energy outcome, meaning, in simple terms, it would generate as much energy as it used.

3From a cultural and historical heritage perspective, this endeavour can be appreciated as a worthy and significant cause. This objective also provides some context, dating back to 2018, of the pre-consultation process between Mr. Peebles, the City, and Heritage Committee, wherein support was expressed for the project. However, and whether Mr. Peebles was directed to, or he himself chose to, deal first with an isolated application for a development permit pursuant to TRCA’s Development, Interference with Wetlands and Alterations to Shorelines and Watercourses Regulation (“O Reg 166/06”),¹ that is ultimately what was done and the subject matter of this appeal.

4The Subject Property is within a floodplain, and therefore, among other reasons, falls within the jurisdiction of the TRCA as a regulated area. There is no concurrent Planning Act² application before the Tribunal on this appeal. Accordingly, while much evidence was received respecting the cultural and historical heritage and architectural significance of the Proposed Development, for the reasons explained in this Decision, that evidence holds little relevance to the nature of the appeal and the key issues in dispute.

5This appeal arises specifically from Mr. Peebles’ request for a TRCA Permit #1491/21/VAU (the “Permit”) pursuant to s. 3(1) of O Reg 166/06, which was initially submitted on November 5, 2021. On June 10, 2022, the TRCA refused the Permit. The matter now before the Tribunal is a hearing pursuant to s. 28(15) of the Conservation Authorities Act (the “CA Act”).³

6For the reasons that follow, the presiding Panel dismisses the appeal and upholds the TRCA’s decision refusing the Permit.

ISSUES AND ANALYSIS

Applicable Legislative, Regulatory, and Policy Framework

7The Parties are fundamentally at odds with respect to the appropriate framing of issues applicable to this appeal. This is a result of fundamentally differing views as to the governing legislative, regulatory and policy framework. Accordingly, two separate issues lists (“Issues Lists”) for the respective Parties were ultimately issued within the Procedural Order appended to the Case Management Conference Decision of this Tribunal dated May 29, 2023 (“CMC Decision”), with a direction that the merits of the issues may be determined on the present Hearing. The CMC Decision with the respective Issues Lists is appended as Attachment 1 to this Decision.

8At the close of the Hearing, the Parties presented their respective positions regarding the appropriate and applicable legislative, regulatory and policy framework that ought to govern this appeal. Starting with the legislative scheme, both Parties agree that s. 28 of the CA Act is the starting provision from which the TRCA’s authority to regulate development is delegated. Both Parties also agree that s. 28(1)(c) of the CA Act is applicable, subject to a disagreement on whether the conservation of land remains a valid ground of consideration, as discussed further below. Subsection 28(1)(c) currently allows a conservation authority to make regulations in areas under its jurisdiction, including, (emphasis added):

(c) prohibiting, regulating or requiring the permission of the authority for development if … the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development.

9At the outset, the Panel will address an argument presented by Arkadi Bouchelev, Counsel for the Applicant. Mr. Bouchelev asserts that the purpose of the CA Act, as set out in s. 0.1, is clear that the intention is for the “organization and delivery of programs and services that further the conservation, restoration, development and management of natural resources in watersheds in Ontario.” Mr. Bouchelev stresses that it is not the purpose of the CA Act to prohibit development outright.

10On the plain and ordinary reading of s. 28 above, the Tribunal finds that the CA Act does expressly allow for the prohibition of development where, in the authority’s opinion, the control of flooding, erosion, dynamic beaches, pollution, or the conservation of land may be affected. The fact that this “prohibitive” language is not explicitly set out earlier in s. 0.1 within its general purpose, does not mean that the authority is restricted in doing so on the basis of prescribed grounds. Additionally, the argument opposing a “blanket policy to ban development” is not a novel one and has been squarely before this Tribunal in Williams v Rideau Valley Conservation Authority (“Williams”)⁴ within the Book of Authorities of the TRCA. In Williams, it was determined that conservation authorities do have the ability to implement policy prohibiting new development outrightly, which informs whether a decision to issue a development permit is appropriate. While prior decisions of this Tribunal are not binding, the Panel agrees with the determination of Member Wilkins (as he then was) as the correct approach and addresses this below in the discussion regarding the appropriate exercise to be undertaken in reviewing conservation authority policy.

11Turning to the governing regulatory scheme, notwithstanding Bill 23, More Homes Built Faster Act, 2022 (“Bill 23”),⁵ which proposes amendments to s. 28 of the CA Act and a future revocation of O Reg 166/06, both Parties agreed that s. 28(1)(c) of the CA Act directs us to the O Reg 166/06 as currently applicable, and specifically s. 2(1)(b), s. 2(1)(c) and s. 3 of O Reg 166/06.

12In summary, s. 2 of O Reg 166/06 sets out that development shall not be undertaken or permitted in areas that are river or stream valleys as defined in s. 2(1)(b), or hazardous lands as set out in s. 2(1)(c), unless the five-part test set out in s. 3(1) can be satisfied, in which permission to develop may be granted if the control of (i) flooding, (ii) erosion, (iii) dynamic beaches, (iv) pollution, or (v) conservation of land, will not be affected by the development. Also agreed is that, of the five tests under s. 3(1), the control of flooding and erosion are applicable for consideration, while the dynamic beaches and pollution grounds are not a factor. As briefly mentioned above, the Parties disagree as to whether the conservation of land remains a valid ground of consideration, which goes directly to the first part of Issue No. 5 of the Applicant’s Issues List, that is: “Is the Tribunal required or permitted to consider the proposed development’s impact on conservation of land…”.

13Mr. Bouchelev points to Bill 23, which proposes amendments to s. 28 of the CA Act such that it removes the conservation of land as a factor to be considered in determining whether permission to carry out a development should be granted by an authority. Mr. Bouchelev submits that although the relevant provisions have not yet been proclaimed into force, the Tribunal can and ought to take the Legislative Assembly’s intent into consideration. This is particularly in light of TRCA’s position throughout the Hearing, which Mr. Bouchelev describes as an inflexible application of the environmental impact test, from which he states one can understand the Legislature’s intent in removing it from the legislation as a consideration. Mr. Bouchelev adds that the Tribunal ought to take into account the pending removal of the conservation of land as a factor in coming to its determination, particularly in light of the fact that a decision could result which might be at odds with those made after proclamation and in applying the amended legislation.

14The Panel disagrees. While it may be said that the intent of the Legislature may be interpreted from the impending amendment, it does not follow that this Tribunal may disregard the current legislated language applicable, prior to the proposed amendments coming into force. Simply put, the proposed amendments are not effective until proclaimed. The entirety of the Hearing and evidence presented was carried out under the existing and currently applicable framework. The Tribunal cannot predict the course or timing of proposed legislative changes, and as an administrative body exercising statutory authority, must apply the governing legislation in effect at a given time. In any event, and as will be further addressed below, this Panel finds that the application fails on multiple grounds, and therefore, the Panel’s decision does not turn on the consideration of the conservation of land, the latter of which was indeed found to be in favour of the Applicant.

15Turning back to the applicable policy framework, this is where the Parties further diverge, and a key point on which this case turns – that is, whether any weight is to be given to conservation authority policy, and if so, the appropriate standard of that review. Briefly, the TRCA’s position is that “The Living City Policies for Planning and Development in the Watersheds of the Toronto and Region Conservation Authority” (“LCP”) adopted by TRCA Resolution #A186/14 and dated November 28, 2014, is the only policy document applicable to guide the required legislative and regulatory analysis, with which the standard of consistency is applicable. In the alternative, the TRCA posits that it is both the Provincial Policy Statement, 2020 (“PPS”) and LCP that apply, which does not change the outcome of the application since the development permit fails to achieve consistency with the PPS in the same way that it fails the LCP. The Applicant argues it is only the PPS that applies. The Applicant states that while the TRCA may have its own internal policies, as they are not subject to ministerial approval or review, they are simply internal guidelines meant to guide the administration of matters. The Applicant is of the view that the LCP does not require the same consistency exercise in the permitting process as is required with the PPS and is not in any way binding on this Tribunal.

16The Divisional Court case of Laforme v The Corporation of the Town of Bruce Peninsula (“Laforme”),⁶ as put forward by the TRCA, is determinative of the issue regarding the applicability of conservation authority policies and the correct standard of their review in the context of such a case. As cited by countless other decisions of this Tribunal,⁷ the Divisional Court in Laforme found that a development permit decision should be consistent with a conservation authority’s policies. The Court stated (emphasis added):

40. The purpose of my review of the Policies is not to interpret and apply them to the project, but rather to determine, as part of a review of the record available to the Court, whether the Town’s proposed interpretation of the exception under section 3(1) of O. Reg. 151/06 is consistent with the Policies.⁸

17Mr. Bouchelev rebuts this proposition, submitting that Laforme was a judicial review of a conservation authority decision and not a hearing before the OLT. He submits that this distinction is significant since a deferential standard is applied on judicial review than as would be the case on an appeal, in that, the Divisional Court was only tasked with determining whether the conservation authority’s refusal to issue a permit was reasonable by turning to its policies. Accordingly, he argues that the relevant portions of the decision, being paragraph 40 above, must be read in that context and have been misapprehended by this Tribunal in the cases of Williams,⁹ Pavy,¹⁰ Kertzer,¹¹ and DenOuden.¹² Mr. Bouchelev submits this is not the legal standard on the current appeal before the Tribunal, which is a hearing de novo, and that the correct approach is to follow the standard practice of having only “regard” for non-binding policies.

18The Tribunal disagrees and finds that the decisions of this Tribunal in Williams,¹³ Pavy,¹⁴ Kertzer¹⁵ and DenOuden¹⁶ set out the correct proposition arising from Laforme, which, in any event, is binding on this Tribunal. It is acknowledged that Laforme was a judicial review applying the standard of reasonableness, a standard more deferential than that of correctness. In simple terms, this means that where a higher court finds a decision to be reasonable, they will not interfere with the decision, even if they might have come to a different conclusion. However, the Panel is of the view that where it is found that a decision is unreasonable, as was the case in Laforme, then it is more likely than not that the decision would also be found to be incorrect on the higher standard of review. To put it differently, if inconsistency with conservation policy is unreasonable, it would logically follow that it must also be incorrect. Accordingly, in the view of this Panel, the Divisional Court in Laforme does indeed set out the requirement that a decision under s. 28 of the CA Act must be consistent with the policies of a conservation authority enacted and adopted pursuant to the same legislation.

19The final dispute over the applicable policy framework governing this appeal regards the PPS. Mr. Bouchelev asserts that consistency with the PPS is not only required, but paramount. Counsel for the TRCA, Tim Duncan, acknowledges that this Tribunal has generally applied consistency with the PPS as one of the tests in decisions made under s. 28(15) of the CA Act based on Laforme. However, in Mr. Duncan’s submission, the logic of this application is not clear, and this proposition from Laforme may be the result of an overly broad interpretation of the Ontario Court of Appeal (“Court of Appeal”) in Gilmore v Nottawasaga Valley Conservation Authority (“Gilmore”).¹⁷

20The PPS is issued under s. 3(1) of the Planning Act “on matters relating to municipal planning that in the opinion of the Minister are of provincial interest.” The PPS’s application is set out in s. 3(5)(a), which does not expressly include conservation authorities and explicitly sets out that its policies apply to decisions “in respect of the exercise of any authority that affects a planning matter” (emphasis added). In Gilmore (followed by Laforme¹⁸), at paragraph 51, the Court of Appeal found that, for the purposes of s. 3(5) of the Planning Act, a conservation authority is a “local board” that is required to act in a manner consistent with provincial policy statements, including the PPS.

21Mr. Duncan argues that, on its face, proceedings under the CA Act have no apparent connection to the Planning Act or a municipal planning matter given that a permit under a conservation authority is not a “municipal planning matter”, that there is no planning application currently before the Tribunal, and that there is no municipality involvement or participation in this proceeding. He turns to Laforme, citing Gilmore, and highlights that the key paragraph in Gilmore, paragraph 51, ruling on the application of the PPS was expressly stated to be required where the exercise of the conservation authority specifically “affects a planning matter”, a key phrase that may have been overlooked by Laforme. He adds that paragraphs 46 and 52 of Gilmore clarify that a conservation authority’s regulatory concern over flooding and public safety does not “usurp municipal authority” and confirm that conservation authorities, and this Tribunal on appeal, are the only bodies with the authority to issue development approvals under the CA Act and the regulations. Based on these key paragraphs containing the discussion on the issue, Mr. Duncan submits that there is no actual indication that the Court of Appeal endorsed the notion that PPS consistency is required specifically for a development permit under the CA Act. In further support, Mr. Duncan states Laforme was not an appeal under s. 28(15) of the CA Act as a hearing de novo, rather it was an appeal for judicial review, and the permit in that case was issued to a municipality rather than a private landowner, which may have added confusion as to whether the matter was inherently a municipal matter.

22The Tribunal cannot accept the position of the TRCA. Firstly, the Divisional Court ruling in Laforme is binding on this Tribunal and should its interpretation of Gilmore have been in error, that is an issue that could only be clarified by the higher courts. Notwithstanding this, the Panel is of the view that the issues raised by the TRCA were squarely before Laforme and addressed correctly by the Divisional Court. At paragraphs 57 and 58 of that decision, the Town of South Bruce Peninsula put forward an analogous argument that the PPS did not apply because the retaining wall project at issue was not a “development” within the meaning of the Planning Act and not a matter of municipal planning but rather of road upkeep and maintenance. The Divisional Court referred to Gilmore and stated that the construction of a house in a floodplain was a discrete construction project and not a broader matter of municipal planning in concluding that it still stood for the proposition that consistency with the PPS was required. Both Gilmore and Laforme dealt specifically and strictly with development permits under the CA Act, and in the view of this Panel, are determinative that the PPS applies in the context of the present appeal, in tandem with the CA Act, O Reg 166/06 and the policies of the LCP.

23For greater clarity, the legislative, regulatory and policy framework that governs this appeal raise the following questions:

a) Does the development permit comply with the regulatory requirements in s. 2(1)(b), s. 2(1)(c) and s. 3 of O Reg 166/06;

b) Is the development permit consistent with the PPS; and,

c) Is the development permit consistent with relevant Conservation Authority’s policies created under the CA Act and O Reg 166/06, in this case being the “Policies for the Administration of the Development, Interference with Wetlands and Alterations to Shorelines and Watercourse Regulation” set out in s. 8 of the LCP.

Compliance with Ontario Regulation 166/06

24As previously set out, s. 2 of O Reg 166/06 prohibits development in river or stream valleys and hazardous lands. Exceptions are carved out in s. 3, where permission for development may be granted if the control of flooding, erosion, or conservation of land will not be affected by the development.

25The Subject Property is situated immediately adjacent to the east bank of the East Humber River (“EHR”), a tributary of the Humber River Watershed. Located within the EHR Valley Corridor, the Subject Property is within the TRCA’s Regulated Area and in an area subject to potential natural hazards, including flooding and erosion, and natural features. A significant portion of the Subject Property falls within the floodplain limits of the EHR, as mapped by TRCA in 2019.

1. Control of Flooding

26Both the control of flooding and erosion are identified in the Issues Lists as Applicant Issues No. 1 and the TRCA Issues No. 1(a). The language as framed by the Applicant suggests that this Tribunal must determine whether the “proposed development substantively impact[s] the control of flooding or erosion…” (emphasis added). The TRCA’s list sets out that this Tribunal must assess: “has the appellant demonstrated that the proposed development will not impact the control of flooding [or] erosion…” (emphasis added).

27The test for the control of flooding and erosion are derived directly from the O.Reg 166/06, and mirrors the language set out in s.8.2.3 of the LCP for regulation tests; neither of which include the word “substantive”. However, the interpretation of similar regulatory language was undertaken in Laforme where the Divisional Court found it reasonable that the test to be used when applying the s.3(1) exception is whether the proposed development would have no negative impact on the control of flooding, erosion, dynamic beaches, pollution, or the conservation of the lands in question.¹⁹ This test has been accepted and applied by this Tribunal in prior decisions, and is accepted by this Panel as the correct test to be applied on the present appeal.²⁰ As noted by the Court of Appeal in Gilmore, the burden is on the Applicant to convince the decision-maker to permit the proposed development based on the exercise of its discretion.²¹ Accordingly, applying the test to the present case, the appropriate framing of the issue is whether the Applicant has satisfied his onus of demonstrating that the Proposed Development will have no negative impact on the control of flooding.

28The four key witnesses called by the Applicant who touch on this issue include Fausto Cortese and Wiktor Moskaliuk, who both were qualified without objection to provide expert opinion evidence in the field of architecture, Matthew Cory, who was qualified without objection to provide expert opinion evidence in the area of land use planning, and Robin McKillop, who was qualified without objection to provide expert opinion evidence in fluvial geomorphology and riverine erosion control. The TRCA called Dan Hipple, who was qualified, despite objection, as an expert in the area of water resources engineering.

29A brief mention on the Applicant’s evidentiary objection. Citing the Supreme Court of Canada decision in White v Burgess,²² the objection to Mr. Hipple’s qualification and evidence by Mr. Bouchelev pertained to what he described as an “association bias” or “apprehension of bias” arising from his employment relationship with the TRCA. Mr. Bouchelev argued it was inappropriate for a witness to be accepted as an independent expert and be permitted to opine on compliance with his employer’s “internal” policies, being the LCP, in that an employee could have an ulterior motive to provide something serviceable to its employer, ultimately rendering the evidence unreliable. The objection essentially centered on restricting any TRCA employee tendered, and otherwise appropriately qualified as an expert in their field, from opining on the LCP.

30The Panel agreed with Mr. Duncan’s responding position that the contention over the applicability and weight of the LCP was a matter of law over which submissions were expected and ultimately received during the close of the proceeding. Therefore, the Panel allowed questions in relation to the interpretation of the LCP as permissible, to the extent that the subject matter of the policies remained within the area of expertise of the particular witness. The Panel also agreed with Mr. Duncan that the issue of the apprehension of bias was directly addressed in Kertzer,²³ a decision of this Tribunal which considered White v Burgess in a similar context. As in that case, this Panel found here that it is the duty of an expert witness appearing before the Tribunal to provide testimony that is fair, objective and non-partisan, and that in fact, each of the experts, including Mr. Hipple, had sworn to do so. The Panel articulated the distinction between the concept of non-partisan, commonly referring to unbiased, and independence in the context of one’s affiliation with a third party as set out in Kertzer; “[a]lthough opinion evidence must itself be both unbiased and independent (meaning free of influence), it does not necessarily follow that the expert himself or herself must be independent of any third party involved in the proceeding”.²⁴ On this basis, the Panel found the Applicant did not meet the burden of establishing that Mr. Hipple, or any other TRCA witness subsequently tendered, would not perform their duty to provide non-partisan evidence in these proceedings.

31Returning to the evidence, Mr. Cortese provided evidence on behalf of the Applicant to demonstrate how the Proposed Development could be safely built, through flood proof design, in recognition that the Subject Property is within a natural hazard area, specifically a floodplain. Notably, he testified that the project was designed with safety in mind, and that all living spaces would be located above the floodplain to facilitate safe access and exit in the event of a flood. The ground floor would feature an elevator, stairwell, storage space, and open to a swimming pool and outdoor seating area. The entire ground floor is intentionally structured as a utility space and designed specifically to be flooded in the event of a hundred-year flood, except for a small waterproof vestibule. All living space would be above ground level. The main floor would accommodate family living, kitchen, dinning area, library, and primary bedroom. Three additional bedrooms would be located on the second floor. To ensure safe access, a bridge would be incorporated at main level and connect directly to Valley Road. The following image (Exhibit 1, Tab 1, Attachment 1, PDF Page 17) demonstrates the architectural rendering of the Proposed Development:

32Mr. Cortese’s evidence highlighted the original Falling Water Project to demonstrate how the design could architecturally be integrated safely into its natural surroundings, which also included slopes and a naturally flowing stream. It is Mr. Cortese’s opinion that the Proposed Development would have no impact on the flood hazard (i.e. control of flooding) because of its architectural design. By his calculation, in the event of a 100-year flood, the volume of water displaced by the building would be, at most, 65.5 cubic metres (including a 20% safety factor). He testified that the water displacement is a negligible amount considering the millions of cubic metres of water in the surrounding area in such a 100-year flood event, and further, that even the negligible amount of water displacement could be mitigated in the final landscape design. It is also his view that as the Proposed Development is on the east bank of the Humber River, it sits at a higher elevation than the west bank, and since the natural flow of water in a flood event is to the west, opposite the bank of the river, the Proposed Development would not be an impediment to water flow.

33To put it simply, Mr. Cortese explained how, from an architectural perspective and in reliance on engineers and other professionals, the building could be designed such that in the event of a flood, the water could easily flow through the ground floor area and not affect any inhabitants of the home. There would be direct ingress and egress from the main floor directly to Valley Road, which is naturally at an elevation above the floodplain. He testified that all electrical and mechanical components could be located on the first or second floors. Also, while it was his evidence that the elevator accessing ground floor would automatically shut down and default to the next lower floor in the event of emergency, such as power failure or water sensor trigger, it later came out in evidence through other witnesses that this could be programmed to default to the next higher floor.

34Wiktor Moskaliuk, a second architect called on behalf of the Applicant, corroborated Mr. Cortese’s evidence that the Proposed Development could be architecturally designed to be floodproofed in such a way that there would be no impact to the control of flooding. Again, Mr. Moskaliuk’s evidence was in recognition that the Subject Property is within a floodplain. However, he pointed to various other projects in coastal areas globally, and notably the York Annex Project, the Embassy of the People’s Republic of China, and the York Region Police Training Facility, all within Ontario (Exhibit 1, Tab 6, Attachment A, PDF Page 708), as precedent that the Proposed Development could safely be built in a floodplain. The salient points of Mr. Moskaliuk’s evidence centered around the principle that various measures can be implemented to build developments with the control of flooding in mind including, namely, the use of pylons, pillars, piles, and stilts to elevate structures above the floodplain, cut and fill to remove the area from the floodplain limits, floodproofing ground levels, and the use of bridges for safe ingress and egress. With respect to the Proposed Development, it was Mr. Moskaliuk’s concluding opinion that it could be architecturally designed in such a way to withstand the 100-year flood event. Specifically, by elevating the structure above flood level using steel and/or concrete, which he stated to be reliable protection against flood damage, and to build on stilts or pillars as an approved form of structural engineering, whereby the columns would rest on pile caps and helical piles. Alternatively, Mr. Moskaliuk stated a cut-and-fill approach could potentially be utilized to remove the area from the floodplain limits, though admittedly he stated he had not gone through any detail of this approach for this Proposed Development.

35Matthew Cory is the Applicant’s land use planner. Mr. Cory admitted that the Subject Property is within an area containing “potential” natural hazards related to both flooding and erosion within valleyland, at least as far as is set out under the PPS. Much of Mr. Cory’s evidence related to his opinion that the Proposed Development can be considered in several ways under the PPS to give effect to the fact that the Subject Property has as-of-right permissible residential zoning, at least over a substantial part of the Subject Property, and, that the PPS policies do not prohibit development outright; rather, they set out circumstances in which development may be permitted. Mr. Cory’s evidence and an analysis of the application of PPS policies is set out further below, along with this Panel’s view that the PPS policies work in harmony with the regulatory tests and LCP – not contrary to it. However, and strictly in relation to the regulatory test of the control of flooding, Mr. Cory opined that the role of the TRCA is to implement provincial interests, and specifically to implement the PPS’ provisions dealing with natural hazards. In the circumstances of this case, he opined that means to recognize the continued existing as-of-right zoning permissions and explore options as to if and how a dwelling could be permitted in a way that is consistent with the PPS. Mr. Cory opined that there are three ways in which this could potentially be achieved: (i) a review of the accuracy of the floodway modelling; (ii) a cut and fill analysis; and (iii) exploring the application of the “two-zone” concept for floodplain set out in the PPS that would identify the Subject Property as within a “flood fringe” rather than the floodplain.

36Mr. Cory testified that as a result of the TRCA’s hard-stop stance on the Proposed Development, in accordance with its internal policies prohibiting new development in the floodplain, it was reasonable for the Applicant to defer undergoing the immense expense of these analyses until such time as some assurance was received either from the TRCA, or this Tribunal on appeal, that the requested permit might actually be considered or granted. Mr. Cory further opined that the subject permit application could be approved conditional on obtaining such studies to the satisfaction of the authority. Mr. Cory’s three proposed methods of potentially permitting the Proposed Development are addressed in more detail within the analysis of the application of PPS policies and conditional approval below.

37Finally, Robin McKillop, while tendered as an expert in fluvial geomorphology, and more specifically riverine erosion, did also provide a brief opinion related to the control of flooding. He testified that, given its terrace-surface position, the proposed dwelling would not interfere with the existing water channel and that its form and function would remain materially unchanged. Further, he opined that the brevity and rarity of potential interaction of the main floor of the dwelling with floodwater during a regional storm event would have “such localized and temporary effects on flow patterns on the surrounding, vegetated terrace surface to be of no material consequence for fluvial processes or associated erosion hazards along East Humber River”. On cross examination, Mr. McKillop clarified that he was not referring to the effect on the floodplain as an entity in and of itself or how the dwelling would interact with flood control, rather that a linkage between the proposed dwelling in the grand scheme of the valley could not be established with, specifically, the effect on riverine toe erosion.

38In contrast, Dan Hipple, a water resources engineer, was called on behalf of the TRCA. Significantly, Mr. Hipple explained that, per the definitions within the LCP, the applicable regulatory flood event is Hurricane Hazel and not the 100-Year Storm (the greater of the two events). During such a flood event, he stated that TRCA floodplain mapping indicates that the water surface elevation at the Subject Property is approximately 190.96 metres (“m”). TRCA LiDAR mapping shows that the approximate depth of the flooding adjacent to the proposed dwelling ranges from 0.85 m to 1.60 m during the regional storm event. This is depicted in the following graphics tendered by the TRCA titled “TRCA 2019 Flood Plain Mapping” and “3D Flood Depth Plans” (Exhibit 1, Tab 14, Appendix #3 and #4, PDF Page 913-916) in respect of the Subject Property:

39Based on Mr. Hipple’s calculations and computer hydraulic modelling, the velocity of the regional storm flooding in the location of the proposed dwelling is approximately 0.70 metres per second (“m/s”). On this basis, Mr. Hipple states the proposed dwelling location within the site is located entirely within the regional storm floodplain with a minimum depth of approximately 0.85 m adjacent to the building. Based on the Ontario Ministry of Natural Resources Technical Guide – Rivers and Stream Systems: Flooding Hazard Limit, 2002 (“MNR Flood Guide”), he demonstrated the Proposed Development site has a depth and velocity product (0.85 m x 0.70 m/s = to 0.59 square metres per second (“m²/s”)) and a flood depth (0.85 m) that classifies as “high risk for some individuals”. Mr. Hipple concludes that the Proposed Development will not only impact, but substantively impact the control of flooding, as flooding will continue to occur within the Proposed Development and impact both human life and property on the Subject Property.

40With respect to the question of the control of flooding, the Panel prefers the evidence of Mr. Hipple; the only water resources engineer qualified to provide opinion evidence on the issue, and whose expert opinion was essentially uncontroverted. While Mr. Cory expressed that a review of the accuracy of the floodway modelling could be done, the simple matter is that one was not done. The Panel finds no compelling evidence to suggest that the floodway modelling or mapping as set out by Mr. Hipple was done inaccurately, and as admitted by Mr. Cory under cross-examination, accepts that TRCA’s flood mapping is generally done to a high degree of accuracy.

41The Panel also accepts Mr. Hipple’s response to Mr. Cortese’s assertion of negligible water displacement, which he states is not based on the correct comparison, as the dwelling is not simply located where flood water gathers but rather in a riverine floodplain where water is conveyed adjacent to or over the area. When informed by a water resources engineer, Mr. Hipple explained that the correct comparison is to take the 65.5 cubic metres of displaced water against the peak flow rate through the area of 396 cubic metres per second, resulting in a displacement rate of 16.5% caused by the Proposed Development. In other words, the 65.5 cubic metres of displaced water should not be compared against millions of cubic metres of just surrounding water; rather, one must consider the water as it is moving, and the blockage that the Proposed Development represents, which equates to a displacement rate of approximately 16.5% caused by the Proposed Development, and which has a much greater impact on flow and conveyance.

42Accordingly, the Panel finds that the Applicant has not discharged his burden of demonstrating that the Proposed Development will have no negative impact on the control of flooding. While Mr. Cortese and Mr. Moskaliuk both presented as credible architects, the Panel finds their evidence of little weight on the issue of the control of flooding. Both architects, admittedly, did not have the input of a qualified water resources engineer to confirm if the proposed dwelling could be built in a way that appropriately addressed the control of flooding. The Applicant has also failed to put forward any hydraulic or flood study to challenge or augment the TRCA’s mapping, modelling and conclusions. As Mr. Hipple explained, technical reports by qualified professional are required to support applications seeking permission to undertake development in a regulated area, and in this case, a water resources engineer with a flood or hydraulic study. While the Panel can appreciate that the Applicant wished to defer the onerous expense of additional studies given its uncertainty of the outcome of the application, for reasons further explained in the discussion under conditional approvals, that is not a factor which can be considered by this Tribunal in its analysis of whether a development permit may be granted for the development as proposed. Additionally, the use of precedent in other areas and jurisdictions where similar developments have been constructed are not relevant to the analysis of the regulatory tests and policies applicable in this case. This Tribunal can only assess the application and materials before it, and here there is insufficient evidence to satisfy that the development, as currently proposed and submitted, would have no negative impact on the control of flooding.

2. Control of Erosion

43The control of erosion is also identified in the Issues Lists as Applicant Issue No. 1 and the TRCA Issue No. 1(a). For the same reasons as set out in paragraph 26-27 above, the Panel finds that the correct test to be applied on the present appeal is whether the Applicant has satisfied his onus of demonstrating that the Proposed Development will have no negative impact on the control of erosion.

44The two witnesses called by the Applicant on this issue are Robin McKillop, fluvial geomorphologist, and Ian Shaw, who was qualified without objection to provide opinion evidence in geotechnical engineering and slope erosion. The TRCA called Dr. Ali Shirazi, a geotechnical engineer, and Adam Miller, a land use planner. Both TRCA witnesses were qualified to provide opinion evidence in their field over the Applicant’s same objections regarding association bias if permitted to speak to the LCP. The objection was rejected by the Panel for the same reasons set out in paragraphs 29-30 above.

45As conceded by the TRCA, Mr. McKillop’s evidence was not particularly contentious. For context, Mr. McKillop sets out that the Subject Property is located on a terrace immediately southeast of the existing Valley Road bridge over the EHR. A scarp (embankment) at the western edge of the terrace confines the river and separates it from the Proposed Development site. The scarp has a moderate slope, is fully vegetated, and is composed of native clay-rich material capped by alluvial sediments and exhibits no signs of active or recent erosion. Per the Agreed Statement of Facts – Fluvial Geomorphology (“Agreed Facts”, Exhibit 1, Tab 19, PDF Page 985), the river at the proposed dwelling site has not exhibited any evidence of systematic migration and continues to exhibit a low potential for riverine erosion. The proposed dwelling site is also outside the meander belt, which is the corridor in which movements and adjustments of the river occur over time. Because of the confinement of the EHR by the terrace on which the proposed dwelling site is located, a “toe erosion allowance” is required to establish an erosion hazard limit in accordance with the Ministry of Natural Resources Technical Guide – River & Stream Systems: Erosion Hazard Limit, 2002 ("MNR Erosion Guide”). Per the Agreed Facts, a 2 m toe erosion allowance applies to the riverbank alongside the Proposed Development site on the Subject Property.

46Mr. McKillop concludes that the Proposed Development itself would not be anticipated to have any local or farther-reaching effect on the toe erosion allowance or associated erosion hazard limits. He states that the 2 m toe erosion allowance would provide sufficient buffer to accommodate erosion within a 100-year planning timeframe, and that the Subject Property is not at risk from riverine erosion. On cross-examination, Mr. McKillop clarified that his comments and opinions were not in relation to slope erosion issues, flood hazard issues, nor was he speaking to the nature of the flood hazard or its attendant risk.

47Ian Shaw is the Applicant’s geotechnical engineer who was called to provide evidence specific to slope erosion. Mr. Shaw prepared a Geotechnical Considerations Brief, opining on slope stability and feasibility of the Proposed Development based on a review of a GeoTerre geotechnical report (“GeoTerre Report”), the proposed building plan, and TRCA comments. His evidence acknowledged that the Subject Property is within potential erosion hazard lands adjacent the EHR with three slope sections: slope one is the riverbank to the Subject Property (“Slope 1”); slope two is from the Subject Property up to Valley Road (“Slope 2”); and slope three is from Valley Road up to Stegman’s Mill Road (“Slope 3”). The following diagram illustrates the three slopes (Exhibit 4, Tab 21, PDF Page 11):

48Mr. Shaw testified that Slope 1 is the primary section subject to risk of erosion because it is adjacent to the EHR, while Slope 2 and Slope 3 do not have appreciable potential for erosion. The reason for this, Mr. Shaw explained, arises from the distinction between erosion hazard and slope stability. Erosion hazard regards the impact of external forces on a slope and how that might potentially degrade its stability or physical condition over time. In contrast, stability is a separate concept that could degrade over time, even without external forces. However, when speaking to erosion hazard, Mr. Shaw stated that because Slope 2 and Slope 3 are far removed from the river and the Subject Property, they are not subject to erosion hazard. While he agreed that it is not necessarily imprudent to look at the stability of Slope 2 and Slope 3, that would be an analysis of stability generally, and not specific to an analysis of erosion hazard. Accordingly, just as the GeoTerre Report only assessed Slope 1, so too did Mr. Shaw only evaluate Slope 1 in respect of the issue regarding the control of erosion.

49On his review of the materials, Mr. Shaw ultimately endorsed the GeoTerre Report’s analysis of Slope 1, and opined as follows:

a) The subsurface soil conditions consist of competent soils, being very stiff to hard silty clay and dense to very dense silt till, which offer good strength characteristics, accommodating steeper slopes at steeper inclinations.

b) The competent subsurface soils provide excellent conditions to support construction of the Proposed Development to achieve long term safe and stable conditions.

c) Conservative soil parameters were used based on the very competent conditions encountered in the boreholes for stable slope inclination and stability modelling demonstrating minimum factors of safety of the existing slope in the range of 1 to 1.55 with respect to the existing physical crest. As conservative parameters were used, the actual factor of safety is likely to be greater than calculated.

d) The toe erosion allowance of 2 m is appropriate, as also confirmed in the Agreed Facts.

e) The GeoTerre Report’s assessment is reasonable and geotechnically appropriate with respect to stability and potential for toe erosion affecting Slope 1, as well as the determination of Long Term Stable Top of Slope (“LTSTOS”). A stable slope inclination was considered ranging from 2.35 to 2.7 horizontal (“H”) to 1 vertical (“V”) resulting in a minimum factor of safety of greater than 1.5 with respect to the LTSTOS. Again, as conservative soil parameters were used relative to soil conditions determined in the boreholes, the LTSTOS factor of safety would be well above 1.5.

f) With very stiff to hard silty clay deposits, a stable slope inclination of as much as 2H:1V would be technically feasible and so the LTSTOS could in fact be argued to be closer to the physical crest of the subject slope than presently shown in the GeoTerre Report.

50Mr. Shaw concluded that Slope 1 is considered to be adequately stable in the short and long term to allow for safe construction of the Proposed Development, which should adhere to the specific recommendations for the design and construction of foundations within the GeoTerre Report. Those include the use of helical piles to transfer the load of the dwelling to the underlying hard silty clay or dense to very dense silt, below the level of the river. In this way, there would effectively be no load transfer from the dwelling to the slope, such that the long-term stability of the slope would be unaffected by the dwelling and the dwelling unaffected by natural movements of the slope experienced over time. In other words, he stated the Proposed Development would not have a negative impact on slope erosion.

51He further stated safe access to the site is viable by the proposed driveway from Valley Road to the north, which would allow for safe vehicle and equipment access to the slope in the event any future repairs were required. With respect to Slope 2 leading up to Valley Road, while considered geotechnically stable, Mr. Shaw recommended it would be prudent for the steeper portion of the slope to be flattened by the placement of minor fill (0.5 to 0.8 m) such as to raise the grade adjacent to Valley Road in order to improve the long term safe access for the community along Valley Road with respect to flooding levels (irrespective of the Proposed Development), which would be geotechnically suitable and have negligible impact on the stability of the existing slope. Improved vegetation at Slope 2 is also recommended, regardless of grading, to protect the slope from surface erosion (i.e. erosion associated with typical rainfall events) and to reduce minor surface movements associated with natural weathering that could occur over time.

52In response, the TRCA called its geotechnical engineer, Dr. Shirazi. The fundamental disagreement among the experts appears to regard the determination of the erosion hazard limit, the exclusion of Slope 2 and Slope 3 from the erosion hazard study area, and the calculation of the LTSTOS for Slope 1. To put it simply, Dr. Shirazi stated that per the MNR Erosion Guide, the erosion hazard limit includes the physical top of slope, plus an “erosion access allowance”, which is the last component used to determine the landward limit of the erosion hazard and should be applied within all river and stream systems (Exhibit 3, Volume 1, Tab 14, PDF Page 965). The erosion hazard limit then sets the study area that he states should be fully reviewed, with no development to occur below the physical top of bank of the valley wall. Dr. Shirazi stated that Mr. Shaw failed to include the erosion access allowance in his analysis.

53With respect to the three slopes, Dr. Shirazi stated they should have all been considered and evaluated for three key reasons. First, he stated that when you calculate the correct hazard limits, the calculation includes the entirety of the valley, inclusive of all three slopes. Second, he stated that all three slopes can be prone to erosion hazard because all three include steep inclination areas greater than 2H:1V as shown in the LiDAR Mapping (Exhibit 1, Tab 12, Appendix C, PDF Page 864). Third, the proposed dwelling and access to it via Valley Road are both below the top of the slope of the valley, between Slope 2 and Slope 3, and therefore interact with all three slopes, which each have steep slope inclinations. He contended that safe access to the site depends on the long-term stability of Slope 2 and Slope 3. Therefore, while Slope 1 is primarily subject to toe erosion, the other two slopes are still at risk of erosion requiring examination as they are part of the valley wall and include steep sections prone to erosion hazard. Dr. Shirazi defined erosion hazard per the PPS and LCP to include human or natural processes that pose a risk to life and property. He further contended that by Mr. Shaw’s own admission, the long-term stability of Slope 2 is of concern such that he recommended filling a portion up to 0.8 m. Dr. Shirazi concluded that the entirety of the valley wall, including all three slopes, are prone to erosion hazard with no stability analysis submitted to support long term stable slopes.

54Regarding the LTSTOS, Dr. Shirazi stated the correct calculation ought to have accounted for the full extent of the valley wall as well as the erosion access allowance (s. 3.4 of the MNR Erosion Guide), which would have resulted in a LTSTOS that would have been more encompassing. In contrast, Mr. Shaw stated the MNR Erosion Guide can “suggest” there needs to be an allowance; however, that is not a requirement that a geotechnical engineer must consider in establishing the LTSTOS line, which is based on a various set of variables in any given case. Notwithstanding the disagreement as to whether the LTSTOS was calculated correctly, Mr. Shaw conceded on cross-examination that when the LTSTOS map is superimposed onto a map of the Proposed Development, the building envelope or footprint does cross the LTSTOS line. Mr. Shaw further agreed that s. 3.2 of the MNR Erosion Guide states that, generally, development should not occur on the top of valley walls because the LTSTOS cannot be guaranteed, meaning geotechnically safe limits equate to being behind the LTSTOS line. The following figure from the GeoTerre Report entitled “LTSTOS vs Building Footprint” illustrates a graphic of the LTSTOS line as superimposed onto the graphic of the Subject Property (Exhibit 1, Tab 4, Appendix 3, PDF Page 559):

55The TRCA’s land use planner, Mr. Miller, provided his opinion regarding this technical discussion in the context of the regulatory and policy framework. With respect to the test of control of erosion, Mr. Miller confirmed Dr. Shirazi’s definition of erosion hazard (per both the LCP and PPS), that is, the loss of land due to human or natural processes that pose a risk to life and property. He also confirmed the definition of erosion, that is, the process of gradual washing away of soil by water movement, which can include rainfall, surface runoff and internal seepage. Mr. Miller further agreed with Dr. Shirazi, from an interpretation of the applicable policies perspective, that Slope 2 and Slope 3 are required to be assessed because both the LCP and MNR Erosion Guide note that confined valley systems can exhibit three different conditions within which erosion hazards exist or may develop (emphasis added): “(1) valley slopes that are steep but stable, (2) valley slopes that are over steepened and potentially stable, and (3) valley slopes that are subject to active toe erosion” (policy 7.4.3.3 of the LCP and s. 3 of the MNR Erosion Guide). Accordingly, Mr. Miller supported and relied on the evidence of Dr. Shirazi, and on that basis, opined that the Applicant has failed to demonstrate that the Proposed Development will not impact the control of erosion, and more specifically, fails to meet both LCP policies 8.4.3, 8.4.4, 8.4.5, 8.4.8, and 8.4.13, and PPS policies 3.1.1, 3.1.2, and 3.1.7.

56The Panel found Mr. Shaw to have been a credible witness and is persuaded that the Proposed Development would have no negative impact on the control of erosion in relation to Slope 1. However, the Tribunal finds that the geotechnical assessment failed to assess Slope 2 and Slope 3, which was required, and is deficient for that reason; therefore, the Applicant’s arguments regarding this branch of the regulatory test must also fail.

57The definitions within both the LCP and MNR Erosion Guide are inclusive as to what constitutes erosion and an erosion hazard (i.e. land loss from natural processes including even surface runoff or rainfall). Neither definition is restricted to “external forces” being the river, as put forward by Mr. Shaw. There was also no further evidence or submission made to support that Slope 2 and Slope 3 were not subject to erosion hazard because of their more distant proximity to the river. Further, the MNR Erosion Guide sets out that erosion hazard may exist or develop where slopes are steep but stable or steepened and unstable. Given that LiDAR mapping calculations demonstrate that both Slope 2 and Slope 3 encompass steep sections (greater than 2H:1V), they may therefore be susceptible to erosion hazard conditions regardless of stability. On this basis, the Panel accepts Dr. Shirazi’s assertion that because Slope 2 and Slope 3 are prone to erosion hazard, they are required to be assessed to determine the extent of the erosion hazards that could impact the site. To be clear, Mr. Shaw’s distinction between erosion hazard and stability is appreciated. Stability too, as conceded by Mr. Shaw, warrants further assessment. This is particularly so given that access to the dwelling relies on the long-term stability of both additional slopes. However, so too is further analysis of the erosion hazard risks of Slope 2 and Slope 3, and control of that erosion, warranted based on the definitions set out above. Without the full analysis, the question remains unanswered, which is of particular concern in light of the proposed bridge that is to be constructed from the dwelling to Valley Road, where Slope 2 is located. Accordingly, the Panel finds the Applicant has failed to discharge its onus of demonstrating that the Proposed Development will have no negative impact to the control of erosion.

58Notwithstanding the Panel’s determination on the control of erosion, given Mr. Shaw’s admission that the footprint of the dwelling falls below the LTSTOS, that the dwelling falls within the erosion hazard, and the multiple policy directions that prohibit development in the erosion hazard, the Proposed Development would be inconsistent with those policies rendering the issuance of a permit inappropriate. This is further discussed in the analysis regarding the relevant LCP and PPS policies.

3. Conservation of Land

59The control of conservation of land is identified in the Issues Lists as Applicant Issue No. 5 and the TRCA Issue No.1(a). For the same reasons as set out in paragraphs 26-27 above, the Panel finds the correct test to be applied on the present appeal is whether the Applicant has satisfied his onus of demonstrating that the Proposed Development will have no negative impact on the conservation of land.

60The Applicant called Austin Adams, who was qualified without objection to provide opinion evidence in the area of ecology and environmental science. The TRCA tendered Brad Stephens, who was qualified to provide opinion evidence as an expert in ecology over the Applicant’s same objections regarding association bias if permitted to speak to the LCP. Again, the Panel rejects this objection for the same reasons set out in paragraphs 29-30 above. The TRCA also called on Mr. Miller for evidence on this issue.

61Mr. Adams’ evidence to the Tribunal was based on a study he had undertaken, specifically a Scoped Environmental Impact Study (“EIS”), in which he inventoried and evaluated the sensitivity and significance of the existing natural heritage features and ecological functions associated with the Subject Property, and further, assessed the potential impacts of the Proposed Development. His assessment identified significant woodland, significant valleyland, species at risk, aquatic and fish habitat, and designated features of relevance to the Subject Property. For the natural heritage features requiring protection, he recommended avoidance and mitigation measures, where appropriate, as a means of offsetting potential impacts on these natural features. Mr. Adams testified that the Proposed Development is within the Humber River Valley and the on-site valleyland feature is ecologically important, and thus qualifies as significant. He testified that, in accordance with the PPS, development is generally not permitted unless it is demonstrated through an EIS that the development will not result in a negative impact on the feature or its functions.

62Mr. Adams confirmed that the Subject Property is within a significant woodland. Based on his review of aerial photographic evidence dating back to 1946, the portion of the Subject Property, zoned residential, where the Proposed Development would be situated, is on a long standing “clearing” or gap within this significant woodland. He opined that this area is the most feasible location for development on the Subject Property based on adjacent natural features. Mr. Adams opined that the Proposed Development does not present a significant overall impact to the significant woodland, and further, that his recommended restoration plan is meant to compensate for the loss of the nominal four or five trees.

63With respect to the consideration of species at risk, Mr. Adams identified that the Proposed Development overlaps with the potential habitat for several species at risk, being Rapids Clubtail (a dragonfly), four bat species, Redside Dace (a fish), and American Brook Lamprey (a fish). However, he testified that the critical habitat for Rapids Clubtail is further north, that the Subject Property is downstream, and that no impacts are predicted as a result of the Proposed Development. Further, as the bat survey conducted did not detect any bats on the Subject Property, Mr. Adams opined he had no concerns in this regard. Given that the Subject Property is located within 30 m of the meander belt for Redside Dace, he stated approval by way of a permit will be required from the Ministry of Environment Conservation and Parks, for which an application process has been initiated and which he viewed as satisfactory in addressing any concerns with this species at risk. Mr. Adams opined that the construction of the Proposed Development on this long-standing cleared and lawned area would not remove existing riparian vegetation that provides important ecological functions to the river, and he recommended a riparian restoration plan in accordance with the TRCA restoration guidelines for the adjacent area to provide an overall benefit.

64With respect to aquatic and fish habitat, Mr. Adams testified that the EHR is a high-quality watercourse that has had in-stream habitat improvement works undertaken and that is known to provide habitat for Redside Dace, Brook Trout and American Brook Lamprey. He opined that the Proposed Development, which sits above the river on a terrace, will not impact the adjacent riparian area of the watercourse, which is naturally vegetated, and as such, there will be no influence on the buffering function of the forested area. He made a number of recommendations related to measures to be implemented, and timing, for works associated with the development to avoid or minimize any potential effects during construction.

65In terms of designated features such as the EHR Valleylands Area of Natural and Scientific Interest (“ANSI”) and Environmentally Significant Area 332 (“ESA”) mapped in the City’s Official Plan, Mr. Adams opined that the Proposed Development would have limited influence on the criteria for these designated features.

66On the basis of his study, Mr. Adams opined that the Proposed Development is located in the most feasible, developable part of the Subject Property, presents the smallest disturbance area to the natural features on the site, and that the potential impacts of the Proposed Development to natural features can be mitigated and/or offset by the mitigation and restoration plans outlined in his EIS.

67In conclusion, with respect to the test of no negative impacts on conservation of land, Mr. Adams opined that the footprint of the Proposed Development has been minimized to the degree feasible, thereby minimizing its direct impacts. Further, he concluded that through recommended mitigation measures, the dwelling itself reduces its carbon footprint through geothermal heating, and an offsetting proposal for restoration planting in a clearing area on the other side of the river (at a ratio of 6:1 for tree removal) will add to the valley shape and provide infiltration functions which should be seen as proposed gains equating to a net positive for the conservation of land.

68In contrast, Mr. Stephens gave testimony that a “systems approach” is necessary to ensure that there is no effect on the conservation of land, and that in his opinion conservation of land includes all aspects of the physical environment, be it terrestrial, aquatic, biological, botanic or air, and the relationship between them. He testified that the Subject Property and the Proposed Development are located entirely in valleyland and that the TRCA system and natural features are of provincial interest. With respect to the “clearing”, the term used by Mr. Adams in describing where the Proposed Development would be situated, Mr. Stephens stated was not to be taken as meaning “sterile”, since the area still plays a functioning role as habitat and assists in connectivity. Mr. Stephens opined that the Proposed Development will permanently remove habitat and degrade habitat function further, and that permanent removal will negatively impact ecological functions.

69Mr. Stephens gave evidence that from a connectivity perspective, different habitats exist along the rivers, open areas, and forests that are present on site and in proximity to offsite marshes and swamps, and which allow for different species to use and move freely through the area to traverse other portions of the valley. Mr. Stephens opined that the Proposed Development would impact the ability of species (e.g. frogs, racoons, coyotes) to travel through portions of the site and would impact the ability of birds to use open areas for breeding and foraging, thereby negatively impacting connectivity, and as a result, negatively impacting the conservation of land. In short, Mr. Stephens’ opinion essentially diverts from Mr. Adams’ and rests predominantly on the application of an ecosystems approach and the concept of cumulative impacts not to be considered in isolation from one another.

70On cross-examination, Mr. Adams was questioned regarding the reason his EIS had not addressed cumulative impacts, the implication being it ought to have been, as was done by Mr. Stephens, as set out in Mr. Adams’ own terms of reference, and as required by the LCP and s. 13.2 of the Natural Heritage Reference Manual. The Panel found Mr. Adams’ response satisfactory. The Panel finds that while not expressly addressed in the EIS, the concept of cumulative impacts had been adequately considered by Mr. Adams.

71The Panel also has difficulty accepting Mr. Stephens’ opinion that the construction of a house on a lawn area in a clearing of the woodlands in the EHR valley, that has existed since 1946, will have a negative impact on connectivity. The photo evidence on the record (Exhibit 1, Tab 3, PDF Page 241) shows a longstanding camping trailer and picnic table on the Subject Property, and that there has been modest activity and use of the area of the Proposed Development adjacent to an existing road. This application does not involve a situation for a proposal to ‘carve out’ a section of undisturbed woodland area or to invite activity into a serene natural site. Accordingly, the Panel prefers the evidence of Mr. Adams in this regard, and with respect to connectivity and cumulative impact on the conservation of land.

72With respect to mitigation strategies, Mr. Stephens testified that the only appropriate management strategy is to avoid development in the feature in its entirety, stating that mitigation policies apply when there is no alternative, such as when an infrastructural decision is made or it is appropriate from a policy perspective. His opinion was that the proposal steps directly past avoidance and goes straight to compensation, which is not appropriate. Mr. Stephens was of the view that the EIS mitigation measures simply cannot achieve the net positive affect alleged by Mr. Adams, and that the Proposed Development amounts to permanent ecological removals, which cannot be mitigated.

73As noted above, the Panel recognizes that the Subject Property, being a partially residential zoned lot, is located within a Natural Heritage System with features that are of significance. However, based on the totality of the evidence in the Hearing, the Panel prefers and accepts Mr. Adams’ evidence based on his study that the Proposed Development, notably on a cleared lawn area adjacent to a roadway, would not have a negative impact on the identified features and their functions, and that the mitigation measures, including the restoration plan, would be appropriate and result in a net benefit outcome in this situation. Where the adverse impacts can be mitigated such that there are no negative impacts, the Panel sees no reason to insist on avoidance.

74It is important to also recognize that this development permit application does not seek permission to create a new lot, but rather it seeks permission to construct a dwelling on a vacant lot with existing zoning for a single-detached dwelling. The evidence supports that the Subject Property is used for recreational pursuits, including camping. Had the Subject Property not been located in a floodplain, or within hazardous lands thereby involving issues related to the control of flooding or erosion, the totality of the evidence on this third issue supports a finding of no negative impact to the control of conservation of land.

75In sum, the Panel is satisfied that the Applicant has adequately demonstrated that the Development Proposal would have no negative impact on the conservation of land. However, as the Panel is not satisfied that the development permit meets the tests for the control of flooding and the control of erosion under O Reg 166/06, it finds that the development permit does not comply with the regulatory requirements of O Reg 166/06.

Consistency with the Provincial Policy Statement, 2020

1. Natural Hazards

76Both Parties raised the issue of whether the Proposed Development is within a natural hazard zone (i.e. flood/erosion hazard) and if so, whether the Proposed Development creates risk and/or increased risk to human life and property. This is identified as Applicant Issue No. 2 and the TRCA Issue No. 1(b). The Panel finds the language as set out above, and tendered by the TRCA, as the correct language of the test to be applied with respect to this issue, specifically without the additional words “substantive” or “substantively”, as inserted by the Applicant, since again, none of the policies or guidelines make reference or use of said additional qualifying language.

77This issue stems from overarching PPS policy 3.0, which sets out that “development shall be directed away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety or of property damage, and not create new or aggravate existing hazards.” On this issue, the two opposing expert planners, Mr. Cory and Mr. Miller, were the key witnesses who provided evidence.

78Mr. Cory referred to the Subject Property being subject to ‘potential hazards’, whereas Mr. Miller referred to the Subject Property being subject to ‘hazards’. Hazardous Lands are defined in the PPS as “property or lands that could be unsafe for development because of naturally occurring processes.” Along rivers, this means “the land, including that covered by water, to the furthest landward limit of the flooding hazard or erosion hazard limits.” Based on the Panel’s review of the PPS definitions of both ‘flooding hazard’ and ‘erosion hazard’ (Exhibit 3, Volume 1, PDF Page 271), as well as the general agreement among the expert evidence, the Panel accepts that the Subject Property is subject to a naturally occurring flood hazard being in the floodplain and riverine erosion hazard, and as such, accepts that the Subject Property constitutes hazardous lands.

79It is important to note the language of the subsequent and relevant PPS policies, which inform the key contentious issues among the Parties. Policies 3.1.1(b) and 3.1.2 state (emphasis added):

3.1.1 Development shall generally be directed, in accordance with guidance developed by the Province (as amended from time to time), to areas outside of:

b) hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and /or erosion hazards; and

c) hazardous sites.

3.1.2 Development and site alteration shall not be permitted within:

c) areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards […] unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard; and

d) a floodway regardless of whether the area of inundation contains high points of land not subject to flooding.

80The Panel notes that PPS policy 3.1.4 provides exceptions to these policies. These ‘carve outs’ apply to exceptional situations where a special policy area has been approved, or to where development is limited to uses that by their nature must be located in a floodway, including flood and/or erosion control works, or minor additions, or passive non-structural uses which do not affect flood flows. To reiterate, it was Mr. Cory’s evidence that a special policy area ought to be considered given that the Subject Property is a vacant lot, zoned to permit a single detached dwelling, and that the TRCA updated their floodplain mapping in 2019, thereby increasing the extent to which the Subject Property is now located within the floodplain. However, this statement was unsupported by any evidence that this could be appropriately or successfully achieved and ultimately fails to change the fact that the Subject Property is not currently located within a special study area informing the requisite analysis that must take place. More specifically, there was no specific evidence that the Proposed Development by its nature must be located within the floodway. As such, the Panel finds that these exceptions do not apply in this case.

81Mr. Cory also testified that, in recognition of the TRCA updating of its floodplain mapping in 2019 (after having been advised by the Applicant of his interest in building on the Subject Property) and the resultant impact on the Subject Property, the TRCA ought to consider applying a two-zone concept for the floodplain. Significantly, PPS policies 3.1.6 and 3.1.7 state (emphasis added):

3.1.6 Where the two zone concept for flood plains is applied, development and site alteration may be permitted in the flood fringe, subject to appropriate flood proofing to the flooding hazard elevation or another flooding hazard standard approved by the Minister of Natural Resources and Forestry.

3.1.7 Further to policy 3.1.6, and except as prohibited in policies 3.1.2 and 3.1.5, development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where all of the following are demonstrated and achieved:

a) development and site alteration is carried out in accordance with flood proofing standards, protection works standards, and access standards;

b) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;

c) new hazards are not created and existing hazards are not aggravated; and

d) no adverse environmental impacts will result.

82It is important to underscore that the current appeal before the Tribunal is not a request to either consider the appropriateness of a special policy area, nor to apply a two-zone concept. The evidence in this case is that presently the one-zone concept applies, and on this basis, it is the evidence of TRCA’s witnesses that the entire floodplain should be treated as the floodway. The Panel agrees. Based on a review of the PPS, the definition of floodway (Exhibit 3, Vol 1, PDF Page 272), in the case of a river means the portion of the floodplain where development and site alteration would cause a danger to public health and safety or property damage, and where the one-zone concept is applied, the floodway is the entire contiguous floodplain.

83Mr. Cory gave evidence that PPS policy 3.1.7 provides that development may be permitted on hazardous lands where the effects and risk to the public safety are minor, could be mitigated with provincial standards, and where the entire list of items, being (a) through (d) of that policy, has been demonstrated to be achieved. All of the Applicant’s witnesses acknowledged or conceded that the portion of the Subject Property where the Proposed Development would be situated is flooded in the event of the regulatory storm event. In fact, Mr. Cortese had developed an architectural design with floodproofing standards for the dwelling with this in mind. The relationship of the Proposed Development with the river, three valley slopes, and regulatory floodplain and flood depth level is shown in TRCA’s Visual Evidence - “Profile 1 Cross Section – TRCA” figure (Exhibit 4, Tab 20, PDF Page 43):

84With respect to PPS policy 3.1.7(a), the evidence given by Mr. Cortese and Mr. Moskaliuk regarding the ability for architectural and structural design of the proposed dwelling to meet floodproofing and other standards, as discussed in relation to control of flooding, was questioned as not having been informed by the input of a water resources engineer. However, the point made was that there are ways that the dwelling can be designed so as to meet floodproofing standards. With respect to PPS policy 3.1.7(b), the dwelling was designed incorporating a pedestrian bridge from the main floor to Valley Road to allow for people to enter and exit the living spaces on the upper two floors of the dwelling. Significantly, it was conceded that vehicular access would be impeded during a flood event. With respect to PPS policy 3.1.7(c), the Subject Property is located on hazardous lands, notwithstanding that there is no basis upon which to conclude that the Proposed Development will not create new hazards or aggravate existing hazards. Finally, with respect to PPS policy 3.1.7(d), based on the evidence of Mr. Adams the Panel accepts that the Proposed Development will have no negative environmental impact.

85Notwithstanding, the concession by the Applicant’s witnesses that there may be restricted vehicular and emergency vehicle access to the Subject Property during a flood event constitutes a risk to public safety, and for this reason, the Panel finds that all of the items in PPS policy 3.1.7 cannot be met so as to rely on the exception in PPS policy 3.1.7.

86In any event, the Panel notes that PPS policy 3.1.7 is a ‘carve out’ that applies in the two-zone concept floodplain, which does not apply in this case. Further, this carve out does not apply where a development is prohibited by way of PPS policy 3.1.2.

87Turning back to PPS policy 3.1.2(d), which sets out that development and site alteration shall not be permitted within a floodway (in this case, the floodplain), the Panel notes that the entire footprint of the Proposed Development, as shown in the figure set out at paragraph 83 above, would be within, and impacted by, flooding. Accordingly, the Panel concludes that the Proposed Development is not only within a natural hazard zone, but also creates risk and increased risk to human life and property.

2. Safe Access

88Safe access is an issue raised by both Parties and is identified in the Issues Lists as Applicant Issue No. 4 and the TRCA Issue No. 1(c). The language as framed by the Applicant suggests that this Tribunal must determine how the Proposed Development will be accessed in the event of an emergency. The TRCA’s list suggests that this Tribunal must determine whether the Subject Property and the Proposed Development have safe access in accordance with Provincial, TRCA and City of Vaughan requirements. The issue of safe access is derived from PPS policies 3.1.2 and 3.1.7 which do not limit the issue solely to how a development would be accessed in the event of emergency. Rather, and as further demonstrated below, these policies, as well as TRCA and City requirements, expressly focus on the entirety of the site having “safe access” for both vehicles and pedestrians in times of flooding, erosion or other emergencies. Accordingly, the Panel finds that the language as set out by the TRCA as the appropriate and correct framing of the issue that is to be determined.

89On this issue, the key witnesses called by the Applicant include Mr. Cortese, an architect, David Medhurst, a fact witness, Mr. Shaw, a slope erosion and geotechnical engineer, and Mr. Cory, a land use planner. The TRCA called Mr. Hipple, a water resources engineer, Dr. Shirazi, a geotechnical engineer, and Mr. Miller, a land use planner.

90Briefly, the Applicant’s experts, in reliance on the professional opinions of one another, collectively testified that through appropriate and adequate engineering and architectural design, the Proposed Development can be adequately accessed in the event of emergency through the proposed pedestrian bridge which would connect the main floor of the dwelling above the floodplain to a portion of Valley Road also located above the floodplain. Mr. Medhurst testified that he was involved the pre-application meetings with the City of Vaughan at which time safe access to the site was addressed with no concerns by emergency services noted. Mr. Medhurst pointed to a letter from the City of Vaughan Fire & Rescue Services (“VFRS”) dated June 9, 2022 (Exhibit 3, Vol 2, Tab 29, PDF Page 160 and hereinafter the “VFRS Letter”), as demonstrative that emergency personnel will be able to access the Subject Property by either driving up to the proposed pedestrian bridge or leaving their vehicle at Stegman’s Mill Road and taking a very short walk down a slope to access the proposed pedestrian bridge. Mr. Medhurst suggested that were there any real emergency safety access concerns, they would have been raised by VFRS and expressed in their commenting letter.

91In contrast, Mr. Hipple provided evidence that the Proposed Development would not be able to meet the requirement for safe access due to the depth and velocity of the flood waters. Mr. Hipple disagreed with Mr. McKillop’s characterization that the flooding that would occur on the Subject Property, in a regulatory storm event, would be ‘shallow’. Mr. Hipple opined that, in fact, flood water depths on the property would range from 0.85 m to 1.6 m in the storm event, thereby exceeding the high-risk measures described in the MNRF Flood Guide (Exhibit 3, Vol.1, Tab 13). Further, he pointed to Appendix 6(6)(a) of the MNRF Flood Guide (Exhibit 3, Vol.1, PDF Page 914) that states:

…for most family automobiles something in the range of about 0.3m to 0.4m (1-1.5 ft.) would be the maximum depth of flooding before potential egress problems would result. …[r]unning board depth or slightly above 0.3m (1 ft.) the maximum velocity of stability drops to about 3m/s (10ft/s) and at about 0.4m (1.5 ft.) depth an average vehicle may be displaced by velocities as low as 0.3 to 0.6 m/s (1-2 ft/s), with small vehicles becoming buoyant.

92Mr. Hipple concluded that given the depths of flooding in the area of the driveway and Valley Road, at approximately 0.9 m and velocity of approximately 0.56 m/s, this would mean that most private vehicles have a risk of becoming buoyant and would not be able to safely egress the site during a regional storm event.

93Further to Mr. Hipple’s evidence, Mr. Miller for the TRCA pointed to the MNR Flood Guide which contains guidance regarding access and floodproofing (Exhibit 3, Vol. 1, PDF Page 810) for new buildings/development in the floodplain. Notably, the guideline states (emphasis added):

2.9 Ingress/egress for new buildings be such that the vehicular and pedestrian movement is not prevented during times of flooding. The potential for risk to life along the flood hazard lands are the highest during storm events. Access involving both ingress and egress should be addressed prior to approval of developments near flood hazard lands. Ingress and egress to and from the development should be such that movement of people and vehicles not be prevented during high floods. The highest priorities for access to emergency vehicles should be given to police, ambulance and fire services, especially where evacuation is a distinct possibility in areas surrounded by flooding. All local agencies involved in local emergencies should be consulted regarding an adequacy of access.

94The Panel does not accept the position of the Applicant on this issue. To reiterate, safe access is set out in PPS policy 3.1.2 and 3.1.7 in the context of exceptions to the prohibition of development on hazardous lands. The Panel accepts the evidence of Mr. Hipple that the proposed dwelling, located entirely within the floodplain, would be impacted by a minimum flood depth and velocity product of 0.59 m²/s and a flood depth of 0.85 m, which classifies as “high risk for some individuals” in a regulatory storm event. The Panel further accepts Mr. Hipple’s evidence that most private vehicles would have a high risk of becoming buoyant and would not be able to safely egress the site with these flood levels during a regional storm event. Given that the PPS expressly requires that both pedestrians and vehicles have a way of safely entering and exiting the area during emergencies, including a flood event, the Panel cannot therefore make a finding that the Proposed Development has the level of safe access required to qualify for development pursuant to the exceptions carved out in PPS policies 3.1.2 and 3.1.7.

95Additionally, the Panel finds that the VFRS Letter on which the Applicant heavily relies is insufficient to demonstrate the level of safe access required in this case. The key portion of the VFRS Letter states:

…Specific to the VFRS’ capabilities during unforeseen weather events in this area the VFRS can respond from the East (via Teston Rd). Further, the VFRS currently has multiple apparatus with a ladder reach of 30 metres. If/when emergency response is required to this address, no matter the reason, the VFRS will make tactical rescue decisions based on risk to life, property, and the environment. If/when this property becomes occupied, early self-evacuation will be the best strategy in cases where there is a threat of flooding.

96The Panel finds that while the VFSR Letter speaks to the manner in which there may be an emergency response attempted to the Subject Property in the event of a flood or other emergency, it does not accept that the letter alone sufficiently or adequately demonstrates safe access as required by the relevant policies, guidelines and City requirements. Significantly, vehicles from the Fire Department constitute only one type of emergency vehicle, which in turn is only one aspect of emergency vehicles and vehicles in general each requiring safe access to be considered. The letter does not speak to the accessibility of other emergency vehicles including police or ambulance, or other vehicles in general. The letter also fails to state that even a VFRS vehicle could successfully and safely access the site; rather it simply suggests that an attempt would be made and the manner and route in which that attempt may be made. Additionally, while there is a proposed pedestrian bridge connecting the dwelling to Valley Road, there is no adequate evidence to demonstrate that the movement of pedestrians (i.e. persons in a wheelchair) could be successfully and safely achieved or unimpeded during an emergency event.

97In sum, the Panel accepts that given the depth and velocity of flooding, both pedestrians and vehicles, including emergency vehicles, could be impeded from safely entering and exiting the Subject Property in a regulatory storm event. Accordingly, the Panel finds that safe access is not available to the Subject Property and therefore does not meet the exception to the PPS policy prohibitions against development in PPS policies 3.1.2 and 3.1.7.

3. Significant Features

98The TRCA raised Issue No. 1(d), which is not otherwise separately listed within the Applicant’s Issues List. That is, whether the Subject Property and Proposed Development are “within a Significant Valleyland, Significant Woodland, Area of Natural and Scientific Interest (ANSI) and Environmentally Significant Area (ESA), as well as the broader Natural System and will the proposed development result in a negative impact”. In the view of the Panel, and given the TRCA’s position on application of PPS, this issue seems to relate more to the conservation of land test already set out and addressed above. However, in the interests of a thorough review and in relation to the policies under the PPS, the Panel will briefly reiterate a few points on the issue.

99Again, the key witnesses on this issue include Mr. Adams, the Applicant’s ecologist, and Mr. Stephens, the TRCA’s ecologist, who either conceded or agreed that the Subject Property and Proposed Development are located within a significant valleyland, significant woodland, ANSI and ESA. It was Mr. Stephens’ evidence, which was uncontroverted and which the Panel accepts, that the Subject Property is located within the broader Natural System, and in this case, the limits of the Natural System is defined by the limit of the valleyland and its associated buffer.

100In accordance with PPS policy 2.1.5, development and site alteration are not permitted in significant woodlands and valleylands, unless it can be demonstrated that there will be no negative impacts on the natural features or their ecological functions.

101As set out in the reasons for decision under conservation of land above, the Panel accepts the opinion of Mr. Adams that the Proposed Development will not have a negative impact on the natural features and ecological functions.

102Notwithstanding the findings respecting PPS policies regarding significant features, when looking at the PPS policies in their entirety, the Panel finds that the granting of the development permit would not be consistent with policies respecting development within a floodway and safe access.

Consistency with the Conservation Authority’s Policies

103A number of LCP policy concerns were raised by TRCA witnesses during the course of the Hearing and throughout the evidence heard on all of the issues, many of which are noted in the reasons for this decision. However, the Applicant’s witnesses did not tender any evidence to challenge the interpretation of or application of those policies. Instead, it was the position of the Applicant, and his witnesses (namely Mr. Cory), that those policies were not binding and that, at best, only regard must be had to such policies. The Panel has already set out its reasons for why it disagrees with this position. Ultimately, however, this means that the TRCA evidence respecting how the Proposed Development is incongruous with the s. 8 polices of the LCP was largely, if not entirely, uncontroverted. Indeed, some of the Applicant’s witnesses conceded that they had not reviewed the LCP policies for the purposes of the application or this appeal (i.e. Mr. Cortese and Mr. Shaw).

104In any event, the Panel will briefly address two key s. 8 LCP policies not otherwise previously addressed in this decision: LCP policies 8.4.3 and 8.4.6.

105All TRCA witnesses provided evidence based in the context of how they interpret and apply the s. 8 LCP policies. Consistently, they all started from the position that the development proposal was prohibited. The basis for this is supported by LCP policy 8.4, which states (emphasis added):

Prohibited Development, Interference and Alterations

8.4.3 That where there is an existing vacant lot of record, (including an infill lot), no new development will be permitted where the lot has no safe access, or is entirely within one or more of the following:

a) a flood hazard (One Zone Policy) or erosion hazard of valley and stream corridors;

d) any natural features, areas and systems contributing to the conservation of land, including areas providing hydrologic functions or ecological functions.

106LCP policy 8.4.6 states (emphasis added):

8.4.6 That where an existing vacant lot of record, (including an infill lot), has safe access and is only partially located within the areas and features identified in 8.4.3 a), b), c), or d), TRCA may support development of the lot subject to the policies in Sections 8.4 through to 8.13.

107Given that this application seeks permission to construct a proposed new residential dwelling on a vacant lot, and that the Subject Property is subject to a flood hazard and located within a floodway, and that the Panel has determined that the Subject Property does not have safe access, the Panel agrees with the TRCA and finds that, having had regard to these policies, the permit for the Proposed Development is not appropriate and it also finds that it would be inconsistent with the s. 8 LCP policy prohibition on new development in a flood hazard set out in LCP policies 8.4 and 8.5. Having regard to the LCP, the Panel finds that the Proposed Development is not appropriate and inconsistent with LCP policies in a floodway and erosion hazard area.

Remaining Issues within the Issues Lists

1. Satisfactory Technical Studies

108The TRCA Issues List No. 1(e) challenges whether the Applicant has “submitted a satisfactory Environmental Impact Study (EIS), Geotechnical Study, and Hydraulic Assessment in support of the proposed development”. Each of these studies relates, respectively, to the issues of the control of flooding (Hydraulic Assessment), the control of erosion (Geotechnical Study), and the conservation of land (EIS), which have in turn, each already been addressed above in the reasons for this decision. To reiterate, this Panel has found: (i) that the EIS and evidence of Mr. Adams is satisfactory and satisfies the test for the control of the conservation of land; (ii) that Geotechnical Study is deficient in that it failed to properly assess the stability and extent of the erosion hazard of Slope 2 and Slope 3 in the context of the broader valley; and (iii) that a Hydraulic Assessment cannot be found to be sufficient as one was never requisitioned, completed, or submitted.

2. Mitigation through Engineering

109The Applicant Issues List No. 3 questions whether “flooding and/or erosion risks on the subject property [can] be mitigated with proper engineering”.

110Mr. Cortese and Mr. Moskaliuk conceded that the Proposed Development is in a flood hazard. Both witnesses also provided evidence for the Applicant that there are engineering and design options that can be used for mitigating the risks associated with erosion and flooding hazards, and that by doing so it could be demonstrated that the Proposed Development should be permitted. Between the two experts, various examples were provided, some of which were incorporated into the Proposed Development, such as: (i) using helical piles for structural support in the floodplain, which would have a smaller footprint that interacts with flood waters; (ii) floodproofing the construction; and (iii) elevating the pedestrian bridge to be above the flood level.

111The TRCA’s position is that new development on the Subject Property is, put simply, not permitted within hazardous lands as prescribed by the LCP policies. In support of this position, Mr. Miller provided evidence that current-day hazard management policy is premised on avoidance and prevention as the best management tools to prevent flood and erosion emergencies from occurring. In addition, Mr. Miller opined that not all risks associated with natural hazards can be mitigated over the long-term, and that risks always remain in areas that are subject to natural hazards, regardless of mitigation measures that may be implemented.

112The Panel notes that hazard lands, by virtue of definition, could be unsafe due to naturally occurring processes. Interestingly, however, LCP policy 8.4.5 allows for development within a regulated area, subject to hazards, where it can be demonstrated through appropriate technical reports, assessments, site plans or such other document(s) that: (a) the control of flooding, erosion, or the conservation of land will not be affected; (f) negative or adverse ecological impacts on natural features and functions are avoided or mitigated; (g) intrusions on natural features, areas and systems contributing to the conservation of land are avoided or mitigated; and (n) works are constructed according to accepted engineering principles and approved engineering standards. It occurs to the Panel that the policy framework for considering whether or not development is permitted in the regulated area does recognize mitigation, including that with proper engineering as a potential option.

113However, while the LCP policies themselves can contemplate engineering strategies as a form of mitigating risks in appropriate cases, the Panel disagrees that this case is one such case. Based on the evidence in the Hearing, the Panel finds that the prospect of using engineering for mitigation of the risk(s) as a basis for development in the flood hazard would be inappropriate in this case, as it would be inconsistent with the PPS and LCP to permit the Proposed Development given the associated risks to public safety.

3. Historical Development in Windrush and Development Precedent

114The Applicant Issues List No. 6 queries whether the Proposed Development falls within “an area of historical interest (Windrush Cooperative) and does the proposed development respect and/or enhance the heritage nature of the surrounding heritage neighbourhood”. The Applicant Issues List No. 7 further questions whether “comparable developments have been allowed by the TRCA and/or other conservation authorities in Ontario (i.e. is there precedent for this type of development)?”

115While much evidence was received during the course of the Hearing by the Applicant’s witnesses in this regard, including from, namely, Mr. Cortese, an architect, Mr. Medhurst, a fact witness, and Mr. Moskaliuk, an architect, ultimately, these issues are not relevant to the requisite analysis for a permit application which is governed by the CA Act and the O Reg 166/06. There is no concurrent Planning Act application that would require an examination of the natural heritage features of the property or surrounding community, including whether the site falls within an area of historical interest or the significance of the Proposed Development to its surrounding natural heritage area. Additionally, evidence tendered respecting alleged precedent of comparable developments or similar architecturally designed properties is of no use or weight given that each permit application must be decided on its own merits with no weight to be afforded to proffered precedent, even of the kind that was truly analogous, which the Panel finds was not the case here. The comparable developments raised here regarded different jurisdictions, different conservation authorities, each with different policies informing their respective governing areas, and incomparable developments utilizing approaches distinct from the case at bar, such as cut-and-fill or remapping of the floodplain. Such evidence is of no use in the case at bar on the core issues that required determination.

4. Satisfactory Planning Studies

116The TRCA Issues List No. 1(f) challenges whether "the appellant submitted satisfactory planning studies to ensure the proposed development is appropriate”. Given that there is no concurrent Planning Act application, the Panel fails to appreciate the relevance of this issue on which nothing turns. Indeed, Mr. Duncan did not address this issue in closing submissions on behalf of the TRCA; therefore, no further analysis on this point is required.

Conditional Approval

117In his closing submissions, Mr. Bouchelev asked the Tribunal to consider granting the development permit subject to conditions. This appears to be in large part based on the evidence provided by Mr. Cory. To reiterate, Mr. Cory pointed out that s. 3.1 of the PPS does allow for instances where development could occur on hazardous lands, if certain criteria are met. He testified that not all development is feasible, nor good planning to be in hazard lands. However, in this case Mr. Cory stated consideration of an exception is warranted given its long-standing vacant lot, existing permitted residential zoning, and only recent 2019 TRCA floodplain remapping. Mr. Cory suggests three possible options could be considered: (i) re-examining the limits of floodplain on the Subject Property; (ii) applying a two-zone concept to the floodplain; and/or (iii) investigating a cut/fill analysis that may remove an area of the Subject Property from the floodplain. Mr. Cory testified that it was reasonable for the Applicant to have not pursued these options to date due to the onerous costs associated and the TRCA’s hard-stance policy position prohibiting development.

118Mr. Bouchelev points to s. 3(2) of O Reg 166/06 and asserts that permission to develop may be granted with or without conditions and that it would be reasonable, relevant, necessary, and equitable to do so in this case. More specifically, the conditions that they would agree to include, namely, undertaking the necessary additional studies to determine the exact location of the floodplain (i.e. a remapping of the floodplain limits); undertaking the necessary additional studies to determine if a cut and fill approach would be appropriate; and/or obtaining a Hydraulic Assessment Study if the Tribunal was of the view that any of these were necessary. In essence, the effect of the request would be to grant the permit conditional on the Applicant demonstrating, by way of further study, that the Proposed Development would be located outside of the flood hazard.

119In contrast, Mr. Duncan submits that, legislatively, conditions are introduced in s. 3(2), after s. 3(1), and even then, only if the five-part test set out in s. 3(1) is first adequately satisfied. Mr. Duncan’s position is that given that the regulatory tests are not satisfied in this case, the permit application must fail without the option of a conditional approval as the fundamental question of the five-part test cannot be deferred to conditions.

120The Tribunal agrees with the position of the TRCA on the issue of conditions and finds that the conditions requested by the Applicant in this case are not appropriate as they would essentially be deferring the exercise that ought to have been completed for the purpose of satisfying the regulatory tests before this Tribunal on appeal. The Tribunal can only examine a development proposal as it is at the time of the hearing of the appeal. If the appeal should fail, conditions are out of the question and not meant to be the proverbial “bone” thrown to a party for the opportunity to work up a different proposal. The Panel has found that the current permit application fails on the regulatory tests of the control of flooding and the control of erosion. It has further found that the proposal is inconsistent with the PPS and, having regard to the LCP policies, would not be appropriate or consistent with them, namely in relation to natural hazards, flooding, and safe access. Accordingly, it is not appropriate for the application to be approved on the Applicant’s proposed conditions.

Annapolis Group Inc. v Halifax Regional Municipality

121In closing submissions, Mr. Bouchelev briefly raised the Supreme Court of Canada decision in Annapolis Group Inc. v Halifax Regional Municipality (“Annapolis”)²⁵ as standing for the proposition that removal of all reasonable uses of land by a government authority is not permitted as that would amount to an expropriation (constructive taking). Mr. Bouchelev argues that accepting TRCA LCP policies directing no new development on vacant lots as set out in LCP policies 8.4.3 and 8.4.6, in this case, would amount to just this and is to be avoided.

122The Panel finds that whether the exercise of authority under the CA Act constitutes an expropriation is not an issue that is before this Tribunal for determination on the present appeal. Additionally, the implications of this expropriation decision have previously been considered by this Tribunal on a s. 28(15) CA Act appeal in Kertzer,²⁶ which are equally applicable here. The Annapolis decision dealt with an appellant who was prevented from developing its lands by the City of Halifax who wished to use those lands as a park. A civil claim against the City of Halifax was issued alleging constructive taking, misfeasance in public office, and unjust enrichment. As in the case of Kertzer, the Tribunal finds here too that none of these civil claims are within the authority of this Tribunal for adjudication on a s. 28(15) CA Act appeal. They are also distinguishing facts from the case at bar, which does not involve the state or municipality, with no apparent acquired interest in the denial of the permit application. The Annapolis decision is of no import to the analyses required and set out above on a s. 28(15) CA Act appeal.

123In addition, a claim for compensation arising from an alleged ‘constructive’ or actual expropriation must be brought under the Expropriations Act.²⁷ Obviously, no such claim was before the Tribunal here.

CONCLUSIONS

124Based on the evidence and submissions before it, the Tribunal finds that permission to undertake the Proposed Development on the Subject Property would not comply with O Reg 166/06, would not be consistent with the PPS, and having regard to the LCP policies, would not be appropriate and would be inconsistent with those policies.

ORDER

125The Tribunal orders that the appeal is dismissed.

“N. Eisazadeh”

N. EISAZADEH

MEMBER

“S.L. Dionne”

S.L. DIONNE

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

Footnotes

1. 1O Reg 166/06: Toronto and Region Conservation Authority: Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses, under Conservation Authorities Act, R.S.O. 1990, c. C.27.
2. 2Planning Act, R.S.O. 1990, c. P.13.
3. 3Conservation Authorities Act, R.S.O. 1990, c. C.27.
4. 4Williams v Rideau Valley Conservation Authority, 2022 CanLII 5476 (ONLT) [Williams] at paras. 8, 38-39.
5. 5Bill 23, More Homes Built Faster Act, 2022, S.O. 2022, c. 21, Sched. 2; See also Bill 139, Building Better Communities and Conserving Watersheds Act, 2017, S.O. 2017, c. 23, Sched. 4.
6. 6Laforme v The Corporation of the Town of Bruce Peninsula, 2021 ONSC 5287 at para 40 [Laforme].
7. 7Williams, supra note 4 at para 35; See also Pavy v Quinte Conservation, 2023 CanLII 1769 (ONLT) at para 41 [Pavy]; See also Kertzer v Rideau Valley Conservation Authority, 2022 CanLII 121046 (ONLT) at para 22 [Kertzer]; See also DenOuden v Quinte Conservation, 2022 CanLII 51242 (ONLT) at para 43 [DenOuden].
8. 8Laforme, supra note 6 at para 40.
9. 9Williams, supra note 4.
10. 10Pavy, supra note 7.
11. 11Kertzer, supra note 7.
12. 12DenOuden, supra note 7.
13. 13Williams, supra note 4.
14. 14Pavy, supra note 7.
15. 15Kertzer, supra note 7.
16. 16DenOuden, supra note 7.
17. 17Gilmore v Nottawasaga Valley Conservation Authority, 2017 ONCA 414 [Gilmore].
18. 18Laforme, supra note 6 at para 54.
19. 19Laforme, supra note 6 at para 48.
20. 20See Williams, supra note 4 at para 22; See also Pavy, supra note 7 at para 15.
21. 21Gilmore, supra note 17 at paras 56 and 58.
22. 22White v Bourgess, 2015 SCC 23.
23. 23Kertzer, supra note 7.
24. 24Ibid at paras 10-12.
25. 25Annapolis Group Inc. v Halifax Regional Municipality, 2022 SCC 36.
26. 26Kertzer, supra note 7 at para 33.
27. 27Expropriations Act, R.S.O. 1990, c. E.26.