Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 03, 2024

CASE NO(S).: OLT-22-003318

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

Appellant: 1331135 Ontario Limited

Appellant: 1559306 Ontario Limited

Appellant: 1744856 Ontario Inc.

Appellant: 1829963 Ontario Inc., and others

Subject: Official Plan Amendment No. 107

Municipality: Municipality of Clarington

OLT Case No.: OLT-22-003318

Legacy Case No.: PL170817

OLT File No.: OLT-22-003318

Legacy File No.: PL170817

OLT Case Name: Camposeo v. Durham (Regional Municipality)

PROCEEDING COMMENCED UNDER 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Bowmanville East Developers Group

Subject: Failure of the Regional Municipality of Durham to make a decision respecting Official Plan Amendment No. 107

Municipality: Municipality of Clarington

OLT Case No.: OLT-22-003318

Legacy Case No.: PL170817

OLT File No.: OLT-22-003318

Legacy File No.: PL171459

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

Applicants and Appellants: Michael Zygocki Limited and Boothia Developments Limited

Subject: Proposed Plan of Subdivision - Failure of the Municipality of Clarington to make a decision

Purpose: To permit 29 single detached dwelling lots, a number of part lots and open space blocks

Property Address/Description: Part Lot 33, Concession 3, Tooley Road, Courtice

Municipality: Municipality of Clarington

Municipality File No.: S-C 2017-0002

OLT Case No.: OLT-22-003318

Legacy Case No.: PL171390

OLT File No.: OLT-22-003318

Legacy File No.: PL171390

OLT Case Name: Boothia Developments Limited v. Clarington (Municipality)

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

Applicants and Appellants: Schleiss Development Company Limited and Westley Heights Holdings Ltd.

Subject: Proposed Plan of Subdivision - Failure of the Municipality of Clarington to make a decision

Purpose: To permit 29 single detached dwelling lots, a number of part lots and open space blocks

Property Address/Description: Part Lot 33, Concession 3, Tooley Road, Courtice

Municipality: Municipality of Clarington

Municipality File No.: S-C 2017-0003

OLT Lead Case No.: OLT-22-003318

Legacy Lead Case PL171390

OLT File No.: OLT-22-003321

Legacy File No.: PL171391

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

Applicant and Appellant: Clifford Curtis

Subject: Proposed Plan of Subdivision - Failure of the Municipality of Clarington to make a decision

Purpose: To permit 29 single detached dwelling lots, a number of part lots and open space blocks

Property Address/Description: Part Lot 33, Concession 3, Tooley Road, Courtice

Municipality: Municipality of Clarington

Municipality File No.: S-C 2017-0004

OLT Lead Case No.: OLT-22-003318

Legacy Lead Case No.: PL171390

OLT File No.: OLT-22-003321

Legacy File No.: PL171392

Heard: December 4 to 8, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

2408406 Ontario Inc., 2408426 Ontario Inc., and 2408428 Ontario Inc. (Fourteen Estates Limited)

Alexander Suriano Naomi Mares

Municipality of Clarington

Paul DeMelo

DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order results from an appeal filed by 2408406 Ontario Inc., 2408426 Ontario Inc., and 2408428 Ontario Inc. (“Appellant”) pursuant to s. 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning Official Plan Amendment No. 107 (“OPA 107”) to the Official Plan (“OP”) for the Municipality of Clarington (“Municipality”).

2OPA 107 applies to all lands within the Municipality and seeks to update the OP to ensure its consistency and conformity with regional and provincial plans, while implementing directions from various municipal studies and reviews including discussion papers on the Natural Heritage System; Parks, Open Space, and Trails; Countryside (Agriculture); Growth Management; and Intensification.

3OPA 107 was adopted by the Municipality on November 1, 2016, approved by the Region of Durham (“Region”) on June 19, 2017, and subsequently appealed by 22 appellants. All but two of the 22 appeals to OPA 107 have been resolved. The two remaining appeals are Appeal 6 and Appeal 14. Appeal 6 was consolidated with a related Draft Plan of Subdivision appeal and has been adjourned sine die. Appeal 14 is the appeal currently before the Tribunal and is the subject of this Decision and Order.

APPEAL 14

4Appeal 14 specifically relates to the extent of the Environmental Protection Area (“EP”) and Natural Heritage System (“NHS”) mapping proposed by OPA 107 for lands owned by the Appellant and legally described as Block 31 on Draft Plan 18T-87083, Part of Lot 8, Concession 1, Hamlet of Newtonville, Municipality of Clarington (“Subject Lands”).

5The Subject Lands are located at the northeast corner of Highway 401 and Newtonville Road (Regional Road 18) and form an irregular parcel of vacant land approximately 10.2 hectares (“ha”) in size with approximately 29 metres of frontage at the southwest corner of Charles Tilley Crescent. To the north and east along Charles Tilley Crescent are low-density single-detached residential dwellings. South of the crescent, to the east of the Subject Lands, is a large natural area that extends along the southern boundary of the Subject Lands, north of Highway 401.

6OPA 107 expands the extent of the EP and NHS mapping along the western boundary of the Subject Lands to include vegetated areas visible in the most recent aerial photography (Exhibit 4).

7In a Decision issued on March 16, 2020, the Tribunal adjourned Appeal 14 sine die at the request of the Parties to allow for the completion and peer review of an environmental impact study (“EIS”) to assess the natural features on the Subject Lands and determine the appropriate extent of the environmental designations in the OP. However, following the completion and peer review of the EIS, the Parties remain at odds with respect to the OP boundaries of the EP and NHS designations on Map A1 – Land Use and Map D3 – Natural Environment, respectively.

ISSUE

8The EIS resulted in the delineation of several vegetative communities, or “ecosites”, on the Subject Lands, shown on the following vegetation map extracted from Page 6 of Exhibit 2:

Figure 1: Ecosites on the Subject Lands

9The Subject Lands are outlined in red in the above Figure 1. Each coloured polygon represents a different ecosite.

10The Appellant’s position is that, according to the findings of the EIS, only the ecosites below the yellow line in Figure 1 should be mapped as EP and NHS in the OP.

11The Municipality’s position is that the EIS demonstrates that certain ecosites above the yellow line are treed areas that meet the OP definition of a “Significant Woodland” and therefore must be included in the EP and NHS mapping in accordance with the OP policies.

WITNESSES

12The Tribunal heard from two witnesses who were qualified to provide independent expert opinion evidence on matters pertaining to land use planning:

1. The Appellant called Marnie Saunders, a Senior Land Use Planner with D.M. Wills Associates Limited. Ms. Saunders is a pre-candidate member with the Ontario Professional Planners Institute and has eight years of planning experience in the private sector.

2. The Municipality called Lisa Backus, the Manager of Community Planning Divisions at the Municipality. Ms. Backus is a Registered Professional Planner, has been practicing land use planning since 1998, and was responsible for the preparation of OPA 107.

13The Tribunal also heard from two witnesses who proffered evidence pertaining to ecology. Each witness was qualified differently based on their respective areas of expertise, as follows:

1. The Appellant called Rob West, a Senior Ecologist with Oakridge Environmental Limited. Mr. West is a Member of the Canadian Chapter of the Ecological Society of America and the Canadian Society of Environmental Biologists. He has over 20 years of experience as an ecologist and biologist and was the principal author and signatory of the EIS for the Subject Lands. Mr. West was qualified by the Tribunal to provide expert opinion evidence on matters pertaining to ecology and biology.

2. The Municipality called Kim Logan, a Senior Ecologist and Eastern Ecology and Biodiversity Team Lead with SLR Consulting (Canada) Limited. Ms. Logan is a Limited Professional Geoscientist in Ontario in the areas of ground water and surface water interactions and contaminant hydrogeology, and a Professional Biologist with the Alberta Professional Society of Biologists (Ontario has no such equivalent designation). She has over 17 years of experience as an ecologist and environmental scientist. Ms. Logan was qualified by the Tribunal to provide expert opinion evidence on matters pertaining to ecology and environmental sciences.

ANALYSIS AND FINDINGS

Outcomes of the EIS

14There was no dispute among the ecologists that the ecosites below the yellow line in Figure 1 together constitute a Significant Woodland as defined by the OP that should be mapped as EP on Map A1 and NHS on Map D3.

15The ecologists also agreed that the three smaller contiguous ecosites at the north end of the Subject Lands – identified as FOCM2-2 (green), FODM3-1 (light blue), and FOCM6-3 (green) in Figure 1 – are each Woodlands as defined by the OP. The three contiguous Woodlands have a combined total area of 0.92 ha.

16Ultimately, both ecologists agreed that the large turquoise area labelled as THCM2-1 on the map (THCM1-2 on the legend) in the above Figure 1, located along the western boundary of the Subject Lands between the Significant Woodland to the south and the three contiguous Woodlands to the north, is categorised as a coniferous thicket using the 2008 draft edition of the Ecological Land Classification for Southern Ontario manual (“ELC”).

17The 2008 ELC supplements the 1998 edition of the ELC by providing additional vegetative community classifications. While the 2008 edition of the ELC is still in draft form, both ecology experts agreed that it is routinely relied upon by ecologists (including the witnesses) to determine ecological land classifications.

18Notwithstanding that consensus, only a single extracted page of the 2008 ELC was submitted to the Tribunal as evidence. All other evidence pertaining to the ELC was drawn from the last published version, being the 1998 edition (Exhibits 1, 14, and 26).

19According to the 2008 ELC, coniferous thickets have over 75 per cent coniferous cover, a shrub cover of greater than 25 per cent, and a tree cover of less than 25 per cent.

20Both ecologists agreed that the Eastern White Cedar coniferous tree species dominates the coniferous thicket on the Subject Lands – referred to throughout the Hearing as the “Cultural Thicket” – at 75 per cent or more of the overall composition of same. However, it was submitted that the tree cover of the Cultural Thicket is less than 25 per cent as the Eastern White Cedar can exist in either a shrub form or a tree form (beginning as the former and typically, though not always, transitioning to the latter after years of growing). In this instance, the ecologists agreed that the majority of Eastern White Cedars in the Cultural Thicket are trees in shrub form. As stated in Appendix G of the EIS (Page 420 of Exhibit 1):

This image shows how Eastern White Cedar dominates the [Cultural Thicket]. The cedar trees in this ecosite are typically shrub-form, approximately 4 – 7 m tall, and often multi-stemmed.

21A key nuance presented to the Tribunal in determining whether the Cultural Thicket should be mapped as EP and NHS in the OP is whether the Cultural Thicket is also a “treed” area. The Tribunal concludes that it is.

22The 1998 ELC definition of a “tree” is:

A woody plant usually with a single main stem and capable, under the right conditions, of reaching heights of several metres or more.

23The ecologists agreed that the Eastern White Cedar is a tree species that meets this definition. It is further recognised as a tree by the Ministry of Natural Resources and Forestry (“MNRF”) (Exhibit 16).

24The 1998 ELC definition of “treed” is as follows:

A community with a tree cover of > 10%.

25Consequently, if an ecosite has between 10 and 25 per cent tree cover, and also has greater than 25 per cent shrub cover, it meets both the 1998 ELC definition of a treed area and the 2008 ELC criteria for being a thicket.

26The evidence before the Tribunal demonstrates that the Cultural Thicket is one such ecosite.

27At Page 346 of Exhibit 1, the EIS provides a total tree tally for the Cultural Thicket of 10,495 trees, including:

• 1,782 trees with a diameter at breast height (“dbh”) greater than 20 centimetres (“cm”);

• 4,212 trees with a dbh greater than 12 cm; and

• 7,440 trees with a dbh greater than 5 cm.

28Mr. West confirmed that the above tree counts are indeed of trees, but that some of those trees are in shrub form. In Mr. West’s opinion, the Eastern White Cedar can meet both the ELC definition of a “tree” and the ELC definition of a “shrub”. The Tribunal was directed to the 1998 ELC definition of a “shrub”, which is:

A perennial plant usually with a woody stem, shorter than a tree, often with a multi-stemmed based; includes small trailing woody species such as Rubus pubescens. Native shrubs of Ontario are listed in Soper and Heimburger (1982). 2. Vegetation communities that have < 10% cover of trees and > 25% cover of shrubs.

29While the difference in height between a shrub and a tree is not quantified by the ELC beyond a shrub being “shorter than a tree”, at Appendix B to his Reply Witness Statement, Mr. West draws a line at 8.0 cm dbh as the differentiating height between a shrub (less than 8.0 cm dbh) and a tree (8.0 cm dbh or greater) for all species included in that appendix, including the Eastern White Cedar.

30Using that metric, a minimum of 1,782 trees, representing approximately 17 per cent of the 10,495 trees within the Cultural Thicket, are undoubtedly in “tree form”, having a dbh greater than 20 cm. 40 per cent, or 4,212 of the trees within the Cultural Thicket, have a dbh greater than 12 cm.

31The above analysis is consistent with the data interpretation provided in the EIS (Page 347 of Exhibit 1), which states, “Therefore 60% of the total trees in the tract are very young, early succession trees […]” and Page 8 of Mr. West’s Witness Statement, in which he states that, “Approximately 60% of the woody species in this community are less than 10 cm dbh.” It further supports Ms. Logan’s opinion that, based on the EIS, there is more than 10 per cent tree cover in the Cultural Thicket.

32Accordingly, the Tribunal is satisfied that the Cultural Thicket, comprised of over 75 per cent coniferous Eastern White Cedar trees and having a minimum of 40 per cent of all trees in tree form according to the EIS and Mr. West’s additional data, has a tree cover of greater than 10 per cent and is therefore a treed community.

33The Tribunal notes that Appendix B to Mr. West’s Reply Witness Statement demonstrates that out of a sampling of 673 trees measuring over six metres in height (which was determined to be an arbitrary measurement advanced by Ms. Logan), approximately 24 per cent are in tree form. The Tribunal is satisfied that this subset of the total 10,495 trees in the Cultural Thicket supports the above findings.

Application of the EIS

34There was no dispute between the ecologists that the EIS is the appropriate mechanism with which to assess the natural heritage features on the Subject Lands. Where the ecologists disagree is how the results of the EIS and the ELC process should inform the OP mapping.

35In Mr. West’s opinion, the policy descriptions and criteria in both the OP and the Forestry Act are meant to supplement the ELC findings as, in his opinion, “the ELC type is the overriding identification tool to define whether something is a woodland […] in Ontario”. Therefore, in his opinion, the OP policies and descriptions for Woodlands and Significant Woodlands should only be applied to a woodland or forest classified by the ELC. “If it does not identify as a woodland under the ELC,” he opined, “the policies do not apply.”

36Notwithstanding the above opinions, Mr. West conceded that there is no legislative or policy basis for same. He agreed that the policies and definitions in a planning document must be relied upon when mapping for the purposes of that document.

37In Ms. Logan’s opinion, the ELC is a screening tool that classifies vegetative communities for use in the planning process. That process, she proffered, includes applying the findings of an EIS to the provisions of municipal by-laws, official plans, regional official plans, the Provincial Policy Statement, 2020 (“PPS”), and various legislative documents, including the Act.

38Ms. Logan’s opinion was supported by that of Ms. Backus, who opined that the OP policies provide for an analysis of features identified through the EIS process based on the definitions in the OP. In other words, the EIS process identifies what is on the ground (in this case, a Cultural Thicket dominated by Eastern White Cedar trees), which must then be evaluated against the OP to determine whether those features should be mapped.

39Ms. Saunders conceded that, in her opinion, if the conclusions of the EIS do not conform with the definitions and policies of the OP, it would be inappropriate to rely exclusively on the EIS to determine the OP mapping.

40The Tribunal agrees with the opinions of Mses. Logan, Backus, and Saunders. An EIS provides a detailed assessment of the natural features on a given site. The ELC provides guidance on how to categorise those features into individual ecosites. However, the findings of an EIS must be read in the context of the applicable legislation and in force planning policies to determine how they should be applied at the local level.

Planning Act

41Both Mses. Saunders and Backus agreed that OPA 107, as adopted, has appropriate regard to matters of provincial interest as set out in s. 2 of the Act.

42Ms. Backus further opined that while s. 2 of the Act includes matter (p) on the appropriate location of growth and development (which is permitted in the Hamlet of Newtonville), the Municipality must also have regard for matter (a) on the protection of ecological systems, including natural areas, features, and functions.

43In Ms. Backus’ opinion, OPA 107 and the proposed mapping for the Subject Lands appropriately balance these matters of provincial interest. The Tribunal agrees, noting that the OPA 107 mapping provides for both protected EP and developable “Hamlet” designations on the Subject Lands.

Provincial Policy Statement

44Both Mses. Backus and Saunders ultimately agreed that, as adopted, the OPA 107 mapping is consistent with the PPS.

45Policy 2.1.1 of the PPS states that natural features and areas shall be protected for the long term.

46Policy 2.1.2 states that:

The diversity and connectivity of natural features in an area, and the long-term ecological function and biodiversity of natural heritage systems, should be maintained, restored or, where possible, improved, recognizing linkages between and among natural heritage features and areas, surface water features and ground water features.

47The Tribunal was directed to the PPS definition of “Natural Heritage System”, which states in part that they can include natural heritage features and areas, other natural heritage features, lands that have been restored or have the potential to be restored to a natural state, and areas that support hydrologic functions. The definition goes on to state that, “The Province has a recommended approach for identifying natural heritage systems, but municipal approaches that achieve or exceed the same objective may also be used.”

48Included in the definition of “Natural Heritage Features and Areas” are Significant Woodlands. The PPS defines “Woodlands” as treed areas that provide environmental and economic benefits such as erosion prevention, hydrological and nutrient cycling, the provision of clean air and long-term storage of carbon, the provision of wildlife habitat, outdoor recreational opportunities, and the sustainable harvest of a wide range of woodland products. The definition further states the following:

Woodlands include treed areas, woodlots or forested areas and vary in their level of significance at the local, regional and provincial levels. Woodlands may be delineated according to the Forestry Act definition or the Province’s Ecological Land Classification system definition for “forest”.

49The above definition is clear that Woodlands include treed areas, woodlots, or forested areas. While the definition permits the delineation of Woodlands according to either the Forestry Act definition of same or the ELC definition of a “forest” (Mr. West agreed that either one can be used), the Tribunal notes that there is no requirement for either definition to be explicitly relied upon. Nonetheless, the Tribunal was directed to the Forestry Act definition of “woodlands”, which states:

“woodlands” means land with at least,

(a) 1,000 trees, of any size, per hectare,

(b) 750 trees, measuring over five centimetres in diameter, per hectare,

(c) 500 trees, measuring over 12 centimetres in diameter, per hectare, or

(d) 250 trees, measuring over 20 centimetres in diameter, per hectare,

but does not include a cultivated fruit or nut orchard or a plantation established for the purpose of producing Christmas trees.

50At Page 346 of Exhibit 1, the EIS confirms that the Cultural Thicket meets all of the above metrics. The Cultural Thicket is 2.16 ha in size. Accordingly, it contains an estimated:

• 4,859 trees of any size per ha;

• 3,444 trees measuring over 5 cm dbh, per ha;

• 1,950 trees measuring over 12 cm dbh, per ha; and

• 825 trees measuring over 20 cm dbh, per ha.

51The Tribunal was not directed to the ELC definition of “forest”, but was directed to the ELC definition of “woodland”, which is:

A treed community with 35 to 60% cover of coniferous or deciduous trees.

52In terms of significance, the PPS defines “Significant” as it relates to Woodlands, as (emphasis added):

an area which is ecologically important in terms of features such as species composition, age of trees and stand history; functionally important due to its contribution to the broader landscape because of its location, size or due to the amount of forest cover in the planning area; or economically important due to site quality, species composition, or past management history. These are to be identified using criteria established by the Ontario Ministry of Natural Resources and Forestry;

53With respect to criteria established by the MNRF, the Tribunal notes that unlike the definition of Woodlands in the PPS, which states that same “may be” delineated according to the Forestry Act or ELC, Significant Woodlands “are to be” identified using the MNRF criteria. In that regard, it was Mr. West’s finding on Page 30 of the EIS (Page 339 of Exhibit 1) that:

According to the [MNRF] definition of a Significant Woodland, the [Cultural Thicket] would meet the criteria based on there being 1,000 stems of any diameter per ha. Therefore, the thicket would meet the criteria of a Significant Woodland according to the OP/[MNRF] criteria.

54The Tribunal was further directed to the MNRF mapping for the Subject Lands (Page 12 of Exhibit 2), which, according to Ms. Saunders, identifies woodlands that need to be protected. The Tribunal notes that the MNRF woodland mapping for the Subject Lands appears to closely align with the adopted EP and NHS mapping of OPA 107.

Growth Plan for the Greater Golden Horseshoe

55Both Mses. Backus and Saunders agreed that, as adopted, the OPA 107 mapping conforms to the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”).

56Ms. Saunders directed the Tribunal to Policy 4.2.2.4 of the Growth Plan, which states that “Provincial mapping of the Natural Heritage System for the Growth Plan does not apply until it has been implemented in the applicable upper- or single-tier official plan.” It is Ms. Saunders’ opinion that because OPA 107 is not yet in force, the provincial NHS mapping does not apply. However, the Tribunal notes that Policy 4.2.2.4 of the Growth Plan refers to implementation of the applicable upper- or single-tier official plan. In this instance, the applicable upper-tier official plan is the Region Official Plan (“ROP”).

57Nonetheless, there was no dispute among the Parties that the appropriate time to refine the NHS mapping at the local level was through the Tribunal’s consideration of OPA 107.

Region Official Plan

58Policy 2.3.14 of the ROP states, in part:

The general location of key natural heritage and/or hydrologic features are shown on Schedule ‘B’ – Map ‘B1’. The individual features and their associated vegetation protection zones are to be identified and shown in more detail in area municipal official plans and zoning by-laws.

59Schedule B – Map B1e – Greenbelt Natural Heritage System and Key Natural Heritage and Hydrologic Features of the ROP generally reflects the adopted OPA 107 EP and NHS mapping for the Subject Lands.

60Policy 2.3.14 goes on to state the following:

The location and extent of key natural heritage and/or hydrologic features may be further confirmed through appropriate studies such as a watershed plan or an environmental impact study in accordance with Policy 2.3.43.

61While Policy 2.3.43 pertains to development applications, there was no dispute that the EIS conducted pursuant to the Tribunal’s March 16, 2020 Order is the appropriate mechanism with which to evaluate and confirm the limits of the natural heritage features on the Subject Lands.

Municipal Official Plan

62All four experts agreed that the OP policies and definitions are in full force and effect and are not subject to appeal. Mses. Backus and Saunders further agreed that the OP policies and definitions are consistent with the PPS 2020, conform to the Growth Plan and other relevant provincial plans, and conform to the ROP.

63Section 14.4 of the OP sets out policies for lands designated EP on Map A. Policy 14.4.2 states that lands designated EP include natural heritage features that comprise the natural heritage system.

64Policy 3.4.2 of the OP lists the natural heritage features that comprise the Municipality’s natural heritage system. Included in the list are “Significant Woodlands”, which are defined in the OP as follows:

Significant Woodland: shall mean an old growth woodland, or a woodland, greater than 4 ha located outside of settlement areas, or greater than 1 ha in settlement areas. […] “Significant Woodland” may also include plantations.

65The experts agreed that the Cultural Thicket is not an old growth woodland. They also agreed that the Subject Lands are within a settlement area. Therefore, to meet the definition of a Significant Woodland in the OP, the Cultural Thicket must meet the OP definition of a “Woodland” and be greater than one ha in size.

66The OP defines a Woodland as follows:

Woodland: shall mean a treed area that provides environmental and economic benefits such as erosion prevention, water retention, and the provision of habitat but shall not include a cultivated fruit or nut orchard or a plantation established for the production of Christmas trees.

67The EIS confirms for the Tribunal that the Cultural Thicket is a treed area and is 2.16 ha in size. There was no dispute that the Cultural Thicket is not a cultivated fruit or nut orchard nor a Christmas tree plantation.

68Ms. Logan opined that the Cultural Thicket provides environmental and economic benefits, including erosion prevention; water retention, water recharge, and groundwater discharge; the removal of sediment particles prior to water entering the nearby stormwater management pond; and wildlife habitat. Mr. West agreed that there is an environmental benefit to the Cultural Thicket and that it provides habitat. He further agreed that, using the OP criteria, the Cultural Thicket is a Significant Woodland.

69All witnesses agreed that Significant Woodlands, as defined by the OP, must be mapped. More specifically, Ms. Saunders agreed that the OP maps must delineate the EP and NHS designations to correspond with the natural heritage features described by the policies and definitions of the OP. In other words, the definitions in the OP are what need to be relied on to determine the OP mapping. In her opinion, you cannot have a line on the OP maps that does not conform with the OP policies or definitions.

70The Tribunal agrees with the opinions of all four experts that, in accordance with the OP policies, Significant Woodlands as defined by the OP must be mapped. The Tribunal finds that the Cultural Thicket meets the OP definition of a Significant Woodland. The Tribunal therefore finds that the Cultural Thicket, as delineated by the EIS, must be mapped as EP on Map A1 and NHS on Map D3 of the OP.

Transitional Woodland Definition

71In both the EIS and during his oral testimony, Mr. West directed the Tribunal to the OP definition of a “Transitional Woodland”, which states:

Transitional Woodland: transitional woodlands are successional areas that are characterized by trees and/or shrub species typical of early pioneer plant communities (e.g. trees - poplar, birch, and shrubs - hawthorn, buckthorn). These areas are generally characterized by younger, predominantly open canopy cover.

72Notwithstanding his opinion that the Cultural Thicket meets the OP definition of a Significant Woodland, Mr. West proffered that the definition of a Transitional Woodland is closest to what was observed in the Cultural Thicket. In his opinion, the Transitional Woodland definition is a standalone definition as it is not explicitly referenced in the OP definitions of a Woodland or Significant Woodland.

73In Ms. Logan’s opinion, based on the aerial photographs, the Cultural Thicket does not have “predominantly open canopy cover” as referenced in the OP definition for a Transitional Woodland.

74Ms. Backus opined that the definition of a Woodland does not exclude a Transitional Woodland, though she conceded that it also does not explicitly reference Transitional Woodlands (whereas it does explicitly reference Old Growth Forests).

75The Tribunal notes that, according to the OP definition, a Transitional Woodland is made up of “trees and/or shrub species”. The inclusion of “and/or” in the definition suggests to the Tribunal that a Transitional Woodland can be made up entirely of trees, a combination of trees and shrub species, or entirely of shrub species. If the latter were true, it would not be a treed area and would not satisfy that requirement within the OP definition of a Woodland. If the former were true, it would. Embedded into the definition is the possibility of either outcome. Accordingly, it is reasonable that the definition of a Woodland in the OP does not explicitly reference a Transitional Woodland, as not all Transitional Woodlands are treed and therefore not all Transitional Woodlands meet the OP definition of a Woodland.

76In this instance, whether the Cultural Thicket meets the OP definition of a Transitional Woodland is irrelevant. It is a treed area that, according to the expert witnesses at this Hearing, meets the OP definition of a Significant Woodland and must be mapped as such.

Refinements to the Adopted OPA 107 Mapping

77Ms. Backus proffered that the initial EP and NHS mapping adopted through OPA 107 was created using ELC data provided by the Central Lake Ontario and Ganaraska Region Conservation Authorities (together, “Conservation Authorities”) using aerial photography. That exercise, she proffered, resulted in EP and NHS mapping “at a broad level” that, as stated in the Planning Services Report for OPA 107 (Page 592 of Exhibit 1), “must, by necessity, be examined at the site level through the necessary studies.”

78Similarly, OP Policy 14.4.7 states that the extent of the EP designation on Map A is approximate, and that precise limits shall be detailed through the appropriate studies.

79In this instance, the Parties agreed that the EIS is the appropriate study, which has provided a more detailed analysis of the natural features on the Subject Lands, including portions of the Cultural Thicket that were not previously mapped as EP and NHS based on the preliminary OPA 107 mapping.

The Northern Woodlands

80As noted in Paragraph [15] of this Decision, the three ecosites at the north end of the Subject Lands, immediately north of and adjacent to the Cultural Thicket, form a contiguous Woodland of 0.92 ha. The Cultural Thicket is 2.16 ha.

81Mr. West agreed that, should the Cultural Thicket be classified as a Woodland in the OP, then the three contiguous Woodlands and the Cultural Thicket would together form one contiguous Significant Woodland greater than one ha in size (i.e., 0.92 ha + 2.16 ha).

82Accordingly, the Tribunal finds that the three ecosites referenced in Paragraph [15] of this Decision should be mapped as EP on Map A1 and NHS on Map D3 of the OP.

Areas Excluded from the Adopted OPA 107 Mapping

83The initial EP and NHS mapping for the Subject Lands adopted through OPA 107 reflects the boundaries of two separate ELC classifications provided to the Municipality by the Conservation Authorities: (1) a coniferous forest (“FOC”); and (2) a treed swamp. Two ELC classifications on the Subject Lands were excluded from the adopted EP and NHS mapping: (1) a cultural thicket (“CUT”) towards the north end of the Subject Lands, surrounded by the FOC, and adjacent to the Highway 401 offramp car park area along Newtonville Road; and (2) a cultural savannah on the east side of the Subject Lands (Exhibit 3).

84Mr. Suriano submitted that the CUT was excluded from the adopted OPA 107 mapping, which must mean something if the policies and definitions were also applied to the initial mapping exercise. In other words, if the Conservation Authorities and Municipality elected to exclude a cultural thicket from the adopted mapping, the entire area now identified as the Cultural Thicket through the EIS must also therefore be excluded.

85The Tribunal finds that this argument fails to consider the entirety of the evidence before it. The original CUT was excluded from OPA 107 without the benefit of the detailed ground truthing that has since been carried out through the EIS for the Subject Lands. The size of the CUT was unknown, as was the composition of species and the number of trees within it (i.e., whether there was greater or less than 10 per cent tree cover in that area).

86The Tribunal accepts that not all cultural thickets will meet the OP definition of a Significant Woodland, and therefore not all cultural thickets should be mapped. However, the ground truthing completed by Mr. West demonstrates that the Cultural Thicket on the Subject Lands is a single ecosite comprised of 10,495 trees, with greater than 10 per cent tree coverage, that meets the OP definition of a Significant Woodland and therefore must be mapped in accordance with the OP policies.

87Ms. Backus opined that the results of the EIS completed for this Hearing result in a larger area being designated as EP and NHS on the Subject Lands compared to what was originally adopted. In her opinion, the extent of the EP and NHS mapping should align with the features identified through the EIS, such that the initial CUT area excluded from the EP and NHS mapping should now be included.

88The Tribunal agrees and finds that the extent of the adopted OPA 107 EP and NHS designations on the Subject Lands should be refined to include the ecosites south of the yellow line in Figure 1, the Cultural Thicket, and the three ecosites listed in Paragraph [15] of this Decision. The Tribunal notes that a small ecosite identified as a “Mixed Mineral Meadow Marsh (MAMM3-1)” on Figure 1 is located within the Cultural Thicket area but does not form part of the Significant Woodland. It should therefore be excluded from the EP and NHS designations on Maps A1 and D3 of the OP, respectively.

Appeals 10 and 11 (Coco Paving Inc. and CRH Canada Group Inc.)

89In an interesting twist, Mr. Suriano directed Ms. Backus to a settlement of two appeals to these proceedings wherein an entire swath of Significant Woodlands was proposed to be removed from the adopted OPA 107 NHS and EP mapping without the benefit of an EIS. The deletion of the Significant Woodlands was accepted and approved by the Tribunal.

90Though Ms. Backus did not provide evidence as part of that settlement, she did confirm her support for same. This raised a question of consistency regarding why Ms. Backus supported the deletion of a Significant Woodland from one area of the OPA 107 mapping but did not support the deletion of the Cultural Thicket from the Subject Lands.

91Mr. DeMelo submitted that while the Municipality could have maintained the EP and NHS mapping on the lands subject to Appeals 10 and 11, those appellants have an aggregate license that permits them to remove the Significant Woodlands for the purposes of aggregate extraction. Accordingly, it was his submission that there is “no point” in identifying a feature on the map knowing that it can legally be removed. In other words, the OP maps should reflect to the reader only what is protected as part of the Municipality’s natural heritage system.

92The Tribunal is satisfied that the determination regarding Appeals 10 and 11 reflects the unique circumstances of those appeals, which are distinguished from the issues currently before the Tribunal.

CONCLUSIONS

93The Tribunal finds that the Cultural Thicket constitutes a “treed” area as defined by the ELC, meets the OP, PPS and Forestry Act definitions of Woodlands, meets the OP and PPS definitions of a Significant Woodland, and should therefore be mapped as EP on Map A1 – Land Use and NHS on Map D3 – Natural Environment, in accordance with the in-force OP policies.

94The Tribunal further finds that, based on the more detailed analysis and findings of the EIS, the EP and NHS mapping on the Subject Lands should be revised to more accurately reflect the limits of the Significant Woodlands on the Subject Lands, being the limits of the ecosites identified in Paragraphs [14], [15], and [16] of this Decision.

95Finally, the Tribunal finds that the OPA 107 mapping for the Subject Lands, with the revisions described in Paragraph [94] of this Decision, has appropriate regard for matters of provincial interest as set out in s. 2 of the Act, is consistent with the PPS, conforms to the Growth Plan and all relevant provincial plans, conforms to the ROP and OP, represents good planning, and is in the public interest.

ORDER

96THE TRIBUNAL ORDERS that the Appeal by 2408406 Ontario Inc., 2408426 Ontario Inc., and 2408428 Ontario Inc. (“Fourteen Estates”) is allowed in part for the purposes of modifying Official Plan Amendment No. 107 to the Official Plan for the Municipality of Clarington (“Official Plan”), as follows:

a) For the lands legally described as Block 31 on Draft Plan 18T-87083, Part of Lot 8, Concession 1, Hamlet of Newtonville, Municipality of Clarington (“Subject Lands”), the Environmental Protection Area designation on Map A1 of the Official Plan and the Natural Heritage System designation on Map D3 of the Official Plan are to be revised to reflect the combined extents of the following ecosites identified on Schedule 1 to this Order:

i. All ecosites below the yellow line on the attached Schedule 1;

ii. The three contiguous ecosites at the north end of the Subject Lands identified as FOCM2-2, FODM3-1, and FOCM6-3 on the attached Schedule 1; and

iii. The large turquoise ecosite labelled on the map as THCM2-1 on the attached Schedule 1.

b) All other areas within the Subject Lands are to be designated as Hamlet on Map A1 of the Official Plan.

97THE TRIBUNAL ORDERS that Official Plan Amendment No. 107 to the Official Plan is approved as modified for the Subject Lands.

98THE TRIBUNAL ORDERS that in all other respects, the appeal by Fourteen Estates is dismissed.

99The Tribunal may be spoken to in the event the Parties require the Tribunal’s assistance with respect to the modifications described in Paragraph [96], above.

“S. Dixon”

s. dixon

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.

SCHEDULE 1