Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 12, 2024

CASE NO(S).: OLT-22-004328

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

Applicant/Appellant: BV Realty Partners GP Inc. & Trolleybus Urban Developments

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the development of a 26-storey residential building and a 6-storey base building

Reference Number: 22 114201 WET 05 OZ

Property Address: 1-9 Oxford Drive

Municipality/UT: City of Toronto

OLT Case No.: OLT-22-004328

OLT Lead Case No.: OLT-22-004328

OLT Case Name: BV Realty Partners GP Inc. & Trolleybus Urban Developments v. Toronto (City)

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

Applicant/Appellant: BV Realty Partners GP Inc. & Trolleybus Urban Developments

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the development of a 26-storey residential building and a 6-storey base building

Reference Number: 22 114201 WET 05 OZ

Property Address: 1-9 Oxford Drive

Municipality/UT: City of Toronto

OLT Case No.: OLT-22-004329

OLT Lead Case No.: OLT-22-004328

Heard: March 18-22, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

BV Realty Partners GP Inc. and Trolleybus Urban Developments

Rodney Gill Cristin Hunt (articling student)

City of Toronto

Mark Crawford Uttra Gautam

DECISION DELIVERED BY C.I. MOLINARI AND INTERIM ORDER OF THE TRIBUNAL

Link to Interim Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is related to Appeals filed by BV Realty Partners GP Inc. and Trolleybus Urban Developments (“Applicant”/“Appellant”) pursuant to ss. 22 (7) and 34 (11) of the Planning Act (“Act”) with respect to the failure of the City of Toronto (“City”) to make a decision within the statutory timeframes on Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) applications (together “Applications”), for the properties known municipally as 1-9 Oxford Drive (“Property”).

2The purpose of the Applications, as submitted, was to facilitate the proposed redevelopment of the Property with a 26-storey, 278-unit residential building with a six-storey podium.

3The Property has an area of approximately 1,569 square metres (“sq m”) with approximately 45 metres (“m”) of frontage on Oxford Drive and a depth ranging from 30 m to 38 m. The Property is currently developed with four single-detached dwellings and two semi-detached dwellings, ranging in height from one- to two-storeys. Oxford Drive terminates in a cul-de-sac adjacent to the north lot line of the Property.

THE PROPERTY

4The Property is currently developed with four single-detached dwellings and one semi-detached dwelling. It is located in the Mount Dennis neighbourhood, which is served by the Mount Dennis Station, being the western terminus of the Line 5 – Eglinton Crosstown Light Rail Transit (“LRT”), as well as the integrated GO Station along the Kitchener GO Rail Line, and a station along the Union Pearson Express line providing rapid transit access to both Toronto Pearson International Airport and Union Station. In addition, the Mount Dennis area has been identified as a Mobility Hub in the Metrolinx 2041 Regional Transportation Plan (“Metrolinx RTP”).

5To the north, the Property is adjacent to a 10-storey, 175-unit, rental apartment building that fronts on to the north side of the cul-de-sac on Oxford Drive (“15 Oxford”). Further north is the Canadian National Railway/Canadian Pacific Railway corridor and the Eglinton Crosstown Storage and Maintenance Facility located north of the rail corridor.

6Fronting the west side of Oxford Drive is one single-detached and two semi-detached dwellings as well as an open space area with a playground structure associated with an apartment building located at 30 Denarda Street. Further south on the northwest corner of Oxford Drive and Weston Road, is a two-storey residential building with access from Oxford Drive.

7To the south of the Property, fronting on Weston Road, are two-storey buildings with retail uses at-grade and residential units above, and a four-storey, 20-unit rental apartment building with surface parking at the rear (“1197 Weston”). The surface parking area creates a jog in the rear lot line of the Property at the southeast corner.

8To the east of the Property is an assembled property with an approved development application for a 37-storey residential tower fronting on the west side of Locust Street (“8-16 Locust”) and semi-detached dwellings. Further east is an approved 48-storey mixed-use building at 11-23 Hollis Street (“11-23 Hollis”) adjacent to the Mount Dennis Station.

9The immediate neighbourhood is characterized by several proposed and approved redevelopment proposals, all within close proximity to the Mount Dennis Station. The following graphic shows the surrounding neighbourhood, with the Property outlined in red with a pink building, proposed developments shown with yellow buildings, approved developments shown with blue buildings, and the Mount Dennis Station noted in orange:

EXISTING OFFICIAL PLAN DESIGNATION AND ZONING

10The Parties agree that the City Official Plan (“TOP”) designates the Property ‘Mixed Use Areas’, despite what is considered a mapping error, which shows the northern portion of the Property as being designated ‘Apartment Neighbourhoods’. The Property is also subject to Site and Area Specific Policies 53 and 39 (“SASP 53” and “SASP 39” respectively).

11SASP 53 applies to a broad area surrounding the Property and requires development to be undertaken in a comprehensive manner through a city block planning exercise (“Block Plan Exercise”). SASP 53 also seeks to ensure that the development of an assembly of land “will be comprehensive enough to allow for a distribution of density, uses and massing that is both internally functional and externally compatible”, and “does not preclude workable and compatible redevelopment of the rest of the block or block face intended for redevelopment”.

12SASP 39 applies to the lands generally between Ray Avenue and Locust Street, north of Weston Road and south of the rail corridor. SASP 39 permits low to medium-rise residential buildings subject to suitable land assembly. The OPA proposes to amend SASP 39 to permit a tall building.

13The Property is within the area of the Mount Dennis Secondary Plan (“MDSP”) which was adopted by the City in July 2022, yet appealed in its entirety by several landowners, including the Appellant. As appealed, the MDSP is informative but not determinative in its application to the Property. The MDSP proposes to designate the Property ‘Mixed-Use Areas’ in the ‘Mixed-Use Growth District’, which is to accommodate “a mix of tall buildings and mid-rise buildings with a maximum height of approximately 45 storeys surrounding Mount Dennis Station” where the “tallest buildings will be located closest to the rail corridor and Mount Dennis Station”.

14The City Zoning By-law No. 569-2013 (“ZBL 569”) zones the majority of the Property ‘Commercial Residential Zone: CR 2.0 (c2.0; r2.0) SS2’, with a maximum height of 15.0 m and five storeys, with 9 Oxford Drive zoned ‘Residential Apartment Commercial Zone: RAC (u428) (x140)’. It is understood by the Parties that the zoning of 9 Oxford Drive could be the result of a mapping error, as the RAC zone only permits Apartment Buildings, making the northern half of the semi-detached building a legal non-conforming use. The ZBA proposes to amend ZBL 569.

THE APPLICATIONS

15There was some disagreement between the Parties related to submission, complete application, and appeal dates. The Tribunal notes the following dates with a caveat that these dates are based on the best information available to the Tribunal.

16The Applications were submitted on February 11, 2022, deemed complete via a Notification of Complete Application from the City dated March 19, 2022, followed by a Notification of Incomplete Application dated April 8, 2022, and subsequently followed by a second Notification of Complete Application dated April 19, 2022. The Applications were then appealed on August 22, 2022.

REVISED PROPOSAL

17A revised proposal was filed with the City on September 1, 2023, modifying the proposal to a 35-storey, 362-unit building with a four-storey podium, a gross floor area (“GFA”) of 24,435 sq m resulting in a floor space index of 15.5, and revisions to building setbacks, while maintaining a tower floorplate size of 750 sq m (“Revised Proposal”).

18As revised, the Applications seek to amend the TOP and ZBL 569 as follows:

• amend SASP 39 to permit a tall building on the Property; and

• rezone the Property to increase the permitted height and density, and to revise other development regulations as necessary.

19The Revised Proposal includes 30 studio units, 201 one-bedroom units, 96 two-bedroom units, and 35 three-bedroom units. A total of 922 sq m indoor and 534 sq m outdoor amenity space is proposed. Parking and loading areas are internalized within the base building, with access to the loading proposed along the north lot line, and access to an underground parking garage proposed at the south lot line. A total of 82 vehicular spaces are proposed including 71 resident and 11 visitor spaces. In addition, 372 bicycle parking spaces have been proposed along the north property line.

20The podium is proposed to be setback 1.5 m from the west lot line along Oxford Drive, 1.5 m from the north lot line, 6.9 m from the east lot line for the northern portion of the Property and 3.0 m from the east lot line for the southern portion of the Property, and 1.5 m from the south lot line.

21The tower is proposed to be setback 4.0 m from the west lot line along Oxford Drive, 5.5 m from the north lot line, 12.9 m from the east lot line for the northern portion of the Property and 3.09 m from the east lot line for the southern portion of the Property, and 5.5 m from the south lot line. The proposed separation distance between the tower on the Property and the approved tower at 8-16 Locust is 25.0 m.

22One loading space is proposed to be located within the building footprint at-grade with access from Oxford Drive via a covered private driveway which runs parallel to the north property line. The loading area is to be fully enclosed within the building and screened by a 1.5 m landscaped buffer along the north property line. It is proposed that cyclists will use the northerly driveway to access a secure bicycle storage room located along the eastern extent of the ground floor. A secondary access for the bicycle storage room is to be provided via a 108 sq m outdoor amenity space.

23In terms of vehicular access, an underground garage ramp is proposed at the southwest corner of the Property with access from Oxford Drive, to provide access to three levels of below-grade parking.

PRELIMINARY MATTERS

24At the outset of the Hearing, Mr. Gill advised the Tribunal that the Witness Statement (“WS”) for the City’s original land use planning witness, Emilia Sasso, had not been formally withdrawn, and the WS of the City’s replacement land use planning witness, Allan Ramsay, was not filed in accordance with the approved Procedural Order (“PO”). Further, the City would need additional relief from the PO requirement compelling Ms. Sasso to attend the Hearing as a witness, as the City did not comply with the PO requirement to withdraw her WS at least seven days prior to the Hearing event.

25Mr. Crawford acknowledged that the City should have sought relief with respect to the filing dates included in the PO and, as such, requested the following:

• relief from paragraph 13 of the PO to permit the City to provide Mr. Ramsay’s WS to the Tribunal and the Appellant after the December 1, 2023 deadline; and

• relief from paragraph 20 of the PO for the City’s failure to advise the Tribunal, at least seven days in advanced from the Hearing, that Ms. Sasso would not be attending the Hearing despite her WS having been submitted.

26Mr. Gill advised that he did not object but would be requesting relief for his witnesses to speak in reply to Mr. Ramsay’s WS, despite not having the opportunity to file reply WSs.

27In accordance with Rule 1.6 of the Tribunal’s Rules of Practice and Procedure, it was determined by the Tribunal that the relief requested, in relation to Ms. Sasso not attending the Hearing and Mr. Ramsay taking her place, was reasonable under the circumstances and was granted. Further, the Tribunal allowed for the Appellant’s witnesses to provide reply evidence to Mr. Ramsay’s WS.

LEGISLATIVE FRAMEWORK

28When considering appeals filed pursuant to ss. 22 (7) and 34 (11) of the Planning Act, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act and to the decision, if any, of the City and the information considered by it in the making of the decision, as required by s. 2.1(1) of the Act. Although these appeals relate to a non-decision by the City, it is noted that City Council does not support the Applications and instructed Counsel for the City to appear at the Hearing in opposition to the approval of same.

29Further, ss. 3 (5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”).

30The Tribunal must also be satisfied that the ZBA conforms with the TOP, and that the Revised Applications represent good land use planning and are in the public interest.

PARTIES

31It is noted that the only Parties to the Hearing are the Appellant and the City. No neighbouring landowners sought either Party or Participant status.

WITNESSES

32The Tribunal qualified the following witnesses, on consent, to provide expert opinion evidence in their respective areas of expertise, as noted:

For the Appellant:

• Tyler Grinyer – Land Use Planning

• Satinder (Sony) Rai – Architecture and Urban Design

• David Mugford – Landscape Design and Landscape Architecture

• Mark Conway – Land Use Planning and Land Economics

For the City:

• Allan Ramsay – Land Use Planning

• Zhong Wei Shi – Urban Design

ISSUES

33The Parties agree that the Property is currently underutilized and is appropriate for some degree of intensification, although there is disagreement on the level of intensification that is appropriate.

34The issues on the Issues List (“IL”) and the evidence of the Parties have been considered and distilled to the following main issues: built form, neighbourhood context and site design. From these issues it is apparent that access and landscaping are germane to the issue of site design, and height, setbacks and resulting building separation distances are germane to the issues of built form and neighbourhood context, resulting in a disagreement over whether the Property is suitable for a tall building.

EVIDENCE / ANALYSIS

35For the reasons determined through the following review of the evidence, the Tribunal finds that the Revised Proposal has merit and should be approved.

36The Tribunal notes that Mr. Grinyer did not address conformity of the Revised Proposal to the Streetscapes policies of the Mobility section of the MDSP in his WS or in his evidence before the Tribunal, despite them being on the City’s IL.

37The Tribunal also notes that Mr. Ramsay did not address conformity of the Revised Proposal to the following policy documents in his WS or in his oral testimony before the Tribunal, despite them being on the City’s IL:

• s. 2 (s) of the Act;

• policies 1.1.1 c) and i), 1.7.1 k), or 1.8.1 f) and g) of the PPS;

• the Growth Plan;

• the Healthy Neighbourhood, Public Realm, Natural Environment, or Apartment Neighbourhood policies of the TOP; or

• the Urban Forest or Eco-Neighbourhood policies of the MDSP.

38Despite the Apartment Neighbourhood policies of the TOP being on the IL, the policies apply to lands designated ‘Apartment Neighbourhoods’ and, as the Property is designated ‘Mixed Use Areas’ as agreed upon by both Parties, it is noted that the Apartment Neighbourhood policies are not considered in the following evidence or analysis.

Planning Act

Appellant Evidence

39Mr. Grinyer stated that he is satisfied that the Revised Proposal has appropriate regard to the applicable matters of provincial interest as set out in s. 2 of the Act, including ss. (h), (r) and (s). In this regard, he opined that the Revised Proposal “optimizes the use of land and infrastructure in a transit-supportive location that is planned for significant growth with a well-designed residential tower form that encourages a sense of place through public realm enhancements along Oxford Drive”. Further, it “makes efficient use of existing infrastructure by providing new housing within a compact built form in proximity to new significant public transit investments”, and “limits the supply of vehicular parking supply on-site in order to promote active transportation, which will contribute to reducing automobile dependency; all of which contribute to reducing greenhouse gas emissions”.

40Mr. Grinyer furthered that the Revised Proposal has appropriate regard for the orderly development of safe and healthy communities, and considers the planned context, including the potential built form on the potential assembly of surrounding lands.

41Mr. Grinyer noted in his WS that, with respect to s. 2.1 of the Act requiring the Tribunal to have regard to any decision of City Council related to the Applications, the City failed to make a decision on the Applications within the prescribed timelines in the Act, and as such, there is no decision of City Council to which the Tribunal shall have regard.

42Mr. Rai also offered his opinion on s. 2 of the Act, noting that the Revised Proposal “represents an orderly development of safe and healthy communities, has a built form that is well-designed, encourages a sense of place and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant and will mitigate greenhouse gas emissions and adaptation to a changing climate”. It was his opinion that the Revised Proposal “represents a high quality of design that will positively contribute to the sense of place” and that its “proximity to a [t]he Mount Dennis Protected Major Transit Station Area (PMTSA) will significantly reduce car dependence resulting in positive benefits to greenhouse gas emissions”.

City Evidence

43Mr. Ramsay opined that the Revised Proposal does not have appropriate regard to the applicable matters of provincial interest as set out in s. 2 of the Act including subsections (h) and (r). In this regard, he opined that the Revised Proposal does not represent orderly development and is an overdevelopment of the Property. He added that the Revised Proposal “does not provide appropriate setbacks and stepbacks, lacks sufficient separation distances between adjacent buildings and future development and will have undue adverse privacy impacts on surrounding properties”. In addition, he noted that the “insufficient separation distance compromises access to sunlight, clear skyview and daylight”.

44Further, with respect to build form, Mr. Ramsay opined that the Revised Proposal, “with its overall height, massing and scale will not result in an appropriate built form that is well designed, encourages a sense of place or provides public spaces”. In particular, he noted that the tower “will not fit harmoniously with the existing and planned context and will not be well integrated into the streetscape”.

45With respect to s. 2.1 of the Act, requiring the Tribunal to have regard to any decision of City Council related to the Applications, Mr. Ramsay held that, despite no decision having been made on the Applications by the City, “it had adopted planning policies that affect the site and area”, being the MDSP which was adopted by the City on July 19, 2022, and is currently under appeal. He noted that, when the City adopted the MDSP, it directed new proposals to be evaluated against the new policies of the MDSP. Mr. Ramsay advised that, based on his opinion that the Applications do not have regard for several policies of the MDSP, the Revised Proposal therefore does not have appropriate regard for the decision of City as set out in the MDSP.

46On cross-examination, Mr. Ramsay acknowledged that the wording of s. 2.1 of the Act specifies that the Tribunal is to have regard to any decision by the City that “relates to the same planning matter”, and that the City’s decision related to the MDSP is not the same planning matter.

Analysis

47The Tribunal prefers the evidence of Mr. Grinyer and Mr. Rai and finds that the Revised Proposal has regard to the relevant matters of provincial interest in s. 2 of the Act, and that in this instance, there is no decision for which the Tribunal must have regard.

48Subsections (h), (r) and (s) of s. 2 of the Act speak to the orderly development of safe and healthy communities; the promotion of built form that is well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant; and the mitigation of greenhouse gas emissions and adaptation to a changing climate. The Tribunal finds that the Revised Proposal does not offend any of these matters in that:

• it would not result in a disorderly development that would promote an unsafe or unhealthy community;

• the built form is well-designed; would encourage a sense of place and provide for appropriate public spaces; and

• the transit-supported location and limits on the supply of on-site parking will help to mitigate greenhouse gas emissions.

PPS and Growth Plan

Appellant Evidence

49It was Mr. Grinyer’s opinion that the Revised Proposal is consistent with the PPS and is in conformity with the Growth Plan. In support of this opinion, he noted that the Revised Proposal would intensify an underutilized site in a strategic growth area, support the achievement of complete communities, provide a diverse range and mix of housing options and densities, and make an efficient use of land and infrastructure through the introduction of a compact transit supportive built form, thereby maximizing energy efficiency. He further opined that it would contribute to a reduction of greenhouse gases through the use of green roofs, bicycle parking and rough-ins for electrical vehicle charging.

50With respect to transit, Mr. Grinyer submitted that the Property is located within an area that would meet the Growth Plan definitions of both a ‘strategic growth area’ and a ‘major transit station area’ as it is located within a 500-800 m radius of the Mount Dennis Station and is served by existing frequent bus transit service.

City Evidence

51With respect to the PPS, Mr. Ramsay opined that the Revised Proposal does not represent a well-designed built form as the Property is “not of a sufficient size or configuration to accommodate the necessary building setbacks, stepbacks and separation distances of a well-designed built form”. He concluded that the Revised Proposal is therefore not consistent with the policies related to long-term economic prosperity.

52Mr. Ramsay did not opine on the conformity of the Revised Proposal to the Growth Plan.

Analysis

53The Tribunal prefers and accepts Mr. Grinyer’s evidence that the Revised Proposal is consistent with the PPS and finds that the Revised Proposal does not offend the PPS policy related to long-term economic prosperity as it will be supported by the built form and the sense of place to be created through the redevelopment of the Property.

54The Tribunal accepts and agrees with Mr. Grinyer’s uncontested opinion that the Revised Proposal conforms with the Growth Plan based on his assessment of the relevant policies.

Toronto Official Plan

Appellant Evidence

55Mr. Grinyer advised that the Revised Proposal conforms to the Healthy Neighbourhoods policies in section 2.3.1 of the TOP regarding developments designated ‘Mixed Use Areas’ that are adjacent or close to lands designated ‘Neighbourhoods’, although in his opinion, the Property is not located adjacent or close to lands designated ‘Neighbourhoods’.

56Mr. Rai proffered that the various architectural or urban design provisions of the development criteria in the Healthy Neighbourhoods and Public Realm policies of the TOP are met” as the Revised Proposal, among other measures:

• is located and organized to fit within its existing and planned context within a mixed-use area;

• will be compatible with adjacent Neighbourhoods; and

• will provide a gradual transition of scale and density, as necessary, to achieve the objectives of the TOP.

57Mr. Rai added that the vehicle parking, vehicular access, service areas and utilities are located and organized to minimize their impact on the site and on surrounding properties, with improved safety and attractiveness of the adjacent public realm and will provide opportunities for passive and active recreation.

58With respect to the built form policies of the TOP, Mr. Grinyer opined that the Revised Proposal conforms to the policies for the reasons that it will frame the street with good proportions by stepping down in height, transitioning from the podium to the tower with setbacks, and providing four sq m per unit of indoor and outdoor amenity space in a variety of locations including on the ground floor and on the top of the podium. He added that the private and shared amenity spaces will be refined through the Site Plan Amendment approval process.

59Mr. Grinyer proffered that the four-storey base is in keeping with the Tall Building Design Guidelines (“TBDG”) and the policy direction of the MDSP, as it will reinforce the street with good proportions and with a pedestrian scale that will be lined with active at-grade uses. He noted that the tower does not cast unacceptable shadows and allows for the achievement of 25 m separation between approved and future towers within the city block (“Block”), thereby meeting the policies related to access to sunlight and open views.

60Mr. Rai opined that the built form of the Revised Proposal makes a net improvement to the public realm as: garbage and loading functions have been located away from the public realm and are not visible from Oxford Drive; the main entrance addresses Oxford Drive; and balconies have been located to minimize their impact on the surrounding properties. In addition, along the southern half of the eastern property line, no balconies have been proposed and glazing has been reduced.

61In addition, Mr. Rai opined that the various architectural and urban design provisions of the development criteria are met. The Revised Proposal will be located and massed to fit within the existing and planned context, define and frame the edges of the public realm with good street proportion, fit with the character, and ensure access to direct sunlight and daylight on the public realm by:

• providing streetwall heights and setbacks that fit harmoniously with the existing and planned context; and

• stepping back building mass and reducing building footprints above the streetwall height.

62Both Mr. Grinyer and Mr. Rai opined that the Revised Proposal conforms with the ‘Mixed Use Areas’ designation of the TOP and achieves the development criteria as set out in policy 4.5.2 by:

• providing housing on underutilized lands in an area well served by existing and planned transit, thereby contributing to reduced automobile dependency;

• locating and massing the proposed tower to provide an appropriate transition to adjacent lands;

• adequately limiting shadow impacts on adjacent lands;

• appropriately framing the edges of Oxford Drive, while maintaining sunlight and comfortable wind conditions for pedestrians;

• providing an attractive, comfortable and safe pedestrian environment through active at-grade uses including grade-related units along Oxford Drive, new street tree plantings and a widened sidewalk;

• having access to schools, parks, community centres, libraries and childcare;

• providing good site access and circulation, including integration of the access ramp to the underground parking within the building footprint and the screening of service areas along the north side of the building to minimize the impact on adjacent streets and residences;

• providing an adequate supply of parking for residents and visitors;

• providing indoor and outdoor amenity space in accordance with the Zoning By-law; and

• providing for three new street trees and three new private trees within the development.

63Mr. Rai noted that the Revised Proposal has been organized to fit within its existing and planned context as a mixed-use area, will promote walkability and contribute to the overall health of the area. Further, it is his opinion that the area will not be negatively impacted from the Revised Proposal.

64It was the opinion of both Mr. Grinyer and Mr. Rai that the Revised Proposal conforms to the TOP.

City Evidence

65Mr. Ramsay addressed the Built Form policies of the TOP and proffered that the planned context is the most relevant component to the evaluation of the Revised Proposal. He furthered that the planned context is addressed in the TOP and MDSP policies, including policy 3.1.3.3 of the TOP, which states that “development will protect privacy within adjacent buildings by providing setbacks and separation distances from neighbouring properties and adjacent building walls containing windows.” It was his opinion that the Revised Proposal does not conform with policy 3.1.3.3 as the reduced setbacks to the base building and tower “will contribute to privacy issues rather than protect privacy issues, particularly for the abutting residents along Locust Street and Weston Road”.

66Mr. Ramsay opined that the Revised Proposal does not conform with policy 3.1.3.4 of the TOP related to the location and organization of vehicle parking, vehicular access and ramps, loading, servicing, storage areas, and utilities “to minimize their impact and improve the safety and attractiveness of the public realm” and the Property. Subsections a) and b) of policy 3.1.3.4 relate to “using shared service areas where possible within development blocks, including public lanes, shared private driveways, and service courts” and “consolidating and minimizing the width of driveways and curb cuts across the public sidewalk”. It was Mr. Ramsay’s opinion that the proposed separate curb cuts and driveways to the parking garage and to the loading area do not conform to the policy, as they “will detract from the attractiveness of the public realm and will disrupt the streetscape” and will occupy one third of the street frontage and half of the façade of the building. In his opinion, this would place too much emphasis on vehicle access and not enough on the pedestrian environment. On cross-examination, he acknowledged that he had estimated the measurements of the curb cuts to come to his opinion.

67With respect to the TOP policies related to building shape, scale and massing, Mr. Ramsay contended that the Revised Proposal is not located or massed to fit within the existing and planned context found opposite the Property, does not result in a public realm with good street proportion and does not fit with the character of the area. He maintained that the four-storey streetwall height of the base, coupled with a minimum 1.5 m base setback from Oxford Street, does not fit harmoniously with either the existing or planned context. He opined that the Revised Proposal lacks appropriate tower stepbacks along the Oxford Drive frontage and that the proposed setbacks and stepbacks will not fit harmoniously with the existing and/or planned streetwall along Oxford Drive and do not conform with the TOP.

68Mr. Ramsay further opined that the tower element of the Revised Proposal lacks appropriate transition to the surrounding area and does not conform with the policies in the TOP that speak to transition in scale in relation to neighbouring properties and he submitted that the Revised Proposal “does not provide the appropriate setback of 12.5 m from the property lines or the appropriate separate distance of 25 m between towers”.

69With respect to the TOP policies related to improving the public realm through building design, Mr. Ramsay opined that the “4.0 m setback from the street does not fit with the scale of the adjacent 2 storey building façades” and the 2.5 m tower stepback along Oxford Drive does not provide “a pedestrian scale”, especially considering the stepback “encompasses 1.5 m balconies that further diminish the benefit of the tower stepback”. He further opined that the Revised Proposal “does not result in improvements to the boulevard or sidewalks along Oxford Drive” and “limit[s] opportunities to provide public amenities along the sidewalk”.

70Mr. Ramsay submitted that the Revised Proposal does not conform with the TOP built form requirements for tall buildings as the “proposed façade along Oxford Drive neither respects or reinforces good street portion and pedestrian scale”. Further, he submitted that, due to the reduced tower setbacks, the Revised Proposal does not conform with the TOP requirement that the tower portion of the tall buildings should “reduce the physical and visual impacts of the tower onto the public realm” and “provide access to daylight and protect privacy in interior spaces within the tower”.

71Mr. Ramsay opined that the Revised Proposal does not conform with the built form requirements of the TOP regarding tower stepbacks from the base building, the size of the tower floor plate and separation distances from side and rear lot lines and other towers. He asserted that the tower lacks appropriate stepbacks from the base building, the floor plate is too large for the Property, and the separation distances do not reflect good planning in accordance with the TBDG.

72Additionally, Mr. Shi opined that the “proposed site circulation with two curb cuts does not contribute to establishing a safe and comfortable pedestrian environment” and that “the proposed setbacks for the base building are insufficient, and the proposed tower falls short in providing appropriate stepback above the base and sufficient separation distances to neighbouring properties”. It was his opinion that, overall, the Revised Proposal does not align with the built form policies of the TOP.

73Mr. Ramsay further opined that the Revised Proposal does not conform with the development criteria for Mixed Use Areas in the TOP as:

• it “does not provide appropriate transition to adjacent sites”;

• “the pedestrian environment along Oxford Drive will be dominated by separate driveway entrances for the parking garage and loading services and a street facing building façade with reduced street setbacks to the base building and reduced stepbacks to the tower”;

• “the pedestrian environment will not be attractive, comfortable or safe”; and

• the Revised Proposal “lacks good site access, does not provide off-street pick-up or drop-offs and offers limited on-site circulation”.

74It was the opinion of both Mr. Ramsay and Mr. Shi that the Revised Proposal does not conform to the TOP.

TOP – Analysis

75The Tribunal notes that the requirements of both SASP 53 and SASP 39 have been taken into consideration in the evaluation of the Revised Proposal’s conformity to the TOP and prefers the evidence of Mr. Grinyer and Mr. Rai based on the analyses of the various policies of the TOP and finds that the Revised Proposal is in conformity with TOP for the reasons set out below.

76With no countervailing evidence, the Tribunal accepts and agrees with Mr. Grinyer’s and Mr. Rai’s opinion evidence that the Revised Proposal conforms to the Healthy Neighbourhoods, Public Realm policies, Natural Environment, and Apartment Neighbourhood policies of the TOP and is confident that the Public Realm policies will be further implemented through the SPA process.

77The Tribunal prefers the testimony of Mr. Grinyer and Mr. Rai regarding the Built Form policies of the TOP and finds that the Revised Proposal has been designed to appropriately balance accommodating a form, building mass, and density that is compatible with the existing and planned context and provides an appropriate transition to adjacent land uses in terms of intensity and scale.

78Further, the Tribunal is not persuaded that policy 3.1.3.4.a) and b) of the TOP is to be interpreted to limit redevelopment of the Property to one vehicular entrance and prefers Mr. Grinyer’s interpretation that the Revised Proposal consolidates the five existing curb cuts down to two, to ensure minimal impact on the public realm.

79The Tribunal finds that the Built Form policies need to be assessed against the feasibility of neighbouring land assemblies and redevelopments and, in that respect, the evidence of Mr. Ramsay and Mr. Shi needs to be tempered with the compelling testimony of Mr. Conway in this regard on the likelihood of land assembly taking place on adjacent properties, as covered in paragraphs [110] to [116].

80The Tribunal is satisfied that the Revised Proposal meets the tall building policies of the TOP, as they do not stipulate required setbacks. It is the Tribunal’s assessment that the Revised Proposal meets a strict reading of policy 3.1.4.11 as the tower is stepped back from the base, meets the maximum floorplate size and provides separation distances from side and rear lot lines as well as other towers to the extent possible. Further, the appropriateness of the side and rear lot lines setbacks needs to be considered in the context of the development potential of surrounding properties. The Tribunal considers Mr. Conway’s submissions in this regard to be determinative and finds that the setbacks are appropriate in the context of the Block Plan Exercise and land assembly potential of the immediate area.

81Further, the minimum 25 m separation distance between towers is not City policy. It is stipulated in the MDSP, which is under appeal and therefore not in force, and in the TBDG which is, by definition, a guidance document and not City policy. Further, the setback of 12.5 m from towers to property lines is addressed in the TBDG but not addressed in the MDSP. In this respect, the Tribunal finds that the separation distance between towers and the tower setbacks are not determinative, and that the Revised Proposal meets those guidelines as they relate to the existing and approved towers. Additionally, it is the Tribunal’s finding that the policies in the MDSP and the guidelines in the TBDG should not be determinatively applied against possible, but not likely, future land assemblies.

82Further, SASP 53 requires that a Block Plan Exercise be undertaken “to allow for a distribution of density, uses and massing that is both internally functional and externally compatible, and does not preclude workable and compatible redevelopment of the rest of the block or block face intended for redevelopment” [emphasis added]. It is not clear that the remainder of the Block is ‘intended for redevelopment’ as no other surrounding property owner sought either Party or Participant status in the Hearing to oppose the proposed setbacks.

83The Tribunal is confident that the SPA process will further ensure the satisfaction of the built form policies of the TOP, which acknowledge the adjacency of different scales of development and provide for measures to transition between areas of different development intensity and scale.

84With respect to the Mixed Use Areas policies, notwithstanding the concerns of Mr. Ramsay related to the transition between areas of different development intensity and scale, providing an attractive, comfortable and safe pedestrian, and providing good site access and circulation and an adequate supply of parking, the Tribunal finds that the Revised Proposal addresses these matters to the extent possible, The Tribunal is persuaded by the evidence of Mr. Grinyer and Mr. Rai that, for the reasons provided, the Revised Proposal generally conforms with the ‘Mixed Use Areas’ designation of the TOP and achieves the development criteria as set out in policy 4.5.2.

Mount Dennis Secondary Plan

Appellant Evidence

85It was Mr. Grinyer’s opinion that the Revised Proposal has appropriate regard for the Urban Forest policies of the MDSP, as the Revised Proposal provides for trees throughout the development site, wherever possible, and appropriate regard for the Development and Site Operation policies, as all parking is located below grade and the loading and delivery operations are within the building footprint. He added that the Revised Proposal consolidates five existing curb cuts down to two curb cuts, to ensure minimal impact on the operations of the public street.

86On cross-examination, Mr. Grinyer conceded that the access points, despite being reduced from the existing five driveways to two, would have more intense usage than the existing driveways as there would be a higher volume of vehicles using the underground access point, but noted that the MDSP speaks to limiting curb cuts as opposed to requiring only one curb cut.

87On further questioning related to whether additional street trees would be able to be provided if there was only one curb cut, Mr. Grinyer demurred, noting that he did not have knowledge of the presence of underground utilities that may be impacted in that respect. He added that, with only one curb cut, issues may arise related to the sharing of access between vehicles entering the parking garage and service vehicles.

88Mr. Rai proffered that the various architectural and urban design provisions in the MDSP related to mobility are met as the Revised Proposal does not include surface parking, and visitor and residential parking will be provided below grade.

89With respect to the Built Form policies of the MDSP, Mr. Grinyer opined that the Revised Proposal has appropriate regard for the policy direction and provides for a highly articulated building consisting of grade related units to animate the street, with stepbacks above, a minimum separation distance of 25 m between the proposed tower and approved and future towers as identified in the Block Plan Exercise context plans prepared by SVN Architects (“Appellant’s Block Context Plans”), and a transition down in height from approved towers to the east.

90Mr. Grinyer added that, in his opinion, the “shape and scape of the proposed tower will not result in unacceptable built form impacts including, but not limited to, sky view, shadow impacts, and wind conditions”.

91Mr. Rai proffered that the various architectural and urban design provisions in the MDSP related to built form are met as the Revised Proposal will:

• reinforce a unique sense of place and identity;

• promote contextually appropriate and transit supportive development;

• define and contribute to a high-quality public realm;

• achieve good transition in scale;

• maximize comfortable pedestrian-level wind conditions, air circulation and access to direct sunlight and daylight;

• provide high-quality amenity spaces within the development;

• provide appropriate setbacks to support a generous, cohesive, and green public realm across the Plan Area, with active at-grade residential uses that foster a human-scaled and pedestrian-oriented environment that promotes vibrancy and casual overlook;

• orient the main entrance directly onto Oxford Street; and

• have negligible shadow impacts on surrounding properties.

92Both Mr. Grinyer and Mr. Rai proffered that the Revised Proposal has appropriate regard for the MDSP including the District 5: Mixed-Use Growth policies, as it will reinforce the pattern of stepping down of heights from the tallest buildings adjacent to Mount Dennis Station and the rail corridor.

City Evidence

93Mr. Ramsay opined that the Revised Proposal does not have regard for the requirements of the Streetscapes, and Development and Site Operation policies of the MDSP as the “streetscape and public realm will be interrupted by two driveway entrances, limiting the opportunity for pedestrian amenities and street furniture”, and will have adverse impacts on pedestrian and cycling facilities and street operations. He added that the Revised Proposal does not consolidate vehicular access points and does not limit curb cuts.

94Mr. Ramsay found that the Revised Proposal also does not have regard for two of the built form objectives of the MDSP, in that the public realm would be dominated by vehicular entrances rather than pedestrian amenities, and there would be insufficient setbacks and stepbacks to achieve an appropriate transition in scale with surrounding uses, and to support a “human-scaled and pedestrian-oriented environment”.

95With respect to the policies in the MDSP related to the development of tall buildings, Mr. Ramsay found that the Revised Proposal does not have regard for the policies as follows:

• the Property is too small for the extent of the Revised Proposal and it “does not fit cohesively within the context of the size and configuration of the site and does not achieve an appropriate transition in scale to surrounding uses”;

• the Revised Proposal does not provide for “generous tower stepbacks along streets” or support an interesting streetscape;

• the tower stepbacks “are less than the requirement of approximately 5.0 m”; and

• the Revised Proposal “will not achieve the minimum tower separation of 30 m or a reduced separation of 25 m on the future redevelopment of lands to the north and east” and “would limit redevelopment potential on these adjacent properties”.

96With respect to the policies in the MDSP related to transition in scale, Mr. Ramsay opined that the Revised Proposal has both ‘Tall to Mid-rise’ and ‘Tall to Tall’ building relationships with adjacent properties as addressed in policy 8.17 in the MDSP. He submitted that “the application of separation distances, building setbacks, stepping down of heights and, in the case of Tall to Tall buildings, the orientation of the tower are all factors to be to utilized to achieve good transition in scale”. It was his opinion that the Property is too small to accommodate the necessary separation distances, building setbacks, stepping down of heights or tower orientation.

97With respect to the built form policies for District 5, Mr. Ramsay opined that the open space area at the rear of the proposed building does not have regard for the built form policies as it is a small area located adjacent to a vehicular access and service area, is not visible from surrounding streets, is not accessible or adjacent to any indoor amenity area, and is not aligned with the pedestrian network.

MDSP – Analysis

98With no countervailing evidence, the Tribunal accepts and agrees with Mr. Grinyer’s opinion evidence that the Revised Proposal has appropriate regard for the Urban Forest policies of the MDSP.

99The Tribunal accepts the uncontroverted evidence of Mr. Ramsay related to the Streetscapes policies of the MDSP, although has reservations related to the opinion that the provision of two driveway entrances results in not having regard for policy 7.6.1 of the MDSP, as the policy is qualified by including the words “where feasible”. Further, it is not conclusive that two driveway entrances equate to “spaces for pedestrians” that are not “safe, comfortable, functional and accessible”.

100With respect to the development and site operations as they relate to mobility, the Tribunal prefers the evidence of Mr. Grinyer, finding that, as there is no proposed surface or above-grade parking, there will be “minimal impact on planned and existing pedestrian and cycling facilities and the operations of public streets” and pedestrian and cyclist safety is not at risk due to the planned separation of residential vehicle and cyclist access to the Property. Further, the Tribunal is not convinced that two access points is detrimental to safety nor offends the policy direction to limit curb cuts, noting that the policy is related to limiting curb cuts “between multiple developments” and not on a single development site.

101The Tribunal notes that the MDSP is informative but not determinative to the consideration of the Revised Proposal, and finds that it has appropriate regard to the MDSP policies.

Tall Building Design Guidelines

Appellant Evidence

102Mr. Grinyer noted that the TBDG includes sections related to site context, site organization, tall building design and pedestrian realm. Among other matters, the TBDG recommends a minimum separation distance of 25 m between towers (excluding balconies), a minimum setback of 12.5 m from side and rear property lines, and a maximum residential tower floor plate of 750 sq m, with a tower stepback of 3 m above the face of the base building, including balconies.

103Mr. Grinyer opined that, as demonstrated in the Appellant’s Block Context Plans, the Revised Proposal “provides for appropriate tower stepbacks and separation distances”, noting that a minimum tower separation distance of 25 m is achieved from approved and potential future towers which abut the Property and would not preclude the optimization of adjacent lands within the Block. He added that both tower stepbacks and separation distances are in keeping with the minimum stepback recommendations of the TBDG.

104From a built form perspective, it was Mr. Grinyer’s opinion that the Property is “a contextually appropriate location for a tall building that will fit harmoniously within the emerging tall building context within the Mount Dennis area”. He added that the Property is located in a strategic growth area which permits tall buildings up to 45 storeys.

105Mr. Grinyer advised that the Revised Proposal “provides for appropriate site organization which balances objectives pertaining to building design, setbacks, landscaped open space, and vehicular and loading access, amongst others” and “provides for appropriate landscaped open space”.

106Noting that he relied, in part, on the opinions of Mr. Rai, Mr. Grinyer opined that the Revised Proposal is in keeping with, and meets the intent of, the TBDG.

107Mr. Rai noted that he has worked extensively with the TBDG and that, in his opinion, it is “intended to promote the design and placement of high-quality tall buildings that positively contribute to the City structure and fit harmoniously within their surrounding context”. He noted that the MDSP identifies the Property as a location for a higher density development and the area is identified as a mixed-use growth district.

108He opined that the Revised Proposal “complies with the overall guiding principles and maintains the intent of the various build form performance guidelines”, and in particular:

• is setback 25 m from the existing and approved buildings on 15 Oxford Drive and 8-16 Locust;

• the ground to second floor height conforms to the TBDG; and

• the building height “fits within the pattern of generally tallest buildings closest to the Mount Dennis PMTSA and lowering of heights further from the station”.

109Mr. Rai added that the entrance on the north side of the Property provides access to the short- and long-term bicycle parking and that the garbage and loading facilities are hidden from Oxford Drive. In addition, he noted that the entrance’s “two-storey open space provides relief on the street frontage and acts as a service court”.

110Mr. Conway addressed the likelihood of land assembly taking place on adjacent properties and the potential impacts the Revised Proposal would have on any potential redevelopment of surrounding lands. He asserted that “land assembly can be a complex and uncertain process” given:

a) It requires negotiating with several, often diverse, landowners simultaneously. Landowners, however, can have very different expectations of value, and some have no interest in selling at any price. Some may be interested in selling, but not immediately.

b) The process can be uncertain as you may successfully negotiate agreements to sell with most of the necessary landowners. However, just one “holdout” can comprise the entire assembly.

c) Some lands cannot be assembled. The economic value of the property on its own may exceed its value as part of an assembly. The rental building at 1197 Weston is likely an example of a site that will be challenging to be acquired for an assembly. This building accommodates 20 apartments. For the developer to acquire this property they would need to address the City’s rental replacement policy – which, would require that all the units be replaced in the new development and be maintained at the current rates. The cost to replace rental units is estimated to be between $200,000 and $250,0001 or more depending on the depth of affordability and the affordability period. In this case a developer therefore has to assume a cost of at least $4.0M before a land value is applied to acquire this property. This makes offering an attractive price to a vendor challenging.

d) The two and three storey buildings that dominate much of the Weston Road frontage can also be difficult to assemble. These buildings typically have commercial storefronts with apartments above. In my experience, I have frequently found that the owners of these buildings live in an apartment unit on an upper floor. Acquiring these lands in an assembly practically means that the value has to be sufficient for the owner to acquire another home and/or a place to conduct business. These factors can often drive the acquisition value beyond its assembly value.

e) Developers also have to consider that some of these properties have been held by owners for a long time and therefore often subject to significant capital gains taxes which can further undermine the appeal of a sale.

f) Given these challenges developers are precise in the lands they seek to assemble. They will not usually acquire more property than they typically require.

111According to Mr. Conway, these factors, including the requirement of meeting the City’s rental replacement policy (“RR Policy”) for 1197 Weston, mounts a significant hurdle for a developer to overcome. He opined that these factors may explain the lack of assembly along Weston Road south of the Property, “despite its obvious market appeal from an exposure and access perspective”.

112Similarly, with respect to 15 Oxford, Mr. Conway noted that, as the existing building has a total of 175 rental apartment units, the RR Policy would significantly impact the potential for redevelopment, and be a very significant barrier to redevelopment. He added that other aspects of the RR Policy require the provision of a housing relocation strategy for the tenants during the interim period until the new units are ready for occupancy, resulting in further challenges for developers to consider in the redevelopment of rental buildings.

113With respect to the potential for the assembly of lands on the remainder of the Block, Mr. Conway opined that, if the Revised Proposal was approved, “there appears to be sufficient property remaining on the balance of the block to allow for a significant amount of redevelopment”. He noted that the Appellant’s Block Context Plans demonstrate that the likely redevelopment scenario for the lands to the east would result in a separation distance of 25 m, the base building does not contain south facing windows eliminating potential light, view or privacy concerns for redevelopment of the lands to the south; and to the west, the base building is separated from any existing or future buildings by the road right-of way. He added that there is evidence, however, that the land economics associated with the assembly of the remaining parcels of land may be a greater challenge to redevelopment” and that “land assemblies as envisioned by the City do not always occur given the often divergent interest of private owners”.

114Mr. Conway agreed that development applications should consider, to the extent possible, the future redevelopment potential of adjacent lands. He added that Mr. Rai’s Reply WS illustrated that redevelopment is feasible on adjacent lands and that the City did not present any evidence to suggest that those lands are compromised. He further added that the City’s Block Plan Exercise context plans (“City’s Block Context Plans”) do not recognize the practical issues of land economics in redevelopment. He did accept the City’s concerns related to ensuring redevelopment potential on neighbouring lands and acknowledged that the Revised Proposal imposes constraints, but submitted that such neighbouring lands would be “far from being steriliz[ed]” noting that the potential land assembly at the northwest corner of Weston Road and Locust Street would be a superior site and would not be disadvantaged in any way.

115In response to Mr. Shi’s assertion that the Revised Proposal would create a ‘first to the post’ scenario, Mr. Conway opined that he disagreed and noted that this ignores the practical issues of land assembly and redevelopment in the City. He added that “the strict enforcement of the perspective of the City’s Witnesses would have a greater impact of discouraging growth and undermine the City’s objectives than discouraging the yet to be determined development on the remaining lands”.

116Mr. Conway summed up his evidence by indicating that, if the Revised Proposal is approved, it would make the remainder of the Block “all the more marketable”.

City Evidence

117Mr. Ramsay advised that he accepted and relied on Mr. Shi’s opinion that the Revised Proposal does not meet the intent of the TBDG with respect to site circulation, tower stepback, setbacks and separation distances and that the Property is not a suitable size for the development of a tall building with the recommended minimum setback outlined in the TBDG. With respect to site organization, he opined that the Property is too small for the extent of development proposed, noting the “inefficient vehicular access that requires separate entrances” and an “undersized open space area located at the rear of the building adjacent to a service area”. With respect to the base building, Mr. Ramsay opined that the reduced setbacks create issues related to privacy and daylight, and the tower setbacks and separation distances are insufficient.

118Mr. Shi referenced section 2.3 of the TBDG related to site servicing, access, and parking, which he noted “suggests minimizing the extent of area for servicing and vehicular access and limiting the curb cuts”. He opined that the provision of “two curb cuts on a small site, instead of a consolidated driveway access” does not meet the intent of the section.

119Similarly, Mr. Shi noted that the policies of the TBDG related to tower placement speak to providing a 3 m or greater tower stepback above the base building and coordinating tower placement with adjacent sites to maximize access to sunlight and sky view. He opined that the proposed tower stepback, including balconies, above the base building fails to reinforce the scale of the base building”. He noted that this is important “in the context of reinforcing the local street proportion and providing transition to existing low-rise buildings as the area intensifies”.

120With respect to tower separation, Mr. Shi stated that the TBDG further specifies the minimum separation distance of 25 m or greater as “appropriate to the existing and planned context”. He noted that the proposed setbacks are “well below the recommended minimum tower setback and separation distances”.

121Mr. Shi also referenced the portion of section 3.2.3 of the TBDG related to the development of ‘small sites’, which he summarized as “suggesting to apply the recommended minimum tower setbacks and stepbacks first to determine the appropriateness of the site” and to avoid ‘first-to-the-post’ development patterns. It was his opinion that the Property is not large enough to accommodate a tall building after applying the recommended minimum tower setbacks.

122Mr. Shi reasoned that, based on the TOP policies, the MDSP “emerging” policies and the TBDG, the appropriateness of a tall building on the Property could be evaluated through three tests:

1. “Whether the recommended minimum setbacks can be met within the site”;

2. “Whether the proposed setbacks have adverse effects on neighbouring sites”; and

3. “Whether permitting the proposed setback would lead to an acceptable cumulative impact”.

123With respect to the first test, Mr. Shi quoted section 3.2.3 of the TBDG which suggests "applying the recommended minimum tower setbacks and stepbacks and evaluating the resultant floor plate size. If it is not feasible to construct a tower on a site after applying these setbacks and stepbacks, the site may be too small for a tall building." He opined that there is potential for a tall building on the properties to the north and east, and a midrise building to the south. With respect to the lands to the south, he recommended a minimum 20 m separation distance “would be appropriate between mid-rise buildings and tall buildings for all facing conditions” noting that, while specific stepback details are not provided in the TBDG, “the common practice is a 12.5 metre setback from tall buildings and a 7.5 metre setback from midrise buildings, aligning with guidelines for both building types”.

124Mr. Shi concluded that, with 12.5 m setbacks to the north, east and south property lines, “the floor plate ends up being less than 400 square meters on the Site, making it impractical for a tall building”.

125With respect to the base building setbacks, height and massing, Mr. Shi opined that the proposed base building setback is not appropriate, citing TOP policy 3.1.3.3 which recognizes the importance of protecting privacy and daylight and requires providing appropriate setback and facing distances. He added that, although the TBDG does not specify the separation distance for base buildings, “considering the height of the base building and its intended use”, the current CR and RAC zone regulations “can be referenced for guidance about appropriate separation distance when there are dwelling units and openings facing shared lot lines" which would result in a separation distance of “11.0 metres if each main wall has an opening to a dwelling unit”.

126With respect to the second test, Mr. Shi noted that the Appellant’s Block Context Plan “indicates that the proposal might work under specific conditions”, but indicated that it only reflects one potential development option for neighbouring lands.

127Mr. Shi opined that alternative development scenarios could be proposed for the neighbouring lands with appropriate setbacks from the lot lines but that the “resulting separation distances between the proposed tower and future potential buildings are not sufficient, raising issues regarding sunlight, daylight, and privacy”. He noted that the Revised Proposal relies on the adjacent properties to provide extra setbacks to achieve appropriate separation distances, which would negatively impact their future development potential, as illustrated on the City’s Block Context Plans.

128With respect to the third test, Mr. Shi maintained that if the proposed setbacks are permitted, “it would set a substandard benchmark in the area, influencing the approach of adjacent developments”. He noted that the TBDG “suggest[s] a method to assess the cumulative effect by replicating the proposal on adjacent sites or blocks to see whether the outcomes for shadowing, access to sky view, privacy, and daylighting are acceptable”. He opined that the “cumulative results of applying reduced setbacks like those in the proposal on the adjacent sites are considered unacceptable” and that the resulting separation distances fall significantly below 25 m resulting in compromising access to sunlight, a clear sky view, privacy, and daylighting.

129It was Mr. Shi’s opinion that providing at least an 11 m separation distance is appropriate for base buildings with primary windows facing condition, which translates to a 5.5 m setback from the property line if shared equally between the two abutting properties. He concluded that the proposed 3.5 m setback from the north lot line to the unit windows, and approximately 3.076 m from the east lot line to the unit windows “are not appropriate and raise concerns about the potential impacts on privacy and daylight”.

130Mr. Shi opined that the tower stepback, setbacks and separation distances are not sufficient as the TOP requires tower stepbacks from the base and promotes base buildings with good street proportion, the MDSP requires a tower stepback of approximately 5 m or more above the base building, and the TBDG specifies a minimum 3 m stepback. It was his opinion that the proposed 2.5 m tower stepback, with the balconies encroaching by over 1.5 m, “substantially diminishes the impact of the main wall stepback, failing to reinforce the base building which plays a crucial role in establishing a good street proportion interface to define the street frontage as well as fit and transition within the existing and planned context”.

131Mr. Shi concluded that the findings of the three tests indicate that the Property is not appropriate for the proposed tall building development because it cannot meet the setback requirements outlined in the TBDG, resulting in negative impacts on adjacent lands and not aligning with the TOP and the MDSP policies related to built form. It was his further opinion that the Revised Proposal does not meet the intent of the TBDG with respect to site circulation, tower stepback, and setback and separation distances.

132Further, Mr. Shi opined that the Revised Proposal does not provide appropriate vehicular access and adequate landscaped open space, citing section 2.3 of the TBDG which suggests minimizing the extent of area for servicing and vehicular access and limiting curb cuts. He submitted that the Revised Proposal deviates from this and from providing adequate landscaped open space at-grade by incorporating two curb cuts instead of a consolidated access point, attributing this, in part, to the size of the Property and the scale of the proposed development.

Analysis

133The Tribunal acknowledges the constraints of the Property in relation to meeting the 25 m separation distance given as guidance in the TBDG. However, due to the RR Policy, there are constraints to land assembly to the south along Weston Road and there is limited redevelopment potential of 15 Oxford, yet both could be redeveloped within their potential with the approval of the Revised Proposal. With respect to the potential land assembly of the properties on the northwest corner of Weston Road and Locust Street, the Tribunal is convinced that there is sufficient tall building redevelopment potential even with the approval of the Revised Proposal.

134The Tribunal found the City’s testimony related to future land assembly on the remainder of the Block and the impacts of the Revised Proposal on the redevelopment of such lands to be absent of any contextual consideration of the potential for redevelopment. Mr. Shi admitted that he did not consider the reasonableness of the City’s redevelopment assumptions and scenarios, and only considered them from the lens of being possible from a land use planning perspective. Mr. Conway’s uncontroverted evidence in this regard was compelling, determinative, and brought focus to the issue in terms of the potential for land assembly on the Block.

135Given this set of circumstances, the Tribunal finds that the TBDG, as a guidance document and not City policy, would not be offended through the approval of the Revised Proposal. It is the Tribunal’s determination that the Revised Proposal would not preclude the potential for redevelopment on adjacent properties, if assembled, given the persuasive evidence of Mr. Conway, which the City did not refute. Furthermore, the absence of any abutting landowners as Parties or Participants to the Appeal, reinforces the presumptions that any land assembly surrounding the Property is unlikely and that redevelopment potential is not impinged.

136It was the Tribunal’s finding that both the City’s and the Appellant’s Block Context Plans were instrumental in weighing the recommendations in the TBDG for building separation and setbacks, against the reasonable potential impacts on future neighbouring redevelopment sites. In this regard, the City would have the Tribunal base its finding on the apprehension of an unlikely future potential redevelopment outcome on adjacent lands. The Tribunal is not persuaded and finds that a reverse limiting condition would then be afflicted on the Property.

137With respect to site circulation, the Tribunal prefers the testimony of Mr. Grinyer and Mr. Rai, finding that the Revised Proposal addresses and meets the policy context to the extent possible. The Tribunal finds that a minimization of curb cuts does not equate to limiting the Property to one access point.

Sufficiency of Soil Volumes and Compliance with Tree Planting Requirements

Appellant Evidence

138With respect to the sufficiency of soil volumes to support the Toronto Green Standard (“TGS”), Mr. Mugford opined that the canopy trees in the Revised Proposal would be provided with sufficient soil volumes in compliance the TGS minimum requirement of 30 cubic metres (“cu m”) of soil per tree which he noted was adequate for the trees to “thrive and grow”.

139Mr. Mugford acknowledged that the Revised Proposal falls short of the required minimum of 9.5 trees to meet the City's tree planting requirements, he noted that “it nevertheless ensures adequate soil volumes for all of the six (6) trees proposed” and that the “proposed landscape design maximizes the opportunity to plant large canopy trees in the context of the proposed development”.

140Mr. Mugford furthered that, “in the context of this development, the landscape proposal provides a measured approach to enhancing both the public and private realm through thoughtful integration of tree and garden plantings”. He added that the Revised Proposal “offers a generous – tree covered - clearway for residents and passersby within the right-of-way along the residential walk out frontage” and, “where possible, plantings throughout the interior site are provided along with a consideration for enhanced paving treatments for the residential units facing the right-of-way”. Additionally, he advised that he has encountered similar constraints in other projects, that this constraint is not uncommon, that it is a significant improvement to what is currently on the Property, and that the impact on the streetscape will be a “lovely dappled effect” and provide animation to the street.

141During cross-examination, Mr. Mugford conceded that, if more green space was provided, additional trees could be planted. However, he did not concede that, with a reduction to one site entrance, additional trees could be planted, on the basis that he was not informed regarding any underground infrastructure in the location of the entrances that might preclude the planning of additional trees.

City Evidence

142The City did not have an expert witness in Landscape Design and Landscape Architecture to address sufficiency of soil volumes to support the TGS, despite it being on the City’s IL. Mr. Shi noted that the proposed 198 cu mof soil volume for trees is approximately 69 percent of the 285.3 cu msoil volume required by the TGS. It was his opinion that the Revised Proposal does not provide sufficient soil volumes to support the TGS due to the limited landscaped area at-grade. He opined that increases in building setbacks could contribute to an increase in soil volume.

Analysis

143The Tribunal accepts the evidence of Mr. Mugford related to the soil volumes required by the TGS and finds that the Revised Proposal has appropriate regard for the standard.

144The Tribunal is cognisant of the deficiency in the total soil volume required for the Property as per the TGS, however the proposed trees will have the required soil volume per tree. In addition, the Tribunal finds that Mr. Mugford’s assurance that the street will be animated with a “lovely dappled effect” from the proposed trees is sufficient, along with the other proposed on-site landscaping.

Conditions of Approval

145In the event that the Revised Proposal is approved in whole or in part, Issue 14 addresses whether the Tribunal’s Order should be withheld until certain conditions are confirmed by the City to be satisfied.

Appellant Evidence

146Mr. Grinyer noted in his evidence that the conditions, as drafted, are appropriate.

City Evidence

147Mr. Ramsay proffered that, should the Tribunal consider it appropriate to approve the Revised Proposal, it would be appropriate to withhold the Final Order until such time as the City advises the Tribunal that the form and content of the OPA and ZBA are satisfactory to the Chief Planner and Executive Director, City Planning, and the City Solicitor, and the other conditions have been satisfied.

Summary Opinion

Appellant Evidence

148It was Mr. Grinyer’s summary opinion that the proposed OPA and ZBA represent good planning and urban design, are consistent with the PPS, conform with the policies of the Growth Plan, and the TOP, and have appropriate regard for the MDSP, “all of which support residential intensification on sites well served by municipal infrastructure, particularly higher-order public transit”. In his oral testimony, he added that the Revised Proposal has regard for the City’s Growing Up Guidelines as it achieves and exceeds the objectives in terms of unit mix.

149Mr. Grinyer furthered that the Revised Proposal “will appropriately intensify an underutilized site, improve the streetscape along Oxford Drive, and provide new housing stock, all of which will contribute to the ongoing evolution of the Mount Dennis neighbourhood as a transit supportive complete community”. It was his opinion that the Revised Proposal will result in a “desirable form of residential intensification of the subject site, which is within the Eglinton-Mount Dennis Gateway Mobility Hub and a proposed Protected Major Transit Station Area”.

150With respect to the TOP, Mr. Grinyer opined that the Property is “well suited to accommodate significant intensification as proposed given its location within the Mixed Use Areas designation”. He added that the Property is “within one of the limited areas within the City where the Official Plan expressly directs residential growth and intensification to occur” and is “well served by higher-order transit and situated within an urban context that promotes numerous tall buildings”. It was his opinion that the proposed level of intensification “will support the objectives of the Official Plan’s growth management strategy and will not result in any unacceptable adverse impact on the public realm nor lands designated Neighbourhoods”.

151Further, it was Mr. Grinyer’s opinion that, although the MDSP is informative but not determinative since is currently not in force, the Revised Proposal is in keeping with the MDSP “and in particular, the Mixed Use Growth District policies which provide that these areas will accommodate the majority of new growth and accommodate a mix of tall buildings and mid-rise buildings with a maximum height of 45 storeys”.

152For the foregoing reasons, Mr. Grinyer opined that the Revised Proposal “fits within the existing and planned context [of the Mount Dennis neighbourhood] and represents good planning and urban design” and that the OPA and ZBA are “in the public interest, and should be approved”.

153Mr. Rai opined that the Revised Proposal represents good urban design practice with respect to the Property in its current and planned context, and appropriately addresses the City’s applicable policies and guidelines concerning urban design. In particular, he noted that:

• the Revised Proposal fits well into its context and with the surrounding different forms of development;

• the proposed built form appropriately conforms to, and addresses, the urban design policies of the TOP;

• the proposed built form has appropriate regard for both the TBDG and the MDSP;

• the proposed built form is appropriate and compatible from an urban design perspective with the emerging physical context of the adjacent area. The proposed podium provides an appropriate continuation of the scale and form of the established street frontages while the proposed taller elements are compatible with the existing and planned physical context without undue shadow or wind impacts. There will be no undue adverse “visual impacts” created by the proposed redevelopment when it is seen from either the public realm or from existing properties in the surrounding area;

• the Revised Proposal incorporates many positive urban design principles, including well-considered building form and architectural design, that appropriately breaks down the overall massing to help frame the street; and

• the Revised Proposal does not represent an overdevelopment of the Property.

City Evidence

154Mr. Ramsay acknowledged that the Property is well served by public transit, and that the neighbourhood is an appropriate location for intensification. However, he opined that the Revised Proposal, and the implementing proposed OPA and ZBA, are not compatible with the existing and planned context, do not represent good planning, and are not in the public interest. He found that the Revised Proposal is an overdevelopment of the Property and that appropriate building setbacks, stepbacks and separation distances cannot be accommodated to mitigate impacts and provide for compatible development.

155Mr. Ramsay noted that a form of redevelopment of the Property is possible within the context of good land use planning but would require either “an expansion of the Site to appropriately accommodate the scale of the proposed development” or “a reduction in the overall scale, massing and height of the development on the site in order to balance the interests of all stakeholders, the developer and the public interest”.

156Further, it was Mr. Ramsay’s opinion that, although the MDSP is currently under appeal and not in effect, the policies and directions of the MDSP are informative and relevant to the matters before the Tribunal.

157Mr. Ramsay recommended that the Appeals be dismissed based on his opinion that the Revised Proposal:

• is not in keeping with the character of the area and will be incompatible with the existing uses and planned context located surrounding the Property;

• does not have sufficient regard for matters of provincial Interest as set out in s. 2 of the Act;

• is not consistent with PPS;

• does not conform with the TOP and does not have regard for the policies of the MDSP; and

• does not represent good land use planning, is not in the public interest and should not be approved.

158Mr. Shi found the Property is not suitable for a tall building, despite its location and being appropriate for redevelopment and intensification. He noted that the Revised Proposal “lacks proper building setbacks and stepbacks, and has issues with site access, landscaped open space, and soil volume”. He furthered that the Revised Proposal would impose restrictions on the adjacent sites and negatively impact their development potential. Based on this, he opined that the Revised Proposal does not conform to the TOP, does not have appropriate regard for the MDSP and does not meet the intent and purpose of TBDG.

159Mr. Shi submitted that the Property is in an area undergoing significant transformation, noting that most developments will require land assembly. He proffered that, if approved, the Revised Proposal would “establish a substandard benchmark in the area, with negative implications for other future developments” and would “discourage appropriate land assembly and promote a non-conforming design approach”.

160Mr. Shi recommended that the Tribunal dismiss the Appeal and deny the OPA and ZBA.

SUMMARY ANALYSIS AND FINDINGS

161The Tribunal finds that the Revised Proposal has regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, is consistent with the PPS and conforms with the Growth Plan, as it is located within a settlement area with excellent transit service within convenient walking distance, and provides for intensification, higher densities, an efficient use of land and infrastructure, and a range and mix of housing types.

162Given the wording in section 4.6 of the PPS, that the official plan is the most important vehicle for implementation of the PPS, the Tribunal carefully considered the testimony of all the witnesses in the analysis of the TOP and finds that the Applications are in conformity with the policies of the TOP.

163In view of the direction in the TOP, that the planned context generally anticipates change and that the planned context will prevail, the Tribunal finds that the Revised Proposal can fit compatibly into the emerging planned neighbourhood.

164The proximity of the Property to nearby higher-order transit and within an established neighbourhood, and the need for additional residential units across the City and Province, make for compelling reasons to allow the development. Conversely, the City’s witnesses did not proffer compelling arguments against the Revised Proposal, including their evidence related to potential impacts on the redevelopment potential of surrounding properties. The Tribunal was presented with compelling evidence that the likelihood of the remainder of the Block to be redeveloped with tall buildings is hampered by land assembly constraints, most notably including the RR Policy, as explained in detail by Mr. Conway. It is the Tribunal’s finding that the potential land assemblies considered by the City that could be materially impacted by the Revised Proposal, are therefore not reasonably feasible.

165The reduced setbacks, the provision of two vehicular access points and the reduced separation distances to potential, but relatively unlikely, future adjacent redevelopment and land assemblies are not reason enough to refuse the Applications given the need for additional residential units. The Revised Proposal mitigates the impacts of the setbacks, access points and separation distances to the extent possible to allow for a tall building development on the Property.

166Based upon the foregoing, the Tribunal finds the proposed planning instruments, and the development they would permit, meet the requisite legislative tests of consistency and conformity with the provincial and municipal planning policy documents.

167The Tribunal finds that the Revised Proposal represents good land use planning and is in the public interest, subject to the implementation of the City’s conditions included in the Order clause below.

INTERIM ORDER

168THE TRIBUNAL ORDERS THAT the appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified in paragraph [169] below, and the City of Toronto Official Plan Amendment and Zoning By-law Amendment are hereby approved in principle.

169The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the City Solicitor of the following pre-requisite matters:

a. The form and content of the Official Plan Amendment and Zoning By-law Amendment are satisfactory to the Chief Planner and Executive Director, City Planning and the City Solicitor;

b. The owner has provided a revised Functional Servicing Report and a revised Stormwater Management Report, such reports to be reviewed to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services;

c. The owner has provided a revised Transportation Impact Study, to be reviewed to the satisfaction of the General Manager, Transportation Services;

d. Should it be determined that upgrades are required to the infrastructure to support the development according to the accepted Functional Servicing Report and/or the Transportation Impact Study, noted in b. and c. above, a Holding provision (H) is to be included in the final form of the site-specific Zoning By-law Amendment, not to be lifted until such time as the owner has made satisfactory arrangements, including entering into appropriate agreement(s) with the City for the design and construction of any improvements to the municipal infrastructure and the provision of financial securities to the satisfaction of the Chief Engineer and Executive Director, Engineering and Construction Services and General Manager, Transportation Services;

e. The owner has provided a revised Pedestrian Wind Study, such report to be reviewed with recommendations implemented as part of the amending Official Plan policies and Zoning By-laws and/or secured in a Site Plan Agreement, to the satisfaction of the Chief Planner and Executive Director, City Planning;

f. The owner has provided a revised Noise Impact Study and Vibration Study, such reports to be peer reviewed by a third-party consultant on behalf of the City and at the owner's expense, with recommendations to be implemented as part of the amending Zoning By-laws and/or secured in a Site Plan Agreement, to the satisfaction of the Chief Planner and Executive Director, City Planning; and

g. The owner has addressed all outstanding issues raised by Urban Forestry, provided a revised Tree Preservation Plan and a revised Landscape Concept Plan to the satisfaction of the General Manager, Parks, Forestry and Recreation.

170The Panel Member will remain seized for the purposes of reviewing and approving the final form of the draft instruments and the issuance of the Final Order.

171If the Parties do not submit the final form of the draft instruments, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [169] above have been satisfied, and do not request the issuance of the Final Order, by Wednesday, July 31, 2024, the Applicant and the City shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft instruments and issuance of the Final Order by the Tribunal.

172The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine additional timelines and deadlines for the submission of the final form of the instruments, the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“C. I. Molinari”

C. I. MOLINARI

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.