Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 27, 2024
CASE NO(S).: OLT-23-000521
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Sifton Properties Limited Subject: Request to amend the Official Plan – Failure to adopt the requested amendment Description: To permit a residential development consisting of single detached units and townhouses Reference Number: OP-04-18 Property Address: 277, 299, and 301 Hardy Road Municipality/UT: Brantford/Brant OLT Case No: OLT-23-000521 OLT Lead Case No: OLT-23-000521 OLT Case Name: Sifton Properties Ltd. v. Brantford (City)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Sifton Properties Limited Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: To permit a residential development consisting of single detached units and townhouses Reference Number: PZ-15-18 Property Address: 277, 299, and 301 Hardy Road Municipality/UT: Brantford/Brant OLT Case No: OLT-23-000522 OLT Lead Case No: OLT-23-000521
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Sifton Properties Limited Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision Description: To permit a residential development consisting of single detached units and townhouses Reference Number: 29CD-18503 Property Address: 277, 299, and 301 Hardy Road Municipality/UT: Brantford/Brant OLT Case No: OLT-23-000523 OLT Lead Case No: OLT-23-000521
Heard: July 29, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Sifton Properties Limited | Ira Kagan Sarah Kagan |
| City of Brantford | Geoff Daley |
| Brantford Golf and Country Club | Derrick Sinko Courtney Boyd (In absentia) |
| Granite Property Nominee Inc. | Anna Lu Leo Longo (In absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY david brown ON july 29, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns Appeals filed by Sifton Properties Limited (“Appellant”) pursuant to s. 22(7), s. 34(11), and s. 51(34) of the Planning Act, R.S.O. c. P. 13, as amended (“Act”), against the City of Brantford (“City”) for its failure to make a decision within the timeframes prescribed in the Act. The Appellant has filed an Application to Amend the Official Plan (“OPA”), an Application to Amend the Zoning By-law (“ZBA”), and an Application for a Plan of Subdivision (“SUB”) to create a Vacant Land Condominium (“VLC”) (together the “Applications”) to facilitate the development of the lands located and known municipally as 277, 299, and 301 Hardy Road (“Subject Lands”).
2The Appellant proposes to develop the Subject Lands with a residential development comprised of a mix of single detached dwellings, townhouse dwellings, and apartment dwellings on private condominium roads together with open space, a sanitary pumping station, and storm water management infrastructure.
3The Subject Lands are currently vacant agricultural fields. Other lands owned by the Appellant, which are not the subject of the Applications, include various natural heritage features to the south, east, and west. A watercourse drains from Hardy Road to the Grand River through the Subject Lands. There is a broad floodplain associated with the Grand River to the south, Tufa Mounds designated as an Earth Science Area of Natural and Scientific Interest (“ANSI”), a portion of the Northwest Brantford Significant Wetland (Davisville Swamp), significant woodlands, and remnant and restored Savannah Prairie meadow. The natural heritage features were all identified to be protected by the Ontario Municipal Board (“OMB”), and those features plus a 30 metre (“m”) buffer form the limits of the current Applications.
4In 2014, the OMB granted an Approval in Principle of an Official Plan Amendment and a Zoning By-law Amendment for the lands at 277 Hardy Road. An Application for Plan of Subdivision was considered but not approved as there were outstanding issues surrounding servicing and access to the lands. The OMB’s Final Order was issued in 2017. The Appellant has since acquired the adjacent lands at 299 and 301 Hardy Road, thereby increasing the lot frontage along Hardy Road, which has enabled the Appellant to address the access issues previously identified at the OMB.
5The Appellant filed the OPA for 299 and 301 Hardy Road and the ZBA and SUB were filed for the Subject Lands. The Applications were filed in March of 2018 and deemed complete by the City on November 16, 2018. The Appeals were filed on May 26, 2023.
6Surrounding the Subject Lands are low-density residential uses on both sides of Hardy Road. To the west, Granite Property Nominee Inc. (“Granite”) is developing an industrial subdivision, and Telephone City Aggregates is developing a residential subdivision immediately south of the Granite industrial subdivision. To the east is the Rizzo property recently acquired by the City for open space purposes, a portion of the Trans-Canada Trail, and the Brantford Golf & Country Club (“BGCC”) golf course.
7The Parties engaged in Tribunal-led mediation and successfully resolved all issues other than the issues surrounding the proposed density of the block located at the north-east corner of the Subject Lands referred to as the Northeast Medium Density Block (“NMDB”).
8The Tribunal was advised that the Parties have settled the issues in the Appeals and the Tribunal have convened these proceedings to consider the Applications and the Settlement pursuant to Rule 12 of the Tribunal’s Rules of Practice and Procedure.
9The Settlement included deferring consideration of the NMDB until 2025 and addressing the classification of the Subject Lands as a Class 4 Noise Area under the Provincial Noise Guidelines (Publication NPC-300).
10The City, BGCC, and Granite attended and confirmed their respective support for the Settlement before the Tribunal.
SUBMISSIONS
11The Tribunal considered the oral testimony and affidavit evidence of Chris Pidgeon, a qualified land use planner, in support of the Settlement and the approval of the Applications.
12The Affidavit of Mr. Pidgeon was marked as Exhibit 1. The Tribunal marked the Joint Document Book as Exhibit 2.
13Mr. Pidgeon described the Applications advising they contemplate 131 single-detached lots, two medium-density blocks comprising 37 units, and the NMDB for low-rise apartments to a maximum density of 151 units. It was noted the NMDB is not included in the VLC. He explained that, as part of the Settlement Agreement arrived at between the Parties, the Appellant has agreed not to seek approvals for the NMDB at this time and instead is requesting a deferral of the consideration of the NMDB until 2025. Other blocks within the Applications include lands for a Sanitary Pumping Station, two stormwater management bioswales, and other open spaces, all with frontage on private condominium roads.
14The VLC before the Tribunal and forming part of the Settlement Agreement is dated July 10, 2024. The Plan includes a revised Emergency Access, a private park, and seven additional common element parking areas dispersed throughout the VLC for overflow parking addressing concerns raised by the City.
15The Settlement Agreement includes a pedestrian crosswalk solution to address the concerns raised by BGCC and the preparation of Air Quality and Environmental (Stationary Acoustical) Noise Assessments in response to the concerns raised by Granite.
16Mr. Pidgeon referred the Tribunal to the Planning Justification Report (“PJR”) dated March 2018 (Tab 7, Exhibit 2), which he prepared, and the planning analysis contained therein in support of his planning opinion. He noted that most of the applicable policy framework as it relates to the Subject Lands has not substantially changed since the issuance of the PJR in 2018 with the exception of the 2014 Provincial Policy Statement having been replaced with the Provincial Policy Statement, 2020 (“PPS”).
17Mr. Pidgeon proffered that the Applications address matters of provincial interest as set out in s. 2 of the Act as the proposed development:
Protects the ecological systems, including natural areas, features and functions of the Davisville wetland complex, significant woodlands, Savannah prairie meadowlands, and a coldwater tributary to the Grand River;
Provides for the conservation of a significant archaeological interest and the conservation of the Tufa Mounds scientific interest;
Creates orderly development for a safe and healthy community;
Is designed to provide accessibility for persons with disabilities to all facilities within the proposed condominium, including sidewalks and park facilities;
Provides a range of low-rise housing types;
Provides financially responsible development for the long-term operation and maintenance of infrastructure and uses;
Provides residential growth and development that is anticipated and meets the City’s housing targets;
Supports public transit located on Hardy Road with good connectivity for pedestrians and cyclists; and
Provides a built form that is well-designed, creates a sense of place with a central park, and provides public spaces that are of high quality, safe, accessible, attractive, and vibrant through condominium streetscape design.
18Mr. Pidgeon opined that the Applications are consistent with the PPS, specifically the policies addressing establishing healthy, livable, and safe communities within a serviced settlement area with a compact layout and efficiently serviced with municipal services. Further, in consideration of policy 2.1, the Applications provide protection of significant natural heritage features and functions, including the Davisville Swamp wetland complex, Tufa Mounds ANSI, significant woodlands, a coldwater tributary to the Grand River, and a Savanna Prairie meadow.
19In consideration of A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019), as amended (“Growth Plan”), Mr. Pidgeon opined that the Applications conform to the Growth Plan as the proposed development is within a Settlement Area and contributes to a complete community promoting a compact built form, protects the natural heritage features, supports alternative modes of transportation, and is transit supportive.
20The OMB amended the City Official Plan (“OP”) approving Official Plan Amendment 196 (“OPA 196”) applying to the portion of the Subject Lands known as 277 Hardy Road. It was noted that 277 Hardy Road represents the majority of the Subject Lands. Mr. Pidgeon proffered that the OPA proposes to amend the OP for the lands known as 299 and 301 Hardy Road in keeping with the designations approved under OPA 196. The lands are designated Greenfield Area and are expected to contribute to the housing supply and density targets identified in the OP to 2051. The proposed development will contribute to a range of dwelling types and land uses to serve local residents. The Core Natural Areas Designation includes a 30 m buffer from identified natural heritage features to protect their ecological and hydrological functions, including the floodplain.
21Mr. Pidgeon reviewed the ZBA and identified the proposed changes from that which was approved by the OMB in 2014 applying to the 277 Hardy Road lands.
22Mr. Pidgeon reviewed the criteria to which regard shall be had as set out in s. 51(24) of the Act when considering a draft plan of subdivision. He opined that the Draft Plan of the VLC addresses the criteria as the proposed development:
Provides for the protection of natural heritage, archaeological, and scientific interests, avoids hazard lands and promotes public safety, provides a compact residential development, efficient use of infrastructure, and is transit-supportive;
Is in the public interest providing a mix of housing for residents of the City;
Conforms to the intent of the policies of the City, which contemplates residential development for the Subject Lands and is compatible with surrounding subdivisions, specifically the Granite subdivision to the west;
Involved the investigation, assessment, evaluation, testing, and monitoring of the characteristics and features of the Subject Lands, and it is concluded that the Subject Lands are suitable for development as proposed;
Provides municipal road access at two locations to Hardy Road and road widenings have been identified as per the OP;
Proposes lots that are appropriately sized and shaped to accommodate the proposed dwelling units;
Will include restrictions addressed through warning clauses included in the development agreement to be registered on the title advising future residents of the presence of nearby industries that at times may be audible and/or provide odours;
Provides for the protection of identified natural heritage features and includes a minimum 30 m buffer, and is outside of the floodplain of the Grand River;
Can be services with municipal wastewater and water services, hydroelectric utility, and natural gas service;
Can be accommodated within the Grand Erie District School Board and the Brant Haldimand Norfolk Catholic School Board schools; and
Efficiently provides for a sanitary pumping station block, and two bio-swale stormwater management blocks.
23Mr. Pidgeon proffered that the OPA, ZBA, and VLC will provide for a development that is appropriate for the Subject Lands and represents good planning. He recommended that the Applications be approved and that the conditions of draft approval for the VLC as set out in Tab 19 of Exhibit 2 are appropriate and reasonable and should be attached to the approval.
ANALYSIS AND FINDINGS
24The Tribunal, having considered the uncontroverted affidavit evidence and testimony of Mr. Pidgeon and the support for the Settlement by the Parties, finds that the Appeals should be granted, and the Applications should be approved.
25The Tribunal finds that the OPA, ZBA, and VLC have appropriate regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, conform with the Growth Plan, and conform with the OP and OPA 196 and the proposed OPA. Further, the conditions of draft approval of the VLC are appropriate and should be attached to the approval of the VLC.
26The Tribunal approves the OPA as attached at Tab 16 of Exhibit 2 and attached to this Order as Attachment 1.
27The Tribunal approves the ZBA in principle as attached at Tab 17 of Exhibit 2 and attached to this Order as Attachment 2, subject to the finalization of the determination of the classification of the Subject Lands under the Provincial Noise Guidelines (Publication NPC-300) by the City Council.
28The Tribunal acknowledges that should the City approve the Class 4 designation for the Subject Lands, the Zoning By-law at Attachment 2 shall be revised to include provision for the classification.
29In the event that the City refuses the request for the classification, the Tribunal acknowledges that the matter will be referred back to the Tribunal to convene a hearing on the Zoning By-law Amendment Appeal for the sole purpose of determining whether the Subject Lands should be identified as a Class 4 Noise Area under the Provincial Noise Guidelines (Publication NPC-300) but for no other purpose.
30The Tribunal approves the draft plan of VLC in accordance with the plan at Tab 18 of Exhibit 2 attached to this Order as Attachment 3 and subject to the conditions of draft plan approval at Tab 19 of Exhibit 2 and attached to this Order as Attachment 4.
31In consideration of the NMDB and the deferral of the consideration of the Appeals as they relate to NMDB lands, the Tribunal schedules a Case Management Conference (“CMC”) for one day on Monday, June 2, 2025 at 10 a.m. by video hearing. The login details are set out below, and the purpose of the CMC is to provide the Tribunal with an update on the status of the NMDB Appeal and the scheduling of a Merit Hearing if required. The Parties have indicated that discussions continue with an aim to settle the matters at issue surrounding the NMDB lands.
32Parties are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoToMeeting: https://global.gotomeeting.com/join/656004293
Access Code: 656-004-293
33Parties and observers are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
34Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free). 1-888-299-1889. The access code is the same as the access code noted above.
35Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
36THE TRIBUNAL ORDERS THAT the Appeal filed pursuant to subsection 22(7) of the Planning Act, [OLT Case No.: OLT-23-000521] is allowed and Amendment No. 6 to the Official Plan of the City of Brantford, as set out in Attachment 1 to this Order, is approved.
37AND THE TRIBUNAL ORDERS THAT the Appeal filed pursuant to subsection 34(11) of the Planning Act, [OLT Case No. OLT-23-000522] is allowed in part, on an interim basis, contingent upon receipt of those pre-requisite matters identified in paragraph [37] below and that the Zoning By-law Amendment, as set out in Attachment 2 to this Interim Order, is approved in principle.
38The Tribunal will withhold issuance of its Final Order respecting the Appeal referred to in the preceding paragraph contingent upon receipt and approval of the Zoning By-Law Amendment in its final form and confirmation from the City Solicitor of the following:
The Council of the City of Brantford has rendered a decision supporting the designation of the Subject Lands as a Class 4 Noise Area under the Provincial Noise Guidelines (Publication NPC-300); and
The Zoning By-Law Amendment submitted to the Tribunal is in a form satisfactory to the City Solicitor.
39Should the Council of the City of Brantford render a decision that does not support the designation of the Subject Lands as a Class 4 Noise Area under the Provincial Noise Guidelines (Publication NPC-300), the Parties may request the Tribunal to convene a hearing on the Zoning By-law Amendment Appeal for the sole purpose of determining whether the Subject Lands should be identified as a Class 4 Noise Area under the Provincial Noise Guidelines (Publication NPC-300) but for no other purpose. The Tribunal will then issue a Final Order with respect to the Zoning By-law Amendment.
40AND THE TRIBUNAL ORDERS THAT the Appeal filed pursuant to subsection 51(34) of the Planning Act, [OLT Case No.: OLT-23-000523] is allowed and the draft plan of vacant land condominium shown on the plan prepared by GSP Group and signed by Jim Johnson, O.L.S., West and Ruuska Ltd. dated December 6, 2017 (revision date July 10, 2024), attached as Attachment 3 to this Order, is hereby approved subject to the fulfillment of the conditions as set out in Attachment 4 to this Order.
41AND THE TRIBUNAL ORDERS THAT pursuant to subsection 51(56.1) of the Planning Act, the City of Brantford shall have the authority to clear the conditions of draft plan approval and to administer final approval for the plan of subdivision for the purposes of subsection 51(58) of the Act. Furthermore, the Tribunal orders that nothing in this order shall prevent the City from changing the conditions of approval as prescribed in subsection 51(45) of the Act.
42In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan of vacant land condominium, the Tribunal may be spoken to.
43AND THE TRIBUNAL ORDERS THAT a Case Management Conference is scheduled on June 2, 2025 as set out in paragraphs [31] through [34] inclusive of this decision to provide the Tribunal with an update on the status of the Zoning By-law Appeal as it relates to the parcel of land referred to as the Northeast Medium Density Block.
44This Member shall remain seized of this matter.
“David Brown”
DAVID BROWN 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.