Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 08, 2024
CASE NO(S).: OLT-21-001068
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Farhi Holdings Corporation
Subject: Proposed Official Plan Amendment No. OZ-9275 - OPA 732
Description: To establish an Environmentally Significant Area
Reference Number: OPA 732 (C.P.-1284(vw)-136)
Property Address: 2005 Kilally Road
Municipality/UT: London/Middlesex
OLT Case No.: OLT-21-001068
OLT Lead Case No.: OLT-21-001068
OLT Case Name: Farhi Holdings Corporation v. London (City)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Farhi Holdings Corporation
Subject: By-law No. Z.-1-212925
Description: To establish an Environmentally Significant Area
Reference Number: Z.-1-212925
Property Address: 2005 Kilally Road
Municipality/UT: London/Middlesex
OLT Case No.: OLT-21-001069
OLT Lead Case No.: OLT-21-001068
Heard: December 5, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Farhi Holdings Corporation ("Appellant")
Paula Lombardi
City of London ("City")
Christine McCreery (in absentia)
Aynsley Hovius
MEMORANDUM OF ORAL DECISION DELIVERED BY GREGORY J. INGRAM ON DECEMBER 5, 2023 AND ORDER OF THE TRIBUNAL.
INTRODUCTION AND BACKGROUND
1This is the second Case Management Conference ("CMC") regarding an appeal of Official Plan Amendment No. 732 ("OPA 732") and By-law No. Z.-1-212925, which were to establish an Environmentally Significant Area boundary for the lands located at 1918-2304 and 2005-2331 Kilally Road ("Subject Lands") and identify unevaluated wetlands and vegetation patches as identified in the Kilally South, East Basin Environmental Impact Study prepared by North-South Environmental Inc.
2The Tribunal was provided with the following information at the first CMC regarding this matter:
a. OPA 732 purports to amend the City’s 1989 Official Plan ("1989 OP").
b. The City’s 2016 Official Plan ("2016 OP") is expected to replace the 1989 OP, and OPA 732 is not reflected in the 2016 OP.
c. It is anticipated that the City will pass a new Official Plan Amendment ("OPA") to amend the 2016 OP and provide the same purpose and effect as OPA 732.
d. The City expects that the Appellant will again appeal as the same designation would apply to the property as outlined in OPA 732 and abandon its appeal of the old OPA 732 as it applies to the 1989 OP, which is expected to be repealed by the City.
e. The Parties indicated they expect to request that the new appeal be consolidated with the initial appeal.
CURRENT STATUS
3The Tribunal was informed that the Parties have been able to resolve all issues related to this appeal and brought a Joint Settlement Motion Record for consideration by the Tribunal.
4The Joint Settlement Motion Record was received on December 4, 2023, and while Tribunal Rule 10.5 requires 15 days’ notice, the Tribunal agreed to receive the Notice of Motion and marked it as Exhibit 1. In addition, the Affidavit of Bruce Page was marked as Exhibit 2, and the Affidavit of Dave Hayman was marked as Exhibit 3.
5Aynsley Hovius, Counsel for the City and on the consent of the Appellant, requested the Tribunal issue Orders for the following:
a. Consolidation of OLT-23-00115 with OLT-21-001068;
b. Approval of Maps identified in Exhibit C in the Page Affidavit that were under appeal and for which the appeals, as they apply to those policies, will otherwise be withdrawn;
c. Approval of Maps 1 and 5 in C1 and C2 of the Page Affidavit; and,
d. Approval of Zoning Bylaw, modified, as shown in C3 of the Page Affidavit.
6Regarding the request for consolidation, the Tribunal granted the consolidation of the OLT-23-00115 with OLT-21-001068 as the City has repealed the 1989 OP.
7The Tribunal granted permission to the Parties to present evidence related to the Joint Settlement proposal and instructed the City to circulate a new notice given the request to consolidate the case files and the passage of a new OP by the City. No correspondence was received by the legislated deadline following the recirculation of the notice.
8In considering the Joint Settlement, the Tribunal must be satisfied that the proposed OPA and ZBA are representative of good planning and in the public interest. Concerning the specific legislative tests to be met, the Tribunal must be satisfied that the proposed OPA and ZBA are consistent with the Provincial Policy Statement, 2020 ("PPS"), and conform with or do not conflict with A Place to Grow: Growth Plan for the Greater Golden Horseshoe Area ("Growth Plan"). Additionally, the proposed OPA and ZBA must conform with the applicable Official Plans and have regard to matters of Provincial interest as set out in s. 2 of the Act and to the information and materials that the municipality received concerning the matters under s. 2.1(2) of the Act.
SETTLEMENT PROPOSAL
9Bruce Page, a land use planner for the City, was qualified to provide land use planning evidence, and David Hayman, a biologist engaged by the Appellant, was qualified as a biologist to provide expert opinion evidence related to the natural environment.
10Mr. Page provided a summary of the proposed Settlement and explained that the proposed resolution would revert the OP designation for the Subject Lands to their pre-amendment designation of "Neighbourhoods" and include an "unevaluated vegetation patch." He also explained that the proposed Settlement would revert the permitted uses to their pre-amendment designation of "Urban Reserve UR3." Mr. Page’s testimony in support of this proposal is outlined below.
11Concerning Map 1 (Exhibit 2) and Amendment 78, Mr. Page proffered that it is not necessary to designate three-quarters of the Subject Lands as "Environmental Review" given that future studies will be required at the time development is proposed for the subject lands. He opined that reverting the Subject Lands to a "Neighbourhoods" designation is appropriate.
12Concerning Map 5 (Exhibit 2), which identifies all components of the City’s natural heritage system, Mr. Page opined that given that site visits were not conducted, it is appropriate that the feature be identified as "Unevaluated Vegetation Patch" and indicated that this designation protects the unevaluated area until an "appropriate ecological evaluation is undertaken."
13Regarding the zoning amendment, Mr. Page opined that reverting to the zoning that existed before the amendment process is appropriate as the "Urban Reserve ("UR3") Zone requires that a rezoning application process occur before any residential or subdivision development could be approved for the Subject Lands. Specifically, he opined that since no residential development could occur until an appropriate environmental review was conducted, reverting to the pre-amendment zoning is appropriate.
14In summary, Mr. Page opined that the proposals outlined above are consistent with and in conformity with provincial policies and the applicable in-force Official Plan and represent good planning.
15Mr. Hayman testified that he supported all aspects of the proposal and concurred with the analysis provided by Mr. Page.
ANALYSIS AND FINDINGS
16The Tribunal accepts the uncontested planning evidence and expert opinions of Mr. Page and Mr. Hayman.
17The Tribunal finds that the amendments maintain due regard for potential environmental concerns in the Kilally Road area now and into the future if and when development is proposed.
ORDER
THE TRIBUNAL ORDERS THAT:
OLT-23-00115 is consolidated with OLT-21-001068.
The appeal of Official Plan Amendment No. 732 is allowed in part, and Amendment No. 87 to the Official Plan for the City of London is approved as set out in Attachment 1 to this Order.
The appeal against By-law No. Z.-1-212925 of the City of London is allowed in part, and By-law No. Z.-1-212925 is approved as set out in Attachment 2 to this order.
"Gregory J. Ingram"
GREGORY J. INGRAM
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1
ATTACHMENT 2