Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 22, 2025
CASE NO(S).: OLT-24-001038
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Peterborough Action for Tiny Homes (PATH) - Keith Dalton
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision.
Description: To enable the adoption of a temporary use by-law to permit a transitional housing development.
Reference Number: Z2408
Property Address: 385 Lansdowne Street East
Municipality/UT: City of Peterborough
OLT Case No.: OLT-24-001038
OLT Lead Case No.: OLT-24-001038
OLT Case Name: PATH v. Peterborough (City)
Heard: June 12-26, 2025 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Peterborough Action for Tiny Homes | Will Thomson |
| City of Peterborough | Alan Barber |
| Toromont Industries Ltd. | Tara Piurko, Noah Gordon |
DECISION DELIVERED BY C.I. MOLINARI ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is an Appeal filed by Peterborough Action for Tiny Homes (“PATH”) pursuant to s. 34 (11) of the Planning Act (“Act”) against the refusal by the City of Peterborough (“City”) of a Temporary Use By-law (“TUBL”) application (“Application”), for the property known municipally as 385 Lansdowne Street East (“Lansdowne”) (“Property”). Toromont Industries Ltd. (“Toromont”) owns 3 Consumers Place, being the adjacent lands to the south and southeast (“Toromont Property”) of the Property and was added as an appellant at the Case Management Conference.
2The purpose of the Application is to permit ‘sleeping cabins’ (“Cabins”), intended to provide transitional housing for individuals facing chronic homelessness, for a period of three years. The development would consist of 24 Cabins located in the southern portion of the Property, with the existing one-storey building (“Existing Building”) to be renovated to provide services to the tenants of the Cabins, including the following uses: eating/dining area; washroom facilities; medical clinic and office; laundry facilities; supplies room; bicycle lock-up area; offices for support workers; and a reception/lounge area (together “Proposal”). No additional permanent buildings are proposed on the Property.
THE PROPERTY AND SURROUNDING CONTEXT
3The Property is L-shaped, with an approximate area of 0.527 hectares. It is located east of downtown Peterborough in an established area of commercial and industrial uses, and a residential subdivision to the northeast. The uses immediately surrounding the Property include a commercial plaza to the north, a church and an Ontario Provincial Police detachment to the east, the Toromont Property and Highway 115 to the south, and commercial and industrial uses to the west and southwest. It has frontage on the south side of Lansdowne and on the west side of Consumers Place and is currently developed with the Existing Building, having an approximate area of 571 square metres.
4Lansdowne has sidewalks on both sides, is served with transit with a bus stop directly in front of the Property, is classified as a ‘High Capacity Arterial’ in the City Official Plan (“COP”) and connects to Highway 115 to the east.
5The Property is designated in the COP as ‘Strategic Growth Areas’ and ‘Major Mixed-Use Corridor’ on Schedules ‘A’ and ‘B’ respectively. The ‘Major Mixed-Use Corridor’ designation permits, among other uses, “[m]id-rise and high-rise residential uses, including live-work units and communal or special needs housing”, with ‘special needs’ defined in the COP as:
Any housing, including dedicated facilities, in whole or in part, that is used by people who have specific needs beyond economic needs, including but not limited to, needs such as mobility requirements or support functions required for daily living. Examples of special needs housing may include, but are not limited to, housing for persons with disabilities such as physical, sensory or mental health disabilities, and housing for older persons. [emphasis added]
6The Property is zoned ‘Commercial District (Special Purpose Retail) (C.7) Zone’ in the City Zoning By-law 97-123, which permits a variety of uses, including the existing ‘Ready for Home’ use, which allows for the collection, repair, and distribution of clothing. The proposed Cabins, common area, and associated offices are proposed to be permitted through a TUBL as a form of “temporary transitional housing and associated services”, according to PATH. It is proposed that the TUBL would:
define ‘sleeping cabin’ and ‘sleeping cabin community’;
permit up to 24 Cabins, together with a sleeping cabin community operating within the Existing Building;
establish a minimum side yard setback of 4.3 metres (“m”) and a minimum rear yard setback of 3.6 m;
require a total of five parking spaces and one barrier free parking space;
require one ‘Type B’ loading space;
require a 6 m wide drive aisle;
establish a minimum separation distance between sleeping cabins of 2.4 m;
reduce the minimum building setback from Consumers Place to 4 m for the placement of a Cabin; and
provide a reference to s. 39 (2) of the Act denoting the expiry date of the TUBL.
7Should the TUBL be approved by the Tribunal, an application to amend the existing Site Plan for the Property would be required.
TOROMONT PROPERTY
8The Toromont Property consists of the existing facility on the east portion of the site containing the Toromont operations and the related Battlefield Equipment Rentals (“Battlefield”) facility (together “Toromont Facility”). Toromont specializes in the sale, maintenance and repair of heavy construction equipment including asphalt pavers, motor graders, compactors, excavators, industrial-grade diesel generators, backhoe loaders, and dump trucks. Battlefield rents construction equipment, tools and supplies, and provides safety training.
9Toromont has conditional Site Plan approval and an executed Site Plan Agreement (“SPA”) with the City for the development of a proposed separate industrial equipment sales and rental facility for Battlefield, with accessory office space and an outdoor storage area to be located on the portion of the Toromont Property west of the Existing Building and directly south of the Property (“Proposed Battlefield Facility”).
REQUIRED APPROVALS
10Section 39 (1) of the Act allows for the passing of a TUBL under s. 34 authorizing the temporary use of land, buildings or structures for a purpose that is otherwise prohibited by the zoning by-law of the municipality. PATH requires a TUBL to permit the temporary use of the Property for the Proposal for a period of three years.
LEGISLATIVE FRAMEWORK
11When considering an appeal filed pursuant to s. 34 (11) of the Act, the Tribunal must have regard to the matters of provincial interest as set out in s. 2, and to the decision, if any, of the City and the information considered in making the decision, as required by s. 2.1 (1).
12Further, s. 3 (5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the policy statements that are in effect on the date of the Tribunal’s decision, and to conform or not conflict with provincial plans that are in effect on the date of the Tribunal’s decision. In this respect, the Tribunal must be satisfied that the TUBL is consistent with the Provincial Planning Statement, 2024 (“PPS”).
13The Tribunal must also be satisfied that the TUBL conforms with the COP, as required by s. 24(1) of the Act, represents good land use planning and is in the public interest.
PARTICIPANTS
14A number of Participants provided statements with concerns including: consistency with the PPS (although reference was made to the Provincial Policy Statement, 2020); conformity with the COP; availability of community support services in the immediate area for people experiencing homelessness; availability of commercial and industrial lands in the City; land use compatibility (“LUC”); and impacts on neighbouring commercial and industrial uses. These concerns were addressed through the evidence of the various witnesses.
WITNESSES
15The City did not to take an active role in the hearing, did not call any witnesses, and instead maintained a watching brief, while making Brad Appleby, its Director, Planning, Development and Urban Design, available to be called as a witness by PATH.
16The Tribunal qualified the following witnesses to provide non-opinion evidence:
For PATH:
- Keith Dalton – General Contractor for PATH
For Toromont:
Don Hillstrom – Branch Manager, Toromont
Tony Joosse – Vice President Operations, Battlefield Equipment Rentals
17The Tribunal qualified the following witnesses to provide expert opinion evidence in their respective areas of expertise, as noted:
For PATH:
Brad Appleby – Land Use Planning
Brad Parsons – Water Resources Engineering
Michael Cullip – Transportation Engineering
Trevor Copeland – Environmental Compliance, Air and Noise LUC Engineering
Kent Randall – Land Use Planning
For Toromont:
Russell Brownlee – Transportation Engineering and Safety
Michael Masschaele – Noise and Acoustical Engineering
Christian Chan – Land Use Planning
EVIDENCE / ANALYSIS / FINDINGS
18For the reasons that follow, the Tribunal dismisses the appeal and refuses the TUBL.
19Mr. Copeland and Mr. Masschaele signed an Agreed Statement of Fact agreeing that:
the Environmental Land Use Compatibility Guidelines (“D-Series Guidelines”) issued by the Ministry of the Environment, Conservation and Parks (“MECP”), are applicable to the determination of the Application;
the Proposal meets the definition of a ‘sensitive land use’ (“SLU”) under the PPS and the D-Series Guidelines; and
the Toromont Facility qualifies as a ‘Class II Industrial Facility’ (“Class II Facility”) under the D-Series Guidelines.
20The primary issues in contention are related to LUC and to the classification of the use of the Cabins as either a ‘dwelling’ (“Dwelling”) or a ‘noise sensitive institutional purpose building’ (“NSIPB”), under MECP’s ‘Environmental Noise Guideline – Stationary and Transportation Sources – Approval and Planning’ (“NPC-300”), and whether the proposed mitigation measures are sufficient to ensure LUC with the surrounding uses.
D-Series Guidelines
21The D-Series Guidelines consist of a series of environmental land use planning compatibility guides for industrial and SLUs, among other applications. Within the D‑Series Guidelines, the ‘D-1 Land Use and Compatibility’ guide (“D-1 Guideline”) and the ‘D-6 Compatibility between Industrial Facilities’ guide (“D-6 Guideline”) are applicable to the proceedings.
22The D-1 Guideline is a guide for “planning authorities on how to decide whether new development or land uses are appropriate”, and is applicable, in part, when a new SLU is proposed within the influence area or potential influence area of an existing ‘facility’, (which is defined in Procedure D-1-3 [a supplementary document to the D-1 Guideline] to include an industrial building or structure and/or associated lands which produces one or more adverse effects on a neighbouring property). Further, the D-1 Guideline states that “[i]f a proposed use is permitted in the official plan, but rezoning is required, … then this guideline shall apply”.
23The D-6 Guideline is a guide for “planning authorities on how to decide what types of land uses are appropriate near industrial areas” and is intended to “prevent or minimize future land use problems due to the encroachment of sensitive land uses and industrial land uses on one another”.
NPC-300
24NPC-300 is a separate environmental planning tool implemented to ensure LUC in compliance with MECP standards specifically with respect to assessing noise impacts.
25The applicable noise level limits of NPC-300 “are intended to provide guidance for the planning of land uses where noise may have a potential impact”. It provides sound level limits for stationary sources affecting points of reception in noise sensitive land uses (“NSLUs”). The limits apply to the assessment of existing, planned, new, expanded or modified stationary sources of sound. It also provides the operational requirements applied to MECP approvals for noise emissions from stationary sources. Of particular note, the sound level limits may also apply to noise-related incidents reported to the MECP, which are investigated to determine the potential for an adverse effect.
26There is therefore a two-part test to be met for determining LUC: the Proposal must meet both the D-6 Guideline and NPC-300 to be considered compatible with surrounding land uses.
Classification of the Cabins
27The classification of the use of the Cabins as residential or institutional, and in particular whether it is appropriate to consider the use as institutional under NPC-300, quickly emerged as the paramount issue to determine LUC between the Toromont site and the proposed SLU on the Property.
28NPC-300 has less stringent required mitigation measures for NSIPBs as compared to Dwellings, and a determination of the classification of the Cabins under NPC-300 is therefore critical to the determination of the mitigation measures.
29Under NPC-300, the applicable definitions to be considered in this respect are Dwelling, NSIPB, and NSLU which are defined as follows:
"Dwelling"
means one or more habitable rooms used or capable of being used as a permanent or seasonal residence by one or more persons and usually containing cooking, eating, living, sleeping and sanitary facilities.
[emphasis added]
"Noise sensitive institutional purpose building"
means a building used for an institutional purpose, including an educational facility, a day nursery, a hospital, a health care facility, a shelter for emergency housing, a community centre, a place of worship and a detention centre. A place of worship located in commercially or industrially zoned lands is not considered a noise sensitive institutional purpose building. [emphasis added]
"Noise sensitive land use"
means:
a property of a person that accommodates a dwelling and includes a legal nonconforming residential use; or
a property of a person that accommodates a building used for a noise sensitive commercial purpose; or
a property of a person that accommodates a building used for a noise sensitive institutional purpose.
30Mr. Copeland stated that ‘institutional’ has varying definitions in different regulations and planning contexts. He proffered that it was his understanding that the Proposal will provide transitional housing and services similar to a homeless shelter or emergency shelter (“Shelter”), with washroom and cooking facilities to be centralized in the Existing Building “similar to most institutional uses”. He noted that the Cabins will not include “all the necessities of a dwelling”. He opined that the layout “is similar to a motel, or detention centre type layout except that the cabins also exclude washroom facilities”.
31Based on this determination, Mr. Copeland assessed the Cabins as an NSIPB under NPC-300 for the purpose of determining appropriate mitigation measures to protect the occupants of the Cabins from nearby industrial uses.
32Similarly, it was Mr. Randall’s opinion that the Cabins do not meet the definition of ‘dwelling’ in NPC-300 as they “only include living space with electricity. All cooking, sanitary, and dining facilities will be located within the main building” which “will also include ‘wrap-around’ services such as counselling”.
33Further, Mr. Randall proffered that the Proposal meets the definition of NSIPB in NPC-300 as it “is intended to provide a transitional living facility for the homeless”, “does not include traditional dwelling units designed for long-term, independent living”, and is “intended to be a transition from homelessness to permanent dwelling units, such as a rental apartment unit”. Further, he proffered that “[w]hile the stay times will vary, the units are not intended as the occupant’s permanent home”. It was his opinion that, although a ‘transitional housing facility use’ is not specifically mentioned, the definition does not provide an exhaustive list, and the Proposal is similar in nature to a health care facility, a Shelter or “other similar facilities where people live and health care, food, and other services are provided communally”.
34Conversely, it was Mr. Chan’s opinion that the uses proposed within the Existing Building could be considered institutional while the Cabins should be considered residential. He further stated that the use of the Cabins is not transient nor “to be used on a daily or emergency basis by different occupants”, which he qualified as a common characteristic of the types of uses included in NSIPBs.
35Mr. Chan noted that ‘transitional housing’, as the Cabins are described by PATH, is defined by Statistics Canada (“Stats Can”) as:
Transitional housing' provides temporary shelter, but can be differentiated from emergency shelters by the longer length of stay and greater intensity of support services offered to clients. Transitional housing is an intermediate step between emergency shelter and permanent housing. Support services help clients gain stability and self-sufficiency to maintain permanent housing. Stays are typically between three months and three years.
36Further, Mr. Chan opined that, given the Stats Can definition for ‘transitional housing’, PATH’s classification of the proposed use as a Shelter is an incorrect classification. In this respect, it was Mr. Chan’s opinion that the Cabins are a ‘residential’ land use, not ‘institutional’, and should therefore be classified as Dwellings, not NSIPBs under NPC-300.
37Similarly, it was Mr. Masschaele’s opinion that the Cabins, “where people will live full-time”, fall outside the scope of what is considered ‘institutional’ under NPC-300 and that the Cabins “do not serve nor qualify” as a Shelter under NPC-300. Further, it was his opinion that the Cabins meet the definition of ‘dwelling’ under NPC-300 as the tenants would pay rent, would live there for up to three years, and the use of the word ‘usually’, in reference to a dwelling containing cooking, eating, living, sleeping and sanitary facilities, indicates that such facilities are not required for the Cabins to meet the definition.
38Mr. Masschaele further noted that the City’s Noise By-law – Chapter 691 (“Noise By-law”) definition of ‘dwelling house’ includes wording that encompasses the intended use of the Cabins:
“dwelling house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence and includes….(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence that is being used as such a residence. [emphasis added]
39Mr. Masschaele added that, since the planning material submitted with the Application refers to the proposed use of the Cabins as ‘housing’, it was his opinion that it is appropriate to treat them as ‘dwellings’ under NPC-300. He further submitted that, for the purpose of an LUC study for a mixed-use development of institutional and residential, he would base the assessment on the most sensitive use or treat them separately, concluding that, in this case, the Cabins should be classified as ‘dwellings’ under NPC-300. Additionally, from his experience, it was his opinion that MECP would be conservative in their classification of the Cabins since the occupants would sleep there on a full-time basis.
Finding
40The Tribunal prefers the evidence of Mr. Chan and Mr. Masschaele and considers it appropriate to adopt a cautious approach with respect to LUC for both the SLU and the industrial uses. The NPC-300 definition of ‘Dwelling’ refers to ‘habitable rooms’ for the purpose of a ‘residence’. The primary function of the Cabins is to provide sleeping facilities, which is expressly identified as one of the typical facilities under the definition and, at its core, constitutes a ‘habitable room’. While the presence of ‘usual’ facilities is not determinative in classifying the Cabins as Dwellings, it is nonetheless reasonable to interpret that the Cabins will function as a ‘residence’ under NPC-300 for the purposes of LUC.
41The Tribunal finds the interpretation of the Proposal as analogous to a Shelter, as referenced in the definition of NSIPB under NPC-300, and the view that the Cabins should be classified as NSIPBs, to be of limited persuasive value. The Cabins will function as the occupants’ private rented living space for an extended period of time and require the occupants to enter into a rental agreement for up to three years. Conversely, a Shelter is generally recognized as a form of short-term emergency accommodation not requiring occupants to enter into a rental agreement.
42Further, considering the proposed length of the tenancy of the Cabins, the assertion that any LUC impacts on occupants of a Shelter would be temporary and short-term, and not an exacerbating impact over the long term, supports a more measured and precautionary approach to classification.
43Additionally, it is notable that the Application form and the studies submitted in support of the Application all describe the proposed use of the Property as ‘residential’ and/or ‘dwellings’, with no mention of ‘institutional’ and/or ‘shelter’.
44Consequently, the Tribunal finds that, for the purpose of determining LUC, the Cabins are to be considered Dwellings under NPC-300.
Land Use Compatibility
45As agreed by the Parties, the D-6 Guideline classifies the Toromont Facility as a Class II Facility. A Class II Facility has a recommended minimum separation distance (“RMSD”) of 70 m, wherein no incompatible development should occur (other than “in areas where infilling, urban redevelopment and/or a transition to mixed use is taking place”), even if additional mitigation is provided for adverse effects. Further, for a Class II Facility, the D-6 Guideline assigns an area of influence (“AOI”) of 300 m within which adverse effects may be experienced.
46With respect to the existing Toromont Facility, a portion of the Property is within the 70 m RMSD, and the entire Property is within the 300 m AOI. With respect to the Proposed Battlefield Facility, the area south of the Existing Building is within the RMSD and the entire Property is within the AOI. Therefore, as the Cabins would be a new SLU and require rezoning in the form of a TUBL, both the D‑1 Guideline and the D-6 Guideline apply.
47Both PATH and Toromont undertook a noise impact assessment (“NIA”) with PATH’s NIA based on the Cabins being classified as NSIPBs, and Toromont’s NIA based on the Cabins being classified as Dwellings. Given the Tribunal’s finding that the Cabins are Dwellings under NPC-300, the probative value of PATH’s NIA and Mr. Copeland’s evidence is limited. Accordingly, the Tribunal relies on Toromont’s NIA and the supporting evidence provided by Mr. Masschaele, which was unshaken on cross-examination. The findings and proposed mitigation measures are addressed in this context to assess their sufficiency to ensure LUC with the surrounding uses.
48It was Mr. Copeland’s evidence that “institutional uses are often cited as a good buffer use between employment uses and strictly residential uses” and that there is no requirement for “a proposed sensitive use to address unplanned future employment uses, only the existing uses, and future uses that have been planned”.
49Mr. Masschaele proffered that for NSLUs, including Dwellings, the Proposal would be required to “evaluate noise points of reception (and comply with all relevant sound level limits/criteria) in both the outdoor areas and at the plane of window per the point of reception definition in NPC-300”. He further stated that the noise emissions on the Toromont Property, as measured on the Toromont Facility and modelled for the Proposed Battlefield Facility, are significant enough to exceed NPC-300 Class 1 site-specific noise limits and/or will likely result in nuisance-based complaints. He added that there is also potential that the Proposal would “have an adverse impact on the ability of the surrounding employment uses to operate under normal existing conditions or expand in the future due to environmental compliance obligations”.
50Mr. Masschaele noted that the Noise By-law defines a ‘dwelling house’ as “the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence and includes: … (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence that is being used as such a residence”. He further noted that the Noise By-law protects the inhabits of the City from the emission of “unusual noise”, or a “noise likely to disturb”. It was his opinion that the introduction of the Cabins may result in non-compliance with the Noise By-law, and noise-based complaints arising from the operations of the Toromont Facility and the Proposed Battlefield Facility.
51The Toromont NIA recommends the following mitigation measures for the Dwellings as NSLUs, notably including air conditioning, a 5.5 m high and 110 m long noise barrier, and warning clauses:
All windows for sensitive living spaces, such as bedrooms and living rooms in the residential blocks on the north and east side facing Toromont be supplied with a ventilation / air conditioning system which allows windows and exterior doors to remain closed as a good practice. This will allow residents to close windows in the event that noise or fugitive dust from Toromont becomes an annoyance.
At grade [outdoor living areas] with line of sight to Facility operations should be shielded with barrier walls at the perimeter for noise and visual impacts to reduce nuisance-based complaints.
A preliminary mitigation evaluation shows that a 110 m long and 5.5 m tall noise barrier at the Developments southeastern property line could help demonstrate compliance with applicable sound level limits.
Central air conditioning systems should be provided for all occupiable spaces of the Development to ensure that windows can remain closed, reducing the risk of complaints.
Appropriate warning clauses should be included in the sale/tenancy agreements of the residential dwellings and sensitive spaces, such as:
Warning Clause: "Purchasers and tenants are advised that this development is in close proximity to Toromont and Battlefield Rentals, which includes industrial facilities located immediately south and southeast of this development. The Facilities are served by mechanical and mobile equipment that may operate up to 24 hours a day, 7 days per week. Facility operations and buildings may be altered or expanded in the future.
Notwithstanding the inclusion of best practice measures in the development and at the Facilities to lessen potential noise impacts, noise from facility operations may be audible and may sometimes affect the indoor and/or outdoor living environment of residents, visitors, tenants and workers at the development.
Toromont and Battlefield will not be responsible for any complaints or claims arising from any of the activities at or relating to facility property or operations".
52Mr. Copeland noted that the 5.5 m high noise barrier was based on a Class 1 designation under NPC-300 but that Toromont could apply for a Class 4 designation, “which would elevate sound limits by 10 dB, commit the site to implementing air conditioning, and additional warning clauses, this would reduce the required mitigation significantly (Specifically, the noise barrier would not have to be 5.5 m tall)”. However, he also proffered that it was understood that the City would not accept a Class 4 designation or noise barrier walls as options for the development.
53Mr. Masschaele proffered that the calculation of the 5.5 m high and 110 m long noise barrier was based on actual operational details provided by Toromont and on-site noise measurements. Further, he noted that a Class 4 designation would be issued at the discretion of the City and that such areas are intended to increase LUC between former brownfield sites typically intended for higher density residential developments as a new NSLU that has proximity to existing, lawfully established stationary sources such as the Toromont Facility. It was his opinion that, as a Class 4 designation is implemented through a zoning by-law, it is intended to be permanent and therefore not appropriate for the temporary nature and smaller scale of the Proposal.
54Policy 3.5.1 of the PPS requires ‘major facilities’ (which includes industrial facilities) and SLUs to be “planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects …”. Mr. Randall’s evidence addressed mitigation measures related to the use being an NSIPB, however no substantive evidence was proffered to indicate that avoidance is not possible, other than reference to other sites in the City that PATH had considered but which ultimately did not come to fruition.
55Mr. Randall opined that recommended mitigation measures could be implemented at the Site Plan Control (“SPC”) stage through an SPA. He proffered that, although Section 7.6 of Procedure D-1-1 [a supplementary document to the D-1 Guideline] states that SPC does not extend to ‘window details', NPC-300 provides for a legally binding noise mitigation agreement (“NMA”) “involving parties such as land use planning authorities, proponents of a noise sensitive land use and owners of a stationary source” and may be “associated with decisions made by the land use planning authority under the Planning Act or established as collateral agreements”. Based on this provision, it was his opinion that an SPA, or a separate agreement implemented through the SPA process, “could be used for the specific window design in order to implement the recommended noise mitigation”. Mr. Copeland also opined that it would be appropriate to address detailed mitigation design through the SPC stage and/or through the building permit process.
56Mr. Chan noted that there is no mechanism to require an NMA, that Toromont would need to be a party to an NMA but would not be a party to the SPC process, and Toromont would therefore have no standing for the determination of mitigation measures and potential warning clauses to be implemented through the SPC process. Further Toromont would have no ability to make an agreement with the City or PATH that would address its issues as part of the SPC process. He opined that it is therefore not appropriate for mitigation measures to be addressed at the SPC stage and added that, in this case, mitigation could not be addressed through the building permit process as the City had indicated that the Cabins would not be subject to the issuance of a building permit.
57Mr. Chan noted the requirement in section 4.10.3 of the D-6 Guideline, related to areas where redevelopment, infilling or a transition to mixed-use is proposed within the RMSD, for proponents to demonstrate to the approving authority that no objections to the proposed use have been raised by area residents or industries. He opined that PATH neither has regard to, nor implements, the D-6 Guideline in this respect as it cannot demonstrate that there is no objection from Toromont to the addition of the mitigative measures.
58Mr. Chan addressed section 4.5 of the D-6 Guideline which states that the AOI “should act as a flag, and no sensitive land uses shall be permitted within the actual or potential influence areas of Class I, II or III industrial land uses, without evidence to substantiate the absence of a problem” and opined that the Proposal, as an SLU, should therefore not be permitted within the AOI of the Toromont Facility as it is not proven that Toromont would not represent a trivial impact.
Finding
59The Tribunal prefers the evidence of Mr. Chan and Mr. Masschaele and finds that policies 3.5.1 and 3.5.2 of the PPS, which address LUC, and aim to protect industrial facilities from SLUs, are not met through the Proposal. Consequently, the Application fails on this basis alone.
60The PPS directs that, in planning for major facilities and SLUs, adverse effects are to be avoided, or where avoidance is not feasible, such effects must be minimized and mitigated to preserve the economic viability of major facilities in accordance with provincial guidelines. Where avoidance is not possible, planning authorities, and in this case the Tribunal, are required to ensure the long-term viability of major facilities by permitting adjacent SLUs only where potential adverse effects to both the industrial operation and the SLU are demonstrably minimized and mitigated. This standard has not been met, particularly in light of the determination that the Cabins constitute Dwellings under NPC-300.
61Regardless of the classification of the Cabins as Dwellings or NSIPBs for the purposes of NPC-300, by introducing residents into the 70 m RMSD from Toromont as a Class II Facility, there would be an increased risk of complaints regarding contaminants such as noise and dust which could result in non-compliance with the Noise By-law, which may impact the operations of the Toromont Facility and the Proposed Battlefield Facility.
62The Tribunal is concerned for the potential of the Proposal having adverse impacts on the ability of the surrounding employment uses to operate under normal existing conditions or expand in the future due to environmental compliance obligations. Section 2 (k) of the Act identifies the adequate provision of employment opportunities as a provincial interest to which the Tribunal must have regard. In this respect, it is the Tribunal’s responsibility to ensure that employment opportunities, including that of Toromont, are protected.
63The Tribunal accepts Toromont’s submission that there is no legal mechanism to ensure the recommended mitigation measures related to ‘window details’ are implemented through the SPC process, nor would Toromont be party to the SPA to ensure such implementation is stipulated in the SPA.
64In this respect, the Tribunal finds that the LUC policies of the PPS, specifically policies 3.5.1 and 3.5.2, are not met through the Proposal. Notably, this finding holds regardless of the classification of the Cabins as NSIPBs or Dwellings for the purposes of NPC-300.
65The Tribunal agrees with Mr. Masschaele that the mitigation measures should be evaluated based on the Toromont Facility being considered a Class 1 designation under NPC-300 rather than a potential Class 4 designation, especially given it was Mr. Copeland’s understanding that the City would not accept a Class 4 designation. With a Class 1 designation, the resulting mitigation measure of a 5.5 m noise barrier would result in a towering wall next to the Cabins.
66Further, without a mechanism to address all the mitigation measures, the Tribunal finds that the resulting risks to Toromont outweigh the benefits of the Proposal and that the potential impacts to Toromont are not fully accounted for in the proposed TUBL.
67Mr. Copeland’s evidence, that noise sensitive institutional uses are often cited as a good land use for buffering between employment uses and residential uses, would suggest that the Cabins, as Dwellings and thus constituting a residential use, are not a good land use adjacent to the Toromont Property.
68Further, Mr. Copeland’s evidence related to there being no requirement for “a proposed sensitive use to address unplanned future employment uses, only the existing uses, and future uses that have been planned” ignores the fact that the Proposed Battlefield Facility has conditional Site Plan approval and an executed SPA and should therefore be considered a planned use in the context of an NIA.
69Additionally, while the City staff report dated August 26, 2024 (“Staff Report”) recommended approval of the Application, that recommendation was premised on the classification of the Cabins as NSIPBs. Had the Cabins been classified as Dwellings, it remains uncertain whether the Staff Report would have reached the same conclusion. Accordingly, limited weight is attributed to the Staff Report recommendation.
70The Tribunal prefers the evidence of Mr. Masschaele and Mr. Chan. The Proposal employs mitigation measures to address LUC but does not do so appropriately given the classification of the Cabins as Dwellings for the purposes of NPC‑300.
Land Use Planning
71It was Mr. Randall’s evidence that the Proposal has appropriate regard to the relevant matters of provincial interest set out in s. 2 of the Act including subsections (h), (l), (o), and (p) related to the orderly development of safe and healthy communities, the protection of the financial and economic well-being of the Province and its municipalities, the protection of public health and safety, and the appropriate location of growth and development. He opined that the Property and existing infrastructure can adequately accommodate the Cabins, and any potential impacts from adjacent industrial land uses have been appropriately considered and mitigated.
72Mr. Chan opined that the Proposal does not have appropriate regard to s. 2 of the Act, as placing an SLU within the 70 m RMSD and the 300 m AOI under the D-6 Guideline would compromise the health and safety of the residents and would not be an appropriate location for residential growth and development, even if proposed as a temporary use. Further, he had concerns about impacts on the City’s economic development and industrial sector should a precedent be established permitting residential uses next to existing industrial operations.
Provincial Policy Statement, 2024
73Mr. Randall opined that the Proposal is consistent with the PPS including section 3.5 related to LUC. He proffered that the Proposal would ensure appropriate transitions between the SLU and the employment uses. He proffered that the Cabins would be compatible with the adjacent land uses, including the Toromont Property, which he considered a ‘major facility’ under the PPS, thereby “ensuring an appropriate transition to the non‑employment area” noting that the recommended mitigation measures from the PATH NIA would be implemented on the Property via an SPA to ensure compatibility.
74Mr. Randall added that the TUBL would not rezone the Property and that, when it expires, any future land use proposed on the Property would be required to demonstrate consistency with the section 3.5 of the PPS and comply with the D-6 Guideline and NPC-300, pointing out that the TUBL does not seek to permanently establish an NSIPB on the Property.
75Mr. Chan opined that the Proposal does not meet policy 2.8.1.1 of the PPS requiring an appropriate transition to SLUs, as, by introducing an SLU immediately adjacent to the Toromont Facility, there would be no transition between the uses. He stated that there is no precedent in the vicinity of the Toromont Facility, or within or adjacent to the immediate Employment District, that would suggest the uses could co-exist without a transition.
76With respect to policy 3.5 of the PPS related to LUC, Mr. Chan opined that PATH has not demonstrated that avoidance is not possible, including whether there are more appropriate sites in the City that are not adjacent to existing industrial operations. He further stated that PATH has demonstrated that there are more appropriate locations, in terms of LUC, through the construction of Cabins elsewhere in the City and through plans to construct more in existing residential neighbourhoods.
77Further, it was Mr. Chan’s opinion that introducing an SLU adjacent to the Toromont Facility, will not protect and preserve the employment area for current and future industrial uses as required by section 2.8.2 of the PPS. He noted that the entire area south of the Property is designated for Employment uses and zoned for industrial uses. With the establishment of an SLU on the Property, he opined that it would compromise the ability of the employment area to continue or be developed with uses permitted in the Employment District, contrary to the PPS. He further stated that the establishment of an SLU adjacent to an industrial zone would act as a ‘red flag’ for industry to consider locating and operating in that Employment District, and as a barrier to potential industrial development and investment.
78Mr. Chan considered the Toromont Facility a ‘major facility’ under the PPS, requiring separation from SLUs due to the “nature and intensity of the existing use as a 24-hour, 365 day a year operation that produces noise, dust and odour, as well as a high degree of heavy truck and equipment movements on the Toromont site throughout each day”.
79Mr. Chan further stated that, other than implementing non-operable/openable windows and air filters for the Cabins, the Proposal has not demonstrated that the potential impacts to the Toromont Facility are appropriately minimized and mitigated in accordance with provincial guidelines, standards and procedures. In his opinion, warning clauses would not address the issue that would be created by the introduction of an SLU adjacent to industry and an Employment District with no transition or buffering use.
City Official Plan
80Mr. Randall opined that the requirement in policy 7.4.4 of the COP, for TUBLs to be “in general conformity with the intent and policies” of the COP, does not represent strict conformity. With respect to the policies related to TUBLs, as well as policies related to the Major Mixed-Use Corridor designation, the Employment Districts designation and the General Employment designation, he opined that the Proposal meets the policies but, in most instances, he relied on the findings of the PATH NIA to substantiate his opinion.
81With respect to the list of permitted uses in the Mixed-Use Corridor designation in the COP, Mr. Randall noted that, although the Cabins are “not necessarily a housing form that is contemplated”, they are similar to special needs or communal housing, both of which are permitted. It was his opinion therefore that the TUBL meets the general intent of the permitted uses.
82Mr. Randall’s evidence related to s. 2 of the Act, the PPS and the COP was predicated, in large part, on the findings of the PATH NIA which was based on the classification of the Cabins as NSIPBs rather than Dwellings.
83Mr. Chan opined that the Proposal does not meet policy 7.4.4 of the COP as a residential use on the Property is not compatible with the Toromont Facility as it would be within the 70 m RMSD and the 300 m AOI with no intervening transitional land use. He concluded that the Proposal is not in general conformity with the e COP, adding that it would need to meet all conditions set out in policy 7.4.4. d, which it does not. Further, he noted that need for a temporary use is not a test under policy 7.4.4.d.
84In summary Mr. Chan opined that the proposed land use, although temporary, “is not in general conformity to the intent and policies of the Official Plan, in particular the policies respecting land use compatibility and the protection of Employment Districts”.
Finding
85The Tribunal finds Mr. Randall’s characterization of the Cabins to be internally inconsistent. While he likened them to forms of housing permitted within the Mixed-Use Corridor designation, he also maintained that the use is not residential. His opinion relied substantially on the PATH NIA findings and the classification of the Cabins as an NSIPB use. In light of the Tribunal’s determination that the Cabins constitute Dwellings, the weight afforded to Mr. Randall’s evidence is accordingly diminished.
86The Tribunal prefers the evidence of Mr. Chan and finds that the Proposal does not have regard to the relevant provincial interests under s. 2 of the Act of providing for the appropriate location for residential growth and development, protecting public health and safety, and protecting the City’s industry and economic development.
87The Tribunal finds that the Proposal is not consistent with the PPS as it does not meet the employment or LUC policies requiring appropriate transition to SLUs, protecting and preserving employment areas, and avoiding or mitigating impacts in accordance with provincial guidelines.
88Further, the Tribunal agrees with Mr. Chan that the Proposal does not meet the general intent and policies of the COP. There are significant policies related to LUC and the protection of employment areas and the Proposal fails to meet all of the required conditions in policy 7.4.4.d. for the approval of a TUBL.
Transportation and Pedestrian Safety
Finding
89Although evidence was presented by both parties concerning transportation and pedestrian safety, the Tribunal finds that, in light of the finding that the Proposal does not have regard to s. 2 of the Act, is not consistent with the PPS and does not conform to the COP, these considerations are not determinative to the proceedings. Accordingly, no probative value is attributed to this evidence.
SUMMARY FINDINGS
90Notwithstanding the Staff Report recommendation for approval of the Application, and City Council’s refusal of the Application despite it being supported by the planning evidence before it, the Tribunal finds that City Staff, and therefore City Council, did not have the benefit of a peer review of the LUC report submitted by the Applicant. The Toromont LUC report provides an analysis of the Application from the lens of the Cabins being considered Dwellings, and therefore residential, requiring more stringent mitigation measures.
91As the Tribunal agrees with Toromont that the Cabins are Dwellings under NPC-300, it further accepts the submissions of Toromont that the Proposal does not meet policies 3.5.1 and 3.5.2 of the PPS.
92Further, the potential impacts on Toromont based on possible complaints from residents of the Cabins could jeopardize both the established and planned industrial use of the Toromont Property. The D-6 Guidelines and NPC-300 are in place to both protect industry and residential uses and one should not be put at risk over the other.
93In addition to, and stemming from, the findings related to LUC, the Tribunal finds that the TUBL does not have regard to the applicable matters of provincial interest pursuant to s. 2 of the Act and is not consistent with the PPS. Further, the TUBL does not meet the intent and policies of the COP, does not represent good land use planning and is not in the public interest.
ORDER
94THE TRIBUNAL ORDERS THAT the appeal is dismissed and the requested amendment to By-law No. 1997-123, as amended, is refused.
“C.I. Molinari”
C.I. MOLINARI
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.