Eiram Development Ltd. v. Clarington (Municipality), 2025 CanLII 106938

du territoire

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

ISSUE DATE:

October 15, 2025

CASE NO(S).:

OLT-25-000002

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant

Eiram Development Ltd.

Subject:

Request to amend the Official Plan – Failure to adopt the requested amendment

Description:

To re-designate and rezone the subject lands to create a mixed use residential development.

Reference Number:

COPA2024-0004

Property Address:

SW Corner Mearns Avenue (SW Corner Mearns Avenue and Concession Road 3)

Municipality/UT:

Clarington/Durham

OLT Case No:

OLT-25-000002

OLT Lead Case No:

OLT-25-000002

OLT Case Name:

Eiram Development Ltd. v. Clarington (Municipality)

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

Subject:

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

Description:

To re-designate and rezone the subject lands to create a mixed use residential development.

Reference Number:

ZBA2024-0010

Property Address:

SW Corner Mearns Avenue (SW Corner Mearns Avenue and Concession Road 3)

Municipality/UT:

Clarington/Durham

OLT Case No:

OLT-25-000003

OLT Lead Case No:

OLT-25-000002

OLT Case Name:

Eiram Development Ltd. v. Clarington (Municipality)

Heard:

September 3-15, 2025, by video hearing

APPEARANCES:

Parties

Counsel

Eiram Development Ltd.

Alan Heisey

(“Applicant Appellant”)

Municipality of Clarington

Andrew Biggart

INTERIM DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This Hearing was convened to consider the Appeals filed by Eiram Development Ltd. (“Appellant”) pursuant to s. 22(7) and s. 34(11) of the Planning Act (“Act”) on the failure of the Municipality of Clarington (“Municipality”) to make a decision regarding applications to grant an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) (collectively the “Applications”) to develop the property known as the Southwest Corner of Mearns Avenue and Concession Road 3 (“Subject Property”). The following legal description serves as the address for said lands. The lands are legally described as Lot 9, Concession 2, Block 37 on Registered Plan 40M-1723, in the former Township of Darlington, now in the Municipality of Clarington (Bowmanville), Region of Durham.

2The purpose of the OPA is to amend section 23.19 to include a site-specific exception on the subject lands to facilitate the proposed development and permit an increased building height of 12 storeys (37 metres), while also permitting a total of 63 townhomes, and a maximum number of attached townhomes to 7.

3The ZBA application proposes to rezone the lands from the ‘Urban Residential Type Three Exception (R3-56)’ zone to ‘Urban Residential Type Three Exception (R3-XX)’ zone and the ‘Urban Residential Type Four Exception (R4-XX)’ zone with site-specific exceptions for height, density, setbacks and parking.

4For the reasons set out in this Decision, the Tribunal finds in favour of the Applicant, allows the appeals in part, approves the proposed OPA and ZBA, in part, in principle, subject to, inter alia, the final form to be submitted by the Parties inclusive of clauses regarding proposed site-specific exceptions related to height, density, parking, amenity area, commercial content and setbacks.

The Subject Property and Surrounding Area

5The site possesses a total area of 1.79 hectares (4.42 acres), with approximately 91.2 metres (“m”) of frontage along Concession Road 3 and 177.5 m of frontage on Mearns Avenue. The subject property was created as Future Development Block 37 within Phase 4 of the Northeast Bowmanville Subdivision (40M-1723, 18T-890041). The Subdivision agreement was registered on April 18,1991 with subsequent amendments registered on October 16, 1991, January 28,1993 and July 7, 1993.

6The site currently has minimal vegetation, consisting of some boundary trees located along the south and west property lines, with the remainder of the property being dominated by grass and shrubs. Topography slopes downward in a west to east direction.

7The Regional Municipality of Durham (“Region”) Official Plan (“ROP”), approved in 1993 and consolidated in 2020, designates the subject lands as “Living Areas” per Schedule A.

8The site is designated exclusively as ‘Urban Residential’ and denoted as having a ‘Neighbourhood Centre’ within the Municipality of Clarington Official Plan (“COP”) consolidated in 2024 by Map A3 – Land Use Bowmanville Urban Area.

9Concession Road 3 and Mearns Avenue are Type B and Type C Arterial roads, respectively, as per Map J of the COP. Each of these roadways is owned and maintained year-round by the Municipality with current right-of-way widths of 24 m each. Concession Road 3 is designated as having a 9 m wide easement in favour of the Region which allows for a sanitary service connection from the abutting residential subdivision to the west of the lands to Mearns Avenue. No permanent structures are proposed to be placed within the boundaries of the easement.

10The site is zoned exclusively as ‘Urban Residential Type Three Exception (R3-56)’ in Municipality By-law 84-63.

11The land uses in the immediate area surrounding the Subject Lands are comprised as follows:

a. North: Directly adjacent is Concession Road 3. On the other side of the road are Environmental Protection lands and existing agricultural operations. These agricultural lands have been identified as future medium-density development lands through the Soper Springs Secondary Plan, which is not yet in force and effect.

b. South: Existing residential subdivision primarily in the form of single-detached dwellings, with townhouse developments located southwest of the subject property. Durham Region Transit is located to the south along Longworth Avenue, within 500 m of the subject property. A school and public park are also located within 500 m.

c. East: Directly east is Mearns Avenue which has active transportation connections in the form of sidewalks and bike lanes. The lands are identified by the Municipality as being subject to future development and have current permissions under their existing designation within the COP to a 6 storey height with further height allowance if there is an affordable housing content.

d. West: Existing residential subdivision, providing a mix of single-detached and townhome dwellings. A 3 storey townhome development is located at the intersection of Concession Road 3 and Liberty Street North. A local shopping plaza is located at the intersection of Longworth Avenue and Liberty Street North.

The Applicant’s Original Proposal

12Eiram Development Ltd. submitted a ZBA application on May 24, 2017, to permit a mixed-used development on the subject lands proposing 69 townhouses and a two storey building with commercial space on the ground floor and 12 residential units above. The ZBA application was approved and passed by Council on June 25, 2018, which amended the Municipality of Clarington By-law No. 84-63 to create the “Urban Residential Exception (R3-56) Zone”.

The Applicant’s Revised Proposal

13The OPA and ZBA applications are proposed to create a 12 storey, mixed-use building with 212 residential units in the form of 1-bedroom and 2-bedroom units and 63 three storey townhouse units, each fronting onto the internal street network. Each townhouse unit will have 2 parking spaces in the form of driveway and garage spaces, providing a total of 126 spaces. An additional 17 surface level parking spaces are provided to accommodate for visitor parking. Setbacks for each townhouse block are provided, to ensure adequate rear yards and side yards.

14The proposal also will consist of 251.3 square metres of ground floor commercial space, contained within the 12 storey building, 1,214 square metres of outdoor amenity space, 424 square metres of indoor amenity space, and 449 parking spaces. The parking spaces can be broken down into 298 spaces for the mixed-use building within 2 levels of underground parking along with some surface parking, 143 parking spaces for the townhomes, and 8 parking spaces for the commercial amenities.

ISSUES

15The Parties were in agreement that the subject property is currently underutilized, and that some degree of intensification is appropriate. Where the Parties disagree is what constitutes appropriate height and density for the subject property. Stated in basic terms, it is the Municipality’s position that the appropriate maximum height for the subject property is 6 storeys, while the Appellant’s position is that a 12 storey mixed-use building is appropriate.

16The Tribunal found that the core issues for adjudication focus on the application of the statutory and policy requirements in relation to: Height and Density, Urban Design, Public Realm, Commercial Function and Parking.

AGREED STATEMENTS OF FACT

17Prior to the hearing, the Parties filed Agreed Statements of Fact (“ASF”) relating to Planning and Transportation and had worked diligently to scope various issues included on the Issues List.

18Each of the parties tendered extensive professional evidence through qualified experts who referenced a joint document book (Exhibit 1, Volumes A-D) and visual evidence books (Exhibit 2 and 3). It was agreed that Provincial Planning Statement (2024) is in effect. As it pertains to the Issue #2, sections 3.3.1, 3.3.3 and 3.6.1 (a) and (b) were removed. The ROP (1993) is the applicable, determinative document for the purpose of this hearing. Both parties agreed that Envision Durham 2024 (Durham Official Plan) was not in force when the application was filed or deemed complete but that the policies reviewed are relevant but not determinative in this appeal. The COP, 2018 as amended, is the applicable Municipal Official Plan.

19It was further determined that the Soper Springs Secondary Plan is a draft document and not in force and effect at the time the applications were deemed complete. The Clarington Parks, Recreation and Culture Master Plan was not approved.

20The Tribunal heard that Issue #8 was withdrawn. The parties agreed that the applicable technical standards for low impact development (“LID”), groundwater infiltration and water balance set out in Ministry of Environment, Conservation and Parks Environmental Guideline: Stormwater Management Planning and Design Manual sections 1.5, 3.0 and 4.0 have been met.

21The Hydrogeological Report prepared by DS Consultants Ltd. dated July 5, 2024, only included one set of groundwater level measurements. Additional groundwater monitoring would be completed by the Applicant at the Site Plan application stage to confirm the seasonal high groundwater table elevations.

22The submission of a complete application for the proposed development did not require reports concerning the provision of affordable housing.

23The Applications submitted as required were deemed complete by the Municipality.

ORDER OF EVIDENCE AND WITNESSES

24It was agreed that the following Order of Evidence and Witnesses would govern the Hearing:

Appellant Witnesses:

1. Michael Barton, Urban Design

2. Darren Vella, Land Use Planning

Municipal Witnesses

1. Andrei Micu, Landscape Architecture

2. Sarah Gattie, Land Use Planner

3. Karen Richardson, Engineer, Development Infrastructure

25It was decided early on in the hearing that Ms. Zambri who oversees the dedication requirements for Subdivision, Site Plan and Land Division Applications would not provide evidence as the Tribunal did not have before it an appeal under section 42 of the Act.

26Mr. Barton was questioned on his urban design qualifications by the Municipality. The Tribunal ruled that Mr. Barton was previously qualified by the Tribunal on land use planning and based on his experience and education was qualified to provide his opinion on land use planning and urban design.

27Mr. Vella provided the Tribunal with contextual non-opinion evidence at the outset of the hearing.

EXHIBITS

28The following Exhibits were marked at the Hearing event.

• Exhibit #1: Joint Book of Documents, Volumes marked as A-D

• Exhibit #2: Visual Evidence – Municipality

• Exhibit #3: Visual Evidence – Applicant

• Exhibit #4: Agreed Statement of Facts

• Exhibit #5: Email from T. Webster to Be Kao dated May 26, 2023

• Exhibit #6: Planning Justification Report, April 2018

LEGISLATIVE TEST

29In making a decision with respect to OPA and ZBA appeals, the Tribunal must have regard to matters of provincial interest as set out in section 2 of the Act. In addition, s. 3(5) of the Act requires the Tribunal’s decision to be consistent with the Provincial Planning Statement 2024 (“PPS”).

30In consideration of the statutory requirements set out above, the Tribunal is directed to render a decision that it must be satisfied that the proposed development conforms to the ROP and the ZBA must conform with the COP, as proposed to be amended, and the applications represent good planning and are in the public interest.

EVIDENCE / ANALYSIS / FINDINGS

[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – Provincial Interest

31Section 2 of the Planning Act requires that the Tribunal in carrying out its responsibilities to have regard to a number of matters of provincial interest, and the Parties identified the following sections: s. 2(h), (i), (j), (p), (q) and (r).

32Mr. Vella indicated that the proposed development will efficiently utilize existing and available infrastructure including roads and services and rely on the existing road network established in the community. The Applications and proposed pattern of development will result in orderly development of safe and healthy communities (s. 2(h)).

33The Subject Lands are in close proximity to schools and parks within the adjacent subdivision. The Tribunal heard that the proposed development would provide access through connecting walkways to the existing neighbourhood of which the access points will be determined at the Site Plan stage (s. 2(i)).

34Mr. Vella stated that there will be a range of housing that includes 3-storey townhouses and a 12-storey mixed-use apartment building offering 1 and 2 bedroom units which will increase the choice of housing in the area, and which meets different affordability targets for future residents. It was noted that at no time did the Municipal Planning Staff require the Appellant to provide affordable housing on this site (s. 2(j)).

35In response to whether the applications were transit oriented (s. 2(q)), Mr. Vella advised that Durham Transit serves the community to the south which provides connections to the downtown. In Mr. Vella’s opinion, any level of intensification will assist in increasing ridership and support existing and the expansion of transit routes across the Municipality.

36The Tribunal heard that the subject lands are located inside the Urban Boundary and designated for Urban Residential development and located on a “Local Corridor”, which is identified as a Primary Intensification Area under the Clarington Official Plan (s. 2(q))

37Ms. Gattie proposed that density and height are inappropriate for its location within Clarington. The proposal also does not complement the existing built form along Mearns Avenue and Concession Road 3 as there is no transition in place from the low-density residential neighborhood to the proposed high density residential development on the subject lands (s. 2(r.i))

38She stated that the design, height, and density of the proposed 12 storey building does not appropriately fit into its existing and planned context of both the COP and draft Soper Springs Secondary Plan policies.

39The Tribunal has heard the evidence and submissions of the Parties and finds that although Ms. Gattie provided counter opinions on several policies, the Tribunal prefers the compelling evidence of Mr. Vella. As an affordable housing content was not required by the Applicant at the time of submission, Ms. Gattie’s reliance on it now to deem the applications not conforming with the Planning Act seems mute. Each of the remaining arguments by Ms. Gattie relating to height, density and planned context as well as transition will be addressed below.

40Therefore, the Tribunal finds the proposed development has regard to matters of provincial interest as set out in s. 2 of the Act.

Provincial Planning Statement 2024 (“PPS”)

41Section 2.2.1 (a) Housing states:

1. Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected needs of current and future residents of the regional market area by:

a) establishing and implementing minimum targets for the provision of housing that is affordable to low and moderate income households, and coordinating land use planning and planning for housing with Service Managers to address the full range of housing options including affordable housing needs

42Mr. Vella presented that the proposed development aligns with the direction of the PPS and speaks to efficient use of the currently vacant land with a range and mix of housing options. The proposed development is situated on lands designated for urban development and is designed in a pattern and form that not only supports efficient land use but also facilitates the logical and coordinated expansion of adjacent lands. This approach, he opined, ensures that future growth can be accommodated in a manner that aligns with the broader objectives of the settlement area and urban boundary expansion policies. The mix of one and two bedroom units in the 12 storey building will provide for a range of housing to accommodate a variety of incomes. The 3 storey townhouses provide a variety of housing in keeping with the already existing surrounding neighbourhoods.

43Once again, Ms. Gattie’s evidence relied on the lack of contribution to Municipal and Regional affordable housing targets. She suggested that no study or analysis was undertaken to show how the development contributes to the goal of providing for the projected needs of current and future residents in need of the affordable housing market.

44The Tribunal finds that the applications will provide a variety of housing to meet market-based needs for current and future residents which are in limited supply within the Municipality. There is a need for additional housing options in the Province and this a form of appropriate intensification which will assist the Region and Municipality in achieving their targets.

45Therefore, based on the evidence the Tribunal finds that the proposed development is consistent with the PPS.

2024 Durham Region Official Plan (Envision Durham)

46As mentioned above in paragraph [18], through the ASF both parties agreed that Envision Durham 2024 (Durham Official Plan) was not in force when the application was filed or deemed complete and that the policies reviewed are relevant but not determinative in this appeal.

47Mr. Vella commented on the ROP in so much as to say that section 3.1.20 requires that at least 25 percent of all new residential units produced throughout the region to be affordable to low and moderate income households. He informed the Tribunal that the Region no longer has planning authority, and that the Municipality has no authority outside of its Municipal limits to implement this policy, and thus this policy is without force and effect.

48The Tribunal heard that the Region had provided circulation comments on the application at a time when they were still the Planning Authority and did not raise the requirement for a Housing Affordability and Accessibility Analysis. Mr. Vella stated that the Region summarized its review of the applications as it related to the ROP, concluding that the proposed development conforms to all policies of the ROP.

49According to the applicable ROP (Durham Region Official Plan 1993), the lands are identified as “Living Areas” and along a “Local Corridor”. Having reviewed the policies governing new development within these designations, Mr. Vella opined that there is no policy that would be similar to policy 3.3.3 (d) of the 2024 ROP related to compatibility and integration with surrounding land uses and built form. It was his opinion, based on the applicability of the 1993 ROP, policy 3.3.3 (d) of the 2024 ROP is not applicable to the subject development.

50Ms. Gattie referred to policy 23.2.6 of the COP as a comparative to policy 3.3.3(d) of the 2024 ROP. In her opinion, the proposed built form, scale, density and in the range of uses proposed (i.e., the significant reduction in commercial and increase in storeys from 2 to 12), is not compatible and will not integrate well with the existing community.

51The Tribunal finds that Envision Durham 2024 (Durham Official Plan) is informative but not determinative. The Tribunal heard evidence of certain aspects of the proposed applications conforming and not conforming to Envision Durham 2024 which was not in force or effect when the applications were submitted.

DURHAM REGION OFFICIAL PLAN (1993)

52Mr. Vella brought the Tribunal to Section 4 of the 1993 ROP that outlines policies aimed at promoting a diverse range of residential dwellings—by type, size, and tenure—within Urban Areas to meet the social and economic needs of both current and future residents of the Region. In alignment with these goals and policies, he explained the proposed development contributes to housing diversity by offering a mix of townhouse units and 1-to 2-bedroom condominium units within the 12-storey building located in the Urban Area, which is consistent with policy 4.3.1. The proposal introduces mixed-use development adjacent to arterial roads (Concession Road 3 and Mearns Avenue) that are serviced by municipal infrastructure and are located in an area identified for future growth, in accordance with Policies 4.3.2(c) and (d).

53Section 7 of the 1993 ROP provides policies on Regional Structure, with goals to promote the efficient use of land and resources and to support the development of compact Urban Areas that contribute to healthy, complete, and sustainable communities (Policies 7.1.4 and 7.1.6). The Tribunal heard that the development proposal is aligned with these goals and general policies, by offering a distinct and compact urban form situated on underutilized lands directly adjacent to the existing built-up area. The proposal contributes to the creation of complete communities through a mix of residential and commercial uses, integrating with existing active transportation networks and to existing transit routes. Additionally, Mr. Vella stated that the proposed development supports the Region’s sustainability objectives by increasing residential density where density is expected to occur, minimizing land consumption, and facilitates walkability. The compact form also enhances the feasibility of future transit service expansion and reinforces the Region’s commitment to efficient infrastructure use.

54Ms. Gattie proffered that there was a lack of an analysis on affordable housing on how a 12-storey building would be compatible with the surrounding area.

55The Tribunal prefers the evidence of Mr. Vella and is satisfied that the proposed development of the underutilized vacant land will result in a variety of housing types, at an intersection of local corridors, directly adjacent to the built boundary. Further the proposed development will create a higher density use of the lands with access to transit, schools and nearby parkland.

56The Tribunal found that Ms. Gattie’ s testimony relied heavily on the need for an affordable housing content to the proposed development. As noted, the applications were deemed complete with no outstanding concerns from the Region regarding affordable housing content.

57The Tribunal is satisfied that the applications conform to the 1993 Durham Region Official Plan, which represents the in-force ROP at the time of the notice of complete application.

MUNICIPALITY OF CLARINGTON OFFICIAL PLAN (2024 CONSOLIDATION)

58The Subject Property is designated “Urban Residential” and also identified as a “Neighbourhood Centre”. The Subject Land is located inside the Urban Boundary. The Subject Property is identified as “Greenfield” and immediately adjacent to the “Built-Up Area”. Concession Road 3 is identified as a “Local Corridor” (Priority Intensification Area) on Map B (Urban Structure). Concession Road 3 and Mearns Avenue are identified as Type B and Type C Arterial Roads respectively.

Height and Density

59It was noted by both Messrs. Vella and Barton that Table 4-3 of the COP provides “guidance” for development applications based on their location. Table 4-3 provides for minimum density targets, not maximums. In their opinions, the predominant housing forms identified in Table 4-3 are general in nature and do not preclude similar or innovative housing forms which meet the intent of the COP, along with the intent of the ROP.

60The Tribunal heard that the proposed 12 storey height located at the intersection of two arterial roadways, should be considered an appropriate location for increased density and is rationalized on the principles of good planning and locational criteria adherence within the COP. The requested height is focused on a portion of the site that is best suited for vertical growth, due to proximity to transit, corridors, and minimal impact on low-rise neighbourhoods. This approach allows for efficient land use without overwhelming the surrounding context.

61The increased density permits additional units, allowing for a compact and walkable built form that contributes towards a transit supportive development. The pedestrian-friendly environment activates the streetscape, encouraging walkability. This aligns with goals for vibrant, mixed-use communities. The proposed development considers active transportation networks and provides appropriate methods of pedestrian movement. Sidewalks are provided throughout the proposed development providing pedestrian connections to Concession Road 3 and Mearns Avenue. The sidewalks further connect current and future residents to the proposed commercial development and amenity space through an existing pathway connection located at the southwest corner of the site. This pathway provides pedestrian connections to the adjacent residential neighbourhoods along Champine Square (west) and Freeland Avenue (south). Higher density near transit corridors enhances ridership potential and justifies investment in public transit. It also reduces reliance on cars, contributing to climate goals.

62The Tribunal heard that concentrating density supports already existing infrastructure, such as water, sewage, and transportation systems, making the development more sustainable and cost-effective.

63The Tribunal heard that a density of 50 units per hectare is proposed, where a density of 40 units per hectare is permitted. The proposed development provides for a medium density built form at a density that efficiently uses land and resources while remaining compatible with the adjacent residential neighbourhood.

64Mr. Barton took the Tribunal to Figure 35 to illustrate that the proposed mixed-use building is located the maximum distance from the adjacent single-detached residential areas with the transition in height, massing and density provided through the location of the proposed townhouse units. The location and design of the townhouse units provides transition from the greatest height and density in the mixed-use building.

65Ms. Gattie offered that no justification was given as to why the Appellant went from the originally approved application to a 12 storey building nor design information on how active transportation will be incorporated into the proposed development. In her opinion the Appellant is seeking a level of intensification that doubles the permitted height and significantly increased density resulting in a built form which casts inappropriate shadows and creates an environment that is visually imposing and unfriendly to pedestrians.

66Ms. Gattie opined that, while the subject lands have been identified for residential development, location alone does not justify the scale of the development proposed. The proposed 12 storey and 3 storey buildings do not reflect or build upon the desirable established patterns and built form of the surrounding neighbourhood, which is primarily composed of single-detached and linked homes.

67During cross examination Ms. Gattie confirmed that the draft Soper Springs Secondary Plan (policy 4.3.11) states that the minimum built form shall be at least 5 storeys with the addition of 2-storeys if there is an affordable housing content (policy 4.3.7). When put to the question of whether 8 storeys could be a possibility on the north side of Concession 3, she replied in the affirmative.

Character/Compatibility/Urban Design

68Mr. Barton commented on the elevation of the proposed mixed-use building as relative to the adjacent residential uses, allows for spatial distancing from the rear yards of both Freeland and Champine with further buffering of the 3-storey townhouses abutting the existing neighbourhood that effectively mitigates the proposed building height and screens the building from view on the adjacent properties by virtue of the grading on the site. This, in his opinion, supports a transition to the surrounding neighbourhood by concentrating the taller built form away from existing low-rise homes, while also reinforcing the corridor’s role as a focal point for intensification and mixed-use development.

69In his opinion this placement aligns with urban design principles that promote compatibility, minimize impacts on adjacent properties, and support transit-oriented and pedestrian-friendly environments. The proposed development incorporates design elements intended to enhance the built form character of the community while also providing a strong, attractive interface with the public realm along Mearns Avenue and Concession Road 3. The 12 storey building provides ample parking space, commercial amenities, and outdoor / indoor amenity space to residents, while also being significantly (70+ metres) set back from the existing single detached homes surrounding. Mr. Barton opined that the proposal incorporates a range of dwelling types and built form characteristics, in conjunction with commercial floor area, which supports the concepts of complete communities.

70In addition, it was noted that existing servicing would be sufficient to handle the proposed development and as such the development was an efficient use of land that optimized existing infrastructure. He noted that a Transportation Impact Study was completed and that all transportation issues were considered resolved concluding there would be no traffic impacts.

71The proposal represents efficient development pattern and form that will also facilitate development of the adjacent lands designated for urban residential development and future expansion of the existing urban boundary and settlement area. The proposed density and built form have been designed to optimize investments in municipal services and infrastructure.

72The Appellant’s view is that the proposal is well transitioned and integrated within the existing neighbourhood providing an appropriate transition and integration to the surrounding neighbourhood.

73Ms. Gattie stated that the proposed development would not build upon desirable established patterns and built form within the neighbourhood, and that the development would prove to be an incompatible integration with the surrounding area in terms of scale, form and character. The proposed 12 storey and 3 storey structures would be at a greater mass and height than those of the surrounding properties, resulting in a contrast in scale and massing in the neighbourhood. In short, the development would detract rather than contribute to achieving the City’s planned urban structure which generally directs higher density uses to the downtown core.

74Ms. Gattie opined the character aspects are not satisfactory. The differences in scale, height and massing would create a visual in the neighbourhood that is out of character and would alter the land use pattern. The Tribunal heard that the proposed development would drastically alter the existing streetscape and would detract rather than contribute to the Municipality’s planned urban structure. As well, the significant contrast in massing and height of the 12 storey structure adjacent to a low-rise residential neighbourhood introduces a built form that is abrupt and visually discordant.

75In her opinion, a balance is required to maintain the compatibility with the scale and character of existing residential neighbourhood. Ms. Gattie stated that the development undermines the principles of gradual transition, contextual sensitivity, and pedestrian-oriented design, and does not support the creation of a cohesive or comfortable urban environment. It was stressed that the reason for a planned urban structure is to achieve higher density forms that ensure efficiency, order and stability in the Municipality’s development patterns.

76Ms. Gattie acknowledged that the proposed development did conform to some COP and Provincial policies supporting intensification, however, she opined that this type of development should not happen to the detriment of municipal level policies on compatibility and intensification.

77Ms. Gattie also argued that intensification such as the Proposed Development should not occur until the Municipality has completed the Soper Springs Secondary Plan.

78When put to the question in cross examination, as to whether the 12 storey apartment could be permitted on the site if there were an affordable housing content included, Ms. Gattie agreed that the current 6 storeys permissions could be increased under those circumstances.

79The Tribunal is satisfied that the development of the subject site for a mixed-use residential building will be an efficient use of land, with a denser and more compact urban form that will cost-effectively utilize existing infrastructure and community facilities, and therefore is consistent with all applicable policies of the PPS and the COP.

Shadow Impacts

80Mr. Barton brought the Tribunal to the Shadow Study to demonstrate that there will be no negative impacts on the adjacent neighbourhoods. The Shadow Study was accepted by the Municipality as part of the complete application. The stated purpose of the Shadow Study was to illustrate how shadows cast impact adjacent properties, streets, and public amenities. It was noted to the Tribunal that the Terms of Reference provided by the Municipality have not been updated since July 2012 and are not publicly available on the Municipality’s website. Furthermore, the document contains inconsistencies regarding the times of day to be evaluated. Mr. Barton advised that the Terms of Reference are contrary to Ms. Gattie’s testimony as they direct that shadow impacts be evaluated specifically focusing on public sidewalks and parks to ensure at least 5 hours of continuous sunlight per day and not just the surrounding and proposed neighbourhoods.

81In his opinion, the findings demonstrated that the proposed development meets the intent of the Municipality’s shadow guidelines and does not result in adverse shadow impacts on adjacent residential areas at any point throughout the year, on public amenities or on the adjacent existing natural heritage and agricultural lands to the north and east.

82Ms. Gattie noted that an application for development on the southeast corner of Concession 3 and Mearns Avenue has been submitted and the draft Soper Springs Secondary Plan is underway. Shadows will impact any future residential on either area but most particularly on the southeast corner. Ms. Gattie opined that there has not been a thorough demonstration by the Appellant to show there will be no negative impacts on any of the existing neighbourhoods.

83Noting the shadow study, she contended that the Municipality was only in receipt of visuals and not written documentation.

84The Tribunal, having been provided photograph of the impact of shadows on the surrounding area, finds no negative impact on the existing adjacent neighbourhood.

Public Realm

85The Tribunal heard that a Neighbourhood Centre/Public Square, being a privately owned public space (“POPS”), has been added to the project, in the north-east portion of the site, adjacent to Concession Road 3 adjacent to the ground floor commercial unit within the proposed building. This POPS will serve as a focal point and gathering/socializing space for the neighbourhood, with right of public access.

86The Tribunal heard from Mr. Barton that the details pertaining to the provision of defined spaces for social interaction will be provided through detailed drawings submitted for Site Plan approval after further consultation with staff. Maintenance and operation of the amenity area and public square will be by the condominium corporation and will be detailed through appropriate development agreement provisions during the Site Plan Control process.

87Mr. Vella stated that COP policy 18.3.3 speaks to ‘Public Squares that are intended to be provided by the municipality in collaboration with education, health, religious, cultural, non-profit organizations and social service provides’. Policy 18.3.3 is not intended to be applicable to private developments. As such, the target of 0.8 hectares per 1000 persons is not applicable to the subject site which is a private development. Furthermore, this target is to be implemented by the municipality at a community-wide scale.

88In his opinion, the space to the west of the proposed 12-storey building as a Public Square is not intended to satisfy policy 18.3.3, but rather to provide an opportunity for residents and users of the site to gather. The space is not intended to be a major destination point for social and recreational purposes. Based on this intended programming, policy 18.3.3 is not applicable. Notwithstanding the foregoing, in his opinion the development has demonstrated a commitment to good design by providing this space.

89Policy 10.5.4 and 10.5.5 speaks to public squares in Neighbourhood Centres provides that Neighbourhood Centres shall:

i. incorporate public squares and

ii. will have the right of public access.

90As such, there is no size requirement and no requirement for the public square to be on privately owned lands, rather just to provide public access.

91He opined that the intent of policy 10.5.4 is met by i) and ii) committing to it being publicly accessible. Policy 10.5.5 states that public squares can be constructed as part of a commercial development with the right of the public to access the square. Mr. Barton stated that the conceptual plan shows the public square to the west of the 12-storey building that will provide the right of the public to access it, and it was his opinion that policy 10.5.5 is duly met.

92Ms. Gattie stated the public square shown on the concept plan is not sufficient in size according to policy 18.3.3 of the COP, nor does it meet the intent and purpose of policy 10.5.4 of the COP. Additionally, as per policy 10.5.5 public squares shall be constructed either as a public parkette or as part of a commercial development with the right of the public to access the square secured by appropriate means. Public squares are required in any new Neighbourhood Centres identified by amendment to this Plan. Therefore, the proposed public square is also not meeting the intent and purpose of policy 10.5.5 of the COP.

93She further pointed out that Clarington’s Amenity Guidelines for Medium and High Density Residences does not recognize POPS, nor is there an Ontario Regulation through the Planning Act to regulate POPS. Clarington’s Amenity Guidelines for Medium and High Density Residences requires 2 square metres per dwelling unit for indoor amenity space and 4.0 square metres per dwelling unit for outdoor amenity space. This would require 550 square metres of indoor amenity space and 1,100 square metres of outdoor amenity space, whereas right now there is only approximately 151.05 square metres of indoor amenity space and 130 square metres of outdoor amenity space.

94The Tribunal heard that a significant majority of parking for the mixed-use building will be provided in a below-grade structure in order to allow for an efficient use of the subject lands and will allow for more outdoor amenity space and landscaping. The limited surface parking will be screened from view in the public realm and from adjacent properties. It will be adjacent to the commercial building entrance with landscape buffering and spatial separation along Concession Road 3.

95Mr. Micu stated that a private amenity in the form of POPS as proposed on this site does not enhance the public realm and does not align with the COP or Clarington’s Parks, Recreation, and Culture Master Plan. The proposal falls short of what would typically be considered a public park that effectively serves the community needs. It fails to meet the qualitative and quantitative standards for public space outlined in Clarington’s policy and guiding documents. The proposed amenity area is significantly undersized for the potential population it is intended to serve which renders it an ineffective and unsuccessful attempt at enhancing the public realm

96The Tribunal is satisfied that the details and legal agreements pertaining to the privately owned public space and parkland with the potential for landscaped areas, benches, refuse containers, bicycle stands, lighting and other elements that enhance the social and physical environment will be addressed at the Site Plan stage.

Commercial Function

97The Tribunal heard that the commercial uses are proposed at grade of the 12-storey residential building, in alignment with Section 8B.2.1.b of the ROP as the mixed-use development is located in an appropriate location, will provide for local commercial uses by providing area residents with direct access to the proposed commercial use in an area where future development is expected to take place, along a Local Corridor.

98The subject lands are designated ‘Urban Residential’, As per section 9.3.1, the predominant use of these lands will be for housing purposes, while other uses may include small scale service and neighbourhood retail commercial uses, home-based occupation uses, parks, schools, and community facilities. Mr. Vella opined, the proposed development provides for residential and commercial uses, as permitted and in alignment with the policies of section 10.5 and the ‘Neighbourhood Centre’ designation.

99As per the Official Plan, the ‘Neighbourhood Centre’ designation permits, and encourages, mixed use development to provide for appropriately scaled local commercial uses. In alignment with section 10.5.3 of the Official Plan, the commercial space will be limited to a maximum size of 300 square metres of gross leasable area.

100As mentioned, mixed use buildings are encouraged and permitted within the Municipality’s Official Plan and are further encouraged to be oriented towards the street, providing a strong street edge.

Findings on the Clarington Official Plan

101The Tribunal is satisfied that the proposed development would provide no negative impacts on the surrounding neighbourhood, would be sufficiently compatible in terms of scale, and would contribute rather than detract from the Municipality’s planned urban structure. In addition, although the proposed development is different in character from the existing neighbourhood, it is a compatible integration in terms of scale, form and character and will contribute to the Municipality’s planned urban structure.

102The Tribunal finds that the proposed increase in height and density is a strategic response to anticipated growth, offering several key benefits as the area is expected to accommodate significant development, and the proposal aligns with objectives for urban expansion.

103The Tribunal is satisfied that the proposal provides for additional housing options and an orderly residential development that is well transitioned and integrated within the existing neighbourhood as well as providing for future development within the Bowmanville Urban Area. Noting that the subject lands are adjacent to north and east vacant lots that are designated ‘Urban Residential’, development is expected to occur in the future, making this intersection a key crossroads in the development the Municipality of Clarington. The proposed development provides for a focal point to the area through architecture and built form, as well as through the mix of uses and the introduction of local commercial uses and outdoor amenity use for community members.

104By increasing the number of townhomes from 50 to 63, and units per block from 6 to 7, the proposal allows for a more logical and compact site design, minimizing land consumption thus contributing to the much needed housing stock, addressing regional housing pressures.

105The Municipality did not sufficiently demonstrate that the development constitutes overdevelopment; fails to promote intensification; or that it is inconsistent with transit-supportive planning or key municipal housing initiatives.

106The proposed development satisfies the policies of the COP for the many reasons set out above. In consideration of the existing and planned context of the surrounding area, its land use designations, and proximity to transit, the proposal is an appropriate fit for this corridor location.

ZONING BY-LAW AMENDMENT

107The subject lands are currently zoned ‘Urban Residential Type Three Exception (R3-56)’. The proposed Zoning By-law Amendment (ZBA) seeks to rezone the lands to the ‘Urban Residential Type Three Exception (R3-XX)’ and ‘Urban Residential Type Four Exception (R4-XX)’ zones to permit the mixed-use development on the subject lands.

108The Tribunal heard that relative to parking, the proposed ZBA provides sufficient and appropriate parking facilities to this development. Relative to permitted uses, the proposed ZBA’s inclusion of commercial uses within the R4-XX zone is supported by each of the ROP (1993) and COP which envision mixed-use building(s) on the subject lands.

109With regard to setback reductions proposed within the ZBA, the Tribunal heard that they maintain functionality, with no negative impacts anticipated, in all aspects of the proposed development while allowing for the efficient use of land.

110Yard Setback to Dwelling – A front yard setback of 2.5 m (where Blocks E & H are positioned 2.5 m from the private road) is requested, where 4.5 m is required. The reduction to 2.5 metres only applies to a small portion of the proposed development, where the townhomes are located adjacent to a 90 degree turn in the condominium road. The reduction to 2.5 metres will have no impact on the functionality of the lot or road and is considered minor as it will apply to only two units.

111Rear Yard Setback – A rear yard setback of 4 metres is provided where 7.5 metres is required. The reduced rear yard setback allows for an appropriate rear yard amenity space for each unit, while providing for a more compact development that efficiently uses land.

112Projection into required yard setback – A maximum projection of 2.5 m into a required yard setback, for balconies, porches, etc. is proposed where a maximum 1.5 m is stipulated in the Zoning By-law. The Tribunal heard this is applicable to the northernmost end unit within Block A, where it flanks Concession Road 3. Thought was given to the orientation of this unit, with its side facing Concession Road 3, and a wrap-around porch has been included in order to provide enhanced architectural design/styling /streetscape when seen from Concession Road 3. A 1.0 m deviation will enhance urban design to the project.

113Front Yard Setback – A front yard setback of 1.5 m (to the building) and 0 m (to the underground parking structure) is provided where a minimum of 7.5 m is required for the R4 zone. The 1.5 m front yard setback applies to the mixed-use residential building that fronts onto Concession Rd 3. The front yard setback for the R4 zone only considers setbacks for ground floor residential uses and does not contemplate a mixed use building with active street frontages. Section 5.4.3 of the Official Plan encourages buildings along Corridors and Intensification Areas (Concession Rd 3) to be sited near the street line in order to create a strong street edge. The reduced setback of 1.5 m to commercial use therefore aligns with the urban design policies of the Official Plan and is considered appropriate. The 0.0 metre front yard setback applies to the underground parking structure and will have no visual impact on the subject lands or surrounding lands and allows for the lands to be used efficiently and provides for an adequate amount of parking. The reduced setback of 0.0 m to the parking structure is therefore considered appropriate.

114Interior Side Yard Setback – A setback of 0 m is provided to the underground structure, where 7.5 m is required. The reduced interior side yard setback applies only to the underground parking structure and will have no visual impact on the subject lands or surrounding lands. The reduced exterior side yard setback allows for the at-grade commercial units to be oriented towards the street and contributes to an active streetscape and no impacts to sight lines are anticipated. Rear Yard Setback – A rear yard setback of 0.0 m is requested to the underground parking structure, while a 7.0 m rear yard setback is requested to the building, where 7.5 m is required for the R4 zone. The reduced rear yard setback of 0.0 m applies to the underground parking structure and will have no visual impact on the subject lands., and only slightly deficient of the zoning requirement of 7.5 m for the building above grade.

Parking

115The Tribunal heard parking access would be from Concession 3 that would connect to an internal vehicular private road that connects to the above ground parking area, and unground parking entrance.

116The Tribunal heard there is a total shortfall of 2 parking spaces which represents a reduction of 2.9% which is numerically inconsequential. Mr. Vella opined that the 2-parking space shortfall will not result in future parking issues as the site will provide the option for sharing of visitor parking spaces that can be supported through the shared use of the commercial parking spaces provided during off-peak hours. The proposed development does not envision or require on-street parking on these roadways. The application was deemed complete without the need for a Parking Justification Study/Analysis.

117Ms. Richardson stated Mearns Avenue and Concession Road 3 are arterial type roads where on-street parking is prohibited. In her opinion the Appellant has not submitted sufficient information to justify the reduced parking standard. To consider a reduction, a parking justification brief should be submitted outlining similar proxy sites that are currently operating efficiently without parking issues for review.

118The Tribunal agrees with the Appellant. By utilizing the sited commercial parking during off hours, the parking complement will be generally addressed.

Holding Provision (“H” Symbol)

119The Tribunal heard that the Municipality requires a “Holding provision” requiring the landowner to address to the satisfaction of the Municipality: a) Services and municipal works; b) Measures to protect natural areas; c) Measures to mitigate the impact of development; d) Submission of technical studies; e) Remediation of contaminated soil, if necessary; and f) Legal agreements with the Municipality, the Region and any other agencies.

120The Tribunal is satisfied that these matters have already been reviewed and addressed sufficiently through the original Draft Plan Approval and Registration of M-Plan (40M1723) and detailed through the information provided as part of the current OPA & ZBA applications or will be determined through the required Site Plan Control process.

121The Tribunal determines that adding a Holding Provision would be unnecessary and is redundant as the Appellant has already gone through a detailed and comprehensive planning process, which addressed the concerns that a Holding Provision would normally cover, thereby removing an additional layer of approval or delay, allowing the development to proceed more efficiently.

CONCLUSION

122Based on the whole of the evidence inclusive of the oral testimony of the experts, the documentary record and the oral and written submissions and for the reasons provided which speak specifically to items on the Issues List, the Tribunal is satisfied that the proposed development is reasonable and that it: has due regard to s. 2 of the Planning Act; is consistent with the PPS 2024; conforms to the applicable policies of the ROP and the COP; and represents good planning.

123The Tribunal looks to the assessment of the Applications which should not be approached as an exercise to prevent development on this land, but rather to balance such proposed development within the Provincial, Regional and Local planning framework.

124There is no question that the Subject Lands are on the periphery of an established neighbourhood dominated by low-rise residential buildings. Neighbourhoods are not static, and most will witness some physical change over time, with the development of vacant lands which is an inevitable component of this evolutionary process particularly as Municipalities plan for the future and urban expansion. This is evident in the Tribunal hearing that the Municipality has begun undertaking the process of drafting the Soper Springs Secondary Plan for the lands directly north of the Subject Lands along Concession 3 and having received a development proposal for the lands directly to the east across Mearns Avenue.

125In terms of the evolution of the neighbourhood, the Tribunal acknowledges the efforts undertaken by the Appellant to lessen integration impacts of the proposed development on the surrounding neighbourhood. The Tribunal is satisfied that the proposal provides for orderly residential development that is well transitioned and integrated and is compatible with existing and future development of the Bowmanville Urban Area. The proposal provides for additional housing options in a location designated for growth and development.

126The Tribunal finds that the proposed increase in height and density is a strategic responses to anticipated growth, offering several key benefits as the area is expected to accommodate significant development.

127This development proposal leverages existing and available municipal services, reducing the need for costly infrastructure expansion. The proposed OPA and ZBA, when finalized, will provide additional housing choices for existing and future residents and support the Province and the Municipality in meeting their housing objectives.

128Under the existing zoning regime, the subject lands would result in an under-utilization of the subject site, from built form and housing perspectives. By contrast, the development proposal for the subject site includes optimizing the height and density of this location. The development proposal is a contemporary expression of Provincial policy that would enable the realization of intensification and contribute to the ‘complete communities’ policy priorities of the PPS.

129Finally, the Tribunal did not receive any written Participant status requests or statements nor was there any public expression by the homeowners adjacent to the subject lands to weigh in this matter. It strikes the Tribunal as somewhat perplexing that while the Municipality argues against the height and transitioning of the proposed development to the existing neighbourhood by the 3-storey townhouses and most particularly the 12-storey building, the adjacent property owners who would potentially be most affected are mute on the subject matter.

130The Tribunal directs the Parties to ensure the final form of the ZBA refines and defines the content necessary to establish the privately owned public space and the commercial space. The Tribunal notes that Site Plan Application(s) and Draft Plan of Condominium will be required as part of the Planning approvals process.

131The Tribunal allows the appeals in part and approves the OPA and ZBA in principle, in accordance with the draft OPA and ZBA attached that is contained in the Joint Document Book marked as Exhibit 1, Volume D, (Tab 91 and Tab 92).

INTERIM ORDER

132THE TRIBUNAL ORDERS THAT the appeals are allowed in part, on an interim basis, contingent upon confirmation, satisfaction or receipt of those pre-requisite matters identified below, and the Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) set out in Attachment 1 and 2 to this Interim Order, are hereby approved in principle.

133The Tribunal will withhold the issuance of its Final Order contingent upon confirmation of the Municipal Solicitor, that the following pre-requisite matters have been completed:

1. The Tribunal is advised that the Parties have removed the third bullet point from the draft OPA:

Notwithstanding policies 23.10, Park Land Dedication is to be provided in the cash equivalent to 0.008 ha, as determined by an approved Appraisal Report.

2. The Tribunal is advised that the following have been included in the draft ZBA:

i. The west property line setback and south property line setback for the 12-storey building face;

ii. Definition of the term Commercial Space along with an outline of context as per the concept plan;

iii. Definition of the term Amenity Space along with an outline of context as per the concept plan;

iv. Park Land Dedication 2(h) is to be removed until a Site Plan application is submitted for the subject lands and the appropriate condition can be imposed.

134The Panel Member will remain seized for the purposes of reviewing and approving the final draft of the Official Plan and Zoning By-Law Amendments and the issuance of the Final Order.

135If the Parties do not submit the final drafts of the Zoning By-law Amendment, and provide confirmation that all other contingent pre-requisites to the issuance of the Final Order set out in paragraph [133] above have been satisfied, and do not request the issuance of the Final Order, by Friday, November 14, 2025, the Applicant and the Municipality shall provide a written status report to the Tribunal by that date, as to the timing of the expected confirmation and submission of the final form of the draft Official Plan and Zoning By-law Amendments and issuance of the Final Order by the Tribunal. In the event the Tribunal fails to receive the required status report, and/or in the event the contingent pre-requisites are not satisfied by the date indicated above, or by such other deadline as the Tribunal may impose, the Tribunal may then dismiss the Appeal.

136The Tribunal may, as necessary, arrange the further attendance of the Parties by Telephone Conference Call to determine the additional timelines and deadline for the submission of the final form of the instrument(s), the satisfaction of the contingent pre-requisites and the issuance of the Final Order.

“D. Chipman”

D. CHIPMAN

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

Attachment 2