Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 02, 2024
CASE NO(S).: OLT-22-004319 OLT-23-000782
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: South Winds Development Co. Inc.
Subject: Application to amend the Zoning By-law – neglect to make a decision.
Description: Zoning By-law Amendment to accommodate eight residential lots, amend the boundaries, and removal of the public road and replace it with a private entrance.
Reference Number: ZBA-26-2018
Property Address: Part of Lots 7 & 8, Concession 1
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No: OLT-22-004319
OLT Lead Case No: OLT-22-004319
OLT Case Name: South Winds Development Co. Inc. v. Middlesex Centre (Municipality)
PROCEEDING COMMENCED UNDER section 51(43) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: South Winds Development Co. Inc.
Subject: Conditions of approval of draft plan of subdivision
Description: Draft Plan Approval to permit the construction of subsequent phases to include lots and blocks for future development
Reference Number: 39T-MC0902
Property Address: Part of Lots 7 and 8, Concession 1, Part of lot 7, BF Concession
Municipality/UT: Middlesex/Middlesex
OLT Case No: OLT-23-000056
OLT Lead Case No: OLT-22-004319
OLT Case Name: South Winds Development Co. Inc. v. Middlesex Centre (Municipality)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant: South Winds Development Co. Inc.
Subject: Zoning By-law
Description: To update Comprehensive Zoning By-law 2005-005 as a result of OPA No. 59
Reference Number: ZBA-04-2023
Property Address: Municipality Wide (Municipality Wide)
Municipality/UT: Middlesex Centre/Middlesex
OLT Case No: OLT-23-000782
OLT Lead Case No: OLT-23-000782
OLT Case Name: South Winds Development Co. Inc. v. Middlesex Centre (Municipality)
Heard: January 22 – January 26, 2024 by Video Hearing
APPEARANCES:
Parties
Southwinds Development Co. Inc.
Municipality of Middlesex Centre
Counsel
Kim Mullin
Andrea Skinner
Bogdan Artus
Paula Lombardi
Laura McFalls
Wayne Meagher
DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision arises from a Settlement Hearing on appeals filed by Southwinds Development Co. Inc. (“Appellant”). The first appeal arose from the failure of the Municipality of Middlesex Centre (“Municipality”) to make a decision concerning a Zoning By-law Amendment (“ZBA”) in accordance with s. 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”).
2The second appeal arose from the failure of the County of Middlesex (“County”) to make a decision on a Plan of Subdivision (“POS”) for a proposed subdivision to be located on lands legally described as Part of Lots 7 & 8, Concession 1 in the Municipality (“Subject Lands”) in accordance with s. 51(43) of the Act.
3The third appeal was filed by the Appellant against the enactment of By-law 2023-079 (being the by-law to implement the changes to the Official Plan as a result of Middlesex Centre’s comprehensive review, OPA 59) that amends Middlesex Centre’s comprehensive Zoning By-law 2005-005 (“ZBL”), as it relates to portions of the Subject Lands in accordance with s. 34(19) of the Act.
4The Subject Lands are approximately 59.3 hectares (“ha”), with access to municipal services. The Subject Lands are surrounded by existing residential and proposed residential development, as well as by the Komoka Provincial Park and the Thames River.
5The proposed development consists of 522-714 units over six phases (including 101 units registered as part of phase one (“Phase 1”), supporting a mix of housing of low and medium densities.
6In the County Official Plan (“COP”), the Subject Lands are identified as a Settlement Area and designated an Urban Area.
7In the Municipal Official Plan (“MOP”), the Subject Lands are designated Low Density Residential, Medium Density Residential, Parks and Recreation, Natural Heritage Enhancement / Environmental Buffer Areas and Natural Environment, as established by Schedule A-2: Komoka-Kilworth Urban Settlement Area & Secondary Plan.
8The Subject Lands are zoned Urban Residential First Density (UR1), Urban Residential First Density(UR1)-(h-1), Urban Residential Second Density, Exception 2 (UR2-2)-(h-1), and Open Space (OS),Parks and Recreation (PR) in the ZBL.
9The Subject Lands have been extensively disturbed by past aggregate extraction. The portion of the Subject Lands adjacent to the Thames River is heavily wooded. A substantial portion of the wooded area lies within the Thames River floodplain. All of this wooded area, as well as portions of Phase 1 and portions of the proposed future phases of South Winds development, fall within the Upper Thames River Conservation Authority (“UTRCA”) regulated areas. The surrounding landscape consists of natural areas, including the existing Komoka Provincial Park on the opposite side of Thames River which extends westerly to encompass the Komoka Park Reserve and Life Science Area of Natural and Scientific Interest (“ANSI”) to the southwest along the north side of the Thames River.
CONTEXT
10The following materials were identified as Exhibits and marked as follows:
Exhibit 1 – Joint Document Book Volume 1 received January 19, 2024
Exhibit 2 a – Joint Document Book Volume 2 received January 19, 2024
Exhibit 3 – Settlement Evidence Outline of Chad B. John-Baptiste received January 25, 2024
Exhibit 4 – Redline Draft Plan of Subdivision dated January 24, 2024
Exhibit 5 – Draft Phasing Plan dated January 24, 2024
Exhibit 6 – Site Specific Draft Zoning By-law Amendment received January 25, 2024
Exhibit 7 – Draft Zoning By-law Amendment 2023-079 received January 25, 2024
Exhibit 8 – Draft Plan Conditions received January 25, 2024
11The Tribunal acknowledges the receipt of the Settlement Evidence Outline of Chad B. John-Baptiste, a Registered Professional Planner. The Tribunal has reviewed Mr. John-Baptiste’s Curriculum Vitae and signed Acknowledgement of Expert’s Duty, is satisfied with his credentials and experience, and deems him qualified to provide expert opinion in land use planning for this Hearing.
LEGISLATIVE FRAMEWORK
12When considering an appeal of an application to amend a ZBL filed pursuant to s. 34 and an appeal of an application filed pursuant to s. 51 of the Act, the Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also be satisfied that the ZBA conforms with the official plans in effect. When considering a Draft POS, regard is required to the matters set out in s. 51(24) of the Act.
13In consideration of the statutory requirements, as set out above, the Tribunal must be satisfied that the ZBAs, Draft POS and Conditions represent good planning and are in the public interest.
SETTLEMENT PROPOSAL
14Mr. John-Baptiste provided the Tribunal with a fulsome Settlement Evidence Outline which describes the Subject Lands and surrounding lands and sets out the planning policy and regulatory context including matters of Provincial interest, the settlement between the Parties, the proposed ZBAs, Draft POS and Conditions, and which outlines his recommendations and opinion to the Tribunal.
15The proposed Site Specific ZBA seeks to amend the ZBL from Urban Residential First Density (UR1), Urban Residential First Density(UR1)-(h-1), Urban Residential Second Density, Exception 2 (UR2-2)-(h-1), and Open Space (OS),Parks and Recreation (PR) to the following:
from the Open Space (OS) zone to the Urban Residential First Density (UR1) zone with an (h-1) holding symbol;
from the Urban Residential First Density (UR1) zone with an (h-1) holding symbol to the Open Space (OS);
from the site-specific Urban Residential Second Density (UR2-2) zone with an (h-1) holding symbol to the Open Space (OS) zone;
from the site-specific Urban Residential Second Density (UR2-2) zone with an (h-1) holding symbol to the Urban Residential First Density (UR1) zone with an (h-1) holding symbol;
from the Urban Residential First Density (UR1) zone to the Open Space (OS) zone.
16Changes specific to ZBA 2023-079 in relation to the Subject Lands are tied to permissions in the UR2-2 zone. ZBA 2023-079 ensures existing uses will be maintained and new uses, including Accessory Use, Home Occupation, Additional Residential Units (“ARU”) and Multiple Unit Dwellings, will be added.
17It is Mr. John-Baptiste’s uncontroverted evidence that the Settlement Proposal to be implemented through the proposed ZBAs, Draft POS and Conditions are consistent with the Provincial Policy Statement (“PPS”), in conformity with the COP, MOP represents good planning and is in the public interest.
18It is Mr. John- Baptiste’s opinion that the proposed development represents a compatible degree of intensification, supports a mix of housing with low- and medium-density in the form of singles, townhomes and semi-detached homes, along with purpose-built ARUs, provides a compact form and will integrate well with the neighbourhood through a trail system and connections to future development lands.
ANALYSIS AND FINDINGS
19The Tribunal accepts Mr. John-Baptiste’s uncontroverted evidence and opinion that the proposal provides for the development of a complete community with a diversity and mix of compatible land uses, and a development which improves accessibility and is well-serviced. The proposed amendments, which will implement the development, represent good planning and are in the public interest.
20The following illustrates for the Tribunal those aspects of the proposal that allow the appeal and approves the ZBAs and POS.
21In making its Decision on the appeal before it, the Tribunal has had regard to matters of Provincial interest as set out in s. 2 of the Act. The Tribunal is satisfied that the proposed ZBAs and POS speaks to matters of Provincial interest including:
(a) the protection of ecological systems and natural areas;
(f) existing adequate provision and efficient use of sewage and water services;
(h) the orderly development of safe and healthy communities;
(j) the adequate provision of a full range of housing, including affordable housing; and
(p) appropriate location of growth and development.
The proposed plan continues to protect ecological areas, is based on adequate services being available, and through the proposed phasing plan is an appropriate and orderly approach to growth in the community.
22The Tribunal is satisfied that the proposed development meets the intent of the policies of the Provincial Policy Statement, 2020 as follows:
The proposed development will contribute to creating healthy, liveable and safe communities through an efficient development of a residential use on an existing vacant site while utilizing existing infrastructure and public facilities, and will contribute to the long-term needs of the local community.
The proposed development is located in a settlement area.
The proposed development supports a mix of land uses and densities that efficiently utilize land, resources and infrastructure.
The proposed development adopts phased development strategies to ensure orderly growth within designated growth areas, along with the timely provision of necessary infrastructure and public services to meet current and projected demands.
The proposed development provides for an appropriate range and mix of housing options and densities to meet housing needs of current and future residents by permitting and facilitating all housing options required to meet the social, health, economic and well-being requirements of current and future residents; by directing the development of new housing towards locations where appropriate levels of infrastructure and public service facilities are or will be available to support current and projected needs; and, by promoting densities for new housing which efficiently use land, resources, infrastructure and public service facilities.
The proposed development provides infrastructure and public service facilities in an efficient and sustainable manner. Municipal sewage services and municipal water services will be utilized in a manner to support protection of the environment and minimize potential risks to human health and safety.
The proposed development will utilize existing municipal infrastructure in an efficient and cost effective manner, to minimize increased costs and in consideration of climate change.
23The COP identified the Subject Lands as a Settlement Area and designated an Urban Area. The proposed development conforms with the COP:
by contributing to a diverse range of housing options (Section 2.3.7), and
by supporting intensification in Settlement Areas (Section 2.3.7)contributing to growth in Urban Areas (Section 2.3.8) and utilizing existing municipal infrastructure while doing so (Section 2.4.5).
Focusing growth in a Settlement Area will continue the protection of agricultural areas and natural areas (Section 3.2).
The proposed development will utilize water and sewage services (Section 3.2); progress by Plan of Subdivision in a phased manner (Section 3.2.2); and will have a variety of housing types located in an Urban Areas (Section 3.2.4.1).
24The MOP designates the Subject Lands as Residential in the policy text. The proposed development is in conformity with the MOP as the proposed development:
utilizes complete municipal services (Section 5.1.1).
offers a diverse range of housing in terms of types and sizes (Section 5.2.1(a)) while promoting responsible growth and managing resources effectively (5.2.1 (e)).
Includes single detached dwellings and street townhouses and within the multiple residential blocks an opportunity for a wider variety of housing types (Section 5.2.2).
The multiple residential blocks provide an opportunity for different types of housing as needed by the community in the future, which also conforms with offering a diverse range of housing (Section 5.2.1 9(a)) and promoting intensification (Section 5.2.1 (e)).
25The proposed development meets all of the applicable policies in the ZBL and those proposed in By-law 2023-079 with existing and proposed uses.
26The Tribunal is satisfied that the Settlement Proposal has appropriate regard for matters of Provincial interest, is consistent with the PPS, is in conformity with the COP and MOP, and suitably addresses the requirements of s. 51(24) of the Act. The Settlement Proposal constitutes good land use planning for the Subject Lands as it would provide much needed housing supply and housing choice to the area, add to the variety of dwelling types in the neighbourhood, contribute ARUs and support more affordable forms of housing that achieve the objectives of the municipality’s affordable housing strategy. The Settlement Proposal is in the public interest as it will supply much needed housing to the community in the Urban Settlement Area, which is identified for growth.
ORDER
27THE TRIBUNAL ORDERS that the appeal filed by Southwinds Development Co. Inc. pursuant to s. 34(11) of the Planning Act R.S.O. 1990, c. P. 13, as amended, is allowed, in part, and that the Municipality of Middlesex Centre Zoning By-law No. 2005-005 is hereby amended in the manner set out in Attachment 1 to this Order and Decision. The Tribunal authorizes the municipal clerk of the Municipality of Middlesex Centre to format as may be necessary and to assign a number to this By-law for record-keeping purposes.
28THE TRIBUNAL ORDERS that the appeal by Southwinds Development Co. Inc., pursuant to s. 51(43) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, is allowed, in part, and that the revised Draft Plan of Subdivision prepared by WSP Canada Inc. originally dated July 6, 2009 and revised January 24, 2024 and attached as Attachment 2 is approved, subject to the fulfillment of the Conditions of Draft Plan Approval set out in Attachment 3 of this Order and Decision.
29THE TRIBUNAL ORDERS that, subject to s. 51(56.1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, the County of Middlesex shall have the authority to clear the Conditions of Draft Plan Approval and to administer final approval of the Plan of Subdivision for the purposes of s. 51(58) of the Planning Act.
30THE TRIBUNAL ORDERS that the County of Middlesex may, in accordance with subsection 51(47) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, make minor modifications to the Draft Plan Approval of the Plan of Subdivision or the Conditions of Draft Plan Approval prior to the approval of the final Plan of Subdivision, without giving written notice of changed conditions under subsection 51(45) of the Planning Act, R.S.O. 1990, c. P. 13, as amended. However, the Tribunal notes that the County of Middlesex may do so only with the consent of South Winds Development Co. Inc. or with a subsequent owner of the lands for the purpose of clearing Conditions of Draft Plan Approval and administering final approval.
31THE TRIBUNAL ORDERS that the County of Middlesex may, in accordance with subsections 51(44-45) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, approve changed Conditions of Draft Plan Approval with notice of changed conditions. However, the Tribunal notes that the County of Middlesex may do so only with the consent of South Winds Development Co. Inc. or a subsequent owner of the lands.
32THE TRIBUNAL ORDERS that the Draft Phasing Plan dated January 24, 2024 attached as Attachment 4 to this Order and referred to in the revised Conditions of Draft Plan Approval is hereby approved.
33THE TRIBUNAL ORDERS that the appeal by South Winds Development Co. Inc. under subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, of the passage of By-law 2023-079 is allowed in part and By-law 2023-079 is hereby amended as set out in Attachment 5 to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Middlesex Centre to format as may be necessary and to assign a number to this By-law for record-keeping purposes.
“W. Daniel Best”
W. DANIEL BEST
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1
ATTACHMENT 2
ATTACHMENT 3
ATTACHMENT 4
ATTACHMENT 5