Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 19, 2024

CASE NO(S).: OLT-23-001072

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Middleburg Developments Inc.

Subject: Proposed Official Plan Amendment – Appeal of decision

Description: To modify and approve Amendment No. 147 to the Official Plan of the Town of Georgina

Reference Number: LOPA.19.G.0033 (OPA 147)

Property Address: Part Lots 16 & 17 Concession 3

Municipality/UT: Region of York

OLT Case No.: OLT-23-001072

OLT Lead Case No.: OLT-23-001072

OLT Case Name: Middleburg Developments Inc. v. York (Region)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Middleburg Developments Inc.

Appellant: 1819213 Ontario Inc.

Subject: Zoning By-law Amendment – Appeal of Decision

Description: To create a new zoning bylaw for the Countryside Area that implements the policies of the Town of Georgina Official Plan.

Reference Number: Town File No. 03.05BT

Property Address: Part Lots 16 & 17 Concession 3

Municipality/UT: Town of Georgina/ Region of York

OLT Case No.: OLT-23-001307

OLT Lead Case No.: OLT-23-001072

OLT Case Name: 1819213 Ontario Inc. v. Georgina (Town)

Heard: August 6 to 9, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel
Middleburg Developments Inc.	A. Lusty
Region of York	Did Not Appear
Town of Georgina	A. Biggart

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Tribunal convened a Hearing on the Merits (“Hearing”) with respect to the Appeals by Middleburg Developments Inc. (“Middleburg”) pursuant to s. 17(36) of the Planning Act (“Act”) due to the approval by the Region of York (“York”) of and the Town of Georgina (“Town”) Official Plan Amendment 147 (“OPA 147”). The purpose of OPA 147 was to update the Keswick Secondary Plan (“KSP”) and replace the version of the KSP that has been in existence since 2004.

2The municipal addresses pertaining to these Appeals are Part Lots 16 and 17 Concession 3 in the Town of Georgina (“Subject Lands”). The Subject Lands are approximately 13.5 hectares in size and are currently used for agricultural production. The Subject Lands are located on the Northside of Old Homestead Road and west of The Queensway North. The Subject Lands are located within the “Countryside Area” of the Town’s Official Plan and designated as “Agricultural Protection” and “Environmental Protection Area” as per Schedule A2 of the Town’s Official Plan (“Town OP”).

BACKGROUND

3In 2018, York initiated a Municipal Comprehensive Review (“MCR”) of the 2010 Official Plan (“YROP”). As a part of the MCR, the Town initiated a multi-year comprehensive review of the 2004 KSP (“KSP review”) as recommended to Town Council through a Planning Staff Report dated March 6, 2019.

4Planning staff then initiated the formation of a Technical Advisory Committee (“Committee”) which was comprised of various stakeholders which included, inter alia, Town Planning staff, staff members from York and the Lake Simcoe Region Conservation Authority, and the outside consultants tasked with completing Committee’s objectives.

5The background of studies that were completed as a part of the KSP review included:

a. Planning Review Report prepared by the Planning Partnership dated December 2019;

b. Urban Design Report prepared by the Planning Partnership;

c. Commercial and Employment Land Analysis prepared by Urban Metrics Inc. dated December 20, 2019;

d. Natural Environment Background Report prepared by PLAN B Natural Heritage dated November 2019; and,

e. Transportation Background Report prepared by BA Group dated January 16, 2020.

6Throughout the KSP review process, the Committee updated Town Council on the KSP review with the following correspondence:

a. Staff Report No. DS-2019-0016 dated March 6, 2019, respecting the Keswick Secondary Plan Review and Steering Committee Formation;

b. Briefing Note dated June 26, 2019, respecting the Keswick Secondary Plan Review Consultant Selection;

c. Staff Report No. DS-2020-0001 dated January 15, 2020, respecting the Keswick Secondary Plan Review Phase 1 Status Update;

d. Briefing Note dated July 15, 2020, respecting Resuming the Keswick Secondary Plan Review and Assignment of 4,000 Persons Capacity to the Keswick Water Resource Recovery Facility;

e. Staff Report No. DS-2020-0041 dated November 11, 2020, respecting the Keswick Secondary Plan Review Special Meeting of Council under Section 26(3)(b) of the Planning Act and Proposed Release of Draft #1 of the Keswick Secondary Plan;

f. Briefing Note dated June 9, 2021, respecting a Keswick Secondary Plan Review Phase 3 Update;

g. Briefing Note dated October 20, 2021, respecting the Keswick Secondary Plan Review Work Program Update;

h. Staff Report No. DS-2020-0033 dated April 27, 2022, respecting the Keswick Secondary Plan Draft #2;

i. Staff Report No. DS-2023-0027 dated March 28, 2023, respecting the Proposed Keswick Secondary Plan (February 2023); and,

j. Staff Report No. DS-2023-0064 dated July 12, 2023, respecting the Proposed Keswick Secondary Plan (June 2023).

7Public consultation occurred multiple times throughout the KSP review process, which included focus group sessions, public workshops, public meetings, online surveys, and a special meeting of Town Council in November 2020.

8A final report on the KSP was issued and presented to Town Council for approval on July 12, 2023. Town Council approved and adopted the draft KSP. Town Council then gave direction to planning staff to forward the draft KSP to York for approval. York reviewed the Draft KSP and approved said draft on September 29, 2023, with some modifications.

9It must be noted that the MCR was completed by York and the updated YROP was approved by the Minister of Municipal Affairs and Housing with modifications in November 2022. These modifications did not include any adjustments or delineations to the Urban Area.

THE HEARING

10At the commencement of the Hearing, the Tribunal entered the following as Exhibits that were to be used by the Parties:

Exhibit 1 – Joint Document Book; and
Exhibit 2 – Witness Statement Compendium.

11Each Party presented one witness (Mr. Michael Smith appearing on behalf of the Appellant and Mr. Tolek Makarewicz appearing on behalf of the Town). Both witnesses were qualified to give expert land planning opinion evidence on the matter before the Tribunal.

12Mr. Smith confirmed to the Tribunal that he provided comments to the Committee concerning the Appellant’s lands for the first time on February 16, 2021, after the first draft of the KSP had been completed. These comments were concerns of how the draft would affect the Subject Lands and that there was an issue with the proposed urban boundary in the draft KSP as compared to the urban boundary as described in the YROP.

13Mr. Smith then confirmed for the Tribunal that he provided more comments to the Committee on January 13, 2023, requesting that the Subject Lands be included in the KSP so that the KSP would conform to the mapping of the Urban Area boundary in the YROP. Comments from the Committee did acknowledge that there is a mapping discrepancy between the province’s delineation through the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) and Greenbelt Plan in 2005 where the mapping did not accurately reflect the “Settlement Area” of the then in force 2004 KSP. York staff acknowledge that the 2022 approved version of the YROP and the 2010 version of the YROP both utilize the same urban boundary as established in the Growth Plan and the Greenbelt Plan. York staffs’ comments concluded that there was not adequate notice provided or analysis conducted concerning the “Settlement Area” boundary in order for inclusion in the KSP.

14Due to the approval of the KSP, the Appellant initiated an Appeal of the KSP to the Tribunal. It was the Appellant’s claim that the KSP, inter alia, does not have regard to matters of provincial interest as set out in s. 2 of the Planning Act, and does not conform to the York Region Urban Boundary as required by s. 17(34.1)(a) of the Act. As well, the KSP is not consistent with the Provincial Policy Statement, 2020 (“PPS”), specifically ss. 1.1.3.1, 1.2.1 and 1.2.4(b). The KSP does not conform to the Growth Plan, 2020, specifically ss. 2.2.8.2 and 5.2.3.1, does not conform to s. 3.4.1 of the Greenbelt Plan, 2017, and does not conform to the YROP.

15Mr. Smith presented evidence to the Tribunal which focused on the discrepancy between the urban area boundary mapping found in the Greenbelt Plan, the 2022 YROP, and the boundary as approved in the KSP. It was Mr. Smith’s opinion that if the KSP is not in conformity with either the YROP or the Greenbelt Plan, then the higher approved conforming planning authority or planning instrument should prevail. He took the Tribunal through each of the higher authority planning instruments to opine how the policies state that if there is any conflict, that the higher encompassing planning instrument does prevail. As such, it was his opinion that the KSP should be amended to harmonize Schedules A, B, C, D, E, and F to be congruent with the YROP. Furthermore, it was Mr. Smith’s opinion that the Town OP should be amended to conform to the YROP, specifically concerning the Subject Lands. Mr. Smith opined that then, and only then, will the KSP be in conformity with all the higher planning instruments. His opinion evidence concerning this discrepancy is shown below:

16Mr. Makarewicz gave opinion that the Town followed the correct process in completing and approving the KSP. He did confirm to the Tribunal that there are approximately four or five small areas where there is a discrepancy between the Greenbelt Plan, the YROP, and the KSP. Mr. Makarewicz opined that there are discrepancies that would be analyzed and possibly corrected if needed when the Town completes its own MCR. This would allow for all of these particular discrepancies to be addressed in a fulsome and public manner.

17It was Mr. Makarewicz’s opinion that the KSP does conform to the Greenbelt Plan and YROP. Congruency in mapping is not the same as conformity. The Tribunal must analyze all the planning documents in their entirety in order to understand if there is a conformity issue. Continuing on this point, Mr. Makarewicz took the Tribunal through the Greenbelt Plan and the YROP to demonstrate that there are policies within each of these planning instruments that provide guidance on what is to happen if a conflict does occur. Mr. Makarewicz took the Tribunal to Appendix II of the Greenbelt Plan to show that the mapping on said plan concerning “Settlement Boundaries” are to “generally reflect information provided by the relevant municipality. For precise boundaries and locations of Settlement Areas (Greenbelt Towns/Villages and Hamlets; ORM Settlement Areas and Rural Settlements; and NEP Urban Area and Minor Urban Centres) the appropriate municipalities should be consulted.”

18Mr. Makarewicz then took the Tribunal to the YROP specific policies which focus on how to interpret the YROP policy 7.4.2, which states: “That all policies of the Plan must be considered together to determine conformity. Individual policies should not be read or interpreted in isolation.”

19Mr. Makarewicz took the Tribunal to YROP policy 7.4.3, which states:

That the boundaries and elements identified on Maps 1 to 13 are fixed unless otherwise specified in the policies of the Plan. Where permitted, exact boundaries shall be defined in local official plans and zoning bylaws, except in the following cases:

a. The boundary of the Oak Ridges Moraine Conservation Plan, and the Greenbelt Plan, 2017. In this case, the boundaries are fixed and may only be clarified through reference to the applicable Provincial Regulations; and,

b. The boundaries of the Urban Area identified on Map 1, are fixed where they are identified by a municipal street, rail line, parcel fabric as it exists on the day of adoption of the Plan, lot and/or concession blocks, or, other clearly identifiable physical features.

20It was Mr. Makarewicz’s opinion that these policies specifically describe how “Urban Area” boundaries are to be delineated. Mr. Makarewicz confirmed that the KSP does have a delineated boundary as described in policy 7.4.3(b). Mr. Makarewicz agrees that the Subject Lands do have a delineated border to the south and the west; however, the north and east boundary of the Subject Lands do not have this type of delineation. The Subject Lands as presented in the Greenbelt Plan and YROP are generalized for reference and each of these planning instruments does refer to a lower planning instrument to clarify any cases of conflict with the “Urban Area” boundary.

21Mr. Makarewicz gave opinion that since the “Urban Area” as defined in the Greenbelt Plan and in Map 1 of the YROP is not fixed, then the local plan is to be used to precisely determine the “Urban Area”. It was his opinion that the KSP, while not congruent based on the general maps of the Greenbelt Plan and the YROP, does not mean that the KSP is not conforming.

22Mr. Makarewicz opined that the KSP process was followed correctly, the Urban Boundary as presented in the KSP was approved by the YROP and conforms to the YROP. The KSP conforms to the Greenbelt Plan as demonstrated by the references to the lower planning instruments that are to be used if there is a question of conflict.

23Furthermore, it was Mr. Makarewicz’s opinion that the KSP has regard for matters of provincial interest under s. 2 of the Planning Act, does conform to the Growth Plan, and conforms to the YROP. The KSP, as approved by York, should remain, and no changes should be made to the KSP considering the Subject Lands.

ANALYSIS AND FINDINGS

24In forming a decision on this matter, the Tribunal must analyze the evidence presented before it, the oral testimony of the witnesses, and must have regard to the decision and the materials presented before both the Town Council and York Council when it approved the KSP.

25The Tribunal has reviewed the caselaw provided by both Parties and agrees with the Appellant that the Tribunal does have the power to make modifications to an official plan as per s. 17(50) of the Planning Act. The Tribunal agrees with the Appellant that the Tribunal must have regard to the decision of the subject planning authority, and that regard is not the same or similar to deference, and that the Tribunal has the power to allow, change, or overrule a planning authority’s decision. However, the role of the Tribunal is to act objectively to the evidence presented before it and the Tribunal must take into consideration the evidence presented before the relevant planning authority in finalizing its decision.

Planning Act

26The Appellant’s witness opined that under s. 27(4) of the Planning Act that the KSP is in conflict with the YROP as per the mapping that is defined in the YROP. Since there is a conflict, he opined that the upper-tier plan should prevail and that the Subject Lands should be included in KSP boundary. The Tribunal finds that if one were to just look at the maps as Mr. Smith suggests, then yes, one could find that the Subject Lands could be a part of the KSP. However, a map is just a map without the context of what it is to represent. Without any further context, the Tribunal cannot make the assumption of a conflict without reading the rest of the planning instruments as a whole and applying the appropriate language to the map(s) in question. Further analysis and findings are found below pertaining to each of the planning instruments before the Tribunal.

Greenbelt Plan

27Much of the evidence from both Parties focused on the Greenbelt Act, the Greenbelt Plan, and the relevant maps therein. The Appellant’s witness gave opinion that the KSP is in conflict with the section 8(1) of the Greenbelt Plan as the KSP mapping is not “congruent” to the mapping in the Greenbelt Plan. Mr. Smith gave opinion, once again, that any conflict would result in the upper-tier plan or planning instrument prevailing. Since the mapping is not congruent, it was Mr. Smith’s opinion that section 9 of the same Greenbelt Plan states the local planning authority located “…within any of the areas designated as Protected Countryside in the Greenbelt Plan shall amend every official plan to conform with the Greenbelt Plan.” Once again, taken in plain terms, this would seem logical and correct, however, further analysis is required to understand if there is a conflict with the Greenbelt Plan.

28The Tribunal was brought to the mapping in the Greenbelt Plan, specifically Appendix II: Schematic, showing settlements within the Greenbelt:

If one were to look at these maps without any context, one could argue that the Appellant’s position is correct, and the Subject Lands should be a part of the KSP. However, the notes on each of the maps give the following direction:

29Appendix II notes:

Settlement boundaries generally reflect information provided by the relevant municipality. For precise boundaries and locations of Settlement Areas (Greenbelt Towns/Villages and Hamlets; ORM Settlement Areas and Rural Settlements; and NEP Urban Area and Minor Urban Centres) the appropriate municipalities should be consulted.

30Schedule 1: Greenbelt Area notes:

While every effort has been made to accurately depict the information, this map should not be relied on as being a precise indicator of locations of features or roads. For precise boundaries and locations of Settlement Areas, including Towns/Villages and Hamlets, the appropriate municipalities should be consulted.

31Section 3.4.1 of the Greenbelt Plan states that “…Settlement Areas of all types are found throughout the Protected Countryside. Towns/Villages and Hamlets are identified on Schedule 1. To determine the precise settlement area boundaries, reference should be made to official plans.”

32The Tribunal finds that the Greenbelt Plan clearly states that the mapping may not have the exact boundaries of “Settlement Areas”, and that the exact boundaries are to be found in the local official plan. As such, the Greenbelt Plan is not in conflict with the YROP as the Greenbelt Plan defers to the YROP for exact boundaries of “Settlement Areas”.

York Region Official Plan

33It was the opinion of the Appellant’s planning expert that York adopted the mapping of the Greenbelt Plan which delineates the boundaries of the Greenbelt and the “Urban Area” boundaries. Mr. Smith opined that these maps show the Subject Lands are within the “Urban Area” boundary and that the KSP boundary does not conform. As such, the YROP boundary should prevail as the KSP is in conflict with the YROP. Once again, if simply reading the maps without the appropriate policies and context provided in the YROP, then the Appellant may be correct with their opinion.

34In the YROP, policy 4.1.2 states:

That the policies that guide development as set out in policy 4.1.1, Maps 1, 1A, and 1B and other sections of the Plan shall be read and applied together. The intent of Map 1 is to distinguish the Regional Structure as either Urban System, Rural System or Agricultural System. The intent of the land use designations shown on Map 1A is to distinguish the parts of the Urban System that are to be developed primarily for either community uses or employment uses. The intent of Map 1B is to provide further policy direction for where higher levels of intensification are to be directed and how growth in the Urban System is to be phased and developed in the long-term.

35The Tribunal agrees with the position of the Town that the maps are to be read in conjunction with the appropriate policies and context in order to provide a whole understanding of how to interpret the maps and their intent. The Town’s planning expert took the Tribunal to the policies of the YROP on how to interpret the YROP. Policy 7.4.2 of the YROP states:

That all policies of the Plan must be considered together to determine conformity. Individual policies should not be read or interpreted in isolation.

36Policy 7.4.3 of the YROP states:

37Policy 7.4.2 of the YROP directs the Tribunal to read the whole of the plan and that not one policy is to be read in isolation. Taking a holistic approach to the maps in interpreting the “Urban Area” boundary, the Tribunal finds that 7.4.3 is a policy that directs the Tribunal on how to read the maps concerning the Greenbelt and the “Urban Area” as defined in Map 1 of the YROP. Policy 7.4.3(b) of the YROP is very specific on how one is to interpret the “Urban Area” boundary. Referring back to the maps of the Appellant in paragraph [15] of this Decision, it can be seen that for the Subject Lands, there is a fixed boundary to the south and to the west. To the east and the north there is not a municipal street, rail line, parcel fabric, lot line or concession block. Since there are no fixed landmarks to identify the east or north boundary of the Subject Lands, then the Tribunal finds that the interpretation taken by York and the Town for the KSP is correct. Policy 7.4.3(b) clearly states that the “Urban Area” boundary is not to end in a location that does not have a fixed landmark. The Tribunal finds that having the KSP boundary end in the middle of an agricultural field – where there isn’t a determinable fixed boundary – is not considered to be good land use planning.

38Based on the evidence provided, the Appellant has not demonstrated that the “Urban Area” boundary, as approved in the KSP, is non-conforming. The Tribunal agrees with the Appellant that the maps are not congruent as listed in the Greenbelt Plan and the YROP. However, the context and policies attached to these maps in the Greenbelt Plan do state that the boundaries may not be precise, and that the local planning authority and their plan shall be used to define the exact boundary. The Tribunal finds that due to the reference to the local plan concerning an issue with a boundary, there is not a conflict with the Greenbelt Plan.

39The Tribunal agrees with the Town’s expert in that congruency – specifically pertaining to the maps in this matter – is not the same as conformity, and that the polices located within the YROP and KSP define how an “Urban Area” boundary is to be set and interpreted. The Tribunal finds that the YROP is not in conflict with the KSP as the policies within the YROP do distinguish how to interpret said boundaries. The KSP does follow the polices of the YROP and does interpret the “Urban Area” boundary correctly.

40The Tribunal finds that the Appellant’s opinion concerning s. 27(4) of the Planning Act is not valid. The Town has demonstrated that the higher tier planning instruments clearly state that the local municipality should be consulted for the precise locations of the Settlement Boundary.

41To draw an overall conclusion to the matter before it, the Tribunal finds that the KSP is not in conflict with the Planning Act, the Greenbelt Plan, or the YROP.

42The Tribunal finds that the site-specific Appeals pertaining to the KSP should be dismissed.

ORDER

43THE TRIBUNAL ORDERS THAT the site-specific Appeals of the Town of Georgina Official Plan Amendment 147 pertaining to the Subject Lands is dismissed.

“S. deBoer”

S. deBOER 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.

Middleburg Developments Inc. v. York (Region), 2024 CanLII 92098

Case Summary