Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 29, 2024
CASE NO(S).:
OLT-22-002608 (Formerly PL170151 OLT-21-001787 (Formerly PL111184) OLT-22-002104
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
7553 Islington Holding Inc.
Subject:
Request to amend the Official Plan - Failure of the City of Vaughan to adopt the requested amendment
Existing Designation:
“Low Density Residential” and “Open Space”
Proposed Designation:
“Medium Density Residential”
Purpose:
To permit the development of a multi-storey residential building containing 490 residential units with variable heights of 12-storeys and 17-storeys, inclusive of a 7-storey podium
Property Address/Description:
7553 Islington Avenue & 150 Bruce Street/ Part of Block 88, Registered Plan 65M-2059, Lots 4 and 5, Concession 7
Municipality:
City of Vaughan
Approval Authority File No.:
OP.08.017
OLT Case No.:
OLT-22-002608
Legacy Case No.:
PL170151
OLT File No.:
OLT-22-002608
Legacy File No.:
PL170151
OLT Case Name:
7553 Islington Holding Inc. v. Vaughan (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant:
7553 Islington Holding Inc.
Subject:
Application to amend Zoning By-law No. 1-88, as amended – Neglect of application by the City of Vaughan
Existing Zoning:
“A - Agricultural Zone”, “OS1 - Open Space Conservation Zone” and “R1 9(643) – Residential Zone”
Proposed Zoning:
“RA3 – Apartment Residential Zone” and “OS1 – Open Space Zone” with site specific exceptions
Purpose:
To permit the development of a multi-storey residential building containing 490 residential units with variable heights of 12-storeys and 17-storeys, inclusive of a 7-storey podium
Municipality:
City of Vaughan
Municipal File No.:
Z.16.022
OLT Case No.:
OLT-22-002608
Legacy Case No.:
PL170151
OLT File No.:
OLT-22-002611
Legacy File No.:
PL170152
PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant:
1042710 Ontario Limited (aka Royal Centre)
Appellant:
1096818 Ontario Inc.
Appellant:
11333 Dufferin St et al
Appellant:
1191621 Ontario Inc.; and others
Subject:
Failure to announce a decision respecting Proposed Official Plan Amendment No. New Official Plan
Municipality:
City of Vaughan
OLT Case No.:
OLT-21-001787
Legacy File No.:
PL111184
OLT File No.:
OLT-21-001787
Legacy File No.:
PL111184
OLT Case Name:
Duca v. Vaughan (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
1042710 Ontario Limited (aka Royal Centre)
Appellant
1096818 Ontario Inc. Jordan, Ryan, and Brittany Fisch
Appellant
1150 Centre Street GP Inc.
Appellant
1163919 Ontario Ltd., 1888836 Ontario Ltd., and 1211612 Ontario Ltd.
and others
Subject:
Zoning By-law
Description:
New City-wide comprehensive zoning by-law
Reference Number:
By-law 001-2021
Property Address:
City Wide
Municipality/UT:
Vaughan/York
OLT Case No:
OLT-22-002104
OLT Lead Case No:
OLT-22-002104
OLT Case Name:
D'Aversa v. Vaughan (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Appellant
1042710 Ontario Limited (aka Royal Centre)
Appellant
1096818 Ontario Inc. Jordan, Ryan, and Brittany Fisch
Appellant
1150 Centre Street GP Inc.
Appellant
1163919 Ontario Ltd., 1888836 Ontario Ltd., and 1211612 Ontario Ltd.
and others
Subject:
Zoning By-law
Description:
Transitional by-law
Reference Number:
By-law 039-2022
Property Address:
City Wide
Municipality/UT:
Vaughan/York
OLT Case No:
OLT-22-003554
OLT Lead Case No:
OLT-22-002104
Heard:
November 14, 2023 to December 6, 2023 (November 27 and 28 not sitting); May 23, 2024 to May 31, 2024 by video hearing
APPEARANCES:
Parties
Counsel
7553 Islington Holding Inc. (“Applicant”)
Matthew Helfand Patrick Harrington
City of Vaughan (“City”)
Raj Kehar Zaynab Al-Waadh
Toronto and Regional Conservation Authority (“TRCA”)
Tim Duncan
Armando Rosano, Elisa Testa, Vaughanwood Ratepayers Association (“Armando & others.”)
Amber Stewart
Regional Municipality of York
No one appeared
Sarno Holdings Corporation
No one appeared
DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This was the Phase 1 Hearing in the matter of the captioned appeals by the Applicant pursuant to the Planning Act (the “Act”), with respect to the Applicant’s lands municipally known as 7553 Islington Avenue and 150 Bruce Street in the City (“subject lands/subject site/Site”).
2The original applications were requested to facilitate the development of the subject lands to permit the development of a multistorey residential building containing 490 residential units with heights of 12 and 17 storeys (“the proposed development”). The proposed development has since been revised.
PRELIMINARY MATTERS
3At the hearing on November 14, 2023, the Applicant proposed a site visit to which the Tribunal decided that it was not necessary since there would be sufficient visuals, and terrain document information on the surroundings for the Tribunal to opine on the subject lands in the Phase 1 Hearing.
HEARING
4The Parties listed some 13 issues for the Phase 1 Hearing which stage is essentially to decide if the subject lands are developable.
Issues
5The Tribunal views that the only question and core Issue in Phase 1 is “Whether the subject lands can be developed or site altered?” If the answer is positive, then the Phase 2 Hearing will determine the suitability, appropriateness and impacts of the proposed development with respect to the scale, built form and intensification proposed.
6The Applicant called a total of four expert witnesses, the TRCA called five experts and the City called two experts, as follows:
Applicant
- Ryan Guetter – Land use planner
- Shelley Lohnes – Ecologist
- Steve Ash – Geotechnical Engineer
- Will Heywood – Water Resources Engineer
TRCA
- Jason Wagler – Land use/environmental Planner
- Brad Stephens – Ecologist
- Ali Shirazi - Geotechnical Engineer
- Dan Hipple – Water Resources Engineer
- Don Ford - Geoscientist
City
- Letizia D’Addario – Land use Planner
- Sal Spitale – Ecologist
7All experts were duly affirmed and qualified to give expert opinions in their respective specializations by the Tribunal. The Exhibits marked at the hearing are attached as Attachment 1 to this Decision.
8The Tribunal finds that the witnesses and opinion evidence fall into two groups. The City’s and TRCA’s experts are strongly opposed to the proposed development while the contrary position is firmly held by the Applicant’s expert witnesses who support the proposed development. Armando & others did not call any witness.
9Having heard the evidence and the submissions, the Tribunal is persuaded by the opinion evidence of the City’s and TRCA’s expert witnesses that the subject lands are, among other things, significant Woodlands in the Humber River Valley.
10The Tribunal finds that for the purpose of the Phase 1 Hearing, the subject lands are developable. The reasons are as set out below after consideration of the relevant policy and the evidence.
Site Context
11The subject lands consist of 1.77 hectares (“ha”) (4.4 acres) situated north of Highway 407 and south of Highway 7, extending between Islington Avenue and Bruce Street. The subject lands are bounded to the north-west by a vacant lot, to the south-west by Islington Avenue, to the south-east by residential properties, and to the north-east by Bruce Street.
12It was determined that the existing use of the subject lands use is low density residential. The existing land cover is primarily a mixture of treed areas and grassed lawns. There are also a number of buildings including two detached homes with two sheds. The remainder of land cover is a gravel entranceway to the south-west of the subject lands, and an asphalt driveway to the north-east. The general site grading varies – grades are generally flat near the south-west side of the site adjacent to Islington Avenue, and steeper on the slopes to the north-east area of the site adjacent to Bruce Street.
13Topography of the subject lands increases moderately from a low point directly east of Islington Avenue to the existing single-family dwelling and accessory buildings at which point the gradient increases through a rural yard and treed area to the manicured lawn fronting onto Bruce Street.
14The subject lands are bounded by regional highways, roads, and residential streets. Islington Avenue, an arterial road, severs the subject lands from the Humber River system. The subject lands are located within a larger treed feature which is a roughly “V” shape composed of “western” and “eastern” arms. The subject lands are located within the western arm.
15The western arm has been anthropogenically disturbed, occupied and within private ownership for many decades. The western arm of the feature, in which the subject lands are located, has been subdivided and sectioned off into backyards and residential properties fronting onto Islington and Bruce Street, particularly in the northernmost end of the western arm. In general, the western arm consists of treed vegetation along an existing gradient between residential streets (Bruce Street) and Islington Avenue.
16The northernmost portion of the western arm has sparser tree cover. This portion has been affected by the developments of the adjacent residential properties along Pioneer Lane and Bruce Street, including underground servicing of adjacent areas. Moving southward along the western arm away from the subject lands, tree cover increases though, overall, the tree cover is less dense than what is present in the eastern arm. This portion of the feature also experiences ongoing anthropogenic impacts including presence of existing residential properties, driveways, landscaping, and regular landscape maintenance (i.e., mowing). Overall, the western arm is considered to be of low ecological quality (according to ecologist Lohnes) based on these observations and on-going land use practices.
17Portions of the subject lands, including the existing residence and accessory buildings, are generally adjacent to roadways and existing development and, are manicured lawn areas, with the remainder of the subject lands being vegetated with trees and mown undergrowth more typical of rural agricultural areas. The treed area on the subject lands is bisected by several foot paths, with the site having evidence of typical anthropogenic maintenance such as mowing, establishment of outbuildings for small livestock and chickens, and evidence of past illegal refuse dumping.
The Proposed Development
18The original proposed development included 12 storey and 17 storey residential apartment buildings, inclusive of a seven-storey podium, with 490 residential units, access from Islington Avenue, emergency access from Bruce Street, and underground parking.
19The revised proposed development currently requires the Applicant to seek the permission of the Tribunal to develop a 21-storey structure with 530 residential units and 549 underground parking spaces. It is proposed to be built into the side of the valley wall of the Humber River Valley by removing the Woodland that exists on the subject lands, excavating the valley slope of the Valleyland that exists on the site, and installing a large retaining structure to resist the forces from the remaining valley wall. Primary vehicular access for the development would be from Islington Avenue, with emergency access being provided from Bruce Street.
Issues
- Whether the subject lands can be developed or site altered?
20The City and the other opposing Parties emphasized that the proposed development should not be permitted on the subject lands.
City’s Position
21This first phase of the proceeding is to determine whether there is any developable area on the subject lands. The second phase of this proceeding occurs only if the Tribunal determines this in the affirmative, and in that instance, the second phase of the proceeding is to address: (i) all other land use planning issues associated with the Proposed Development; and (ii) the appropriate land use designation and zoning in Vaughan Official Plan (“City OP”) and Zoning By-law No. 001-2021, respectively, to implement any proposed development that might be approved by the Tribunal.
22The City’s position is that there is no developable area on the subject lands with exception to: (i) any legal non-compliance rights (not confirmed) the Applicant might enjoy with respect to the existing buildings; and (ii) the residential permit associated with 150 Bruce Street. Accordingly, the Applicant’s appeal of its Official Plan Amendment application and Zoning By-law Amendment application should be dismissed.
TRCA’s Position
23According to TRCA, the hurdles facing the proposed development are numerous and it falls to the Applicant to demonstrate that the proposed instruments: have regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (“PPS”); conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020, conform with the Region of York Official Plan ("ROP"); and conform with the policies of the City OP. Further, when it comes to matters of Natural Hazards, satisfying the above tests correlates in a large degree with whether the requested permissions show adequate consideration for TRCA's Living City Policies for Planning and Development in the Watersheds of the TRCA ("LCP"). While the policies of the ROP and the City OP incorporate localized approaches to protecting against the risk of Natural Hazards, the policies of the PPS represent minimum Provincial standards that no Municipality or planning authority may ignore (see PPS, Part III).
24The PPS at s. 3.1.1. requires that:
development generally be directed, in accordance with guidance developed by the Province, to areas outside of hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards. Further, s. 3.1.7 of the PPS requires that development and site alteration may only be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where all of the following are demonstrated and achieved:
(a) development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards;
(b) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;
(c) new hazards are not created and existing hazards not aggravated; and
(d) no adverse environmental impacts will result.
25Further, s. 2.1.1, 2.1.2, and 2.1.5 of the PPS require that:
2.1.1 Natural features and areas shall be protected for the long term;
2.1.2 The diversity and connectivity of natural features in an area, and the long-term ecological function and biodiversity of natural heritage systems, should be maintained, restored or, where possible, improved, recognizing linkages between and among natural heritage features and areas, surface water features and ground water features; and
2.1.5 Development and site alteration shall not be permitted in: … (b) significant woodlands… (c) significant valleylands… and (d) significant wildlife habitat… unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.
26In the context of the phased subject appeals, to first address threshold questions related to Natural Hazards and Natural Heritage Features, failure to demonstrate satisfaction with the above PPS policies is a failure to demonstrate consistency with the PPS. It is the submission of the TRCA that the Applicant did not call the evidence necessary to demonstrate consistency with the PPS and the evidence before the Tribunal is that consistency with the PPS is simply not possible for this development. The failure to satisfy the "minimum standards" required by the PPS leads to a cascading failure across the various other applicable policy documents and the failure of the proposed instruments to be consistent with the PPS, and as such, TRCA submits that the proposed development be denied and the appeals be dismissed.
Armando & others ‘Position
27Armando & others stated that this case epitomizes the dichotomy between fundamental land use planning objectives regarding the protection of ecological systems, the protection of public health and safety, and the appropriate location of growth and development, which are set out as matters of provincial interest in s. 2 of the Act.
28The subject lands are simply not an appropriate location for growth and development and are undevelopable. If approved, the proposal would:
Eradicate approximately 0.82 ha of a significant Woodland, fragmenting the adjacent significant Woodland to the north;
Remove 458 trees (456 private and two Municipal trees), including trees that comprise a significant wildlife habitat for bat maternity roost colonies;
Construct a 21-storey residential building with 530 units and seven levels of underground parking, below the long-term stable top of slope (“LTSTOS”) and within a significant valleyland; and
Permit the primary access via Islington Avenue through a floodplain, with a secondary emergency access via Bruce Street through an erosion hazard, without having designed or demonstrated safe access.
29The Applicant’s evidence has failed to demonstrate that the proposed development will cause no negative impacts on the natural features or their ecological functions, which is a critical threshold policy test. By contrast, the evidence of the City and the TRCA has demonstrated that negative impacts will occur, and the development cannot proceed.
30The Applicant’s evidence has also failed to demonstrate that the development can proceed in a manner that will minimize risks to public health and safety, which is an integral requirement to develop within Natural Hazard lands.
31This development proposal fails to meet a myriad of applicable policies and guidelines at the Provincial, Regional, local, and agency levels of the policy hierarchy. However, the Tribunal needs to look no further than the PPS to determine that the proposal should be refused. Under s. 3(5) of the Act, any Decision of the Tribunal in this matter shall be consistent with the PPS. Armando & others. submit that the proposed development fails to meet fundamental threshold tests within the PPS and all levels of policy and guideline documents that implement the PPS.
Applicant’s Position
32The Applicant contends that there is an overarching urgency in land use planning to achieve the optimal use of lands within the urban settlement area boundary. This prevents unnecessary and uneconomical urban sprawl by requiring the Province, Municipal authorities and landowners to focus efforts on intensification and use of existing, available lands, particularly lands with existing servicing infrastructure, and within walking distance to underutilized Public Transit instead of pushing the settlement boundaries out onto agricultural, rural and even environmentally protected lands.
33To counter this sprawl, the objective is to identify designated urban lands that are serviceable, proximate to transit and transportation infrastructure and surrounded by existing development.
34In some cases, there will be no apparent development constraints on developable land. In other cases, like that of the Applicant, there will be constraints. Yet, the directive to achieve the optimal use of land requires the approval authority to look closely at the constraints, and policies which govern those constraints. Thus, in doing so, evaluate whether the proposed development truly should be prevented, or whether it should proceed with caution.
35In other words, it is necessary and a policy requirement, to divide applicable policies and regulations into the categories of “shall not” and “should not, unless”.
36In this Phase 1 Hearing, the focus for the Tribunal is whether or not the subject lands contains a buildable, developable envelope. In making this determination, the questions of “shall not” and “should not” becomes very important. The Applicant stated that the Tribunal should be sorting through the evidence to ask itself, whether the policy, regulation or guideline tells it that one “shall not” develop or provides that one “should not develop unless” certain criteria are met.
37The Applicant submitted that this is a clear case of the latter. Every issue that the City and TRCA have advanced are in the nature of “should not, unless”. Every policy cited by the City and TRCA allows development to occur if certain criteria are satisfied.
38The TRCA has viewed its mandate in this Phase 1 as elevating the “should not” to the “shall not”. The City is also entitled to share that opinion in support of the local community which prefers to not have proximate development. However, the Applicant stated that the Tribunal is not bound by that, as the Tribunal’s mandate in this Phase 1 Hearing is to review the applicable policy, regulatory and guideline context to determine whether a buildable envelope exists in the context of this specific Site.
39The Applicant suggested that evidence has demonstrated that there is a buildable envelope on the subject lands. Issues discussed throughout this hearing, related to natural heritage, slope stability, and floodplains, and the applicable policies and guidelines, all contemplate the development of sites like this once criteria are satisfied. Dismissing designated, built-upon sites within urban areas on the basis of “should not” does nothing to address the Province-wide imperative to find and make optimal use of the existing serviced land supply.
40The Applicant asserted that once the development envelope is set, the question of what goes into that envelope in terms of height and density and built form and layout and screening, are all questions for Phase 2. These are not necessarily easy questions, but that is why these appeals were set up with a Phase 1 – the landowner and the public authorities should first know whether the Tribunal agrees that there is a buildable envelope on the subject lands before considering the planning merits of what should fill that envelope.
41On this Phase 1 Hearing, the Applicant stated that the City and the TRCA have failed to identify a single impassible roadblock or a single “shall not” as there is none.
42Even difficult Sites need to be evaluated with an open mind and the policies must be applied fairly and consistently. The subject lands are surrounded by development for residential uses and infrastructure. The Applicant has proposed a creative, albeit technical, deployment that achieves development on a Site that has historically been developed, but in the eyes of the public authorities, should no longer be considered as developable.
43The Applicant stated that in the context of this Site, the Tribunal needs to look hard at whether a given policy or regulation truly is a roadblock – a “shall not” – or whether it simply demands careful evaluation. This case is the latter. Based on the evidence, the required evaluation has been done and a development envelope has been identified. The Applicant submitted that this appeal should be allowed to proceed to Phase 2.
2. Natural Heritage Features
44Section 2.1.5 of the PPS states that:
2.1.5 Development and site alteration shall not be permitted in:
a. significant wetlands in the Canadian Shield north of Ecoregions 5E, 6E and 7E;
b) significant woodlands in Ecoregions 6E and 7E (excluding islands in Lake Huron and the St. Marys River);
c) significant valleylands in Ecoregions 6E and 7E (excluding islands in Lake Huron and the St. Marys River);
d) significant wildlife habitat;
e) significant areas of natural and scientific interest; and
unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.
45The Parties agree that there are no significant wetlands on or within 120 metres (“m”) of the Site, and no areas of natural and scientific interest (“ANSIs”) are present on or within 120 m of the site. PPS s. 2.1.5 (a) and (e) are therefore not relevant.
46The Parties agree that there is a Fish Habitat and a Key Hydrological Feature in the form of the Humber River, which is located approximately 34 m from the subject lands, on the other side of Islington Avenue (Exhibit 3, Agreed Statement of Facts, Ecology, dated September 15, 2023).
47The Natural Heritage issues in dispute focus on whether the Site functions as (b) significant Woodlands, (c) significant valleylands and/or (d) significant wildlife habitat.
A. Woodlands
48Mr. Stephens, (ecologist for TRCA) advised the Tribunal that under the PPS, “Woodlands” are defined as follows:
Treed areas that provide environmental and economic benefits to both the private landowner and the general public, such as erosion prevention, hydrological and nutrient cycling, provision of clean air and the long-term storage of carbon, provision of wildlife habitat, outdoor recreational opportunities, and the sustainable harvest of a wide range of woodland products. Woodlands include treed areas, woodlots or forested areas and vary in their level of significance at the local, regional and provincial levels. Woodlands may be delineated according to the Forestry Act definition or the Province’s Ecological Land Classification system definition for “forest”.
49Mr. Stephens (for TRCA) and Mr. Spitale (for City) both emphasized before the Tribunal that when seeking to delineate a Woodland in accordance with the Forestry Act or the Province’s Ecological Land Classification (“ELC”) system, it is important to recognize that the PPS definitions provides an “or”, not an “and”. This means that satisfaction of either the Forestry Act criteria or the ELC criteria will result in the study area being classified as a Woodland under the PPS. Further, it is not the prerogative of the Applicant’s consultant to select the method of evaluation. If a Woodland may be found using either of the ELC or Forestry Act methods, then it will be a “Woodland”.
50Mr. Stephens noted that the definition of “Woodlands” under the ROP, the City OP, and Natural Heritage Reference Manual are all consistent with the PPS definition.
51The Forestry Act definition of “Woodlands”, includes land with at least,
a. 1,000 trees of any size, per ha,
b. 750 trees, measuring over five centimetres in diameter, per ha,
c. 500 trees, measuring over 12 centimetres in diameter, per ha, or
d. 250 trees, measuring over 20 centimetres in diameter, per ha,
But does not include a cultivated fruit or nut orchard or a plantation established for the purpose of producing Christmas trees.
52The Applicant states that there is no significant Woodlands on the subject lands stating that the PPS definition of Woodland recognizes two methods to determine whether or not a treed-area rises to level of Woodland: the Forestry Act and the ELC method (PPS, 2020, “6.0 Definitions: Woodlands,” Exhibit 14 page 57).
53The Forestry Act requires a calculation of stem density. It is quantitative. The ELC method, in contrast, is more qualitative.
54The Applicant states that Ms. Lohnes (ecologist for the Applicant) is the only witness who provided the Tribunal with firsthand, reliable evidence in respect of the stem densities on the subject lands. Her firm attended not only the subject lands, but also the publicly accessible “eastern arm” and conducted stem density plots (Exhibit 8 - Visual Evidence of Shelley Lohnes, Figure 2). Ms. Lohnes is the only expert witness to do this and to present that evidence to the Tribunal.
55Nonetheless, the Tribunal notes that Mr. Spitale, while under cross by Ms. Stewart, added and averaged the stem density studies of Ms. Lohnes, which resulted in the stem densities that satisfy criteria 1 and 4 of the Forestry Act in defining a Woodland (Exhibit 29 -Summary of Average Stem Densities Taken by GEI in 2023). In using Ms. Lohnes’ own data, Mr. Spitale was able to find that, despite issues with the sample collection, based on a slightly more representative sample of the feature, it met the first and last woodland criteria listed in the Forestry Act, being:
a. Criterion 1: 1,748 trees/ha (1,000 trees of any size/ha); and
b. Criterion 4: 278 trees/ha (250 trees measuring over 20 cm in diameter/ha).
56The Tribunal also notes that Mr. Spitale, who has qualifications and experience in ELC evaluations of Woodlands, has submitted an evaluation of the subject lands as Woodlands under that classification.
57The classification of a “Forest” under the ELC moves through several steps. For instance, Mr. Spitale detailed the importance of distinguishing between cultural and natural areas. He observed that the treed area on the subject lands includes areas that were impacted by anthropogenic influences - being the area in which an abandoned residential structure is located, and immediately surrounding the vicinity in which it is visibly cleared, manicured, and maintained.
58Mr. Spitale acknowledged that while there are some trees in and around the abandoned structure, it was clear that there was a portion of the subject lands that had been maintained long enough that the understory and ground cover no longer represents that which could be considered “forest indicators.”
59To this discrete area, Mr. Spitale determined a distinct boundary, and classified it as CUW1—being “Cultural Woodland.” Ms. Lohnes’ classified the majority of the subject lands as falling into this CUW1, “Cultural Woodland” classification.
60For the remainder of the subject lands, Mr. Spitale opined that the dominant tree, understorey and groundcover species were native species. He also opined that the Site was within a continuous Woodland community. Within this continuous Woodland community, Mr. Spitale observed a forest cover, across all canopy layers of greater than 60%.
61As a result, Mr. Spitale concluded that there is a Woodland and that the Woodland spans the majority of the “V” shaped feature. He delineated those limits using the label FOD2-4 in his map to identify it.
62The proposed development falls entirely within the FOD2-4, Woodland limit identified by Mr. Spitale.
3. Analysis
63The Tribunal’s task regarding Phase 1 is to decide only the question of the subject lands’ developability. If the subject lands are developable, then the appeals are to be sent to the Phase 2 Hearing to determine whether the proposed development’s scale, form and intensification are appropriate on the subject lands.
64Upon hearing the witnesses, the submissions and considering relevant documentation, the Tribunal finds that the subject lands are significant Woodlands (“SWL”), significant valley lands (“SVL”), may contain significant wildlife habitat (“SWLH”), and are within hazardous lands (“HL”).
SWL
65There is a Significant Woodland on the subject lands that is part of a larger “V” shaped Significant Woodland feature. This feature is 14.45 ha in size. (See: Figure 1 – “ELC and Subject Property,” Exhibit 12, Visual Evidence Book of Sal Spitale, page 4). Mr. Spitale noted during his evidence that aerial imaging as far back as 1946 demonstrates valley slopes and forested areas on the Site.
66Apart from the immediate area surrounding the abandoned residential structure on the Site, the majority of the valley slope moving upward, towards Bruce Street is forested area that connects to both adjacent lands to the north-east and south-west.
67Ms. Lohnes, during her cross-examination, acknowledged that there is one continuous vegetative treed feature, in which the Site is located. However, her evidence is that the Site does not qualify as a Woodland.
68“Significant” is defined under the PPS to be, “ecologically important in terms of features, [and] functions […] contributing to the quality and diversity of an identifiable geographic area or natural heritage system.”
69Additional criteria for determining what makes a Woodland “Significant” are listed in the Natural Heritage Reference Manual. Mr. Spitale went through the criteria in Table 7-2 and notes that Woodlands that meet a minimum of one of the standards listed in Table 7-2 are considered “Significant.” Mr. Spitale identified three standards in the criteria that were met, namely:
Size: the Site is within a feature that is greater than four ha and contains greater than 5-15% Woodland cover;
Ecological functions: the Site is in proximity to Significant Wildlife Habitats, including fish habitats; and
Uncommon Characteristics: the Site exhibits features of an older Woodland, having at least 22.47 trees per ha catalogued as being greater than 50 centimetres in diameter at breast height (meaning the trees are over 100 years old).
70The Tribunal agrees that aerial imaging since 1946 demonstrates that the subject lands are part of a continuous forested and treed area. Under the ELC or the Forestry Act definition, subject lands are woodlands. The Tribunal finds that these woodlands meet three criteria of significance listed in Table 7-2 of the Natural Heritage Reference Manual pertaining to size, ecological functions and uncommon characteristics.
SWLH
71There is a Significant Wildlife Habitat on the Site that is coincident with the Significant Woodland, found on the Site. This Significant Wildlife Habitat extends beyond the Site throughout the entire 14.45 ha “V” shaped Significant Woodland Feature. The Significant Wildlife Habitat includes maternity roosting habitat for Bats.
72Nonetheless, Mr. Stephens noted for the Tribunal that the 2021 Bat Survey Results and Compensation Plan confirms neither the presence nor absence of Significant Wildlife Habitat on the subject lands, though it does confirm that is likely the case that a Big Brown or Silver-Haired Bat maternity roost is present in the vicinity of the study area. Ms. Lohnes did agree that Bat Maternity Roost SWLH is present on the Site. However, because Significant Wildlife Habitat criteria established by the Province requires that specific ELC communities be identified and CUW Cultural Woodland is not one of the identified communities, Ms. Lohnes's analysis excludes the portions of the Site that she asserts are CUW.
73The Tribunal notes the existence of the Bat Maternity Roost on subject lands and the 2021 Bat Survey Results which confirm the likely presence of the Big Brown or Silver-Haired Bat Maternity Roost in the vicinity. It finds that SWLH exists on the subject lands.
SVL
74Nearly the entire subject lands are within a Significant Valleyland known as the Humber River Valley system, which the Applicant acknowledges.
75Mr. Ford ( for TRCA) provided evidence in his capacity as an expert in geoscience, landform and hydrogeology. Mr. Ford provided the Tribunal with his opinion that the Humber River Valley is a "confined valley", noting the strong definition of east and west valley walls, and the consistent definition of the tableland above.
76Further, Mr. Ford provided his views regarding the landform of the valley wall and the contributions of that landform to the valleyland's "significance" within the meaning of the PPS. Mr. Ford noted how Table 8-1 of the Natural Heritage Reference Manual (Exhibit. 13, p. 90) calls for "areas of well-defined valley morphology (e.g. floodplains, meander belts, valley slopes) having an average width of 25 m or more" as indicative of significance, all of which are satisfied with the Humber River Valley at the Site. In Mr. Ford's opinion and based on site visits and review of contour mapping, Mr. Ford advised the Tribunal that the physical top of the valley wall at the Site is at an elevation of approximately 163 metres above sea level (“masl”). This places almost the entirety of the Site within a Significant Valleyland.
77Mr. Stephens concurred with the opinion of Mr. Ash that the physical top of the valley slope on the Site is at approximately 163 masl. Mr. Stephens advised the Tribunal that the eastern limit of the Significant Valleyland, as a natural heritage feature, is roughly coincident with the physical top of the valley slope and the Site is thus “squarely within” the Significant Valleyland.
78Mr. Stephens advised the Tribunal that the “significance” of the Valleyland may be determined in reference to Table 8-1 of the Natural Heritage Reference Manual (Exhibit. 13, p. 90). Both Ms. Lohnes and Mr. Stephens were in agreement that the Humber River Valley, in its entirety, exhibits each and every one of the Table 8-1 characteristics. Further, Mr. Stephens and Ms. Lohnes both provided evidence to the Tribunal that the Site clearly exhibits Landform Prominence and Distinctive Geomorphic Landforms, per Table 8-1. However, Mr. Stephens also took the Tribunal through Table 8-1 and advised of a number of ways in which Ms. Lohnes in her evidence had failed to consider or overlooked elements of significance specifically at the Site.
79The Tribunal concurs with Mr. Ford that the Humber River Valley is a confined valley with an east and west valley wall and a defined tableland. This area of the valleyland is significant as it exhibits the well defined valley morphology in Table 8-1 of the Natural Heritage Reference Manual. The Tribunal finds that the subject lands are within an SVL.
HL
80The subject lands are within hazardous lands. There is a floodplain limit that is agreed to amongst the Parties and there is an erosion hazard on the subject lands.
81Under the PPS, "Hazardous lands" is defined to mean:
property or lands that could be unsafe for development due to naturally occurring processes… Along river, stream and small inland lake systems, this means the land, including that covered by water, to the furthest landward limit of the flooding hazard or erosion hazard limits.
82Mr. Hipple, (Water Resources Engineer for TRCA), noted that the subject lands are located on the east side of Islington Avenue, on the eastern wall of the Humber River Valley.
83Mr. Hipple provided evidence regarding the preparation of flood plain mapping within the jurisdiction of the TRCA. The flood plain mapping pertaining to the subject lands were not controverted. The regulatory flood plain associated with the Humber River in the applicable storm event (Hurricane Hazel) overtops Islington Avenue immediately west of the Site, and in fact encroaches up onto the Site, putting approximately the bottom third (1/3) of the Site within the flood hazard limits (see Exhibit. 10, p. 20). It was noted that the original 2008 submission (see Exhibit. 1, p. 15) by the Applicant had envisioned a development structure situated within the flood plain. The current submission building footprint was moved east, north and up onto the valley wall to avoid placing the building in the floodway.
84Based on the uncontroverted evidence on depths and velocities, Mr. Hipple advised that the flooding on Islington Avenue greatly exceeds the tolerances of emergency vehicles, including Fire, Ambulance and Police, and greatly exceeds the tolerances of private vehicles for accessing or exiting the subject lands. As a result, there is no "safe access" to the Site in accordance with the requirements of the PPS via the Development's primary access at Islington Avenue.
85Mr. Heywood (Water Resources Engineer for the Applicant) provided water resources evidence. Mr. Heywood agreed that there is no safe access for this development from Islington Avenue (see Exhibit. 4, p. 2). Achieving safe access in accordance with provincial requirements thus rests entirely on the demonstrated safety of the access via Bruce Street above the Site.
86On cross examination, Mr. Heywood agreed that he had no expertise to comment on the sufficiency of the access from Bruce Street, other than to point out that, unlike the Islington Avenue access, it was flood free. Mr. Heywood agreed he had no expertise or evidence with respect to erosion issues on the valley wall or slope stability issues.
87Further, Mr. Heywood admitted on cross examination that the proposed development would require "development" and "site alteration" activities within "hazardous lands" – being activities in and through the flood hazard (see Exhibit. 2, p. 282).
88The Tribunal concurs with Mr. Hipple that the subject lands are located on the eastern wall of the Humber River Valley. The regulatory flood plain mapping of the subject lands was not controverted which puts approximately one third of the subject lands within the flood hazard limits. The Tribunal finds that the subject lands are within hazardous lands.
Policy
89Section 2.1.5 of the PPS provides the “no negative impact” test. This section has three distinct features:
a. It starts off by noting that development and site alteration “shall not be permitted.” The language sets the tone for the Province’s intent for development in natural heritage systems as prohibitive;
b. It goes on to list the areas in which development is prohibited. This includes Significant Woodlands; and
c. Finally, it includes an exception. The exception is that development or site alteration must demonstrate “no negative impacts on the natural features or their ecological functions.”
90The threshold for determination of a negative impact is contained in the definition, being whether the impact will result in “degradation that threatens the health and integrity of the natural features or ecological functions for which the area is identified.” It does not require the loss of the feature, only that the feature is threatened.
91Ecological functions are defined in the PPS as services or processes between living and nonliving environments occurring within or between species, ecosystems and landscapes. Mr. Spitale spoke to the functions of a Woodland as a habitat for distinct wildlife species such as the white-breasted Nuthatch or the Blue-grey Gnatcatcher. Mr. Stephens described the ecological function of Woodlands as also providing services such as carbon cycling and soil erosion prevention.
92Mr. Wagler (Land Use/Environmental Planner for TRCA) provided the Tribunal with a discussion of s. 3.1.2 and 3.1.7 of the PPS. Mr. Wagler noted that prior to consideration under s. 3.1.7 of the PPS, the proposed development must not have been found to be prohibited under s. 3.1.2 of the PPS. In particular, s. 3.1.2 states :
Development and site alteration shall not be permitted within:
a. the dynamic beach hazard;
b. defined portions of the flooding hazard along connecting channels (the St. Marys, St. Clair, Detroit, Niagara and St. Lawrence Rivers);
c. areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard; and
d. a floodway regardless of whether the area of inundation contains high points of land not subject to flooding.
93Mr. Wagler noted the wording of s. 3.1.7 of the PPS is as follows:
Further to policy 3.1.6, and except as prohibited in policies 3.1.2 and 3.1.5, development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where all of the following are demonstrated and achieved:
a. Development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards;
b) Vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;
c) New hazards are not created and existing hazards are not aggravated; and
d) No adverse environmental impacts will result.
Long Term Stable Top of Slope
94Dr. Shirazi (Geotechnical Engineer for TRCA), advised the Tribunal that "Stable Top of Slope/Bank (long term stable slope line - LTSTOS)" is a defined term under the LCP (see Exhibit. 1, p. 2284-2285). The LTSTOS is in fact to be determined in accordance with this definition found in the LCP.
95Dr. Shirazi explained that locating the LTSTOS requires an initial determination of the "scenario" in which the subject matter exists:
a. In "Scenario A" – where the existing slope is stable and not impacted by toe erosion – the LTSTOS will be located at the physical top of slope; or
b. In "Scenario B" – where the existing slope is unstable and/or impacted by erosion – the LTSTOS will be located at the physical top of slope or the landward limit of the toe erosion allowance plus the stable slope allowance, whichever is furthest landward.
96On cross examination, Mr. Ash (Geotechnical Engineer for the Applicant) agreed with Dr. Shirazi that the LTSTOS was in fact to be determined in accordance with the LCP definition of "Stable Top of Slope/Bank (long term stable slope line)" and that it is necessary to determine the "scenario" in which the development is proposed (see Exhibit. 9, Slide 16). Mr. Ash also agreed on cross examination that when in "Scenario A" – where the existing slope is stable and not impacted by toe erosion – the LTSTOS will be located at the physical top of slope.
97Where Mr. Ash disagreed with Dr. Shirazi, however, was with respect to "Scenario B" – where the existing slope is unstable and/or impacted by erosion. According to Mr. Ash, in "Scenario B", the LCP guidance provides that the LTSTOS can in fact be located below the physical top of the slope (see Exhibit. 9, Slide 20). By this logic and now asserting, "[The slope] is not considered stable in its current condition; we approached it as an unstable, hazardous slope," Mr. Ash opined that the Site called for the application of Scenario B (not Scenario A) and the long-term stable top of slope at the Site was at 141 to 145 masl, part way up the slope. Therefore, according to Mr. Ash, the Development was suitably "set back" from the erosion hazard risk associated with the valley wall.
Developability
98The Tribunal agrees with the Applicant that it is to decide first the question of developability of the subject lands. Once that is done, the next step is to let the Parties present evidence of whether the Applicant’s proposed development meets the criteria that are laid out for the Applicant to demonstrate its fulfilment or otherwise, of those criteria.
99The Tribunal notes the importance of s. 3.1.7 of the PPS which requires development and site alteration works to be carried out to provincial standards.
100The Tribunal concurs that a development and site alteration must demonstrate no negative impacts on natural features and their ecological functions pursuant to s. 2.1.5 of the PPS.
101The Tribunal finds that the demonstration of no negative impacts will be appropriate at the Phase 2 Hearing where all Parties are afforded the opportunity to lay out the facts, evidence of full studies, reports and policy framework to evaluate the feasibility of the proposed development.
Subject Lands and the Proposed Development
102In my opinion, the Parties have conflated the subject lands and the proposed development in this Phase 1 Hearing. These are two different things at this stage of the proceedings.
103The subject lands’ characteristics and geomorphology lend themselves to natural or anthropogenic uses i.e. the natural processes and occurrences upon the subject lands or the manmade developments and construction on the subject lands.
104The plans for the proposed development are set out in conceptual drawings and building plans that are not yet actualized or given physical form to be placed on the subject lands.
105The impacts on the subject lands and surroundings will be the actual impacts when the proposed development is actualized.
106In between the conceptual stage and the actualization stage, the potential impacts which are either positive or negative can only be theoretical (may occur).
107As such, at the Phase 1 stage, the Parties should only concern themselves with the subject lands and not superimpose the proposed conceptual development on the question of “developability of the subject lands”.
108The matter of the “developability” of the subject lands is a general question of whether the subject lands can be developed, if at all, based on the physical attributes and characteristics of the lands.
109Hence, when one separates the proposed conceptual development from the discussion in Phase 1, it becomes clear that the unintended combining of the two different things led to the present conundrum. The spiralling thought process and the imagery of the proposed development’s imposition of scale immediately bring the discounting and preventive reflex to the fore.
110In Phase 1, the question of developability is answered in the positive. This merely means that, subject to applications being made and subject to appropriate rezoning being approved, the subject lands are capable of being developed or altered.
111When the proposed conceptual development is extracted and placed in the Phase 2 Hearing, the Parties can benefit fully by approaching the proposed use on the subject lands (which are already in a specific use currently) through a thorough evaluation of the particular proposed development’s suitability.
112The suitability and appropriateness of the proposed development is to be fully evaluated against the whole Provincial and Municipal policy framework and tested against the full force of empirical studies and evidence at the Phase 2 Hearing. The emphasis is on the fulsome test on whether the proposed development is permissible in the current scale, form and level of intensification.
SUMMARY AND DECISION
113The HRV is no longer in its pristine or undisturbed condition. The natural state in the area has been altered. The preponderance of evidence shows that there are pockets of development in this area of the HRV.
114There are existing development and residential subdivisions located north of the subject lands and surrounding the subject lands to the east, south and west.
115The west wall and the east wall of the Humber River Valley Wall is divided by Islington Avenue which would have impacted the watershed of the HRV in this area. Above the east wall, at the top, is Bruce Street which carries with it development along portions of the street.
116As for the differentiation of the western and eastern arm of the “V” shape Woodlands feature, both Ms. Lohnes (western arm) and Mr. Spitale (eastern arm) found that there was anthropogenic (human) disturbance to the treed and wooded areas. There is a patch of cultural Woodland (CUW1) that both Ms. Lohnes and Mr. Spitale identified. Mr. Spitale further found more human disturbance within the eastern arm, including cleared patches with invasive flora species and garbage disposal areas within the eastern Woodland.
117This underscores that the whole “V” shape Woodland feature has encountered anthropogenic influence and is no longer undisturbed. Residential developments are extant east of the eastern arm of the V feature.
118It is undeniable that the HRV system is important and encompasses a very large area. Further, there were, and are other areas along the HRV that were already developed and where new applications are being made for site alteration and development.
119The objective of “preventing” any development whatsoever within the HRV area or at the subject lands as advocated by Shirazi et al. appears to be impractical as development and residential developments dot the HRV elsewhere.
120The “protection” approach methodology (by Ash et al.) or as further proposed by the Applicant may, subject to evaluation, be an answer to avoiding damage to the HRV in this area. The PPS minimum standard policies have the provisions to elicit such an outcome.
121Nevertheless, these are matters for consideration fully on empirical evidence, technical studies and fulsome evaluation at the Phase 2 Hearing as to whether the proposed development’s impact at current scale, built form and intensification is suitable or appropriate on the subject lands.
122The Parties do not dispute that the physical top of bank is 163 masl. It is understood that the proposed development is within 141 to 145 masl.
123The dispute currently is where the proposed development may be located. The City and TRCA insist that the location would be 163 masl and set back. The Applicant’s proposed location is at 141 to 145 masl with retention structures.
124These matters are in the Phase 2 determination of suitability, appropriateness, and viability of the proposed development.
125I only need to find at Phase 1, whether the proposed subject lands (the physical ground) are developable that is, whether there is a permissible structure under the PPS of relevant policies that, despite the subject lands being a SWL, SVL, SWLH and HL, a proposed development (dependent on the type proposed) may be permissible.
126I find that there is a permissible structure, that is, to demonstrate to the approval authority that the proposed development and alteration do not negatively impact the SWL, SVL, SWLH and HL under the relevant policies. Thus, the subject lands are developable for the purpose of the Phase 1 Hearing.
ORDER
127THE TRIBUNAL ORDERS that:
The Appeals shall be advanced to the Phase 2 Hearing for disposal.
The Parties may contact the case coordinator to schedule the Phase 2 Hearing for these appeals.
“T.F. Ng”
T.F. NG
MEMBER
Ontario Land Tribunal
Website: 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
EXHIBIT NO.
FILED BY
DESCRIPTION OF EXHIBIT
1
Jointly by Parties
Joint Document Book
2
Jointly by Parties
Joint Brief of Witness Statements
3
Jointly by Parties
Agreed Statement of Facts for Ecology
4
Jointly by Parties
Agreed Statement of Facts for water resources
5
Jointly by Parties
Agreed statement of facts for Planning
6
Jointly by Parties
Agreed statement of facts for Geotechnical and Geoscience
7
Applicant
Visual evidence of Ryan Guetter
8
Applicant
Visual evidence of Shelly Lohnes
9
Applicant
Visual evidence of Steve Ash
10
TRCA
Visual evidence brief of TRCA
11
City of Vaughan
Visual evidence of Letizia D’Addario
12
City
Visual evidence of Salvatore Spitale
13
Jointly by Parties
Supplementary Document Book Tab 127 (Natural Heritage Reference Manual)
14
Jointly by Parties
Supplementary Document Book Tab 128 (Full PPS 2020)
15
Jointly by Parties
Supplementary Document Book Tab 129 (Full Growth Plan 2020)
16
City
Correspondence between Mr. Sal Spitale and Mr. Lee (ELC) Oct 30-Nov 7, 2023.
17
City
York Region Aerial Maps of Subject Site 1954-2023
18
TRCA
York Region Aerial Photograph 1988
19
TRCA
Email of Kevin Huang to Jason Wagler dated Nov 15, 2023
20
City
WSP’s Slope Assessment Results May 2014
21
TRCA
The letter of Karen Whitney of York Region dated June 1, 2021
22
Jointly by Parties
Supplementary Document Book Tab 130 (Technical Guide: River and Streams Systems Flooding Hazard Limit)
23
Applicant
TRCA Environmental Impact Statement Guidelines Oct 2014
24
Applicant
Geotech Principles for Stable Slopes prepared by Terraprobe
25
TRCA
Extract O. Reg 41/24
26
Applicant
Draft of TRCA June 8, 2015 letter with covering email
27
Applicant
TRCA calendar appointment 2016
28
City
Additional Policies for York Region OP and Vaughan OP
29
Armando & others
Summary of Average Stem Densities taken by GEI in 2023