Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 29, 2024 CASE NO(S).: OLT-23-000815

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: King’s Bay Golf Club Limited Subject: Request to amend the Official Plan – failure to adopt the requested amendment Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings and open space Reference Number: D01-2022-003 Property Address: 27 Stub Road Municipality: City of Kawartha Lakes OLT Case No.: OLT-23-000815 OLT Lead Case No.: OLT-23-000815 OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: King’s Bay Golf Club Limited Subject: Zoning By-law Amendment Application – failure to make a decision Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings and open space Reference Number: D05-2022-001 Property Address: 27 Stub Road Municipality: City of Kawartha Lakes OLT Case No.: OLT-23-000816 OLT Lead Case No.: OLT-23-000815 OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)

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

Applicant/Appellant: King’s Bay Golf Club Limited Subject: Proposed Plan of Subdivision – failure to make a decision Description: Proposed redevelopment of existing golf course into 44 lots for single detached dwellings Reference Number: D06-2022-001 Property Address: 27 Stub Road Municipality: City of Kawartha Lakes OLT Case No.: OLT-23-000817 OLT Lead Case No.: OLT-23-000815 OLT Case Name: King’s Bay Golf Club Limited v. Kawartha Lakes (City)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: King’s Bay Golf Club Limited Request for: Request for an Order of the Tribunal to determine Issue 6 on the Issues List: Is the proposed development within a settlement area?

Heard: March 7, 2024, with written submissions filed on April 2, 2024

APPEARANCES:

Parties King’s Bay Golf Club Limited (“Appellant”)

Counsel Steven Ferri Jacob Damstra Mandy Ng

Parties City of Kawartha Lakes (“City”)

Counsel Steven D’Agostino David Germain

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Appellant’s Motion before the Tribunal is to determine whether a piece of land is within a Settlement Area or not. The City is taking the position that a Settlement Area must be labeled so and delineated within their Official Plan, otherwise it cannot be a Settlement Area. The Appellant is putting forward that so long as the land in question meets the definition of “Settlement Area” in A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”), then it is within a ‘Settlement Area’.

2The GP defines “Settlement Areas” in s. 7 as:

Urban areas and rural settlements within municipalities (such as cities, towns, villages and hamlets) that are:

a) built up areas where development is concentrated, and which have a mix of land uses; and

b) lands which have been designated in an official plan for development in accordance with the policies of this Plan. Where there are no lands that have been designated for development, the settlement area may be no larger than the area where development is concentrated.

3The definition of the term “Settlement Area” is slightly different in the GP, the Provincial Policy Statement, 2020 (“PPS”) and the Kawartha Lakes Official Plan (“KLOP”).

4The PPS defines “Settlement Area” as:

urban areas and rural settlement areas within municipalities (such as cities, towns, villages and hamlets) that are:

a) built-up areas where development is concentrated and which have a mix of land uses; and

b) lands which have been designated in an official plan for development over the long term planning horizon provided for in policy 1.1.2. In cases where land in designated growth areas is not available, the settlement area may be no larger than the area where development is concentrated.

5The KLOP defines “Settlement Area” as:

urban areas and rural settlement areas (such as cities, towns, villages and hamlets) that are:

• built up areas where development is concentrated and which have a mix of land uses; and,

• lands which have been designated in the official plan for development.

THE APPLICATION

6The Appellant had submitted planning applications for an Official Plan Amendment, a Zoning By-law Amendment, and Plan of Subdivision to the City to develop 46 residential lots for single detached dwellings on portions of 27 Stub Road (“subject property”). The balance of the subject property would consist of blocks for stormwater management and open space areas for passive recreation. The proposed development would be serviced with Municipal sewer and water systems that currently serve the existing adjacent subdivision and can be extended/expanded to accommodate the proposed development.

7The City held a public meeting and a staff report was created. It should be noted that the staff report was silent on whether or not the subject property was within a Rural Settlement Area. The Appellant filed the appeal due to the City failing to make a decision within the requisite time frame. The issue of whether the subject property was within a Settlement Area was only raised after the filing of the Appeal.

8The Appellant brought this Motion seeking the following relief:

a) Determining that the Subject Property is within a settlement area pursuant to the Growth Plan for the Greater Horseshoe (“GP”), the Provincial Policy Statement (“PPS”), and the City of Kawartha Lakes Official Plan (“KLOP”);

b) Directing that Issue No. 6 as set out in the Issues List in the Procedural Order for this matter (“Issues List”) has been finally determined for the purposes of the hearing;

c) Directing that the City of Kawartha Lakes scope the Issues List as necessary to reflect the Tribunal’s decision and to provide same to the Moving Party for its consideration within seven (7) days of the issuance of the Tribunal’s decision respecting this Motion; and,

d) Directing that the City of Kawartha Lakes and the Moving Party work together to scope Issues List as necessary to reflect the Tribunal’s decision and to provide same to the Tribunal within fourteen (14) days of the issuance of the Tribunal’s decision respecting this Motion and that the Tribunal may be spoken to should this matter remain unresolved.

SUBJECT PROPERTY BACKGROUND

9The Appellant is the owner of the subject property. It is approximately 51.7 hectares (127.7 acres) in size and is located on the east side of Stub Road and bordered by Southcrest Drive and Crescent Moon Lane.

10Part F of s. 31.11 of the KLOP designates the subject property and surrounding lands as Development Plan Area Three (“DP-3”). The DP-3 lands include “Shoreline” and “Nature Reserve” designations.

11In accordance with s. 31.11.2 of the KLOP, the Shoreline designation permits the following uses:

a) 107 single detached residential lots;

b) a resort containing 25 units;

c) a nine-hole golf course;

d) parks;

e) recreational facilities; and,

f) infrastructure.

12Lands within the Nature Reserve designation are intended to be retained in their natural state in order to preserve their natural ecological functions, with certain infrastructure, boat docking, boat launching facilities and infrastructure permitted (ss. 31.11.3, 31.11.5, 31.11.6). Limited trail and boardwalk access may also be provided.

13Infrastructure, including irrigation, stormwater management, and non-potable water intakes are permitted in both Shoreline and Nature Reserve Designations. The subject property is developed and was used as the King’s Bay Golf and Country Club, which began operations in 2001 and ceased operations in 2019. A mix of uses is permitted there, including a golf course, clubhouse, storage and maintenance buildings, and a surface parking lot.

14The subject property is adjacent to an existing 111 lot established residential subdivision, known as King’s Bay Golf and Country Club Estates, which is located on Southcrest Drive and Crescent Moon Lane. The King’s Bay Estates residential subdivision was built and has been occupied, in part, since approximately 2001.

15The existing development on the subject property was approved by the former Township of Mariposa in or about 1998. The historic approvals for the subject property were carried forward into the KLOP as a DP-3. The status of these Development Plan Areas in the City’s current OP is made clear in s. 31.8.1 of the KLOP, which reads:

Development Plans cover site-specific areas with detailed policies for the development of that area. The following Development Plans (DP-1 to DP-6) are carried forward from the former County of Victoria Official Plan and were considered and approved under that Plan. They do not represent the policy framework established under this Plan and as such are not to be taken as precedent or as an acceptable form of development under this Plan.

EVIDENCE AND POSITIONS OF THE PARTIES

Appellant

16The Appellant called one witness for the Motion, Matthew Cory, whom the Tribunal qualified to provide expert opinion evidence in the field of land use planning. Mr. Cory relied on his Affidavit in support of the Motion upon which he was cross-examined at the hearing of the Motion.

17Mr. Cory proffered that the use of the word ‘and’ in the GP definition of Settlement Areas is disjunctive. To meet the first part of the definition of Settlement Areas in the GP, lands may be urban areas or rural areas. To meet the definition of Settlement Areas in the GP in part (b), the land must be designated in an Official Plan for development. They need not be both.

18Mr. Cory also provided evidence that the term ‘urban areas’ is not defined in the GP and therefore, the normal meaning of the word applies. The term ‘Rural Settlement’ is defined in s. 7 of the GP as:

Existing hamlets or similar existing small settlement areas that are long-established and identified in official plans. These communities are serviced by individual private on-site water and/or private wastewater systems, contain a limited amount of undeveloped lands that are designated for development and are subject to official plan policies that limit growth. All settlement areas that are identified as hamlets in the Greenbelt Plan, as rural settlements in the Oak Ridges Moraine Conservation Plan, or as minor urban centres in the Niagara Escarpment Plan are considered rural settlements for the purposes of this Plan, including those that would not otherwise meet this definition.

19Mr. Cory opined that the key criterion for meeting the definition of a ‘Rural Settlement’ is the first sentence in the definition above. The second and third sentences are meant to be inclusive, not exclusive. Further, the GP is more than a set of individual policies. He opined that the GP is be read in its entirety, and the appropriate policies are to be applied to each situation. The definition of ‘Settlement Area’ requires only those lands be “designated in an official plan for development” and the definition of ‘Rural Settlement’ only requires that lands be “identified in an official plan” not that they should be identified as a Rural Settlement in an OP.

20Mr. Cory also opined that the DP-3 Lands are an existing small settlement area long established and identified in KLOP under the DP-3 designation, and therefore, they are a Rural Settlement Area. He further opined that there is no requirement in the GP that Rural Settlements be given the “Hamlet Settlement Area” designation in an Official Plan. The only requirement is that they be “identified in an official plan”, which the DP-3 Lands are.

21He further opined that, overall, allocation of growth as set out in the GP is preferred to be directed to lands that have existing or planned Municipal water and wastewater systems over those that are not serviced by existing or planned Municipal water and wastewater systems.

The City

22The City called one witness for the Motion, Rory Backsh, whom the Tribunal qualified to provide expert opinion evidence in the field of land use planning. Mr. Backsh relied on his Affidavit for the Motion upon which he was cross-examined at the hearing of the Motion.

23Mr. Backsh gave evidence to the Tribunal that the GP provides a framework for Municipalities to identify ‘Settlement Areas’. It does so through the combination of the “Settlement Area” definition and policies directing Municipalities to delineate Settlement Areas, which are intended to work together. He said specific policy direction requiring Municipalities to identify Settlement Areas is contained in s. 2.2.8.1 of the GP, which reads: “Settlement area boundaries will be delineated in official plans”.

24Mr. Backsh went on to testify that the City carried out a detailed growth management and planning exercise to comply with this direction. This process began with the identification of both delineated and undelineated built-up areas in the City by the Ministry of Infrastructure. Ultimately, the City’s growth management process culminated in a new OP that was adopted in 2012. The KLOP designates two types of Settlement Areas: Urban Settlement Areas and Hamlet Settlement Areas.

25He also gave evidence that Urban Settlement Areas in the City (being towns and villages) are identified by means of the Urban Settlement Boundary linework and coinciding Urban Settlement Area designation on the Schedule A series of the KLOP. Rural Settlement Areas in the City (being hamlets), are identified by means of the Hamlet Settlement Area designation on these same schedules. Ultimately, the subject property is not included within the boundary of any Settlement Area delineated in the KLOP, and instead, is designated DP-3.

26Mr. Backsh opined that the starting point in applying this definition is to ask whether the subject property meets the threshold set out in the first sentence of the definition of Settlement Areas, that is, whether they are an Urban Area or Rural Settlement.

27Mr. Backsh opined that in order to meet the definition in s. 7 of the GP, a Rural Settlement must be identified in an OP. Consistent with GP s. 2.2.8.1, Rural Settlement Areas have been identified in the KLOP by means of the Hamlet Settlement Area designation. He said the subject property has not been so identified. Mr. Backsh opined that because it has not identified in the KLOP, it does not meet the definition of Rural Settlement in the GP.

28Mr. Backsh opined that the subject property also does not satisfy criterion (a) in the GP definition of Settlement Area, as the subject property does not appear to contain a mix of land uses. He opined that given the golf course on the subject property has been defunct since 2019, the subject property is only being actively used for residential purposes. As such, it does not contain a mix of land uses. However, he acknowledged that it does contain a concentration of development.

29Mr. Backsh also stated that the subject property does not meet criterion (b) in the GP definition of Settlement Area which again reads:

lands which have been designated in an official plan for development in accordance with the policies of this Plan. Where there are no lands that have been designated for development, the settlement area may be no larger than the area where development is concentrated.

30He provided testimony that the subject property has not been designated as a Settlement Area in the KLOP, and therefore, cannot meet this definition.

ANALYSIS AND FINDINGS

31As noted above, the definition of Settlement Area in s. 7 of the GP states:

Urban areas and rural settlements within municipalities (such as cities, towns, villages and hamlets) that are:

a) built up areas where development is concentrated, and which have a mix of land uses; and

b) lands which have been designated in an official plan for development in accordance with the policies of this Plan. Where there are no lands that have been designated for development, the settlement area may be no larger than the area where development is concentrated. [emphasis added]

32As noted above, the definition of Rural Settlement in the GP is as follows:

Existing hamlets or similar existing small settlement areas that are long-established and identified in official plans. These communities are serviced by individual private on-site water and/or private wastewater systems, contain a limited amount of undeveloped lands that are designated for development and are subject to official plan policies that limit growth. All settlement areas that are identified as hamlets in the Greenbelt Plan, as rural settlements in the Oak Ridges Moraine Conservation Plan, or as minor urban centres in the Niagara Escarpment Plan are considered rural settlements for the purposes of this Plan, including those that would not otherwise meet this definition.

33The definitions of Settlement Area in the GP, the PPS and the KLOP are very similar, and the differences do not offer guidance on this issue. The Tribunal finds that the correct interpretation of Settlement Areas in the GP, the PPS and the KLOP, including whether the use of the word ‘and’ is to be given a conjunctive or disjunctive (joint and several) meaning, can only be ascertained by a thorough examination of the words in the definitions in their entire context, and in their grammatical and ordinary sense harmoniously with the scheme and object of the policy documents.

34The Tribunal finds that the subject property is a Rural Settlement as defined in the GP. The evidence has established that the subject property is an existing small settlement that is long established and is identified in the KLOP. The Tribunal does not accept that a Rural Settlement must be identified as a Rural Settlement in an Official Plan as the definition includes a test for identifying Rural Settlement Areas, to wit: “These communities are serviced by individual private on-site water and/or private wastewater systems, contain a limited amount of undeveloped lands that are designated for development and are subject to official plan policies that limit growth.”

35The evidence is that the DP-3 lands are serviced through private on-site water and private wastewater systems, contain a limited amount of undeveloped land and are subject to Official Plan policies that limit growth. The KLOP limits the types of development and uses of the DP-3 land.

36When deciding whether the use of the word “and” is to be given a conjunctive or disjunctive meaning, the Tribunal finds that it can only be ascertained by a thorough examination of the words in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and objective of the policy documents.

37The second sentence in criteria (b) clearly contemplates that the subject property needs not be designated for development to be in a Settlement Area. It contemplates a situation where a Settlement Area will have an area where “development is concentrated” but does not have an area where there are “no lands that have been designated for development.” The Tribunal finds that the correct way to read criteria (a) and (b) is disjunctively. A Settlement Area need only be built-up and need not be designated for development, otherwise, the following second sentence of (b) in the definition has no effect: “where there are no lands that have been designated for development, the settlement area may be no larger than the area where development is concentrated”.

38The Tribunal finds that the subject property is in a Rural Settlement and that the lands are located in a built-up area which includes a mix of land uses. Whether or not the golf course is currently open is immaterial, it is still a designated land use. Both Parties agreed that it is an area where development is concentrated.

39For the purposes of the present proceedings, the Tribunal finds that the DP-3 Lands, including the subject property, are in a ‘Settlement Area’ as that term is used in the GP, the PPS, and the KLOP. As defined in the KLOP, DP-3 Lands are built up areas where development is concentrated, which have a mix of land uses and which are designated in the KLOP for development and are serviced by Municipal water and wastewater facilities. As defined in the PPS, DP-3 Lands are Rural Settlement that are built up areas where development is concentrated and has a mix of land uses that have been designated in an Official Plan for development over the long term.

ORDER

40THE TRIBUNAL ORDERS THAT the Motion of the Appellant is granted, in part, and the Tribunal directs the relief sought by the Motion as follows:

a) That the City of Kawartha Lakes scope the Issues List as necessary to reflect the Tribunal’s Decision and to provide same to the Appellant for its consideration within seven (7) days of the issuance of the Tribunal’s Decision respecting this Motion;

b) That Issue No. 6 as set out in the Issues List in the Procedural Order for this matter is removed from the Issues List; and,

c) That the City of Kawartha Lakes and the Appellant work together to scope the Issues List as necessary to reflect the Tribunal’s Decision and to provide same to the Tribunal within 14 days of the issuance of the Tribunal’s Decision respecting this Motion.

“A. Sauve”

A. Sauve 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.