Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 28, 2024
CASE NO(S).: OLT-23-001052 (Formerly PL090995)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended.
Applicant and Appellant: Courtney Valley Estates Inc. and Lillipad Developments Inc.
Subject: Proposed Plan of Subdivision - Failure of the Town of Whitchurch-Stouffville to make a decision.
Purpose: To permit the development of a residential plan of subdivision consisting of 356 residential units in the form of single detached and townhouse dwellings, as well as a 2.3 hectare (5.7 acres) commercial block fronting on Tenth Line and blocks for a parkette, a stormwater management pond and greenlands system
Property Address/Description: Part of Lots 2 and 3, Concession 10
Municipality: Town of Whitchurch-Stouffville
Municipal File No.: 19T(W)-01.001
OLT Case No.: OLT-23-001053
Legacy Case No.: PL091031
OLT Lead Case No.: OLT-23-001052
Legacy Lead Case No.: PL090995
OLT Case Name: Courtney Valley Estates Inc. v. Whitchurch-Stouffville (Town)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Courtney Valley Estates Inc. and Lillipad Developments Inc.
Request for: Request for Directions – to seek an Order of the Tribunal pursuant to subsection 51(33) of the Planning Act, extending the approval of Draft Plan of Subdivision 19T(W)-01.001 to October 15, 2026
Heard: March 8, 2024
APPEARANCES:
Parties
Counsel
Courtney Valley Estates Inc. and Lillipad Developments Inc.
Jennifer Meader
Town of Whitchurch-Stouffville
R. Andrew Biggart
DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision and Order arises out of a Motion relating to the appeal filed by Courtney Valley Estates Inc. and Lillipad Developments Inc. (“Applicant”) seeking an extension of the Draft Plan of Subdivision 19T(W)-01.001 (“Draft Plan”) to October 15, 2026, for the lands described as Part of Lots 2 and 3, Concession 10, located on the east side of Tenth Line, north of Main Street, within the Town of Whitchurch Stouffville (“Subject Lands”).
2The Town of Whitchurch Stouffville (“Town”) is seeking a dismissal of the Applicant’s Motion to extend the approval of Draft Plan as approved by the Ontario Municipal Board (“OMB”) in 2010.
3The Courtney Valley Subdivision covers approximately 27 hectares (“ha”) of land area. It proposes to develop 329 residential units, a stormwater management facility block, two open space blocks, a parkette, and one commercial block.
4The Courtney Valley Subdivision is proposed to be serviced by way of a proposed new sanitary trunk sewer (“Trunk Sewer”) connected to the existing sanitary sewer on the York-Durham Line. In addition to servicing the Courtney Valley Subdivision, the Trunk Sewer is proposed to service adjacent developments through the Courtney Valley Subdivision. The watermain that will service the Subject Lands is planned to follow the same alignment as the Trunk Sewer.
BACKGROUND
5On October 10, 2010, the OMB approved the Draft Plan with Conditions and site-specific Zoning By-law Amendment (“ZBA”).
6On January 21, 2016, with the consent of the Parties, a Correcting Decision was issued by the OMB, setting the lapsing provision of the Draft Plan to October 15, 2017, with the following modification applied to s. 1.3 of the Conditions: “This Draft Plan approval shall lapse seven years from the date of approval unless extended by the Town upon application by the Owner.”
7On December 20, 2016, the Applicant submitted a request to redline the Draft Plan to eliminate all lots with a width of 9.1 metres (“m”) and replace them with 11 or 12 m wide lots. The Town approved these redline revisions.
8On September 19, 2017, with the consent of the Parties, the OMB extended the Draft Plan lapsing provision to October 15, 2020.
9On October 8, 2020, the Local Planning Appeal Tribunal, with the consent of the Parties, extended the Draft Plan lapsing provision until October 15, 2023.
10On October 2, 2023, the Tribunal received a request to extend the Draft Plan lapsing date until October 15, 2026.
11On October 4, 2023, the Town advised the Tribunal it was not in favour of extending the Draft Plan lapsing date.
12On October 16, 2023, the Tribunal acknowledged the Town’s objection but ordered that the approval of the Draft Plan be extended until December 22, 2023.
13On November 24, 2023, the Tribunal convened a Telephone Conference Call with the Parties wherein, the Tribunal was made aware of an adjacent landowner who was seeking Party status to this appeal.
14On December 12, 2023, the Tribunal convened a hearing event. The Tribunal denied Party status to the adjacent landowner and ordered that an extension of the Draft Plan was granted until a decision could be made at a hearing event. A hearing event was scheduled for January 31, 2024.
15On consent of the Parties, the Hearing event was rescheduled for March 8, 2024.
16The following materials were identified as Exhibits in respect of this Motion:
Exhibit 1 - Motion Record of Courtney Valley Estates Inc. and Lillipad Developments Inc. dated January 12, 2024
Exhibit 2 - Response to Motion to Extend of the Town of Whitchurch-Stouffville dated January 19, 2024.
Exhibit 3 - Reply Motion of Record of Courtney Valley Estates Inc. and Lillipad Developments Inc. dated January 24, 2024
CONTEXT
17The Motion before the Tribunal is to determine if the extension of the Draft Plan to October 15, 2026, should be granted.
18The Tribunal notes several sub-issues have been presented that will need to be analyzed to determine if an extension of the Draft Plan should be granted or if the request should be dismissed. These issues are as follows:
A. Best Efforts of the Applicant to clear conditions.
B. Would a Party suffer prejudice due to approving or denying the extension of the Draft Plan because of a decision from the Tribunal; and
C. Does the Draft Plan represent good planning and is in the public interest?
19The Tribunal received cross-examination transcripts for Mr. Julius De Ruyter and Ms. Hena Kabir, who are Registered Planners and previously qualified by this Tribunal and its predecessors, to provide opinion evidence in land use planning. Each Planner provided a copy of their Curriculum Vitae and an executed Acknowledgement of Experts’ Duty.
20The Tribunal received cross-examination transcripts for Mr. Daved Kenth, the former Town Engineer. Mr. Kenth is a professional engineer and has provided a copy of his Curriculum Vitae and Acknowledgement of Experts’ Duty.
21It should be noted that except for Mr. De Ruyter’s evidence, all the witnesses deposing on behalf of the Applicant were largely unchallenged. Only Mr. De Ruyter was cross-examined, and neither of their statements were challenged by Ms. Kabir or Mr. Kenth.
22The Tribunal qualified all of the technical experts as witnesses for the purposes of this Hearing.
The Position of the Applicant
23Ms. Meader, Counsel for the Applicant, submitted that best efforts had been undertaken to fulfil the Draft Plan Conditions (“Conditions”). A further extension is required to allow for this work to continue. In support of the Motion, the Applicant relied on the stated “ongoing and diligent work towards a servicing solution for the Subject Lands.”
24Ms. Meader stated that the matter before the Tribunal is not an evaluation of a new Draft Plan, and that the Applicant has been doing “everything within its power to bring forward the Subject Lands for development.
25Ms. Meader argued that the Draft Plan cannot proceed to development until a Trunk Sewer, within the jurisdiction of the Region of York (“Region”) and to be financed through development charges, has been constructed up Town Line from the south to the Subject Lands.
26Ms. Meader argued that it is the Town that is delaying the delivery of residential uses on the Subject Lands due to its failure to construct the Trunk Sewer. She continued that through this Motion, Town Staff desires different residential building types from the mix of building types that are currently proposed for the Subject Lands without any legal or policy basis to support their position.
27Ms. Meader reasoned that the policy regime and the Act remain virtually unchanged as they apply to the Subject Lands since the Draft Plan was approved in 2010. The Draft Plan continues to conform to the Town’s Official Plan (“OP”) and comply with the Town’s Zoning By-law No. 2010-001 ZO (“ZBL”).
28Ms. Meader argued that the Applicant would suffer prejudice in terms of costs and delay if the extension of the Draft Plan is not approved.
The Position of the Town
29Mr. Biggart, Counsel for the Town, submitted that the Applicant has not completed the work necessary to fulfill all the required Conditions, including how it will service the Subject Lands. The studies presented to date demonstrate that much of the work has not truly advanced the proposed development to the stage at which a further extension could be justified, especially when the requirements of modern policy documents are considered. Mr. Biggart argued that the Applicant has provided no justification as to why it has not fulfilled the Conditions of Draft Plan approval in the last 14 years.
30Mr. Biggart argued that the Applicant had put itself in a position of seeking a fourth Draft Plan extension on short notice and that it did not follow past practice of making a request well in advance of the lapsing date to allow staff to review the request and submit a Council report concerning the request. Mr. Biggart notes that the Applicant contacted the Town for the first time to raise a request for an extension on September 28, 2024 (17 days prior to lapsing).
31Mr. Biggart asserted that the actions undertaken by the Applicant did not demonstrate a concern for fulfilling the Conditions on time or prior to the lapsing date and that there was a lack of “best efforts.”
32Mr. Biggart argued that the Tribunal, in determining if an extension of the Draft Plan is warranted, must determine if the current Draft Plan continues to have regard to matters of Provincial interest and is consistent with the Provincial Policy Statement, 2020 (“PPS”), and conforms to the A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, as amended (2020) (“Growth Plan”).
33Mr. Biggart asserted that the development of the Subject Lands must be re-examined to fulfill the Provincial mandate of “intensification first.” He continued that the Draft Plan, as first approved in 2010 and extended three times, does not encourage intensification first, in accordance with Provincial direction.
34Mr. Biggart argued that the delay in having the Sub-Trunk constructed is in no way the fault of the Town and that it is the Applicant who has failed to respond to the Town’s comments of October 2017, resulting in a failure to negotiate a cost-sharing agreement with the adjacent landowners.
35Mr. Biggart submitted that the lapsing of the Draft Plan is an opportunity to improve the planned function of the Subject Lands and have them developed in accordance with the in-force policy documents and to address the current needs of the Province, the Region, and the Town.
FINDINGS AND ANALYSIS
36The Tribunal has carefully considered the evidence before it and the submissions of Counsel. The Tribunal finds that overall, it prefers the evidence of the Applicant and that the lapsing provision set out in the Draft Plan is extended to Wednesday, October 15, 2026, for the reasons that follow.
Issue A: Best Efforts to Clear Conditions
37Ms. Meader contended that the test for evaluating a request to extend a lapsing provision was whether the Applicant had used best efforts in fulfilling Conditions. She cited Laurelpark Inc. and Dunwin Developments Limited v Amaranth (MMAH), 2022 and Milton Meadows Properties Inc. v Milton (Town), 2019, as cases to support this position.
38Ms. Meader maintained that the Tribunal should consider the "best efforts” test from the last extension of the lapsing provision, which occurred on October 8, 2020.
39Ms. Meader argued that the request for an extension of the Draft Plan is not an opportunity to reopen and consider the merits of the approval of the Draft Plan or for the Town to revisit the planning justification.
40Ms. Meader stated that the Applicant’s consultants have made considerable efforts to implement the Draft Plan. She continued that most of the Conditions, which can be satisfied prior to the execution of a subdivision agreement, have been satisfied.
41Ms. Meader advised that Alexander Budrevics & Associates (“ABAL”), landscape architects, have worked to design the park block and trail connectivity requirements, including compensation plantings. The work involved meetings with stakeholders, site visits, collaboration between consultants, and design revisions from 2017 to 2020. She continued by stating that ABAL’s work supports the completion of the updated Environmental Impact Statement to address the Toronto and Region Conservation Authority (“TRCA”) concerns. This has involved attendance at meetings, review and circulation of updated drawings and plans, collaboration between consultants, and participation in meetings with various stakeholders from 2021 through to the present. Dillon Consulting Limited (“Dillon”) has worked to prepare an updated Environmental Impact Statement, including associated fieldwork, and responding to TRCA and Town commentary to address the TRCA-related Conditions. The updated Environmental Impact Statement was submitted to the TRCA in September 2023.
42Ms. Meader stated that GHD Limited (“GHD”) engineers have worked to design and remove the on-line pond within Reesor Creek and the construction of the natural channel system, as required by the Conditions. This work involved designing the system and obtaining necessary permits from TRCA and the Ministry of Natural Resources. GHD’s work included several years of on-site monitoring, sampling, and inspections from 2016 to the present.
43Mr. Biggart argued that the Applicant has put itself into the position of seeking a fourth extension of the Draft Plan on short notice but has provided no justification as to why it has not fulfilled all the required Conditions, including how it will service the Subject Lands.
44Mr. Biggart argued that the Applicant presented numerous studies to attempt to demonstrate that it has undertaken some work on the Subject Lands. However, an examination of the work performed to date shows that much of the work has not truly advanced the proposed development to the stage at which a further extension could be justified, especially when the requirements of modern policy documents are considered.
45Mr. Biggart submitted that allowing the Draft Plan to lapse will provide an opportunity for re-examination of the Subject Lands to allow for greater intensification to fulfill the relevant policies of today.
46Mr. Biggart submitted that the Applicant did not follow the previous process for requesting extensions and that this demonstrated that the Applicant took no steps until 12 days prior to the expiration date to seek an extension. This conduct is in keeping with a landowner who is not paying attention to its property and is not serious about developing its site.
Issue A: Findings and Analysis
47The Tribunal has carefully considered the evidence before it and the submissions of Counsel. The Tribunal finds that it prefers the evidence of the Applicant with respect to exercising best efforts to clear the Conditions for the following reasons.
48Although the Tribunal is aware of the history of the approval of the Draft Plan, the Town provided no concerns regarding an extension of the Draft Plan prior to this most recent request by the Applicant.
49If the Town had concerns regarding the Draft Plan or Conditions, there were remedies before it that were not undertaken. Section 51(44) of the Act makes provision for the revisitation of the Conditions by the approval authority at any time up to final approval. As such, the extension of Draft Plan approval for a further three years will not in any way preclude the Town from seeking such remedial provisions as may manifest over the course of the extended period of Draft Plan approval in a more equitable manner than waiting for the expiration of the Draft Plan approval with no opportunity for dialogue between the Applicant and the Town.
50The Tribunal does not accept Ms. Meader’s arguments that the key timeframe to consider in applying the “best efforts” test is since the last extension of the lapsing provision. The Tribunal considers the totality of the efforts to satisfy the Conditions since the approval. The Tribunal was not provided with any concerns from the Town regarding concerns of an extension until this most recent request. If it had done so, those concerns would need to be considered. The Tribunal notes that since the last extension approval in 2020, the Applicant has undertaken “best efforts.”
51The Tribunal does agree with the Applicant’s position that a request for an extension of the Draft Plan is not an opportunity to reopen and consider the merits of the approval of the Draft Plan or for the Town to revisit the planning justification.
52A review of the Conditions highlights the obligations of the Applicant and the Town respecting municipal services under Section 4:
The Applicant shall satisfy the Town with respect to any and all financial obligations for external municipal works that are necessary to facilitate the development of the draft plan lands prior to the issuance of Final Approval for the draft plan, or any phase thereof, for municipal works that are not included in the Town’s Development Charges Background Study.
The Owner shall covenant and agree in the subdivision agreement to oversize that portion of Sanitary Sewer Sub-Trunk #1 (which generally aligns with Streets ‘E’ and ‘F’) for which the Town will use a ‘best effort’ to collect from the upstream landowners when they develop their lands in the future.
The Owner shall covenant and agree in the subdivision agreement to pay to the downstream landowners the proportional share, that being defined as the contributing flow from the subject lands based as a percentage of the number of units contributing flow to the drainage area, for the oversizing of the sanitary sewer (Sub-Trunk #1) and any other infrastructure that was designed & constructed to service the subject lands beyond that which is funded through the Municipality’s Development Charges program.
53It is the Conditions above that form the foundation for the Parties to move forward and seek a resolution of the servicing question.
54The Tribunal finds that both the Town and Applicant have contributed towards the lack of progress regarding the servicing of the Subject Lands, which has resulted in a lack of resolution and a breakdown in meaningful communication. For that reason, the Tribunal cannot determine clearly if the delay of the servicing of the lands lies at the feet of the Applicant or the Town. Accordingly, the matter of the servicing of the Subject Lands has not been incorporated in the determination of best efforts for determination of the extension of the Draft Plan.
55The Tribunal notes that Mr. Biggart cited the Affidavit of Mr. David Ibey, a landscape architect, who stated that he received comments from the TRCA in 2017 and followed up in mid-April 2020 with the Town regarding park design and natural heritage features as not demonstrating best efforts. A review of Mr. Ibey’s affidavit from paragraphs 8 to 14 provides the only frame of reference for the Tribunal on this issue. The time frame continued from mid-April 2020 to a referenced meeting with the Town and GHD on October 5, 2020. The Tribunal finds that the Town had an opportunity to address this issue prior to approving previous extensions but failed to do so. The Tribunal finds that given the history of extensions of the Draft Plan approved on consent with no accompanying concerns identified undermines the Town’s refusal at this time.
56The Town elected not to cross-examine Mr. Ibey, although concerns were expressed in legal arguments. The Tribunal accepts the evidence of Mr. Ibey.
57Mr. Biggart stated that Dillon, on behalf of the Applicant completed a draft Environmental Impact Study (“EIS”) in 2017 and submitted “A Scoped Environmental Impact Statement for Courtney Valley Estates Inc. Part of Lots 2 and 3, Con 10. (Draft Plan of Subdivision – 19T(W)-01.001)” (“Updated EIS”), on September 7, 2023, with no explanation as to why it took six years to update the draft EIS.
58The Tribunal finds that it is persuaded by the largely unchallenged evidence of Mr. Ibey. The Affidavit of Mr. Ibey provides a chronological timeline of his firm’s involvement in assisting Dillon in the completion of the EIS, which required further design development of buffer plantings, clarification of vegetation removal compensation areas and rates, and proposed compensation area planting plans. As outlined below, these efforts required meetings with the Town and TRCA for clarification and input into the trail design, grading impacts, buffer planting design, approval of compensation required and compensation areas available in paragraphs 16 to 36. The timeline cited in Mr. Ibey’s affidavit begins with a site review on November 3, 2020. It has been ongoing until November 13, 2023, when an email was sent to the TRCA for an update on their review/comment process.
59The Affidavit of Ms. Christine Carter, a biologist with Dillon, cites the Updated EIS, which was submitted to the TRCA to demonstrate the work completed on the Subject Lands by Dillon.
60Ms. Carter noted that her involvement in relation to the Subject Lands began in September 2022. She advised that any work completed prior to September 2022 was, to the best of her knowledge, outlined in her affidavit provided in paragraph 9 a -h.
61Ms. Carter was not cross-examined, and her evidence was largely unchallenged. The Tribunal found that it is persuaded by the largely unchallenged evidence of Ms. Carter.
62The Affidavit of Mr. Jeffrey Doucette, a geomorphologist with GHD, stated that GHD was retained in 2011 by the Applicant to prepare a detailed design for the removal of an online pond and weir structure from Reesor Creek and naturalization of the former pond area with a natural channel corridor to create additional space that would allow the future construction of a stormwater management pond.
63Mr. Doucette also advised that GHD was responsible for obtaining the necessary environmental permits, including the seven-year post-construction environmental monitoring and reporting required by the TRCA. The last monitoring report was dated January 8, 2024.
64Mr. Doucette provides a chronological timeline of activities conducted for the Subject Lands from 2011 to 2024.
65Mr. Doucette was not cross-examined, and his evidence was largely unchallenged. The Tribunal is persuaded by the largely unchallenged evidence of Mr. Doucette.
66The Tribunal is not persuaded by the position of the Town that the work or studies performed to date show that much of the work has not truly advanced the proposed development to the stage at which a further extension could be justified, especially when the requirements of modern policy documents are considered.
67Mr. Biggart argued that cross-examination of the Applicant’s witnesses was not required. There was no concurrence, and their evidence supported the Town’s position that the Applicant was not demonstrating “best efforts.” The Tribunal disagrees and is persuaded that the Applicant has demonstrated ongoing efforts to clear the Conditions specific to the evidence of Mr. Ibey, Ms. Carter, and Mr. Doucette.
68The Tribunal has heard the arguments of the Town but does not accept them. The Tribunal finds that the Applicant has demonstrated “best efforts” and appears committed to developing the Subject Lands for residential uses and continues to make investments in pursuit of that objective for consideration of this request for an extension of the Draft Plan and in the absence of evidence to the contrary, in the previous approvals for an extension of the Draft Plan.
Issue B: Would A Party Suffer Prejudice
69Ms. Meader argued that up until October 4, 2023, the Applicant was under the impression that the Town was supportive of the Draft Plan. She continued that the Town never reached out to the Applicant to advise that it was no longer supportive of the Draft Plan.
70Ms. Meader asserted that through all the evidence of the experts deposed on behalf of the Applicant, significant time and resources have been spent towards implementing the Draft Plan. She continued that the Applicant had done all it could do without a subdivision agreement and the construction of the Trunk Sewer.
71Ms. Meader reasoned that if the extension of the Draft Plan approval is not granted, the Applicant will be forced to abandon the current approved Draft Plan and start a fresh planning process for the Subject Lands, including consultation with the Town, which would take several years to complete at a cost to the Applicant and at the costs that have been spent to date on the Draft Plan lost.
72Ms. Meader argued that allowing the Draft Plan to lapse does not change the Official Plan (“OP”) designation and ZBL permission that continue to apply to the Subject Lands.
73Mr. De Ruyter opined that the in-force zoning regulations leave little room for change and that if the Draft Plan were to be resubmitted, the Draft Plan would result in virtually the same residential unit types, the same density, and the same block configuration but at considerable extra cost and delay.
74Mr. Biggart argued that there was prejudice to the Town and the public at large if an extension is granted as the Town fully expected the subject Draft Plan to expire based upon the fact that the Applicant left its land vacant for the past 13 years, has not satisfied its Conditions, and because the landowner did not seek an extension in the manner that it had previously done so. He continued that if the Draft Plan lapsed, the servicing allocation for the Subject Lands would be provided to other landowners. Allowing the allocation to go to other landowners will assist the Town in meeting its obligation to see that land is developed in an appropriate and expeditious manner, especially given the current housing shortage.
Issue B: Findings and Analysis
75The Tribunal has carefully considered the evidence before it and the submissions of Counsel. The Tribunal is persuaded by the Applicant's arguments that they would suffer prejudice if the Draft Plan was not extended.
76The Tribunal has heard the Town’s arguments that extending the Draft Plan would prejudice the Town but does not accept them as there was no evidence to support the assertion. The Tribunal finds that the Town did not choose at any time to address an “outdated Draft Plan” and did not indicate a concern with the Draft Plan itself. It appears that the Town was merely hoping for the Draft Plan to lapse.
77As previously identified, if the Town had concerns regarding the Draft Plan or Conditions, there were remedies before it that were available. Section 51(44) of the Act makes provision for the revisitation of the Conditions by the approval authority at any time up to final approval.
78The Tribunal accepts the arguments of the Applicant that starting a fresh planning process would result in an increase in costs and delay to the Applicant, for likely the same residential unit types, density, and block configuration.
79This argument of prejudice to the Applicant is further reinforced on the issue of density and the lack of clarity from the Town. Mr. De Ruyter highlights in his Reply Affidavit that there is no opportunity to introduce more single-detached or semi-detached dwellings or townhouse dwellings in accordance with the current OP.
Issue C: Does the Draft Plan Represent Good Planning and Is in the Public Interest
80Mr. De Ruyter stated that it is his opinion that the Draft Plan conforms with the provisions of sections 2 and 51(24) of the Act.
81Mr. De Ruyter opined that the Draft Plan is consistent with the Provincial Policy Statement, 2020 (“PPS”) and conforms to the A Place to Grow: The Growth Plan for the Greater Golden Horseshoe, as amended (2020) (“Growth Plan”). He continued that the PPS and Growth Plan have not changed substantially since the Draft Plan was approved.
82Mr. De Ruyter stated that the Draft plan conforms to the Region of York Official Plan (“ROP”).
83Mr. De Ruyter stated that he is satisfied that the Draft Plan conforms with the OP, including the community of Stouffville Secondary Plan. He continued that the OMB found that the Draft Plan was in conformity with the OP in 2010 and that the policy regime has not changed since then.
84Mr. DeRuyter stated that he is satisfied that the Draft Plan conforms with the ZBL. It is Mr. De Ruyter’s opinion that minimal additional density can be achieved through a red-line revision process, given the restrictive ZBL categories and regulations. He continued that any meaningful change to density would require the Town to initiate a process to change the planned function of the Subject Lands.
85Mr. De Ruyter opined that Official Plan 155 (“OPA 155”), designating the Old Elm Major Transit Station Area (“MTSA”), is not applicable to the Subject Lands as they lie outside the boundaries of the MTSA. Mr. De Ruyter opined that the Town made a strategic decision not to include the Subject Land in the Old Elm GO Station study area and that Town Planning Staff is attempting to apply policies to the Subject Lands that do not at all apply to the Subject Lands.
86Ms. Meader stated that Ms. Kabir’s affidavit also refers to a Commercial Policy Study (“Study”). However, as Ms. Kabir acknowledges under cross-examination, the Study has not been reduced to an implementable policy and does not apply to the Subject Lands.
87Ms. Kabir stated that s. 2(j), (p), (r.i) are relevant to the Draft Plan.
88Ms. Kabir, under cross-examination, advised that under s. 2(j) of the Act, “affordable housing” is in the current version but was not in the 2010 version of the Act.
89Ms. Kabir was questioned under what authority could an application be compelled to provide affordable housing outside of an MTSA. Ms. Kabir responded that affordable housing is a matter of Provincial interest and is addressed when applications are received. She continued that although there are no provisions currently in the OP that would compel the requirement for affordable housing, it is strongly encouraged, and the Town does have the ability to enforce the requirement as a general direction.
90Ms. Kabir was questioned about s. 2(p) of the Act and confirmed it was the same language in the 2010 version of the Act as today. Ms. Kabir confirmed that single-detached and semi-detached homes are included within a full range of housing types and forms.
91Mr. De Ruyter, under cross-examination, stated that the Draft Plan had regard for matters of Provincial interest as they exist in the Act today, was consistent with the current PPS, and conforms with the Region of York’s Official Plan and OP.
92Ms. Kabir stated that in keeping with the policies of the PPS, the development proposal in the Subject Lands must be assessed and viewed in consideration with the intent of the PPS to achieve the most efficient use of such lands today, with appropriate densities, that could be supported by the infrastructure and public facilities being contemplated for the development of the lands within the Old Elm MTSA, which are adjacent to, and in proximity to the Subject Lands.
93Within the context, Ms. Kabir opined that the Draft Plan is not an efficient use of the Subject Lands today, does not focus on growth and development, and does not ensure effective use of infrastructure and public service facilities and minimize unnecessary public expenditures related to the future infrastructure and public utilities contemplated for the lands located within the Old Elm MTSA, and does not represent good planning.
94Ms. Kabir referenced section 1.2.1 of the Growth Plan, which lists guiding principles regarding where and how to grow communities, as well as how public monies should be invested.
95Ms. Kabir opined that although not directly under the definition of Strategic Growth Areas, the Subject Lands are closely tied to the Old Elm MTSA land development.
96Ms. Kabir opined that the Subject Lands represent an opportunity to support a range and mix of housing options, as well as the additional densities to serve the larger public interest. She continued that the Draft Plan does not prioritize intensification nor takes advantage of the range and mix of housing options that could be achieved within today’s planning and policy regimes.
97Ms. Kabir referenced section 2.1 of the Growth Plan, which references the importance of optimizing the use of the existing urban land supply. She opined that a complete reconsideration of the Subject Lands is necessary to fulfill the Provincial direction of “intensification first,” focusing on making more efficient use of the infrastructure and public services investments that are anticipated within the Old Elm Area without looking for areas for expansion to accommodate the growth pressures that the Town is facing.
98Ms. Kabir referenced section 2.1.2 of the Growth Plan, specifically section 2.2.1. 2(c) and section 2.2.1.4. She opined that in light of the policy guidance in these sections, the Draft Plan must be re-evaluated due to the investment of a fire station in proximity to the Subject Lands and the Old Elm MTSA.
99Mr. De Ruyter advised that the PPS had not changed substantially from 2005. He stated that the new PPS “added some flesh to the already existing directions and targets.” Ms. Kabir acknowledged that she had not actually compared the 2005 PPS to the current PPS to confirm that it had changed but confirmed that the 2005 PPS made references to the efficient use of land and infrastructure; settlement areas would be the focus of growth and development; and the emphasis on land optimization and intensification which were relevant to the Subject Lands.
100Ms. Kabir provided no opinion regarding the Draft Plan and its consistency with the current PPS.
101Ms. Kabir advised that she had not compared the 2005 Growth Plan to the current Growth Plan in arriving at her opinion that the policy regime had changed and did not provide an opinion as to whether the Draft Plan was consistent with the current Growth Plan.
102Ms. Kabir also acknowledged that the density targets applying to the Subject Lands of 50 persons and jobs per ha have not changed, and that the development meets the current definition of “intensification” as defined by the Growth Plan.
103Ms. Kabir provided no opinion on conformity with the ROP.
104Ms. Kabir confirmed that the low density is anticipated for the Subject Lands and that the densities and housing types conform with the OP. She also confirmed that the development exceeds the minimum of 10 units per ha for townhouses.
105Ms. Kabir confirmed that OPA 155 does not apply to the Subject Lands
106Ms. Kabir confirmed that the Draft Plan meets the density targets in the Subject Lands.
107Mr. De Ruyter and Ms. Kabir confirmed that the Draft Plan complies with the ZBL.
108Ms. Kabir acknowledged that the zoning of the Subject Lands has been established. She opined that the residential areas designation in the OP permits townhouse dwellings and low-rise apartment buildings.
Issue C: Findings and Analysis
109The Tribunal finds that, on the whole, it prefers the evidence of Mr. De Ruyter that the Draft Plan represents good planning and is in the public interest. Mr. De Ruyter’s evidence is credible and, under cross-examination, did not deviate or contradict his affidavit.
110The evidence provided by Ms. Kabir appeared to illustrate a conflict with her affidavit and was somewhat weakened during cross-examination.
111The Tribunal finds that the arguments of the Town under cross-examination did not hold and support the arguments that the Draft Plan did not represent good planning and was not in the public interest. In fact, the Tribunal found that the Town’s arguments actually demonstrated alignment with good planning in the public interest.
112The Tribunal finds that Ms. Kabir’s evidence does not carry the same weight as Mr. De Ruyter’s evidence due to the number of concessions and contradictions that were elicited from Ms. Kabir.
113The Tribunal finds that the arguments put forth by the Applicant regarding matters of Provincial interest as set in section 2 of the Act were consistent with the PPS, conformed to the Growth Plan, and was satisfied that the ZBA conforms with the OP(s) in effect.
114The Tribunal appreciates that the Town would prefer more intensification on the Subject Lands. However, as Ms. Habib acknowledges, the Town cannot compel a landowner to make an application to rezone their property.
115The Tribunal has heard the arguments of the Town but does not accept them. The Tribunal finds that, overall, it prefers the evidence of Mr. De Ruyter that the Draft Plan represents good planning and is in the public interest. Mr. De Ruyter’s evidence is credible and, under cross-examination, did not deviate or contradict his affidavit.
116On the strength of the submissions of counsel and for the reasons expressed above, the Tribunal grants the extension to Wednesday, October 15, 2026.
ORDER
117UPON MOTION to the Tribunal by Courtney Valley Estates Inc. and Lillipad Developments Inc. for approval of the lapsing provision contained in the Draft Plan of Subdivision, and after the Hearing of the Motion,
118THE TRIBUNAL ORDERS that the Motion brought by Courtney Valley Estates Inc. and Lillipad Developments Inc. is granted in part and pursuant to subsection 51(33) of the Planning Act, R.S.O. 1990, c. P.13, the lapsing provision set out in Draft of Plan of Subdivision 19T(W)-01.001 is hereby extended to Wednesday, October 15, 2026.
“W. Daniel Best”
W. DANIEL BEST
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.