Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 08, 2024

CASE NO(S).:

OLT-23-000498

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

Applicant/Appellant:

Brock Road Duffins Forest Inc.

Subject:

Request to amend the Official Plan – Refusal of request

Description:

To permit a total of 372 residential units comprising of a 20 and 6-storey building connected by a 4-storey podium and townhouse units

Reference Number:

OPA 20-001/P

Property Address:

2055 Brock Road

Municipality/UT:

Pickering/Durham

OLT Case No:

OLT-23-000498

OLT Lead Case No:

OLT-23-000498

OLT Case Name:

Brock Road Duffins Forest Inc. v Pickering (City)

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

Applicant/Appellant:

Brock Road Duffins Forest Inc.

Subject:

Application to amend the Zoning By-law – Refusal of application

Description:

To permit a total of 372 residential units comprising of a 20 and 6-storey building connected by a 4-storey podium and townhouse units

Reference Number:

A 05/20

Property Address:

2055 Brock Road

Municipality/UT:

Pickering/Durham

OLT Case No:

OLT-23-000499

OLT Lead Case No:

OLT-23-000498

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

Applicant/Appellant:

Brock Road Duffins Forest Inc.

Subject:

Proposed Plan of Subdivision - Refusal by Approval Authority

Description:

To permit a total of 372 residential units comprising of a 20 and 6-storey building connected by a 4-storey podium and townhouse units

Reference Number:

SP-2020-01

Property Address:

2055 Brock Road

Municipality/UT:

Pickering/Durham

OLT Case No:

OLT-23-000501

OLT Lead Case No:

OLT-23-000498

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant:

Brock Road Duffins Forest Inc.

Subject:

Site Plan

Description:

To permit a total of 372 residential units comprising of a 20 and 6-storey building connected by a 4-storey podium and townhouse units

Reference Number:

S07/23

Property Address:

2055 Brock Road

Municipality/UT:

Pickering/Durham

OLT Case No:

OLT-23-000613

OLT Lead Case No:

OLT-23-000498

Heard:

April 29 to May 9, 2024, by Video Hearing (Excluding May 8, 2024)

APPEARANCES:

Parties

Counsel

Brock Road Duffins Park Inc.

L. Longo

City of Pickering

J. Mark Joblin

Kindwin (Brock) Development Corporation (“Kindwin”)

A. Lusty (Present for Opening and Closing Submissions only)

DECISION delivered BY STEVEN T. MASTORAS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Tribunal held an eight-day video hearing (“Hearing”) on appeals relating to applications for an Official Plan Amendment (“OPA”), a Zoning By-law Amendment (“ZBA”), a Draft Plan of Subdivision (“DPS”), and a Site Plan Amendment (“SPA”) pursuant to Sections 22(7), 34(11), 51(39), and 41(12) of the Planning Act (“Act”), respectively (together the “Applications”/“Appeals”).

2The Appeals are the result of a decision by the City of Pickering (“City”), in the Region of Durham (“Region”), refusing the Applications. The property address is known as 2055 Brock Road (“Subject Site”), now owned by Brock Road Duffins Park Inc. (“Appellant”/“Applicant”).

3The associated SPA application was submitted to the City in March 2023, just prior to the City’s consideration of the OPA, ZBA, and DPS. The SPA Appeal application was subsequently filed with the Tribunal on June 28, 2023, pursuant to s. 41(12) of the Act and has been administratively consolidated with the three Appeals previously referenced under the lead case file OLT-23-000498.

4As a brief outline, the Appellant is seeking approval to develop the Subject Site consisting of four development blocks, a total of 372 residential units, at a maximum floor space index (“FSI”) of 2.02, and a density of 286 units per hectare (“UPH”) (“Proposal”).

5The Applicant is seeking a Tribunal decision allowing the Appeals associated with the OPA and ZBA in their final form as presented to the Tribunal, and that the Tribunal also allow the DPS appeal with conditions (Exhibits 6A and 6B). Additionally, the Applicant is seeking a further Tribunal decision allowing the SPA appeal, in principle, and in accordance with plans prepared by Kohn Partnership Architects Inc. Architects Inc. (“Kohn”) and is requesting that the Tribunal withhold a Final Order associated with the SPA appeal until a final draft instrument is agreed to between the Parties.

6The Tribunal notes that the City's Development and Planning Staff Report dated April 3, 2023 (“PSR”) (Exhibit 2C, Tab F) recommended approval of the proposed OPA (OPA 20-001/P), ZBA (A 05/20), and DPS (SP-2020-01) Applications, along with the requisite instruments currently before the Tribunal, in full support of the Proposal.

7For the following reasons, the Tribunal allows the first three appeals and allows the more recent SPA appeal, in principle, with the final Order withheld subject to conditions outlined in the Order below. Following the Tribunal’s consideration of the policy and legislative framework and based on the evidence, analysis, and conclusions, the Proposal represents good land use planning and is in the public interest.

PRELIMINARY MATTER

8The Parties advised the Tribunal that a Settlement on the issue of cost recovery between Kindwin and the Appellant, completed on March 26, 2024, maintains specific conditions associated with the SPA and DPS. The agreement between the Parties (Exhibit 3) refers to proportionate cost recovery of services including land, roads, sanitary sewers, stormwater services, and utilities from which the Applicant will benefit, subject to the decision of the Tribunal relating to the Appeals. With the consent of the Parties, the Tribunal determined that Kindwin could be excused for the balance of the Hearing and was provided the opportunity to return for closing submissions.

SUBJECT SITE AND SURROUNDING AREA

9The Subject Site consists of a total size of approximately 5.047 ha and is just north of West Duffins Creek, abutting the Duffins Creek Valley Lands, and north of Finch Avenue, which ends at Kingston Road to the east of Brock Road. The overall property has a 230 metres (“m”) frontage along Brock Road and approximately 120 metres of frontage along Usman Road (south). The total proposed developable area is 1.311 ha.

10This developable area of the Subject Site at the south-east corner of Brock Road and Usman Road (south) is directly across from the Pickering Islamic Centre (“PIC”) to the north, which also fronts on Brock Road at the northeast corner of Usman Road (south). There are several neighbouring blocks of townhomes with some detached homes to the north and north/east and single-family detached homes that abut the west of Brock Road, which are setback further to the west and separated by Rayleen Crescent, all forming part of the Brock Ridge Neighbourhood.

11There are three community parks in the immediate area, including Usman Park to the north, Brock Ridge Community Park to the southwest, and Major Oaks Park to the northwest. Pedestrian sidewalks currently exist along the perimeter of the Subject Site on Brock Road and Usman Road (south), and there are no current pedestrian crossings at this intersection. There is also a Stormwater Management Pond along a portion of Saffron Drive (Exhibit 2I, pgs.19, and 25).

THE PROPOSAL

12The Proposal consists of a twenty-storey (“Block A”/“Tower 1”) located at the south-west corner of the development area connected to a six-storey (“Block A”/“Tower 2”) to the north along a portion of Brock Road and to the east along Usman Road (south). They are both linked by a four-storey podium, containing a total of 328 units. Block A/Towers 1 and 2 are designed to share a common exterior rooftop-amenity-area at level 5 between the two towers and maintain a separation distance of 15 m.

13A new north-south internal roadway with pedestrian sidewalks and crossings is a component of the design, with an oval/circular drop-off connection, barrier-free entrances, service/loading areas, 10 short-term surface parking spaces, and below-grade access to parking south of Usman Road (south), separating the remaining 10-townhouse units (“Block B”) and 34 back-to-back townhouse units (“Block C” and “Block D”) at the easterly and southerly sections of the development envelope. As previously stated, a total of 372 residential units are contained in the Proposal, which represents a total residential density of 286 UPH and an FSI of 2.02 rather than the permitted FSI of 2.32. The two-level, below-grade parking areas are designed to be constructed entirely within the development envelope up to the perimeter retaining walls, maximizing the footprint of the built form.

14A proposed Privately-Owned Publicly Accessible Space (“POPS”) with an area of approximately 660.7 square metres (“m²”) is incorporated into the Subject Site design at the south end of the new public north-south roadway, which also abuts the oval/circular drop-off area. There are perimeter sidewalks with access to the POPS, which is also adjacent to a stairwell to the below-grade parking levels and an additional 6 short-term surface parking spaces nearby. Site Plan and Statistics are attached below (Exhibit 2E, pg. 5).

15All Parties acknowledged that the Proposal identifies a significant portion of the overall property (3.736 ha) and that the associated buffer (Exhibit 2E, pg. 4, in grey hatching) would be conveyed to the Toronto Region Conservation Authority (“TRCA”) for long-term protection and preservation, as stipulated in the instruments submitted to the Tribunal (Exhibits 6A and 6B), which will become part of the West Duffins Creek lands. This portion of the Subject Site is presently zoned Open Space Hazard Lands (“OS-HL”) under By-law 7085/10, and an easement for maintenance access approval is pending from the TRCA.

LEGISLATIVE FRAMEWORK

16The Proposal and its related planning instruments must be representative of good planning; have regard for matters of provincial interest in s. 2 of the Act; be consistent with the Provincial Policy Statement, 2020 (“PPS”); and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). The Proposal must also conform with the Region of Durham Official Plan (“DROP”), the City Official Plan (“COP”), and the City Zoning By-law 3036 (“ZBL”). The proposed SPA must be compliant with applicable by-laws, and any conditions proposed must be reasonable and necessary, having appropriate regard to the nature of the Proposal.

17Furthermore, s. 2.1(1) of the Act requires that the Tribunal must also have regard for the decision of the City of Pickering Council (“City Council”) made on May 9, 2023, and the information considered by it at the time the Applications were denied, despite the support of its Planning staff, and instructed its Counsel to appear at this Hearing to oppose the development with separately retained transportation and land use planning witnesses.

HEARING EVIDENCE AND ANALYSIS

18The following individuals were qualified without objection to provide opinion evidence to the Tribunal in their respective fields of expertise, as noted below:

• For the Applicant – Dana Anderson – Land Use Planning; Kathryn Bell – Architectural and Urban Design; and Michael Linton – Transportation Engineering & Planning.

• For the City - Allan Ramsay – Land Use Planning; Robert Freedman – Urban Design; and Joshua de Boer – Transportation Engineering.

19The written evidence considered for the purposes of the Hearing was marked in the following order:

• Exhibit 1 - The original Affidavit of Service for Notice of the first Case Management Conference, dated August 2, 2023;

• Exhibit 2 – Joint Document Book (Volumes A to K) (Volume G-Tab B-discarded);

• Exhibit 3 – Minutes of Settlement (“MOS”) between Kindwin (Brock); Development Corporation, and the Applicant; and,

• Exhibit 4 – Draft OPA;

• Exhibit 5 – Draft ZBA;

• Exhibit 6A and 6B – DPS with Conditions and Plan;

• Exhibit 7 – Durham/Scarborough BRT Design;

• Exhibit 8A and 8B – Kathryn Bell Curriculum Vitae and Acknowledgement of Expert’s Duty;

• Exhibit 9 – Durham Region Official Plan Schedules;

• Exhibit 10 – Ontario Transit Supportive Guidelines;

• Exhibit 11 – 2465 Brock Road Development Inc. - Planning Report (January 9, 2023);

• Exhibit 12 – Architectural Sections;

• Exhibit 13 – South Durham RT Map (Frequency 2024);

• Exhibit 14 – ROPA 186 Maps (Schedule ‘C’);

• Exhibit 15 – Final Appendix B (per de Boer Testimony);

• Exhibit 16 – Brock Road/Dellbrook Avenue Intersection;

• Exhibit 17 – City of Toronto Mid-Rise Avenue Study; and,

• Exhibit 18 – City of Toronto, Downtown Tall Blocks Design Guidelines.

ISSUES

20In addition to the legislative framework evidence and analysis, the Hearing focused largely on the following key issues, based on much of the commonality from community input through Participant statements, with appropriate regard for the City Council decision refusing the Applications, and whether the development, as proposed:

a) Represents good land use planning and urban design that is compatible with the existing low-rise Brock Ridge Neighbourhood area character;

b) Maintains an appropriate level of intensification, with attention to height, density, shadow impact, and overlook;

c) Would result in undue adverse impacts to the surrounding area from a traffic/transportation/congestion/emergency service and pedestrian safety perspective, including the adequacy of proposed on-site parking for unit owners and visitors; and,

d) Preserves natural heritage, enhances public parks and amenities, and enhances the quality of life in the community.

PLANNING HISTORY OF THE SUBJECT SITE

21Ms. Anderson was retained prior to this Proposal and has been directly involved with the Subject Site for several years. She provided the Tribunal with a detailed history of previous applications that came before the City and consultations around a number of different proposals.

22In an attempt to gain a better understanding of the detailed history and evolution of the Subject Site, and for the benefit of the general public, the Tribunal has condensed the important details from Ms. Anderson’s chronological evidence leading up to the current Proposal, with the following summary:

a) A previous 2010 site-specific zoning (H)RH/MU-3 through By-law 7085/10 (“ZBL-2010”) was approved, allowing a mixed-use proposal consisting of offices, ground-floor commercial retail, and twelve live-work townhomes with an H provision. As previously detailed, the West Duffins Creek lands component at that time was rezoned from the Greenbelt (“G”) zone to the current OS-HL zoning and was similarly expected to be conveyed to the TRCA;

b) The property was purchased by a new owner (“Fortress”) in 2013, and by 2016, it became evident that although building permits were obtained, construction did not proceed, and a separate ZBA application was filed consisting of twenty-five townhome units on the entirety of the property;

c) In July 2017, the current Applicant acquired the Subject Site, and submitted a new application with a total of 59 townhomes, which was subsequently withdrawn around March 2018. In April 2019, a pre-consultation meeting with the City, and the Applicant resulted in a new proposal (April 2020);

d) All of the requisite supporting studies for the new proposal were submitted to the City (Exhibit 2G, Tab A, para. 44), and the application, deemed complete in May 2020, was the subject of a community open house in September 2020. A Statutory Public Meeting was held in January 2021, and by February 2022, further revisions were adopted, including the expansion of the POPS, changes to setbacks, step backs, density, parking underground, landscaping, and buffering in Block C, with all supplementary requisite studies combined with City and Region history (see Exhibit 2G, Tab A, paras. 50-60);

e) A second resubmission followed in October 2022 with a number of updates that led up to the current Proposal’s consideration in April 2023. The PSR of April 3, 2023, recommended support for the Proposal, which came before the City’s Planning and Development Committee (“Committee”) on April 24, 2023 (note: this Committee consists of all City Council Members).

f) The Region confirmed its support for higher densities along the Brock Road corridor, including high-density residential development conducive to transit use, consistent with the PPS encouraging the efficient use of land, existing infrastructure, and conforms to the GP in an effort to meet the Region’s intensification targets in a compatible manner with the community. The TRCA and City Engineering also confirmed their support of the Proposal (Exhibit 2G, Tab A, paras. 61-64).

g) Despite Planning staff recommendations in support of the OPA, ZBA, and DPS, the Proposal was not approved by the Committee, which was ultimately adopted at City Council on May 3, 2023. Following the Clerk’s notice of refusal of the Applications, Appeals to the Tribunal were submitted by the Applicant, and the Proposal in its current form is now before the Tribunal;

h) Through the Appeals, the proposed OPA will establish a redesignation of the Subject Site from “Urban Residential Areas – Medium Density Areas” to “Urban Residential Areas – High Density Areas” and “Open Space System – Natural Areas”, and add a site-specific policy for the portion of the lands designated as “Urban Residential Areas – High Density Areas” to permit a maximum residential density of 286 [UPH], to facilitate the Proposal. The instrument is attached to this Order (Exhibit 4) below;

i) The current ZBL-2010 is proposed to change to a site-specific “RHII-6”, “RMI-7”, “OS-PP”, and OS-HL” to permit a high-density residential development consisting of a twenty-storey building containing 328 units, 34 three storey back-to-back townhomes, and 10 three storey townhomes. The ZBA will include a number of provisions referenced in her witness statement (Exhibit 2G, Tab A, paras. 92-93). The instrument is also attached to this Order (Exhibit 5) below; and,

j) The proposed DPS is intended to establish a single development block, including the portion of the valleylands for the West Duffins Creek and an associated buffer to be conveyed to the TRCA. The instrument is also attached to this Order (Exhibits 6A and 6B) below.

23Land use planning evidence is outlined in greater detail later in this Decision, as the Tribunal firstly finds it appropriate to initially provide its analysis of Transportation, Architecture and Urban Design issues.

TRANSPORTATION EVIDENCE

Transit, Traffic, and Parking

24A significant portion of the Hearing considered evidence provided by Mr. Linton and Mr. de Boer, primarily resulting from a substantial number of community concerns around issues of traffic and pedestrian safety, as outlined in numerous written Participant statements. After careful review of their Agreed Statement of Facts (“ASF”) submissions, and the testimony from both expert Transportation witnesses, it became increasingly evident that there was a limited difference of opinion regarding several issues. The Tribunal determined that both witnesses acknowledged at some point in their testimony that the following conditions existed in relation to the Proposal itself, including but not limited to the following:

a) Brock Road is a busy “Type A” arterial roadway functioning as a present-day high-order transit corridor, with four High-Frequency Bus stops in north/south directions, along Brock Road, and an important responsibility of the Region. High Occupancy Vehicle (“HOV”) lanes, anticipated with roadway widening along Brock Road from four to six or possibly seven lanes, should also serve to accommodate greater densities and new development along this important corridor;

b) Major new transit initiatives, including the east-west transit routes to the south currently along the Kingston Road Urban Growth Area, along with the proposed Rapid Transit Corridor once established along Kingston Road, as proposed by the Region, should provide for significantly expanded transit service to the immediate area. This is within a reasonable walking distance and is expected to reduce vehicular demand. Walking distance was established to be within approximately 550 metres (“m”) to 600 m from the Usman Road (south) intersection at Brock Road, consistent with, by way of example, a Major Transit Station Area (“MTSA”) requirement of 800 m. Based on this, transit will be more readily accessible to all current area residents and any new residents associated with the Proposal (see Future Transportation Context image below (Exhibit 2I-Tab A, pg. 38));

c) Brock Road presently has a designated right-turn-lane-northbound and a designated left-turn-lane-southbound, both turning east onto Usman Road (south). There are concrete curbs/medians running north/south along Brock Road, and a curb/median requiring a right-turn-north-only onto Brock Road from Usman Road (south), all separating vehicular traffic;

d) Current and future expected levels of traffic activity do not warrant any changes or modifications, however, both witnesses agree that the Region’s more recent approvals of a half-signalled intersection at Usman Road (south) and Brock Road will serve to resolve issues relating to pedestrian safety and likely help to improve traffic flows during peak periods. The concern with safe pedestrian crossings will also be addressed with two new signaled crosswalks proposed, as no crosswalks currently exist;

e) The development requires 509 vehicle parking spaces, zero bicycle parking spaces, and zero loading spaces. The Proposal contains 509 vehicle parking spaces, 372 bicycle parking spaces, and 2 loading spaces, which are fully satisfied on-site. This meets and exceeds the City Zoning By-law requirements. Additionally, as these parking provisions are accommodated entirely at the Subject Site, consisting of 416 resident spaces and 93 visitor spaces, it is generally not anticipated that there will be a need for any added parking on the local street network stemming from the Proposal;

f) Peak traffic counts in witness testimony were not in dispute, but important to note was that significant volume exists in morning and afternoon rush-hour periods. There is a significantly higher traffic count demand tied to the PIC peak volumes at midday on Fridays (Exhibits 2F and Tab E) combined with very active pedestrian crossings in all directions. There was also no dispute regarding the Proposal’s potential impact on traffic counts and that, if approved, the Proposal’s traffic impact overall would be limited. This was further reinforced in the PSR of April 3, 2023 (Exhibit 2C, pg. 604). The Tribunal notes that the PSR indicates that it would be helpful if the half-signal intersection were expedited with pedestrian crossings and installed prior to the construction of the Proposal. This is recommended by Region and City staff, based on their own pedestrian volume analysis, and despite the limited traffic warrant activity shared by both witnesses; and

g) Finally, there was also no dispute with regard to any concerns around Emergency Vehicle or Service Vehicle access, as no concerns were expressed by the City or Regional agencies.

25One area of disagreement related to Mr. de Boer’s opinion that the half-signaled intersection should be a requirement of the Proposal, before it is constructed and subject to a Holding provision (“H”), despite the fact that the Region provided its approval for the work in the 2023 budget, scheduled to have construction commence at the intersection in 2024.

26Furthermore, Mr. de Boer opined that it was important for any underground work to factor in the future prospect of a need for a fully signaled intersection based on the possibility of increased traffic counts. His rationale for this appeared to be that there is an ongoing redevelopment application by the PIC with a proposal to expand its facilities in the near term, currently under appeal as a separate matter before the Tribunal and scheduled for a hearing in September 2024. Generally speaking, and only for context, the proposed PIC redevelopment approved by City Council intends to add a three-storey private school addition with a total area of approximately 3162 m² and a two-level above-grade parking structure at the north-east portion of the site, providing a limited number of new parking spaces. City Planning staff comments require a significantly higher number of new additional parking spaces. The Tribunal was not in a position to weigh-in on this issue at this time but felt it appropriate to briefly reference the prospect of this additional matter scheduled to come before the Tribunal in September 2024.

27As a separate matter, Mr. Linton opined that further north along Brock Road, the intersection at Usman Road (north), which crosses over to Major Oaks Road, could readily be modified to extend a westerly left-turn-lane by 16.3 m, allowing for an increase in left-turn lane vehicular storage at this fully signalled intersection with the implementation of lane-width reductions to 3 m. He proposed that the City could enact optional peak-period parking restrictions, and if deemed helpful, specifically to the northerly portion of Usman Road (north), which can currently accommodate approximately 8-9 on-street parking spaces without any apparent restrictions. Mr. de Boer disagreed with this scenario, noting that Mr. Linton’s suggested recommendation for 3 m wide lanes was not feasible and that a road-widening was a better alternative. During cross-examination, his view regarding feasibility was countered when Mr. de Boer indicated he was not familiar with the other 3 m wide lanes that existed approximately 450 m to the north of this intersection at Brock Road and Dellbrook Avenue (Exhibit 16), which have apparently been in operation for a number of years.

FINDINGS REGARDING TRANSPORTATION EVIDENCE

28After careful consideration of both transportation witness statements and analysis of the witness testimony, respectively, the Tribunal finds that it is persuaded by the evidence as presented by the Applicants and concludes that appropriate regard has been given to the overall transportation planning issues in the area. The Transportation evidence and analysis addresses all matters regarding present and future transit objectives, the provision of on-site parking for future residents and visitors, and whether the Proposal meets and exceeds the City’s Zoning By-law requirements in anticipation of ongoing and future traffic conditions. The Tribunal determines that future vehicular movements with a widened Brock Road will no doubt, deliver significant benefits to the surrounding community, tied to meaningful improvements such as a half-signalled intersection at Usman Road (south) and Brock Road, and improved safety measures with new pedestrian crossings. In conclusion, the Proposal poses no significant adverse impact on the immediate neighbourhood and community, purely from a transportation planning perspective.

ARCHITECTURE AND URBAN DESIGN EVIDENCE

29Ms. Bell confirmed at the outset of her testimony that she concurred and adopted as her own the Witness and Reply Statements of Sean Lawrence, who was unable to attend the Hearing for personal reasons. Ms. Bell has shared carriage of the Proposal for the Applicant since 2020 and was directly involved in the April 2023 final submission to the City. As a visual reference, the below architectural image from Kohn (Exhibit 2E, pg. 3) is provided:

30Ms. Bell opined that overall, the Proposal is a well-designed mix of housing, sensitive to the surrounding neighbourhood, and represents at scale and density that reflects the City and Region’s desire to continue with residential growth. She asserted that the architectural design, with most of the massing and height along or adjacent to Brock Road (a 45 m Right-of-Way) (“ROW”), is well-situated and has been responsive to neighbourhood concerns regarding overlooks, and shadowing. She stated that the design is pedestrian-friendly, has a sound internal layout for vehicular access, and has a comprehensive array of indoor/outdoor amenities for new residents and visitors to the Subject Site.

31More specifically, Ms. Bell opined that the stacked, and back-to-back townhomes in Blocks B, C, and D, which are more immediate in proximity to the existing residential neighbourhood to the north/east, complements existing residential built forms. According to architectural cross-sections (Exhibit 12), approximate measurements consist of Block B with a setback of 7.32 m from the Subject Site northerly property line, a built-form width of 12 m by 55.4 m length, and with a height of 9.63 m, virtually identical in height to homes to the north along Saffron Drive. Block C, which is perpendicular to Block B, has a total length of 43 m, a height of 12.4 m, and a 1.5 m privacy screen, at a slightly lower grade, which is also in line with the height of existing homes along Saffron Drive. Block D is similar to Block C in height at 12. 4 m, however, it maintains a slightly larger built form at 18 m in width, setback 17.5 m from Block B, in a parallel manner at the south end of the development envelope overlooking the Proposal’s conveyed lands, with a length of approximately 81 m (Exhibit 2E, pg.16). Block D has effectively no impact on dwellings to the north along Saffron Drive. Furthermore, with the addition of privacy screens to rooftop terraces, the Proposal effectively addresses privacy concerns with neighbours from Blocks B, C, and D.

32Ms. Bell also opined that the Subject Site maintains an attractive, and comprehensive landscape design (Exhibit 2E, pg. 5), despite some challenges with most, with at-grade limited soil levels, covering the entire site, that are the result of the below-grade development envelope. Ms. Bell did state that there is a reasonable mix of plantings reflective of current SPA guidelines/policies which are expected to be clarified further between the City and Applicant, including improved buffering if the Proposal is allowed by the Tribunal.

33Regarding overlook and shadowing, Ms. Bell dealt extensively with the impact of the Proposal, with particular regard given to Block A/Towers 1 and 2. She asserted that Tower 2 has a distance separation of approximately 35 m diagonally, in relation to dwellings to the north-east, and its six-storey height transitions well with the PIC directly to the north as an institutional use. Tower 1 also has a diagonal distance separation of 95 m from the nearest external residential property at Saffron Drive and is located approximately 60 m from homes to the west along Rayleen Crescent. Ms. Bell opined that the slender design of Tower 1, with its limited floorplate of 810 m², recessed balconies, terraces, setbacks, and step backs from the podium level, offer an appropriate scale and density, with limited overlook respectful of neighbourhood residential dwellings, especially with its positioning at the south-west corner of the development envelope.

34Ms. Bell referenced the Sun/Shadow Impact Study (“SSIS”) (Exhibit 2E, pg. Tab B), which she asserted makes evident that the scale, massing, and building height of Towers 1 and 2 allow for compatible transitioning to properties to the north and north-east and predominantly show that most shadowing exists internally within the Subject Site. The SSIS demonstrates that Proposal’s impact is kept to a maximum of two hours during peak seasons, including the spring, summer, fall, and winter, between the hours of approximately 9:00 a.m. to 6:00 p.m. She concluded that the minimal impact of shadowing and overlook, adequately addresses neighbourhood concerns that were the direct result of architectural design revisions, in concert with the City and public consultation over the course of the multi-year application process.

35With respect to amenity space, Ms. Bell concurred with the City staff that a ratio of 4 m² per residential unit (totaling 1488 m²) exceeds typical projects of this size in other developments. The amenity space exceeds the City’s requirements, complementing the Proposal with more than adequate indoor/outdoor areas for both residents and visitors.

Privately-Owned Publicly Accessible Space (“POPS”)

36The POPS was emphasized as an important additional feature of the Proposal achieved with input from City staff and design guideline best practices, evolving from approximately 600 m² originally to 660 m² in the final Proposal. Ms. Bell opined that the visibility and access to the POPS as determined by these iterative discussions with the City allows for easy access from Usman Road (south) for pedestrians, cyclists, and vehicular drop offs, with landscaped elements in the design, allowing for natural views adjacent to West Duffins Creek.

37Finally, Ms. Bell reiterated that appropriate protections are in place through the SPA process, which will implement any outstanding matters of importance associated with the Proposal’s progress and ultimate construction.

38It is important to note that Ms. Anderson’s witness statement provides a thorough analysis of the range and types of residential units that form part of each of the four Blocks A to D (Exhibit 2G, Tab A, paras. 80-83). She asserted that the Proposal “provides a high-quality design that optimizes the use of the land and infrastructure” and reflects the Regional objectives of intensification while at the same time being compatible with the neighbourhood. Her focus on perhaps the more controversial element (Tower 1) stressed that despite the presence of the tower at the south-westerly corner, the manner in which it is situated on the Subject Site, along with the appropriate transition through a shared four-storey podium connecting to Tower 2 at six-storeys, adjacent to Blocks B, C, and D, represents good planning and design.

39Ms. Anderson opined that Tower 1 represents a landmark feature, and because of its location, concerns regarding overlook and shadowing are mitigated. At the same time, she asserted that the four and six-storey levels directly across from the PIC were a “strategic” design decision respectful of the Masjid’s height, inclusive of minarets. She also reiterated that the Proposal represents a good design and is compatible with the surrounding community.

40Mr. Freedman’s testimony extensively outlined the history of the surrounding neighbourhoods, his interpretation of COP/DROP policies and guidelines along with the evolution of transit and transportation plans for the area. He generally concurred that a residential redevelopment of the Subject Site may be appropriate along this transit corridor, however, this Proposal represents “over-intensification” and is “out of character” with the Brock Road Neighbourhood, which is predominantly a low-rise residential area. He asserted that the Proposal’s density of 286 units per hectare (“UPH”) represents twice the density permitted at 140 UPH for a high-density site and insisted that a mid-rise development was more appropriate for this area, in line with his position that this is a mid-rise site.

41Mr. Freedman opined extensively in relation to area characteristics from a broader context and focused his assessment on the density, built form, and mass, but in particular the Tower 1 height of twenty-storeys located at the south-west corner of the Subject Site. Specifically, Mr. Freedman opined that Tower 1 is too tall and the Proposal’s density, at twice the permitted level in the COP, was inappropriate within the overall context of the Brock Road corridor. Mr. Freedman emphasized, in particular, that Tower 1 was not a good fit with the community and the Brock Road corridor, was less suitable for higher densities, and that such projects should be more appropriately focused along the Kingston Road Urban Growth Centre and further south to the Anchor Mobility Hub surrounding the GO Station, among other nodes.

42Regarding built form, Mr. Freedman opined that the Tower 1 design does not enhance the character of the surrounding neighbourhood and therefore contravenes the COP’s objectives. Regarding transition and good separation distance, Mr. Freedman emphasized that despite the respective Tower 1 separation of 60 m to the west and 95 m to the north-east, the negative impact as seen from a distance “creates the impression that the residents of the tower can see into the neighbourhood, the yards, and the windows of the surrounding houses – negatively impacting neighbourhood privacy”, and that “the separation distance in this suburban context is not enough to overcome this extreme height differential and the sense of being watched from above.” He shared the same opinion with respect to the 35 m separation distance from the six-storey, Tower 2 design. He also noted that the PIC is more representative of a landmark at three-storeys (plus the additional height of the adjacent minarets) across Usman Road (south), and the Proposal impedes its visibility. During cross-examination, Mr. Freedman briefly acknowledged that current zoning, allows for up to eight-storeys in height fronting along Usman Road (south).

43Finally, Mr. Freedman also opined that the POPS was not ideally situated on the Subject Site, was impacted by shadowing, and suggested that it would be more accessible if relocated to the front along Brock Road or Usman Road (south), requiring an entire redesign of the Proposal. Regarding landscaping and buffering, Mr. Freeman suggested that a reduced perimeter for parking, setback for garage construction impacting Brock Road and Usman Road (south), would allow for improved planting alternatives, again requiring an overall redesign of the development. No design or architectural alternatives were presented at the Hearing.

44During further cross-examination, Mr. Freedman acknowledged that, through his extensive experience, mid-rise projects normally allow for up to twelve-storeys in neighbouring municipalities along avenues with a 20 m to 36 m ROW. Brock Road is currently a four-lane 45 m ROW, and despite the anticipated addition of up to three new lanes along the corridor at the Region’s initiative, Mr. Freedman maintained that any comparison was “apples to oranges” between the mid-rise definitions of neighbouring municipalities as they relate to the Subject Site. Supplemental to this during cross, Counsel for the Applicant clarified with the witness that generally, maximum heights in the DROP and COP do not presently exist and did eventually elicit a response acknowledging twelve-storeys buildings along Brock Road could be deemed mid-rise.

FINDINGS REGARDING ARCHITECTURE, URBAN DESIGN, AND THE POPS

45After careful analysis of witness statements on the subject of the architectural and urban design evidence and careful regard to oral testimony from the witnesses, the Tribunal is persuaded by the Applicant’s evidence in this area. The Tribunal determined that the Applicant demonstrated considerable effort in ensuring any City and Regional issues have been addressed associated with built form design.

46The Tribunal also finds that the Proposal demonstrates a creative and appropriate transition with Blocks B, C, and D, as they are closest in proximity to existing built-form residential dwellings in the surrounding area. From this point to the west and south-west (Block A), the design also provides a gradual connection to Tower 2 along Usman Road (south) at four storeys with an appropriate design step back at levels five and six. The design ultimately transitions very well to Tower 1 at the furthest distance away to the south-west corner of the development area along Brock Road.

47The 35 m, 60 m, and 95 m setbacks, respectively, are significant and enhance the character of the overall community, well-separated from the existing residential built forms. The addition of Block A with Towers 1 and 2 allows for an attractive and creative diversity of residential design, with increased housing alternatives and a minimal degree of shadowing in a relatively compact form. The Tribunal agrees that a slenderer architectural Tower 1 design element, previously described as graduated from Blocks B, C, and D, represents a complement to the residential area’s mix of housing. There is limited overlook into the neighbouring community to the north, north-east, and to the west, and shadowing is minimally impactful, mostly affecting the Subject Site internally to a rather limited extent depending on the time of year.

48Finally, it is important to recognize the opinion of City Planning staff. The PSR goes on to address the issue of ensuring a sensitive transition between Tower 1 and states that “the applicant has provided a progressive stepping of building heights, and has sited the tallest portion of the building to maximize separation from the detached dwellings” and notes that as per the cross-section below, “the proposal replicates the existing building height and setbacks established immediately to the north.”

Above: Cross Section Elevation view from the west (PSR-Exhibit 2C, pg.601)

49The Tribunal also concurs that the POPS is well-designed in its current proposed location and should not be relocated along Brock Road or Usman Road (south), requiring an entirely new site design, as suggested by the City’s witness. The current POPS design will result in reduced at-grade, street, and vehicular noise in its proposed location, buffered by adjacent built-forms. The increase in size of the POPS resulting from City staff consultations to 660 m², should serve to provide enhanced public open space alternatives to the immediate community. Furthermore, it is important to note the City staff’s position in the PSR (Exhibit 2C, Tab F, pg. 609 and 601), which states that “the final design details for the POPS will be confirmed through the [SPA] process.” The Tribunal is also confident that the possibility of enhanced signage alternatives encouraged through SPA deliberations with the City could also assist in its degree of visibility and at the same time maintaining a high level of community safety at its proposed location.

LAND USE PLANNING EVIDENCE

50In their Agreed Statement of Facts (“ASF”) (Exhibit 2J, Tab A), the Planning witnesses acknowledged among a number of issues, that it is the extent of proposed growth and development that is in dispute not whether the site is an appropriate location for growth and development.

Provincial Framework

Planning Act

51Mr. Ramsay, retained by the City in August 2023, provided his opinions regarding s. 2 of the Act, initially confirming that the Proposal is in a location that is appropriate for residential intensification. However, he stated that the Proposal represents an overdevelopment of the Subject Site and is out of character/not compatible with the predominantly low-rise community. He asserted that the Proposal does not have sufficient regard for matters of provincial interest specific to s. 2 of the Act. Through his witness statement (Exhibit 2H, Tab A, para. 26), Mr. Ramsay briefly highlighted the updated changes to the Proposal submitted in March 2023, including that it:

• maintains the height of the tower of 20-and 6-storeys;

• maintains the height of the podium of 4-storeys;

• an increase in the total gross floor area from 30,269 m2 to 30,367 m2;

• maintains the number of residential dwellings [at] 372 (328 apartment units,10

street townhouse units and 44 stacked townhouse units)

• maintains the density of 286 uph ; and,

• increases indoor/outdoor amenity space from 1,851 m2 to 1,960 m2.

52More specifically, regarding s. 2 of the Act, Mr. Ramsay expressed concern with the following areas where there is disagreement with the Proposal:

(h) the orderly development of safe and healthy communities;

(n) the resolution of planning conflicts involving public and private interests;

(p) the appropriate location of growth and development; and

(r) the promotion of built form that,

(i) is well-designed,

(ii) encourages a sense of place, and

(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.

53Mr. Ramsay testified that the Proposal does not represent orderly development nor does the design represent an appropriate height, scale, and massing; setbacks are inadequate along Brock Road; privacy and overlook are concerns; public and private interests are at odds with each other due to the adverse impact on the surrounding community, especially with the streetscape impact of Tower 1; the design does not encourage a sense of place, and that it does not provide for public spaces that are of high quality, safe, accessible, attractive, and vibrant.

54Ms. Anderson testified initially at a high level, that she rebuts Mr. Ramsay’s opinion, and that the Proposal has the appropriate regard for s. 2 (h), (n), (p), and (r) of the Act and makes reference to the MHBC Planning Justification Report (“PJR”) for greater detail, which was consistently updated, as the Proposal evolved (Exhibit 2D, Tab A, 4.1 Planning Act, and Tabs B and C). More specifically, she asserted that the DPS: will facilitate continuous and orderly development which makes use of existing underutilized lands, in close proximity to commercial uses within a reasonable distance; large landscaped open space is accessible; and the density increase supports active transportation as well as greater levels of public transit.

55Furthermore, Ms. Anderson stated that: public consultation in accordance with the Act was ongoing throughout the process; existing development surrounds the Proposal along with natural features, protected by the land conveyance to the TRCA; and, the close proximity of commercial uses, employment, and recreational facilities, are complemented by the increased density.

56Finally, regarding s. 2 of the Act, she testified that the Proposal provides a high-quality, well-designed built form that offers a sense of place and fit within the surrounding area. She asserted that it also provides accessible, safe, and high quality public open space and amenity areas for both current and future residents.

Provincial Policy Statement 2020

57In his witness statement (2H, Tab A, paras. 57, 58, 65), Mr. Ramsay outlines his position that the Proposal generally maintains consistency with the PPS, beginning with: Managing and Directing Land Use (Section 1.1.1 a) through i)). He shared the same general opinion that the Proposal maintained consistency with the PPS, regarding Housing (1.4.3).

58Mr. Ramsay maintained a different view, however, regarding the Proposal’s consistency with the PPS related to Settlement Areas (Sections 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4). He asserted that the OPA and ZBA: will result in a development that is inappropriate, as it is situated adjacent to low-rise development to the north, east and west; it does not take into account existing building stock in this area of low-rise housing forms; and the height density setbacks and overall intensity of the Proposal is not compatible with the community.

59Furthermore, he stated that the Proposal is not consistent with the PPS, as it related to Public Spaces, Recreation, Parks, Trails, and Open Space (1.5.1). Specifically, he reiterated that the POPS, located within the interior of the Subject Site, is “neither visible nor accessible from Brock Road and has limited visibility from Usman Road with access along a private driveway.”

60Ms. Anderson fundamentally disagreed with Mr. Ramsay’s position regarding the POPS, and as a reference, the Tribunal refers to the Witness Reply of Mr. Lawrence (Exhibit 2G, Tab C, para. 3) whereby he states:

• The location of the POPS space as proposed followed extensive discussion with City staff throughout the Zoning Bylaw Amendment application process, and the location as shown was deemed the preferred location. The POPS is accessible from Usman Road by means of a continuous sidewalk and pedestrian crossing. The POPS is not located off Brock Road or accessible from Brock Road, as a street wall was the preferred built form along the Brock Road frontage following the City’s design guidelines and best practices. As referenced in the Duffins Precinct Development Guidelines, M1 4.4, amenity should not be located along Brock Road, but instead separated by building mass.

61Furthermore, Ms. Anderson opined that the Proposal is compatible with the existing and evolving community. She stated that it supports increased densities along a critical transit spine, efficiently utilizing existing infrastructure and is focused on delivering a development pattern that supports strong, livable, and healthy communities.

62Ms. Anderson testified that the Proposal also showed particular regard to sections 51(24) and 41 of the Act, as they apply to the DPS Block Plan and SPA, respectively. She notes in (2G, Tab A, para. 103) that the SPA will further crystalize in numerous respects, also conforming with City and Regional objectives, including the following:

• Provides for the massing and design of the proposed buildings, the relationship of the proposed buildings to adjacent buildings, streets, and exterior areas to which members of the public have access, the provision of interior walkways, stairs, and elevators to which members of the public have access from streets, open spaces, and interior walkways in adjacent buildings. Matters relating to exterior design, including the character, scale, appearance, and design features of buildings and their sustainable design, landscaping, road and access design, parking and loading, amenity areas including walkways and pedestrian connections, as well as lighting are set out on the site plan as well as in the supporting plans and reports submitted with the SPA.

63She concluded that the PPS strongly encourages new development that will provide long term prosperity, environmental health, and social well-being, facilitating economic growth and a range of new housing forms and options responding to current and future needs. As a new development of a vacant site, she opined that the Proposal is consistent with all of the PPS criteria and maintains that it represents an appropriate level of intensification that will integrate well with the surrounding community, optimizing transit investments and standards, and minimizing land consumption and service costs.

Growth Plan

64Mr. Ramsay’s view that the Proposal does not conform to the GP, which refers to Policies for Where and How to Grow, Managing Growth, focuses on sections 1.2.1, and where he asserts the Proposal does not:

• Prioritize intensification and higher densities in strategic growth areas to make efficient use of land and infrastructure and support transit viability.

• Improve the integration of land use planning with planning and investment in infrastructure and public service facilities, including integrated service delivery through community hubs, by all levels of government.

• Provide for different approaches to managing growth that recognize the diversity of communities in the GGH.

65He expands further on this topic by noting: this is not a strategic growth area; the Proposal is “ad hoc” as it relates to density and does not support the broader urban structure in the City where infrastructure and public services facilities are planned and available; and the Proposal is not located where the City directs higher densities that should exist more appropriately.

66He did acknowledge that regarding section 2.2.1, generally, there was conformity with the GP, as the Proposal is within the delineated built-up areas; however, he highlights concern with regard to 2.2.2(1) through 2.2.2(3), where such density is more appropriate in other areas, the Proposal ultimately “does not conform with the City wide intensification policies” and “the guiding principles (Section 1.2.1) and intensification strategy requirements (Section 2.2.2(3))” of the GP.

67Ms. Anderson rebutted this and testified that the Proposal conforms to and serves to implement the policies of the GP in that it meets the Region’s intensification

objectives, providing connectivity along Brock Road with its density and is compatible with the neighbouring community, in a compact form (see PJR-Exhibit 2D, 4.3). Furthermore, she noted that this is reinforced, and is in line with, the shifted timelines for growth forecasts to 2051. Additionally, the Proposal’s instruments remain in conformity with the policies of the GP, and the density will complement an area that is well served by existing transit, optimizing the use of existing water, wastewater, and stormwater infrastructure with existing community services, parks, the natural environment, and local businesses in close proximity.

68Regarding density, Ms. Anderson reiterated that the Proposal: prioritizes the immediate access to current and pending major transit initiatives; will implement a much needed range of housing types and options, and that no policies preclude such development along an arterial corridor of such significance in its current form and into the future.

FINDINGS REGARDING THE ACT, PPS AND GP

69The Tribunal prefers the evidence of Ms. Anderson, which includes the PJR (Exhibit 2D, Tabs A, B, and C) that more broadly and consistently addresses the requisite legislative framework dating back to 2020. The Proposal is located in a predominantly residential area, with neighbouring commercial uses in close proximity, and along an arterial transit corridor that can accommodate and implement provincial objectives and guidelines. The Applicant’s evidence demonstrates appropriate regard for s. 2 of the Act, is consistent with the PPS, and conforms to the GP. The Proposal promotes intensification that complements the existing surrounding area, represents efficient design and built form, and is at a density that efficiently utilizes existing infrastructure and public service facilities.

70The Proposal is responsive to and will most definitely benefit from anticipated major transit initiatives, with the anticipated widening of the ROW along the Brock Road corridor but will also have a favourable impact on public utilization of planned additional transit initiatives further to the south across Kingston Road, in the near future.

71The Applicant’s evidence regarding consistency, and conformity with the above legislative framework, is corroborated further through the PSR (2C, Tab F) as referenced throughout this Decision. Specifically, the PSR reinforces that the Proposal: appropriately transitions its built form to adjacent residential areas; has minimal shadow impact; does not have any adverse transportation impact; implements numerous improvements through a number of future traffic management strategies; offers an enlarged POPS; offers sufficient indoor/outdoor amenity space; complies with the Duffins Precinct Environmental Servicing Plan; and, concurrently, approves of the instruments implementing the Proposal, with Attachments 1, 2, and 3, as attached to the Order that follows in this Decision.

REGIONAL AND CITY POLICIES

Region of Durham Official Plan

72Regarding the DROP (consolidated in 2020), Ms. Anderson opined that the Proposal conforms with the plan, as it facilitates residential uses with taller heights and densities along regional corridors such as Brock Road, allowing for taller buildings. The Region’s density objectives are further enhanced through proposed new transit improvements with implementation in the near term (2031) along this important corridor (Exhibit 2D, Tab A, pgs. 50-54). She also asserted that the Proposal’s increase in height and density should not be prevented where it meets the Region’s objectives. In this instance, while not directly in the designated “Urban Growth Area,” located close in proximity just to the south of the Subject Site, the Proposal meets the Region’s density objectives, and also preserves/enhances the Natural Heritage System (Duffins Creek) through the previously referenced land conveyance to the TRCA.

73In her witness statement (Exhibit 2G, paras. 114-116), Ms. Anderson expands further regarding the following:

• Within the Regional Official Plan (“ROP”), the Subject Lands are designated as “Living Areas” with a “Regional Corridor” overlay. A portion of the Subject Lands located adjacent to Duffins Creek are also designated “Major Open Space Areas”. A portion of the Subject Lands are identified as “Key Natural Heritage and Hydrologic Features” and “High Aquifer Vulnerability Areas” within Schedule B of the ROP. Brock Road is also identified as a “Transit Spine” on Schedule C of the ROP and identified as a Type A Arterial Road on Schedule 3, Map C2: Road Network, and a High Frequency Transit Line on Schedule 3, Map C3: Transit Priority Network.

• The “Living Areas” are intended to accommodate a full range of housing developed in a cost effective and efficient manner, while maintaining an attractive, safe living environment that is respectful of existing natural areas. The proposal conforms to these objectives by proposing a compact built form within a built-up area, and through site design and layout, providing adequate setbacks to the adjacent natural features to ensure these areas are not adversely impacted by the proposal.

• Regional Corridors are to be developed to promote transit and be designed with a mix of higher density uses. Sensitive urban design is to be used that is oriented towards the corridors. Portions of Regional Corridors with an underlying Living Area designation, which are identified as appropriate for higher density mixed use development in area municipal official plans, shall support an overall, long-term density target of at least 60 residential units per gross hectare and a FSI of 2.5. The built form should be a wide variety of building forms, generally mid-rise in height, with some higher buildings, as detailed in the area municipal official plans. The proposed development meets these policies.

74Regarding the recent DROP (adopted 2023), which is awaiting Ministerial approval, Ms. Anderson importantly denotes in her witness statement that the Proposal appropriately considers and conforms with updated objectives as follows:

• Brock Road is a High Frequency Transit Network, a Type A Arterial Road, and a Regional Corridor, and the valley lands are designated as a Regional Natural Heritage System and form part of the Urban River Valley;

• Community Areas are to be planned as complete communities providing a range of housing, transportation, and lifestyle choices; and,

• Regional Corridors are generally identified as appropriate locations for higher-density development. Built form along Regional Corridors is encouraged to be multi-storey compact, pedestrian friendly and transit-supportive. The new policies also encourage the area municipalities to establish transit supportive density targets along the Regional Corridors and designate key development areas as prime opportunities for transit supportive intensification. Within the Medium Density Areas on Schedule I Land Use Structure; Sheet 1. This structural designation extends the full extent of lands along the east side of Brock Road up to Finch Avenue to the north.

75The PSR (Exhibit 2C, Tab F, pg. 598) states that the Proposal conforms to the DROP, in that the increase in proposed density is appropriate and that Brock Road, is within Regional responsibility, which maintains a designation recognizing the corridor as a Type “A” Arterial, Transit Spine in the COP, with a higher level of transit service and moderate traffic levels/speeds, with access to local collectors. The DROP designates Brock Road as a High-Frequency Transit Network (“HFTN”). Higher density developments, with mixed uses and at an appropriate scale and context are encouraged in HFTN designations. The PSR goes on to state:

• The proposed density will facilitate a built form that has been demonstrated to achieve a compatible transition with the existing residential neighbourhood immediately to the north, by siting a built form that has a similar building height and setbacks to the existing dwellings, providing appropriate building separation between the existing dwellings and the apartment building. The proposal has been designed to maximize the separation between the tallest and most dense components of the development and existing residential properties to the north, which will limit any negative impacts with respect to privacy and shadowing. On the easterly portion of the subject lands, and nearest to existing detached dwellings, the proposed development provides for compatible building heights, and a less dense built form, through the placement of townhouse units with adjoining rear yards along the north property boundary.”

• The proposal is located along an arterial road and a collector road that can accommodate the traffic generated by this development. Furthermore, siting the apartment building adjacent to Brock Road, which is identified as a transit spine, encourages the opportunity to reduce auto-dependency, and contribute to the development of a livable, transit-oriented community.

76Mr. Ramsay opined that the DROP stipulates broad policies, requiring greater efficiency in design, and deferred to Mr. Freedman’s testimony in this regard. He also asserted that more in accordance with the DROP, the redevelopment should consist of a mid-rise design along a Regional corridor such as this one.

City of Pickering Official Plan

77As he continued with his land use planning opinion, Mr. Ramsay asserted that the Proposal does not reflect the objectives and guidelines of the COP, noting in particular, section 3.2. Similarly, with Mr. Freedman, he argued that the proper location for this degree of density, “which can be better achieved elsewhere”, includes along Kingston Road, and areas like a Mobility Hub further south towards the GO Transit Station among other options.

78Mr. Ramsay also testified that Block A, in particular, is too big and reiterated that it did not represent good urban design. He stated that the Duffin Creek Lands conveyance and their integration with the Subject Site, is appropriate, but the ZBA will not protect or enhance the neighbourhood, and that it represents an overdevelopment of the Subject Site. He estimated that 100 UPH could potentially be achieved at the Subject Site but that even this degree of density “was a stretch,” and that anything greater was not contemplated in the COP. He also concurred with Mr. Freedman’s analysis that the COP’s intended provisions are to locate developments such as this on Kingston Road and elsewhere. Both believe it is the intended provisions of the COP, that this Proposal’s overall scale, massing, density, and height, will be “overly dominating.”

79Ms. Anderson’s opinion disagreed, and she stated that the Proposal serves to implement the objectives of the COP, by “providing for a compact and urban residential built form on a site with the Built Boundary of the City’s existing Urban Area, where the majority of growth is to occur ” and “ directs increased density to an area of the [Subject Site] located along Brock Road, an identified Regional Corridor and Transit Spine, and [is] appropriate for the proposed level of intensification.”

80Furthermore, Ms. Anderson reiterated that the proposed OPA “seeks to permit high-density residential uses in order to ensure a transit-supportive and vibrant form of development is achieved along Brock Road within the Brock Ridge neighbourhood. The proposed development is in conformity with the City’s natural heritage system policies and has been carefully designed to protect the existing natural features adjacent [to] the site. The proposed development, and associated planning applications conform to and serve to implement the applicable objectives and policies of the City of Pickering OP.”

81The PSR (Exhibit 2C, Tab F, pg. 598) states that the “Medium Density” designation is intended primarily for residential uses and denotes a range of 30 to 80 UPH. It also encourages a variety of housing forms as part of the Brock Ridge Neighbourhood policies, and suggests that “the City Council should acknowledge the landowners’ interest in maximizing the developable area of the property” and “that City Council shall encourage a broad diversity of housing by form, location, size, tenure, and cost within the neighbourhoods and villages of the City, so that the housing needs of existing and future residents can be met as they evolve over time.” The Tribunal determines that this reinforces the Applicant’s evidence, asserting that the Proposal conforms to the COP.

Duffins Precinct Development Guidelines (1997)

82As an additional and important consideration, the DPDG, provides some direction for land use, transportation, community design, and servicing within the Duffins Precinct, excluding the portion to be conveyed to the TRCA. Following some clarifications/corrections in her witness statement, Ms. Anderson assisted the Tribunal in better understanding the planning-related objectives of the growth framework. Some of these changes are summarized below:

• The Subject Site is within Area 5 (not Area 2) of the growth framework, which targets units between 45 and 119 units, and has a density range between 30 and 80 UPH; and,

• The key consideration is that what has not been achieved in relation to all areas in the Duffins Precinct Area is that Area 2 has effectively no new intensification, and Areas 3 and 4 have underachieved the planned maximum units by 441 units. This clearly makes evident the fact that existing and proposed developments have not achieved the minimum unit targets and are at the low end of density ranges.

• Though the proposal exceeds the maximum density guideline, the increase in density offsets the under achieved density in other parts of the area and is provided in a compatible design, without adverse impacts, and will contribute to the much-needed housing now required to meet the City’s housing pledge and growth to 2051.

83Mr. Ramsay opined that the Proposal contravenes the Duffins Precinct Development Guidelines 1997 (“DPDG”), resulting in adverse impacts on adjacent properties and will “[establish] a negative urban design precedent for the City.”

84The PSR (Exhibit 2C, pg. 599) again reinforced the Applicant’s evidence, maintaining that the design provides an appropriate transition in built form from the adjacent residential areas and meets the objectives of the DPDG, including:

• A range of housing types, including detached, semi-detached, townhomes, and multi-unit dwellings;

• Building form adjacent to Brock Road that is sensitive to the potential impacts of the road but does not turn its back on it;

• Streetscape and architectural designs that are aesthetically pleasing, diverse, encourage social interaction within a neighbourhood, and support safe environments; and,

• Development that embraces the natural environment.

85During cross-examination, Mr. Ramsay acknowledged that the COP did not have any height restrictions, but instead primarily maintained its range of FSI objectives. Additionally, he recognized that with a framework horizon of 2016, the COP (2007) is considered outdated and does require an up-to-date review, reflective of ongoing and new growth. Conveniently and quite timely, evidence from the Applicant showed that a City-initiated review of the COP is underway as of March 2024, (Exhibit 19). It announces a public consultation process will commence in late May 2024, all in an effort to “maintain its conformity with Provincial and Regional planning documents through amendments to the [COP].” The Report also notes that the City “is projected to enter a significant period of growth in the coming decades,” and will therefore “not only increase the population and number of housing units within the community but will result in changes in the needs of residents.” Concurrent to this, the witness also acknowledged that the evolution of current provincial guidelines are pursuing a more comprehensive, updated approach, and relatedly, did not dispute that the PSR of April 2023, recommended approval of the OPA, ZBA, and DPS along with the requisite instruments.

City of Pickering Zoning By-law 3036

86A review of the updated draft ZBA (Exhibit 5 and Attachment “2” to this Order), confirms that the implementing instrument, amends the City ZBL 3036 as previously amended by ZBL-2010. Ms. Anderson testified that this updated draft ZBA has the concurrence of City Planning staff, as similarly recommended for approval through its PSR of April 2023. Regarding conformity with the ZBL, the final paragraph of this instrument is quoted below for clarity:

• By-law 3036 is hereby further amended only to the extent necessary to give effect to the provisions of this By-law as it applies to the area set out in Schedule I to this By-law. Definitions and subject matters not specifically dealt with in this By-law shall be governed by relevant provisions of By-law 3036.

FINDINGS REGARDING THE DROP, COP, DPDG, AND CITY ZBL

87The Tribunal is again persuaded by the Applicant, based on witness evidence, and corroborated by the City PSR of April 2023. It was acknowledged by the City’s witnesses that, despite opinions regarding the overall size of Block A, the City ZBL currently allows up to an eight-storey, 70 m building length along Usman Road (south) from Brock Road and up to four storeys further east. The approximately 50 m length along Brock Road, with a four-level podium and six storeys (also in Block A), is in line with the current City ZBL, existing as-of-right since approximately 2010, and has the full support of City Planning staff.

88The Proposal achieves a number of objectives through elements that conform with the above, including: the land conveyance to the TRCA at the outset; the provision of public and private amenities and the provision of the POPS in a central and accessible location; the provision of a wide variety of housing options; pedestrian connectivity; with noise and traffic mitigation factored into the design. The Tribunal determined by way of careful evaluation of the evidence, that almost everything associated with the density, height, and massing of the Proposal, other than Tower 1, conforms to the DROP, the COP, DPDG, and the City ZBL.

SUPPLEMENTAL PLANNING EVIDENCE AND ANALYSIS

Planning Staff Report and Analysis

89While neither of the Parties chose to subpoena Planning staff for the purposes of the Hearing, it became quite evident that the Parties allowed the PSR of April 2023 to speak for itself and effectively represent a supplemental, detailed expert perspective on the Proposal from the City’s own Planning Department. As referenced a number of times in oral evidence and by way of the JDB submitted (Exhibit 2), Planning staff has played an integral role in the evolution of various proposals on the Subject Site since 2010. No doubt, the Tribunal may have benefited from their supplemental direct evidence at the Hearing, however, in their absence, Ms. Anderson appropriately shared many of her thoughts about the City Planning staff’s role in the process through her witness statement. It is her opinion that the PSR provides a comprehensive and thorough assessment of the Proposal in relation to the PPS, GP, DROP, and COP. She continues with a brief summary of the PSR, as follows:

a) The PSR addresses matters related to urban design including the transition of height and built form proposed, shadow impacts, the provision of indoor and outdoor amenity space, POPS, sustainability, and connectivity.

b) The [PSR] recommends approval of the proposed applications based on its thorough and comprehensive analysis. The City’s Planning Staff support the proposed residential density and height, as it will facilitate a built form that has been demonstrated to achieve a compatible transition with the neighbourhood immediately to the north through appropriate building siting, setbacks, separation distances, height, and massing.

c) Staff note the compact form of development and design will maintain and protect the natural areas within the associated valleylands to the south and east and conveyed the appropriate lands to the TRCA. Planning Staff note the plan will provide for a more diversified housing mix of housing forms and tenure that will assist the City in achieving its intensification targets, while providing at-grade amenity space for use by the broader community.

d) Staff note that the proposal is located on an arterial road and a collector that can accommodate the proposed traffic generated by the development. Planning Staff confirm that the proposed applications are consistent with the PPS, conform to the Growth Plan, the Region of Durham Official Plan, and the City Official Plan.

e) They further support the OPA and ZBA and POS with Draft Conditions.

90As a brief summary, it is also important to note that the PSR references agency comments and input, including from the Region, TRCA, the District and Catholic District School Boards, Durham Region Police, City Engineering, Fire Services, and Sustainability, all of whom have no objections to the Proposal, and have received appropriate consideration from the Tribunal.

91Mr. Ramsay, on the other hand, appeared to have given minimal regard to the position of Planning staff in his evidence, and when asked during cross-examination if he had consulted with the department during his analysis, in preparation for the Hearing, he indicated that he had not consulted with them or any other City or Regional agency, in his review. It became apparent to the Tribunal that this decision may have limited Mr. Ramsay’s efforts, which could have allowed for a more fulsome analysis. Counsel for the Applicant quite appropriately argued in closing, that this may have been the basis for a “flawed foundation” of opinions opposing the Proposal, and summarized these as a “largely speculative, overstated, and unsupported” overall land use planning opinion.

Compatibility with the Community

92Finally, in considering site-specific proposals such as these, the Tribunal must always contemplate compatibility. Ms. Anderson defines compatibility as a design that co-exists with the surrounding area, without adverse impacts. The Proposal encourages an adequate supply, mix, and range of housing types and options and blends this with compatibility in a very unique fashion, with careful consideration given to the site-specific dynamics of the Subject Site.

93The City’s planning and urban design witnesses each suggested that as a low-rise community consisting of predominantly single-family detached and townhome dwellings, the Proposal represents an affront to the surrounding area from a density, built form, height, massing, and design perspective, particularly with the height of Tower 1. They persisted with this opinion, and both appeared to evade existing permitted zoning on the Subject Site, allowing up to eight-storeys along Usman Road (south) with the potential for a building with a length of 70 m from Brock Road, plus an additional four-storeys beyond that point.

94Ms. Anderson effectively shared her opinion that perhaps the most important contributing elements that are foundational and unique to the Proposal, includes its overall compact and creative design, density, height, and built form with immediate access to existing and planned future transit, road widening, and access to current municipal infrastructure. She reiterated the significance of maintaining the conveyed portion of the Subject Site to the TRCA and the natural heritage elements of that component of the Proposal. She also affirmed that the Transportation analysis was thorough, addressing any and all concerns raised about all related issues.

95Ms. Anderson further opined that from an urban design and architectural perspective, issues such as overlook, shadowing, and privacy were effectively addressed with the requisite studies in consulting evidence and testimony, emphasizing setbacks, step backs, efficient land use, and accessible public and private amenity space with a prominent POPS element.

96Without belabouring the question of height and density, Ms. Anderson reiterated that the Subject Site is underdeveloped. While not within a designated Urban Growth Area, the Subject Site is uniquely situated along a very busy transportation and transit corridor, has met all City and Regional departmental and agency requirements, and fundamentally has the continued support of City Planning staff. In summary, the Tribunal accepts the Applicant’s evidence and opinions on the issue of compatibility with the community and surrounding area.

CONCLUSIONS

97The evidence that has led the Tribunal to its Decision is founded on well-established expert witness statements and oral testimony. In general, the Tribunal maintains a very serious responsibility, when considering site-specific applications of this nature and must carefully provide its rationale, with careful attention to the legislative framework outlined above. A balanced approach in this matter, must weigh the benefits of compact, creative, and well-designed density and attention to natural heritage, along the well-established Brock Road arterial corridor, and evaluate the Proposal as it relates to the surrounding area and its neighbourhood character.

98Brock Road is clearly a strategic corridor that provides high-use transit availability now and will expand more significantly into the future. It is precisely these opportunities that allow for new housing in areas where growth should occur, as demonstrated, where there are also a variety of benefits that exist from efficient use of municipal infrastructure both in the immediate area, and the broader community.

99The Tribunal concludes that the Proposal appropriately and creatively factors in these current conditions along the Brock Road transit corridor, the Brock Ridge Neighbourhood and surrounding area. The Applicant’s comprehensive evidence provides a solid foundational basis for support of this Proposal.

100The Tribunal has also given appropriate regard to the Council decision adopting the recommendation of the Committee refusing the Applications, noting its unanimous disagreement with recommendations in full support of the Proposal, from their own Planning staff, the Region, and all relevant agencies and departments. Notwithstanding this final issue, it is the determination of the Tribunal that the height, density, design, massing, and built form all transition well with the surrounding community. The Proposal represents good planning, enhancing public safety, and will combine significant long-term economic benefits that will follow along this very important corridor.

101Finally, in addition to weighing the merits of the Appeals and the Proposal, the Tribunal should also be aware of ongoing City, Regional, and Provincial updates and new initiatives associated with their respective policies and guidelines. As mentioned earlier in this Decision, the Region, and City have recently pursued some new policy initiatives and are attempting to update their guidelines and requirements, reflecting many of the current and future housing and economic challenges that they, among others are confronted with. Provincial legislation and policy documents also continue to evolve around transit-supportive communities. Intensification on lands that are adjacent to existing and planned frequent transit corridors are active opportunities for growth and increased densities. It is worth reiterating the importance of this, as it applies to Brock Road specifically in this circumstance, with its widening to six or seven lanes, allowing the City to expand on these new density, tied to transportation enhancements.

102The timing of the Proposal and the overall redevelopment of the Subject Site, with the natural heritage conveyance component is precisely the right fit and has effectively demonstrated that a site-specific Decision of the Tribunal is well-deserved in this instance. Allowing a well-designed plan at the Subject Site is a reasonable, balanced, and pragmatic choice. The Proposal: has appropriate regard to the legislative framework relating to s. 2 of the Act; maintains consistency with the PPS; and conforms with the GP, the DROP, the COP, and the City ZBL.

ORDER

103THE TRIBUNAL ORDERS THAT:

1. The Appeal pursuant to s. 22(7) of the Planning Act by Brock Road Duffins Forest Inc. is allowed, and the Official Plan for the City of Pickering is amended as set out in Attachment 1 to this Order, and

2. The Appeal pursuant to s. 34(11) of the Planning Act by Brock Road Duffins Forest Inc. is allowed, and the municipality is directed to amend By-law 3036 as amended by By-law 7085/10, as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of the City of Pickering to assign a number to this by-law for record-keeping purposes; and,

3. The Appeal pursuant to s. 51(34) of the Planning Act by Brock Road Duffins Forest Inc. is allowed, and the Draft Plan of Subdivision is authorized as set out in Attachment 3 to this Order.

104THE TRIBUNAL FURTHER ORDERS THAT the Appeal pursuant to s. 41(12) of the Planning Act is allowed, in principle, with the final Order withheld pending confirmation that the Owner has entered into a Site Plan Agreement with the City of Pickering, which shall include all final plans and drawings as well as securities (see Exhibit 2I, Tab H, pp. 82-94). Such approval shall include conditions associated with the Owner’s settlement with Kindwin (Brock) Development Corporation (included as Exhibit 3, s. 4), associated with cost recovery.

105The Member shall remain seized of this Appeal and may be spoken to regarding either:

a) A settlement hearing; or

b) A contested hearing at which the Tribunal shall decide/settle any unresolved matters.

“Steven T. Mastoras”

STEVEN T. MASTORAS

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT “1”

ATTACHMENT “3”