Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 09, 2024

CASE NO(S).: OLT-22-003909

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

Applicant/Appellant: Picton Heights Ltd.

Description: To permit a redevelopment of the Lands with a residential community comprised of 560 residential units

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

Reference Number: Z59-20

Property Address: 4-74 Nery Avenue, 27-81 Inkerman Avenue

Municipality/UT: Prince Edward/Prince Edward

OLT Case No: OLT-22-003909

OLT Lead Case No: OLT-22-003909

OLT Case Name: Picton Heights Ltd v Prince Edward (Municipality)

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

Applicant/Appellant: Picton Heights Ltd.

Description: To permit a redevelopment of the Lands with a residential community comprised of 560 residential units

Subject: Proposed Plan of Subdivision – Failure of Approval Authority

Property Address: 4-74 Nery Avenue, 27-81 Inkerman Avenue

Municipality/UT: Prince Edward/Prince Edward

OLT Case No: OLT-22-003910

OLT Lead Case No: OLT-22-003909

OLT Case Name: Picton Heights Ltd v Prince Edward (Municipality)

Heard: April 2-5, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Picton Heights Ltd.

M. Helfand E. Costello (in absentia)

Prince Edward County

J. Savini

PEC Community Partners Inc.

S. Kagan P. DeMelo

DECISION DELIVERED BY F. LAVOIE AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is an Appeal by Picton Heights Ltd. (“Appellant”) pursuant to s. 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), regarding the failure of the County of Prince Edward (“County”) to make a decision on the Appellant’s application for a Draft Plan of Subdivision (“DPS”) in relation to the property municipally known as 4-74 Nery Avenue and 27-81 Inkerman Avenue, in Picton (“Subject Lands”).

2The Appellant had also appealed the failure of the County to make a decision on its Zoning By-Law Amendment (“ZBA”) application for the Subject Lands. The Parties reached a settlement on the ZBA Appeal. The Tribunal, differently constituted, approved the settlement and allowed the ZBA Appeal in a Decision issued on September 1, 2023.

3The proposed development was subject to multiple resubmissions since the first application was submitted in September 2020. The most recent proposed development seeks to develop a residential community of 432 units, including 60 rental units, on the Subject Lands.

4The DPS includes two public streets (“Street A” and “Street B”), a public park (Block 5), a stormwater management pond (Block 6), four blocks for residential development (Blocks 1-4), and two private reserve blocks (Blocks 7 and 8).

DECISION

5For the reasons that follow, the Appeal is allowed, with final approval withheld pending the submission of draft conditions on consent.

SUBJECT LANDS AND SURROUNDING CONTEXT

6The Subject Lands are approximately 12.54 hectares in area, and within the Urban boundary of Picton’s settlement area. The Subject Lands are currently developed as 38 residential dwellings, built as part of the former Canadian Forces Base Picton during the Second World War. The Subject Lands are bounded to the North by vacant developable lands, to the East by the Macaulay Mountain Conservation area, to the South by a proposed mixed-use development known as Base 31, and to the West by existing residential uses. PEC Community Partners Inc. (“PECCP”), which was added as a Party to this Appeal at the first Case Management Conference, intends to develop Base 31. Base 31 lands consist of approximately 750 acres, and an estimated 8400 units.

ISSUES

7Following the settlement of the ZBA Appeal, the following issues remained for this Appeal:

I. Does the application represent good land use planning?

II. Is the proposed DPS consistent with the applicable policies of the PPS (2020)?

i.Has stormwater management been adequately addressed consistent with policy 1.6.6.7?

III. Does the proposed DPS conform with the applicable policies of the County of Prince Edward Official Plan (2006) (“OP”), specifically:

1. Does it conform with Section 2.5.10 in regards to allocation of capacity?

2. Does it conform with Section 2.9.1 by providing adequate storm water management and outlet drainage?

3. Does it conform to Section 1.2.1?

4. Does it conform to Section 1.2.5 in regards to Stormwater Management?

5. Does it conform to Section 1.2.7 in regards to the location of public roads and the conveyance of 1 foot reserves at dead ends and open sides of road allowances to the Municipality and to be conveyed to the developer?

IV. Have the applicable policies of the County of Prince Edward Official Plan (2021) been appropriately considered, specifically:

1. Section 2.3.1 Vision Principles

2. Section 2.4 Growth Management Strategies

3. Section 3.0 Shaping the County

4. Section 3.4 Infrastructure

5. Section 3.5 Livable Community

6. Section 4.1 Settlement Areas and 4.1.1. Objectives

7. Section 4.1.2.1 Secondary Plans

8. Section 5.0 Implementation Policies?

V. Does the DPS application conform with the following applicable policies of the Picton-Hallowell Urban Secondary Plan:

a. The criteria outlined in the preface Vision for Picton-Hallowell on page iv?

b. Section 3.1.7, as it relates to proposed street pattern?

c. Section 3.1.11, in regards to the Traffic Impact Study submitted?

d. The criteria outlined in Section 3.2.5 for water and wastewater allocation?

e. Section 3.2.12, in regards to stormwater management?

f. Section 4.7.1.3, in regards to stormwater management?

g. Criteria for Draft Plan Approval in Section 5.1.3.2?

VI. Does the proposed DPS meet the requirements of s. 51(24) of the Act:

i.Does the proposed Subdivision conform to the Official Plan and adjacent plans of Subdivision?

ii.Have the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and have the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them, been appropriately addressed?

iii.Are there adequate utilities and municipal services?

VII. PEC Community Partners Inc. Issues

i. What is the impact that the proposed development will have on the future development of PEC Community Partners Inc lands respecting:

1. Servicing capacity; and

2. Transportation capacity.

8The issues above generally relate to three features of the proposed DPS:

1. The proposed external servicing improvements;

2. The proposed road network; and

3. The proposed parkland dedication.

LESISLATIVE TESTS

9The legislative tests for a DPS are the following:

I. Subsection 2.1(1) of the Act requires regard to matters of Provincial interest as set out in s. 2 of the Act and to have regard to the information and materials that the Town received in relation to the matters under subsection 2.1(2) of the Act and have regard to the decision of the approval authority.

II. Section 3(5) of the Act requires that all decisions affecting planning matters shall be consistent with the Provincial Policy Statement, 2020 (“PPS”), in effect at the date of the Decision.

III. In considering a DPS, regard must be had, among other things, to the criteria set out in subsection 51(24) of the Act and a determination of whether the proposed conditions to the DPS are reasonable under subsection 51(25):

(a) the effect of the development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for the affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes.

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41(2) of this Act or subsection 114(2) of the City of Toronto Act, 2006.

EVIDENCE, ANALYSIS, AND FINDINGS

Issue One: The proposed external servicing improvements

10The Parties agreed that the existing infrastructure, both on the Subject Lands and external to same, was inadequate to service the additional 432 units proposed by the Appellant. However, the Parties disagree as to what improvements external to the Subject Lands are required to adequately service the proposed subdivision.

11The proposed servicing improvements were addressed in the Minutes of Settlement (“MOS”) for the ZBA. In summary, the Appellant and the County agreed that the Appellant could proceed in advance of the County’s anticipated Master Servicing Plan, would construct the improvements “to their ultimate size, based on future population estimates for the Lands and immediate surrounding areas”, and particulars of the improvements would be detailed and justified through additional technical information, being the following:

I. An updated Stormwater Management Report and/or Stormwater Management Report;

II. An updated Functional Servicing Report (“FSR”) and/or Functional Servicing Report Addendum; and

III. An opinion letter from a Qualified Transportation Consultant in respect of the Draft Plan of Subdivision.

12The above documents were submitted to the County in September 2023.

Evidence of the Appellant

13The Appellant called James Orr as a witness, who was qualified to provide expert opinion evidence in the field of civil engineering and functional servicing.

14James Orr opined that the updated FSR, revised in February 2024, evaluated the existing servicing infrastructure and identified the required improvements to the existing linear sewage and water systems. Mr. Orr explained the infrastructure on the Subject Lands is at the end of its functional service life and will be replaced.

15With respect to external infrastructure, the Subject Lands are serviced by a wastewater treatment plant about 300 metres (“m”) to the west. He testified the sanitary pipes are too small in some sections between the Subject Lands and the treatment plant, some watermains are corroded, resulting in reduced capacity, and fire flows required in an emergency were insufficient. In his opinion, the following improvements would rectify these deficiencies:

I. The 250 millimeter (“mm”) and 200 mm watermains on County Road 22, London Avenue and Inkerman Avenue between the MacCaulay Village BPS and the VineRidge are to be replaced with new PVC watermains of the same size.

II. There are approximately 287.5 m of 250 mm sanitary sewer east of County Road 22 that are to be replaced with a 300mm sewer to provide adequate capacity.

III. There are approximately 21.5 m of 200 mm sanitary sewer west of County Road 22 that are to be replaced with 525 mm sewer.

IV. There are approximately 402 m of 200 mm sanitary sewer west of County Road 22 that are to be replaced with an anticipated 600 mm sewer.

16Mr. Orr explained that the above improvements were sized to service an estimated total of 9252 units. Of this total, Base 31 contributes 8400 units, the Subject Lands contributes 432 units, with the balance arising from other nearby properties. Mr. Orr’s evidence is that these improvements are to the “ultimate size” as contemplated by the MOS.

Evidence of the County

17The County called David Macpherson as a witness, who was qualified to provide expert opinion evidence in the field of Functional Service Engineering.

18Mr. Macpherson concurred with Mr. Orr that the Appellant’s proposed improvements would address surcharging of the infrastructure by the proposed development. However, Mr. Macpherson’s evidence was that the County is looking for a “full engineering solution”. He opined this solution could be addressed by a number of options, namely, waiting for the Master Servicing Plan, building a pumping station at the manhole closest to the plant, or upgrading to the ultimate size all infrastructure between the Subject Lands and the plant. Mr. Macpherson testified that other options were also possible but would first have to be reviewed in detail by the County.

19On cross-examination, Mr. Macpherson admitted that the County’s peer reviewer for the FSR, R.V. Anderson Associates Limited, did not recommend upgrading the entire external infrastructure. The Sanitary Technical Review they authored, dated November 22, 2023, commented it was a “good industry practice” to avoid a reduction in size of a downstream sanitary sewer, which would occur if the proposed improvements were implemented. Notwithstanding this qualification, the Sanitary Technical Review concluded the proposed improvements would address capacity concerns.

Evidence of PECCP

20PECCP called Emma Shepherd as a witness, who was qualified to provide expert opinion evidence in the field of Civil Engineering/Functional Servicing. Ms. Shepherd agreed with Mr. Macpherson and Mr. Orr that the proposed improvements would be sufficient to support the proposed development, but not the ultimate demand. Put differently, once Base 31 and other developable lands around the Subject Lands are built, surcharging would occur in some of the infrastructure that was not improved.

Analysis and Findings

21The Appellant’s position is that its proposed servicing improvements result in the adequate servicing of the Subject Lands, and it should not be responsible to upgrade the entire infrastructure.

22The County and PECCP submit that the Appellant must provide a “complete engineering solution”, and that its proposed servicing improvements fail to do so.

23In considering a DPS, the Tribunal must have regard to s. 51(24) criteria. For this issue, the Tribunal must have regard to the “adequacy of utilities and municipal services”. The undisputed evidence, from all Parties’ expert witnesses, was that the Appellant’s proposed improvements would resolve all identified surcharging in the infrastructure. The Tribunal therefore finds that the Appellant’s proposed external servicing improvements ensures the adequacy of utilities and municipal services required pursuant to this criteria.

24The Tribunal disagrees with the County and PECCP’s submission that the Appellant must provide a “complete engineering solution” for the entire infrastructure. This term was not what the Appellant and County agreed to in the MOS. The Appellant agreed to size its improvements “to their ultimate size”, and to identify what improvements were necessary “in order to facilitate the development”. This is exactly what the Appellant did. The County’s and PECCP’s position that the Appellant must replace all the external infrastructure is not supported by the MOS, nor to the s. 51(24) Act criteria.

Issue Two: The proposed road network

25The road network proposed by the Appellant includes access to the Subject Lands from Inkerman Avenue, which is then proposed to have a right turn followed by a left turn (the “S-curve”). The Subject Lands would have three east-west roads, identified as “Constantia Place”, “Vineridge Boulevard” and “Street A”, each of which are connected to “Street B” to the west, and “Pinotage Avenue” to the east.

26While the S-curve was the most contentious feature of the road network, the County also raised concerns related to the lack of a “grid-like pattern” and insufficient roadway connections to other properties.

Evidence of the Appellant

27The Appellant called David Angelakis as a witness, who was qualified to provide expert opinion evidence in the field of transportation planning, traffic engineering, and traffic safety.

28Mr. Angelakis authored multiple transportation studies for the Subject Lands from 2020 to 2024. He also prepared the Opinion letter from a Qualified Transportation Consultant in respect of the DPS, dated September 5, 2023, one of the items required pursuant to the MOS.

29Mr. Angelakis opined the proposed road network conformed to the OP and adjacent plans of subdivision, by providing adequate road network connections to the east and future road network connections to the north and south. In his opinion, the proposed number, width, location, and design of the proposed roads and road network connections will be adequate for their proposed functions.

30Regarding the S-curve, Mr. Angelakis testified this aspect of the proposed road network would not raise safety issues. It was his opinion that the proposed road network, including the S-curve, could accommodate Fire and Rescue Services, and any delays incurred as a result of the S-curve would be typical of any other turns or bends on other County Roads.

Evidence of the County

31The County called Garry Pappin as a witness, who was qualified to provide expert opinion evidence in the field of transportation engineering.

32Mr. Pappin was the peer reviewer for the County of the Appellant’s transportation studies. His opinion was that the proposed S-curve would be difficult for fire trucks to maneuver. Fire trucks would both need to slow down and encroach in the opposing travel lane to maneuver the S-curve. He estimated that the S-curve could contribute an additional 20 to 30 seconds in fire truck response time compared to a straight alignment. Mr. Pappin’s conclusion is that the Appellant should change the design and remove the S-curve because of this delay.

33In his witness statement, Mr. Michaud, the County’s land planner, opined the proposed road network was not safe, appropriate, or efficient. In contrast, Mr. Pappin’s witness statement only identified the S-curve delay to fire trucks as a potential issue with the road network.

34Mr. Pappin was cross-examined on this characterization by Mr. Michaud, of the road network as being neither safe or appropriate, as well as the adequacy of connections to adjacent land. Mr. Pappin disagreed with Mr. Michaud that the road network was not safe nor appropriate. As for the efficiency of the road network, he stated the S-curve as contributing “a slight deficiency in efficiency”. Mr. Pappin conceded the DPS provided ample opportunities for connections to adjacent lands. He did not provide evidence on whether the road network was grid-like.

Analysis and Findings

35The Appellant’s position is that its proposed road network, including the S-curve, are adequate. The County’s position is that there are numerous concerns with the proposed road network, such as connectivity, grid-pattern layout, and emergency response times. It submits the County does not want to take ownership of a road network which is not to its satisfaction, and that the Tribunal does not have the jurisdiction to order the County to take ownership of infrastructure it does not want.

36Pursuant to paragraph 51(24)(e) of the Act, the Tribunal must have regard to the adequacy of the road network. The Tribunal accepts Mr. Pappin’s evidence that a delay of approximately 20 to 30 seconds in fire truck response time would result from the S-curve in the proposed road network. It does not follow, however, that this delay results in an inadequate road network. The Tribunal had no evidence to contextualize this delay and its impact to the total fire truck response time. The Tribunal prefers the evidence of Mr. Angelakis that the S-curve delay is typical of any other turns or bends in the County’s Road network.

37With respect to the County’s concerns on connectivity, the Tribunal notes both transportation experts, Mr. Angelakis and Mr. Pappin agreed there were sufficient connections. They also agreed the road network was safe, and appropriate. The Tribunal prefers the evidence of the transportation experts with respect to the road network to that of Mr. Michaud and finds the road network is adequate.

Issue Three: The Proposed Parkland Dedication

Evidence of the Appellant

38The Appellant called Kelly Graham as a witness, who was qualified to provide expert opinion evidence in the field of land use planning.

39On the issue of the proposed parkland dedication, Ms. Graham testified the Appellant and County agreed as part of the ZBA settlement to dedicate Block 5, which consists of 31,109 square feet in the south-western portion of the Subject Lands, as parkland dedication. To that effect, Schedule 1 of the ZBA zones Block 5 and the adjacent stormwater management pond (Block 6) as Open Space (“OS”). In her opinion, the proposed parkland dedication is a resolved issue, there is no justification for the County to now refuse the parkland dedication and would also be contrary to their earlier technical comments.

Evidence of the County

40The County called Michael Michaud as a witness, who was qualified to provide expert opinion evidence in the field of land use planning. Michael Michaud is the Manager of Planning for the County and became responsible for the review of this application following the fourth submission.

41Mr. Michaud testified the County did not wish to receive parkland dedication and instead wanted cash in lieu of parkland. When cross-examined on why the County had agreed to parkland dedication as part of the ZBA and MOS, he said that he had tried to discuss the matter with the parks department but did not obtain an answer. He admitted that the ZBA and MOS were signed off by the Chief Administrative Officer of the County, although the parks department had not provided their input.

Analysis and Findings

42It is undisputed that the issue of the proposed parkland dedication was part of the settlement between the Appellant and County. Accordingly, the Tribunal finds the issue of the proposed parkland dedication was already settled. The Tribunal, differently constituted, has already approved the ZBA Appeal, which includes the zoning change for Blocks 5 and 6 to OS. The County’s lack of internal consultation with the parkland department does not justify requiring the Appellant to change the Zoning the County agreed with in the MOS.

PPS, Official Plan, Picton Urban Secondary Plan, and Section 51(24) Criteria

Evidence of the Appellant

43Ms. Graham provided extensive written evidence in her witness statement regarding the DPS meeting the s. 51(24) criteria. It was her opinion that:

I. The DPS, by implementing the ZBA, has regard for matters of provincial interest;

II. The DPS was not premature and was in the public interest, because it is appropriately zoned, designated in the OP for the proposed residential sues, and had also been endorsed by the County, in principle, pursuant to the settlement;

III. The DPS conforms to the OP, and while there were no adjacent plans of subdivision, there are opportunities for connection to the north and south should these lands be developed in the future;

IV. The land is suitable for the development and required to be subdivided in order to facilitate the development;

V. While no affordable units are proposed, the Appellant will contribute $504,000 for rent subsidies in the County;

VI. Relying on the opinion of Mr. Angelakis, the proposed road network was adequate;

VII. The blocks created were an appropriate size, dimension and shape to accommodate the planned development;

VIII. The (H) provision in the ZBA, to be removed once the County was satisfied with a servicing solution for the Subject Lands, was an appropriate restriction on the land proposed to be subdivided;

IX. The DPS would conserve natural resources, in this case, the adjacent Macaulay Mountain Conservation, and there were no flood hazard present on the Subject Lands;

X. Relying on Mr. Orr, the DPS was adequately serviced through the improvements as described in the FSR;

XI. The Subject Lands was adequately served by four schools within a two-kilometer radius;

XII. The DPS contemplates the dedication of Blocks 5 and 6 for public purposes (a public park and publicly owned stormwater management block, respectively);

XIII. The design and construction of the buildings will comply with the enhanced energy efficiency requirements of the Ontario Building Code; and

XIV. The future site plan control application will be accommodated on the proposed blocks of the DPS.

Evidence of the County

44Mr. Michaud’s witness statement stated the following with respect to whether the proposed development was consistent with the PPS, conformed to the OP, and conformed to the Picton Urban Secondary Plan:

I. In my opinion, the proposed development is not consistent with the PPS because the planned infrastructure (roads) is not safe, appropriate, nor efficient.

II. In my opinion, the proposed development does not conform with the Official Plan because…the [sic] proposed roads are not designed in a safe and efficient manner.

III. In my opinion, the proposed development does not conform with the secondary plan because the roadways are not developed in a grid like pattern with connections to adjacent developable lands. The proposed roads are not developed in a safe nor efficient design.

45With regards to the s. 51(24) criteria, Mr. Michaud opined the proposed development does not have proper regard to 51(24)(c), 51(24)(e) and 51(24)(i), because respectively:

I. The proposed plan does not conform to, in particular, the Secondary Plan policies for the development of roads in a grid like pattern and the provision of roadway connections to other development properties.

II. The proposed plan of subdivision does not show the number, location, proposed grades and elevations nor the adequacy of the proposed highways (roads).

III. The proposed plan of subdivision does not show the adequacy of the required municipal services.

Analysis and Findings

46As previously stated, the Tribunal prefers the evidence of the two transportation engineers and finds the proposed roads are safe, appropriate, efficient, developed in a grid like pattern, and connected to adjacent developable lands. Accordingly, the Tribunal rejects the evidence of Mr. Michaud that the proposed development is not consistent with the PPS, does not conform with the OP, and does not conform with the Picton Urban Secondary Plan, by reason of road network deficiencies.

47With respect to the s. 51(24) criteria, the Tribunal has already held that the road network has a grid like pattern, connections, and is adequate. Similarly for the third criteria, the Tribunal has earlier found the proposed municipal services are adequate.

48The Tribunal accepts the evidence of Ms. Graham and finds that the DPS have due regard for the s. 51(24) criteria.

The Tribunal’s Jurisdiction

49The County submits the Tribunal does not have jurisdiction to order a municipality to assume infrastructure or land against its wishes. It cites two Decisions, Mattamy (Rouge) Ltd. v Toronto (City), 2003 CanLII 7635 (ON SCDC), [2003] 235 DLR (4th) 176 (“Mattamy”), and CRAFT Acquisition Corporation v Toronto (City), [2017] 3 OMBR (2d) 416 for this proposition. The County therefore argues that because it does not wish to assume the public roads and the parkland, the Tribunal lacks the jurisdiction to force it to do so.

50The Appellant submits the Tribunal does have the jurisdiction in this case. They argue Mattamy is distinguishable on the basis it was not about a DPS, but about the conditions. Further, the Appellant submits a finding that the Tribunal does not have jurisdiction would give Municipalities a “trump card” in all applications, which cannot be the case. Lastly, the Appellant argues that in this case, the County has asked for public roads and parkland dedication and has agreed pursuant to the MOS to a DPS with these features.

51The Tribunal agrees with the County that it does not have the jurisdiction to order a Municipality to assume infrastructure or land against its wishes. It does not follow that the Tribunal is unable to allow this Appeal and approve the DPS.

52In Mattamy, the Ontario Municipal Board (“OMB”) had already approved the DPS. As indicated by the Divisional Court the issue of ownership of infrastructure or land found in the DPS is separate from the approval of the DPS:

42 … counsel for the City submits that with regard to roads shown on a draft plan of subdivision and intended for public use, the OMB’s jurisdiction is limited to finding that the proposed roads are adequate from a planning perspective. If so found, the OMB may approve the draft plan of subdivision. Counsel submits that s.51(25) of the Planning Act only envisages the imposition of conditions upon the Applicant by the approving authority or, on appeal by the OMB. The section does not authorize the OMB to impose conditions on the approving authority of a draft plan of subdivision nor does s. 51 authorize the OMB to override a statutory scheme clearly established by the Municipal Act, 2001.

44 … Counsel for the City submits that the question whether the proposed municipal services are adequate from a planning and engineering point of view has no bearing on the question of the ownership of the services. Moreover, counsel submits that just because the approval authority or, the OMB, on appeal, finds the services are acceptable from a planning, engineering and public safety standpoint, it does not follow that those services ought/must be owned and maintained by the City.

47 The submissions of counsel for the City persuade me that the OMB is without jurisdiction to order the City, contrary to its wishes, to do any of the things enumerated in the five questions set out in the stated case submitted to the court. Each question is answered: “No”.

53In applying Mattamy to this Decision, the Tribunal has the jurisdiction to approve the DPS without forcing the County to accept any of the land or infrastructure it says it does not wish to assume.

DPS Conditions

54During the hearing, the Parties jointly requested that draft conditions be submitted following a Decision on the Merits of this Appeal.

55The Tribunal encourages the Parties to submit draft conditions on consent.

CONCLUSION

56For the reasons stated above, the Tribunal finds that the DPS has sufficient regard for matters of Provincial Interest enumerated in s.2 of the Act; are consistent with the PPS, conform with the County OP and Secondary Plan and that the proposed development constitutes good planning in the public interest. Lastly, the proposed Draft Plan has regard for the subdivision criteria as set out in s. 51(24) of the Act.

INTERIM ORDER

57THE TRIBUNAL ORDERS that the Appeal is allowed with final approval withheld pending the submission of draft conditions on consent.

“F. Lavoie”

F. LAVOIE

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.