Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 07, 2025

CASE NO(S).: OLT-24-000777

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

Applicant/Appellant: Litwillow Holdings Ltd.

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

Description: To permit the development of a high-rise mixed-use building containing 330 units with commercial spaces at grade.

Reference Number: OZS-2021-0010

Property Address: 2 Bartley Bull Parkway

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-24-000777

OLT Lead Case No.: OLT-24-000777

OLT Case Name: Litwillow Holdings Ltd. v. Brampton (City)

Heard: March 10-13, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Litwillow Holdings Ltd.	Jason Park, Doug Pateman
City of Brampton	Bruce Engell
Toronto and Region Conservation Authority	Narmada Gunawardana, Matthew Rutledge, Tim Duncan (in absentia)

DECISION DELIVERED BY A. MASON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Ontario Land Tribunal (“Tribunal”) convened a Hearing respecting the appeal by Litwillow Holdings Ltd. (“Appellant”) of the the City of Brampton’s (“City”) denial of its application for Zoning By-law Amendment (“Appeal”) pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), in relation to the property located at 2 Bartley Bull Parkway (“Subject Property”).

2The Appellant’s proposal is for a 29-storey high-rise mixed-use building with a six-storey podium with 330 residential units, comprised of studio, one, two and three-bedroom units, with commercial spaces at grade (“Proposed Development”) facilitated by a site-specific zoning by-law amendment (“ZBA”).

3The Subject Property is designated Mixed-Use Two (“MU2”) under the Hurontario/Main Corridor Secondary Plan (Area 55) (“Secondary Plan”). The MU2 designation limits the maximum height at 20 storeys and density expressed as floor space index (“FSI”) at 3.0 FSI. At 29 storeys, the Proposed Development exceeds the maximum height and density in the MU2 designation. Despite this, the Appellant submits that the Proposed Development conforms to the Secondary Plan because of the operation of Secondary Plan Policy 5.1.1 that states:

Proposals for a density and/or building height greater than the maximum permitted shall require justification for the increase as part of a zoning by-law amendment; however, an official plan amendment will not be required.

4The question that the Tribunal must answer is whether the Proposed Development conforms to the Secondary Plan as required by s. 24(1) of the Act which prescribes that a by-law must conform to an in-force official plan and, by extension, the Secondary Plan, because of Policy 5.1.1.

5In making a decision, the Tribunal also considers relevant matters of provincial interest as set out in s. 2 of the Act, and, to the decision of the City and information it considered, as required by s. 2.1(1) of the Act. Under s. 3(5) of the Act a decision of the Tribunal must also be consistent with provincial policy statements and conform, or not conflict with, the provincial plans that are in effect and be good planning in the public interest.

6The Tribunal finds that the ZBA does not conform to the Secondary Plan with respect to height and density and is beyond a reasonable application of Policy 5.1.1. As such, the Tribunal finds that the Application contravenes s. 24(1) of the Act, does not constitute good planning that is in the public interest, and dismisses the Appeal for the reasons in this Decision. Having found that the ZBA does not conform, the Tribunal does not make a determination on the remainder of the tests set out in paragraph 5.

SITE DETAILS AND SURROUNDINGS

7The Subject Property is 0.818 hectares in area and located at the northeast corner of Main Street South and Bartley Bull Parkway approximately 250 metres north of Steeles Avenue West. Currently a single-storey free standing building operating as a restaurant is located on the property.

8A significant grade change defines the northeast edge of the Subject Property with a two-metre (2 m) retaining wall and slope down into the valley land of the Etobicoke Creek in the Kiwanis Memorial Park (“Park”). This area of the Subject Property is currently comprised of a retaining wall and slope into the valley land of the Park that makes up about one-third of the site (“Slope”). The Slope will be conveyed to the City through a future site plan application process. The Slope is not developable and is intended to be naturalized and added to the City’s natural heritage system.

9Opposite the Subject Property on the west side of Main Street South is the Shoppers World Brampton shopping centre. This 21.5 hectare low-rise commercial site is the subject of a major development approval permitting a comprehensive redevelopment with multiple buildings ranging in height from three to 29 storeys with associated infrastructure and community amenities (“Shoppers World Redevelopment”).

10Bartley Square, a one and two-storey commercial plaza, is across from the Subject Property on the south side of Bartley Bull Parkway. Across the valley lands and Park to the northeast are residential lands characterized by single detached dwellings and known as Peel Village.

11The Subject Property is well located in the City in close proximity to the area transportation network and within an evolving planned development context. According to the Provincial Planning Statement, 2024 (“PPS”), the Subject Property is in a “Settlement Area” and within a “Major Transit Station Area” (“MTSA”) with existing and planned higher-order transit including the existing Brampton Gateway Terminal transit hub at the intersection of Main Street South and Steeles Avenue West. The Subject Property is also within a Strategic Growth Area identified for accommodating intensification and higher-density mixed-use and more compact built form along major roads with higher order transit. The Subject Property is also within 300 m of the Hazel McCallion Line (Hurontario LRT) currently under construction, with a planned station to be located at the Brampton Gateway Terminal providing increased transportation links to Brampton and Mississauga.

12When the Appellant submitted their application for a zoning by-law amendment in February of 2021 (“Application”), the Region of Peel Official Plan (2018) was in effect (“Peel OP”), which designates the Subject Property as within a Strategic Growth Area and Primary Major Transit Station Area. The Subject Property is located along the Hurontario/Main Street Regional Intensification Corridor. These designations reinforce and support the policies of the PPS that direct increased residential and employment development within MTSA and major intensification corridors.

13At the time of the Application, the City of Brampton Official Plan (2006) was in effect (“City OP”) and designated the Subject Property as Residential with a small portion as Open Space associated with part of the Slope into the valley lands of the Park. The City OP also locates the Subject Property within the Built Boundary and Mobility Hub (Gateway Hub) designations and as situated along the Primary Intensification Corridor of Main Street South.

14The City’s Zoning By-law 270-2004 (“City ZBL”) identifies the Subject Property as “Highway Commercial One Exception 3132 (HC1-3132)”, reflecting its current use as a single-storey restaurant.

15In the Hearing, the Parties agreed that the Subject Property is an appropriate location in the City for intensification and redevelopment with a tall building and is well served by higher-order public transit. The Parties also agreed that the Subject Property is located in an evolving area of the City that is undergoing a planned transition from low-rise commercial uses to a community characterized by an urban mixed-use built form with tall buildings and associated community amenities, supported by expanding public transit, and that such transition delivers on Provincial strategic objectives in the PPS.

16The Parties also agreed that the Secondary Plan responds to the direction for intensification in the PPS, Region OP, and City OP, that the Secondary Plan does not conflict with the higher-level policy documents and that it applies to the Subject Property.

BACKGROUND

17Secondary Plan Policy 5.3.3 establishes the MU2 designation that governs the Subject Property. The MU2 designation represents lands that are presently characterized mainly by single-storey retail, office and institutional uses and details their general location in the Secondary Plan. Policy 5.3.3 sets out that “lands designated Mixed-Use 2 shall be permitted to develop to a maximum density of 3.0 FSI and a maximum building height of 63.0 metres (20 storeys).” (Emphasis added.)

18As noted earlier in this Decision, Policy 5.1.1 is to be read with the maximum height and density prescribed in the MU2 designation in Policy 5.3.3. Policy 5.1.1 establishes an opportunity in a zoning by-law amendment for density and/or building heights to be greater than the maximum permitted in the designation with justification for the increase, without an official plan amendment.

19During pre-application consultation, the Appellant was not directed by City Staff that an official plan amendment was required to facilitate the Application despite the original proposal being 25 storeys and exceeding the maximum height and density in the MU2 designation. City Staff still did not require an official plan amendment when the Proposed Development increased to its current form of 29 storeys during the iterative planning application process.

20City Staff prepared a report (“Staff Report”) for the City’s Development Committee recommending approval of the ZBA. The Development Committee considered the Staff Report with its recommendation to approve the ZBA, but refused the Application on the following four grounds:

i. the size and scale of the Proposed Development will have undue traffic impacts to the existing community taking into account the already approved developments just west of this proposed site;

ii. the Proposed Development will have a negative effect on the ecosystem of Kiwanis Memorial Park and the Etobicoke Creek;

iii. the Proposed Development is not compatible with the surrounding character of the existing built form; and

iv. the scale and massing of the Proposed Development does not fit with the existing street context.

21In June, 2024, City Council followed the Development Committee’s refusal recommendation and turned down the Application citing the same four grounds as noted above. As a result, the Appellant appealed Council’s refusal of the ZBA.

22At the Hearing, no submissions were presented by counsel for the City addressing City Council’s refusal with respect to traffic or impacts on the ecosystem of Etobicoke Creek. As such, the Tribunal considered the only issues in dispute for adjudication in the Hearing to be the remaining two grounds related to scale and massing of the Proposed Development.

23At the Hearing, the Appellant presented Peter F. Smith, a Member of the Canadian Institute of Planners and a Registered Professional Planner to provide opinion evidence in the area of land use planning. Tom Kasprzak, an Associate Member of the Ontario Association of Architects, Member of the Royal Architectural Institute of Canada, Member of the Canadian Institute of Planners and Canadian Institute of Planners was presented to provide opinion evidence in the area of urban design for the Appellant. The City did not object to either witness, and the Tribunal qualified same.

24The Tribunal qualified Allan Ramsey, a Member of the Canadian Institute of Planners and a Registered Professional Planner, to provide opinion evidence in the area of land use planning on behalf of the City. There was no objection from the Appellant.

25In advance of the Hearing, the TRCA, a non-statutory Party to the proceedings, advised the Tribunal that it had reached a full settlement with the Appellant. Counsel for the TRCA and the Appellant advised the Tribunal that they had entered into confidential minutes of settlement about their agreement in which the Slope will be designated as Open Space in the proposed ZBA and conveyed to the City at a future site plan application stage. Counsel for the TRCA confirmed that the form of ZBA before the Tribunal conforms to their settlement with the Appellant and that they would have no objections should the Tribunal allow the current Appeal.

26After the conclusion of the Hearing, the Tribunal became aware of a deficit in submissions from the Parties about the legislative context for approval of a by-law under s. 24(1) of the Act and whether a test beyond considering possible undue impacts is necessary. As a result, the Tribunal requested additional legal submissions on s. 24(1) from the Parties without the necessity of accompanying affidavits.

ISSUES

WHAT IS THE CORRECT DENSITY EXPRESSED AS FSI?

27Counsel for the Parties agreed that the Proposed Development exceeds the maximum 3.0 FSI set out in the MU2 designation; however, they disagreed to what extent because of a difference in the method for calculating density expressed as FSI. The Tribunal must decide this issue first since FSI is the prescribed expression of density in the MU2 designation and requires a conclusion on the measurement in order to articulate and consider the main issue between the Parties.

Appellant’s Position:

28Mr. Smith testified on behalf of the Appellant that the correct density calculation for the Proposed Development is 6.40 FSI, based on the gross site area before the future conveyance of the Slope to the City. Mr. Smith acknowledged that the Staff Report indicates a density of 6.40 FSI in the body of the document, but also cites a density of 9.53 FSI in the language of the ZBA attached to the Staff Report as the instrument recommended for approval. Mr. Smith reconciled this disparity as the result of City Staff “making a mistake” and incorrectly excluding the Slope from the FSI calculation in the proposed ZBA resulting in the higher 9.53 FSI.

29When asked by the Tribunal whether the City policies provide a definition or guidance on how to calculate FSI, Mr. Smith replied that the method is not prescribed. Mr. Smith also testified that FSI may be calculated differently for the purposes of a zoning by-law as opposed to within a planning justification report or in an official plan amendment, thereby also explaining the different numbers used in the Staff Report.

City’s Position:

30Mr. Ramsey testified for the City that the correct density calculation is 9.53 FSI based on the net site area taken after the conveyance of the Slope to the City.

31Mr. Ramsey drew the Tribunal’s attention to the Definitions section of the City ZB, in which Floor Space Index is defined as:

[…] the figure obtained by dividing the gross floor area, or, in the case of a residential area, the gross residential floor area, of all floors in a building measured between the exterior walls of the building, by the area of the lot to be built upon. [Emphasis added.]

32Mr. Ramsey also cited s. 5.2 the City OP, in which FSI is defined as “the ratio of gross floor area of a building area of the lot on which the building is situated.”

33Mr. Ramsey opined that the definition in the City ZB and in the City OP implies that the calculation uses the net site area at site plan approval when the building will be constructed. In this case, the final net lot size will be after the Slope is conveyed to the City resulting in density of 9.53 FSI. Mr. Ramsey also opined that the same methodology for calculating FSI must be used in a zoning by-law or official plan amendment.

34Counsel for the City submitted that whether the Tribunal used Mr. Ramsey’s calculation of 9.53 FSI or Mr. Smith’s calculation of 6.40 FSI, both are excessive beyond the permitted maximum 3.0 FSI in the MU2 designation.

Tribunal’s Findings:

35The Tribunal agrees with the City that the calculation of FSI should be based on the net area of the lot to be built on as defined in the City ZB and City OP. The City’s policy documents set out a definition that is clear and the Tribunal finds no reason to deviate from it. The definition is reasonable and logical since the net site area considers the area of the final form of the land that is the objective of a development application.

36In this case, the net area of the lot should be calculated without the Slope since it will be conveyed to the City during the future site plan process establishing the final boundaries of the Proposed Development and is not part of the lot to be built on. As a result, the Tribunal finds that the correct calculation of density for the Proposed Development is after the Slope is conveyed and expressed as 9.53 FSI.

DOES THE PROPOSED DEVELOPMENT CONFORM TO POLICY 5.3.3 AND POLICY 5.1.1?

37After finding that the correct density is 9.53 FSI, the extent that the Proposed Development at 29 storeys and 9.53 FSI exceeds the maximum 20-storey height and 3.0 FSI in the MU2 designation is settled. The Tribunal now turns to consider whether Policy 5.1.1 provides an exception that allows the additional nine (9) storeys of height and density without an official plan amendment such that the Proposed Development is found to be in conformity with the Secondary Plan as required under s. 24(1) of the Act.

Appellant’s Position:

38Counsel for the Appellant advocated that the ZBA facilitating the Proposed Development conforms to the Secondary Plan as required under s. 24(1) of the Act because of the operation of Policy 5.1.1.

39In their submissions, counsel relied on IN8 (The Capitol) Developments Inc. v. Building Kingston’s Future, 2020 ONSC 6151 to stand for the proposition that the Tribunal should draw a distinction between interpreting enabling policies and restrictive policies within an official plan. From that, counsel argued that if a form of development or use is expressly prohibited by an official plan, any approval granted would then be contrary to s. 24(1) of the Act. However, if the proposal is measured against multiple permissive policies, the Tribunal should balance the competing policies and recognize that the official plan provides for a range of outcomes driven by site-specific context and characteristics.

40Counsel asserted that the MU2 policy of height and density is permissive and explicitly allows for increased height and density without an official plan amendment if the proposal satisfies the criteria of providing justification under Policy 5.1.1. Counsel advocated that the Tribunal is required to read the MU2 height limits in conjunction with Policy 5.1.1 which permits additional height where it can be justified.

41During the Hearing, Mr. Smith opined that the maximum FSI attached to each of the categories in the MU designation are not “hard caps”; rather, Policy 5.1.1 establishes that height and density can be greater without the need for an official plan amendment but with justification. Mr. Smith opined that Policy 5.1.1 does not prescribe what is required to “justify” a proposal and that it should be interpreted broadly. To this end, Mr. Smith testified that the Appellant had provided technical reports during the planning application process demonstrating that there were no adverse impacts due to the additional height and density and that City Staff had accepted that such justification was satisfactory as detailed in the Staff Report. As a result, counsel for the Appellant characterized City Council’s decision to refuse the Application despite City Staff’s endorsement as “purely political” rather than based in sound planning reasons.

42Mr. Kasprzak testified to the urban design details exemplified in the Proposed Development and that they satisfy the justification requirement under Policy 5.1.1 generally as follows:

1. a slender point tower that limits the built-form impacts on the adjacent public realm of the Park;

2. clear delineation between the tower and podium through architectural details like setback from the street, various step backs on the building and the exposed edge of the tower at ground level on the Bartley Bull Parkway frontage;

3. an animated public realm with retail fronting on Main Street South with pedestrian walkways, spill out spaces and connection to the Park;

4. an appropriate height and built form in consideration of the location across from the Shoppers World Redevelopment;

5. a safer public realm by providing additional “eyes on the park” and pedestrian linkages to the Park;

6. proximity to the Hurontario Gateway Terminal and Hazel McCallon LRT furthering Provincial objectives for the optimization of infrastructure and lands near higher order transit;

7. appropriate buffering to the low-density Peel Village including no adverse shadow impacts;

8. high-quality urban design delivering the Secondary Plan objectives for pedestrian orientated;

9. benefits the public realm by increasing safety in the Park by the additional overlook;

10. compatibility with the existing and planned neighbourhood context; and

11. meets the higher-level strategic policy objectives for intensification and optimization of infrastructure and higher order transit.

43Mr. Kasprzak concluded that, from an urban design perspective, the Development Proposal is a desirable redevelopment of an underutilized site that is compatible with the surrounding neighbourhood context that is redeveloping to a more intense, tall building mixed use context.

44On cross-examination, Mr. Kasprzak acknowledged that the urban design parameters of the Secondary Plan were not better achieved by the Proposed Development being taller than the maximum MU2 designation height of 20 storeys and that the proposed 29 storeys was not necessary to achieve good urban design.

45The City’s witness agreed with the Appellant’s witnesses that the Proposed Development did not have compatibility issues with the nearby low-rise residential in Peel Village and that it posed no wind, shadow or traffic impacts.

46Mr. Smith provided testimony that the additional 9 storeys would not negatively impact the public realm; rather, the additional units would provide “eyes on the park”, increasing public safety and thereby providing a positive impact.

47Both witnesses for the Appellant testified extensively about the approved developments in the Secondary Plan and adjacent secondary plan areas and that the Proposed Development is compatible from a height and density perspective with those approvals. Applications for significant additional height between 37 to 42 storeys for the Shoppers World redevelopment have been submitted to the City. As such, the witnesses further opined that the Proposed Development would be compatible with the future built form context of tall buildings if those proposals are approved by City Council in time. On cross-examination, Mr. Smith acknowledged that development applications for buildings excessively taller than the maximum allowed in the applicable Secondary Plan designations were at the application stage and were not determinative of the City’s decision nor directive for the Tribunal. Similarly, testimony about the City’s preliminary demonstration concept for an updated Secondary Plan that show significantly higher heights was acknowledged as informative but not instructive.

48Mr. Kasprzak testified that the broader area in the City is undergoing a transformation from suburban commercial to an urban, pedestrian-orientated community and that limiting the development of the Subject Property to the approved heights of other proposals does not support local or provincial policy objectives. To this end, Mr. Kasprzak and Mr. Smith both opined that the 29-storey height generally respects the hierarchy of designations and heights in the Secondary Plan by not proposing the highest height found in the immediate and surrounding context.

49Counsel for the Appellant relied on three cases to demonstrate instances where the Tribunal recognized an intensification-first approach to development, rather than a narrow reading of the density limits in a governing policy:

a. In Jindal Developments v. Brampton (City), (Jindal Developments Ltd. v Brampton (City), 2022 CanLII 23458 (ON LT)) (“Jindal”), the applicant appealed an official plan amendment and zoning by-law amendment and the Tribunal considered what would amount to optimization of lands for a high- density proposal where City Council refused a proposal that was recommended by City Staff. In that case, the Tribunal found in favour of allowing development that makes use of existing infrastructure and provides needed housing over rigid application of maximum height and density.

b. In 5300 GP Yonge (5300 Yonge GP Ltd. v Toronto (City), 2020 CanLII 17268 (ON LPAT)) (“5300 GP Yonge”), the applicant appealed an official plan amendment and zoning by-law amendment and the Tribunal found that density targets should not limit the intensification potential of a site.

c. In First Baymac Developments Limited & Canadian Property Holdings (Ontario) Inc. v Richmond Hill (City), 2023 CanLII 103203 (ON LT) (“First Baymac”), the Tribunal also considered an official plan amendment and zoning by-law application. In that case the Tribunal allowed the appeal where it found no adverse impacts to the higher and more dense form of development proposed.

50Relying on Mr. Smith and Mr. Kasprzak’s testimony, counsel for the Appellant concluded that City Council’s rejection of the Application on the basis of “scaling and massing” being out of character for the area was not supported by the relevant higher-level policy objectives nor by policies governing urban design and the heights of approved and planned development in the area. Counsel concluded the Appellant sufficiently justified exceeding the maximum height and density of the MU2 designation under the exemption offered by Policy 5.1.1 to allow the ZBA without an accompanying official plan amendment as accepted by City Staff, and that the Tribunal should find the same.

51Relying on Jindal, 5300 GP Yonge Ltd. and First Baymac, counsel concluded that policy goals of intensification near transit should be paramount in considering whether the Proposed Development is justified under Policy 5.1.1 to exceed the maximum height allowable in the MU2 designation. Counsel concluded that the Proposed Development meets the higher-level policy objectives of the Province for intensification in proximity to higher-order transit and optimization of the use of infrastructure, among other policy goals. Counsel advocated that the Proposed Development meets the policy goals from an urban design perspective in the built form. As a result, counsel urged the Tribunal to consider the lack of adverse impacts of the proposal on the neighbourhood context, the high-quality urban design and transit orientated development achieved policy goals and objectives sufficient to satisfy the requirement for justification to activate Policy 5.1.1 and allow the additional 9 storeys of height and related density in conformity with s. 24(1) of the Act.

City’s Position:

52Counsel for the City disputed that Policy 5.1.1 operates to justify exceeding the MU2 designation maximum 20-storey height and 3.0 FSI density to the extent seen in the Proposed Development at 29 storeys and 9.53 FSI because to do so would undermine the spatial location and hierarchy of designations in the Secondary Plan by “leapfrogging” beyond the maximum height and density prescribed in the higher MU1 designation of a maximum of 25 storeys height and 4.0 FSI. Counsel argued that strategic provincial policy objectives for transit-orientated intensification are manifested in the Secondary Plan designations and corresponding locations as it stands, and Policy 5.1.1 was not intended to modify them to the extent of the Proposed Development.

53Counsel further argued that City Counsel aptly exercised its discretion to refuse the ZBA despite the Staff Report recommending approval, because it does not conform with the City’s intention for intensification of the Subject Property as expressed in the Secondary Plan.

54On behalf of the City, Mr. Ramsey testified that the Secondary Plan sets out an internally coherent and comprehensive hierarchy of policies and schedules, where the location of the various designations in the plan are deliberate and well-rationalized. The witness opined that the hierarchy of designations and locations underpins the Secondary Plan and is the implementation of higher-level strategic policy directives for intensification from the PPS. To that end, Mr. Ramsey opined that the Secondary Plan shows a planned organization as to where varying building heights are to be located with lands on the east side of Main Street South, such as the Subject Property, established as a lower and less intense MU2 designation compared to the MU1 designation.

55Mr. Ramsey also revisited the approved developments, as well as pending applications, for additional increased height in the Secondary Plan and adjacent area that Mr. Smith and Mr. Kasprzak testified to. To that end, Mr. Ramsey opined that the approval for a 23-storey building with 3.87 FSI at 7800 Hurontario Street (“7800 Hurontario”) is the only directly comparable development to the Proposed Development because it (1) is in the Secondary Plan; (2) is in the MU2 designation, (3) was approved with only a zoning by-law amendment, and (4) was approved by City Council for more than the maximum 20 -storey height and 3.0 FSI density in the MU2 designation.

56Mr. Ramsey opined that 7800 Hurontario is an example in which Policy 5.1.1 was appropriately used in the manner intended whereby a modest increase above the 20-storey maximum height to 23 storeys in the MU2 designation was granted without an official plan amendment and without exceeding the maximum 25-storey height and 4.0 FSI in the next category MU1.

57Mr. Ramsey further testified that the Secondary Plan sets out a coherent hierarchy of designations that regulates where higher buildings can be located. In consideration of the Shoppers World Redevelopment, Mr. Ramsey disagreed with the witness for the Appellant that the Proposed Development is compatible with respect to height. It was Mr. Ramsey’s position that the higher buildings in the Shoppers World redevelopment were along the center portion of the Steeles Avenue West axis, not the Main Street South frontage of the property.

58With respect to the interpretation of Policy 5.1.1, Mr. Ramsey opined that the justification exercise required is to demonstrate how the higher buildings meet the intent and structure of the Secondary Plan for the area, not that a higher development is possible without adverse impact as advanced by Mr. Smith. To this end, Mr. Ramsey opined that the justification provided by the Appellant does not sufficiently consider the intent and purpose of the Secondary Plan of directing the highest densities along the Hurontario corridor to those locations that propose higher densities as set out in the Secondary Plan MU1 designation which does not include the Subject Property.

59Mr. Ramsey disagreed with Mr. Smith that Policy 5.1.1 can be used to exceed the MU2 maximum 20-storey height and 3.0 FSI to the extent of the Proposed Development so that the next level MU1 designation (which allows a maximum 25 storeys and 4.0 FSI) is “leapfrogged” without an official plan amendment, so long as some form of “justification” is provided. Mr. Ramsey opined that Policy 5.1.1 logically must apply with some limitation to the MU2 and MU3 designation so that a building will not exceed the overall maximum height of the higher category above it. Mr. Ramsey opined that to interpret Policy 5.1.1 as enabling heights higher than the designation category above it would be against the intent of the Secondary Plan and override the spatial distribution, densities and building heights, rendering the hierarchy of designations meaningless.

60Mr. Ramsey concluded that, given the spatial distribution of land use in the Secondary Plan, it is not appropriate to permit a proposal that exceeds the highest permission allowed in the MU designations without an official plan amendment. To do so would mean Policy 5.1.1 is operating as a de facto mechanism to achieve an official plan redesignation.

61In their submissions to the Tribunal, counsel for the City relied on a decision of the Court of Appeal in Niagara River Coalition v. Niagara-on-the-Lake (Town), 2010 ONCA 173 (“Niagara River Coalition”) to stand for the proposition that the requirement for by-law conformity with an official plan is a matter of legal interpretation and separate from the assessment of the potential for undue impacts from a particular proposal. Relying on Niagara River Coalition, counsel for the City asserted that, where a proposal does not conform with an official plan, it cannot be approved by the Tribunal regardless of the Tribunal’s assessment of the potential impacts of the proposal. Applied to the case at hand, counsel set out the position that, if the Proposed Development was accompanied by an official plan amendment, the Tribunal would then be in a position to assess both the impacts of the proposal and the advisability of amending the Secondary Plan designation to remedy the lack of conformity with the Secondary Plan. Since the Development Proposal is only facilitated by the ZBA that does not conform to the Secondary Plan and contravenes s. 24(1) of the Act, Counsel concluded that the Tribunal may not approve it.

62Counsel for the City also relied on First Urban Inc. v. Burlington (City), 2018 CarswellOnt 11895 (“First Urban”), as a similar fact scenario to the case at hand where a development proposal was facilitated by a zoning by-law amendment only and not by an official plan amendment. In that case, the Tribunal assessed the legal requirement for official plan conformity required by s. 24(1) of the Act separately from the assessment of impacts of the development as part of a test of compatibility with the surrounding neighbourhood context. Counsel relied on First Urban to demonstrate the purported preeminent test for the legal requirement for conformity as per s. 24(1) of the Act, and the Tribunal’s mindfulness of maintaining a hierarchy of designations in an official plan by not approving a zoning by-law substantially in the realm of the next higher zone category without an official plan amendment.

63Lastly, counsel for the City also highlighted Bele Himmel Investments Ltd. v. Mississauga (City), 1982 Carswell 1946 (“Bele Himmel”), a decision of the Divisional Court, to stand for the proposition that the Tribunal should give a broad and liberal interpretation to an official plan with a view to furthering its policy objectives. Applying that directive to the case at hand, counsel advocated in their submissions that the Appellant’s interpretation of Policy 5.1.1 as allowing increases in height and density based on opinion evidence respecting impacts is a narrow reading of the Secondary Plan. Applying the principle in Belle Himmel, counsel submitted that the obvious policy objective of the Secondary Plan is to create a hierarchy of designations with varying heights and densities and to deploy those densities to identified sites. Counsel concluded that the Subject Property is clearly designated as MU2 and the policy objective of the Secondary Plan is that the location have lesser heights and densities than the higher MU1 designation.

Tribunal’s Findings:

64The crux of the dispute between the Parties is the application of Policy 5.1.1, what constitutes “justification” under it, and how far it can be stretched to allow a proposal that is beyond the maximum designations of height and density and still be considered to conform to the Secondary Plan as required by s. 24(1) of the Act.

65A narrow reading of Policy 5.3.3, that establishes the maximum 20-storey height and 3.0 FSI in the applicable MU2 designation, leads to a clear finding that the Proposed Development exceeds the maximum height and density and therefore does not conform to the Secondary Plan under s. 24(1) of the Act. However, the Tribunal agrees with counsel for the Appellant that Policy 5.1.1 is permissive and should be read together with Policy 5.3.3.

66The Tribunal agrees with counsel for the Appellant that Policy 5.1.1 invites a broad reading of the policies in the Secondary Plan to determine whether a proposal has been appropriately justified to access the permission for additional height and density offered under the provision. However, the general permissive policies the Appellant relies on as justification for the Proposed Developed under Policy 5.1.1 cannot overcome the foundational structure of the Secondary Plan itself. The Tribunal agrees with counsel for the City that there is a clear overarching Secondary Plan policy objective to establish a hierarchy of designations with varying heights and densities and to deploy those designations to identified sites. Policy 5.3.3 establishes the MU2 designation, the locations where it applies and its parameters, and in doing so expresses a subset of the overall organization of the Secondary Plan area in detail. For the purposes of considering what is under Policy 5.1.1, the Tribunal sees the control and direction of development in the Secondary Plan as a core organizing principle after which the evaluation of other policies follows.

67The Appellant’s witnesses aptly demonstrated that the Proposed Development fulfills important policies in the Secondary Plan, such as urban design objectives, consideration of impacts on adjacent low-rise residential areas through no shadow or overlook issues, and furthering goals for intensification near transit. However, as established in Niagara River, interpreting official plans is a question of a law, and the planning evidence demonstrating that the proposal meets policy higher-level objectives is illuminating but not determinative. The considerations and evidence of impacts are important, but the proposal must follow and support the underlying organizational structure in the Secondary Plan.

68If Policy 5.1.1 were applied as the Appellant advocates so that the Proposed Development is higher and denser than the highest allowed height in the MU designation, the Tribunal finds it would be operating as a de facto route to an official plan amendment. Taking the Appellant’s approach to the extreme, Policy 5.1.1 could be wielded to provide potentially unlimited excess height and density in a proposal so long as the proponent could justify that there would be no adverse impacts. The Tribunal does not consider this a reasonable interpretation of how the provision was intended to operate.

69The Tribunal also distinguishes the Appellant’s cases Jindal, 5300 GP Yonge and Baymac from the current fact scenario, since in each of those the applicant sought an official plan amendment and a zoning by-law amendment to facilitate their proposal and came to a decision favouring intensification over a narrow reading of policies on height and density. As a result, the Tribunal evaluated evidence of the impacts of the proposal more broadly in consideration of the proposed new designation, not only against the confines of the existing designation and secondary plan policies as in the current case. In this case, the Tribunal only has the ZBA before it to consider and therefore the test for conformity under s. 24(1) is more confined, despite the application of Policy 5.1.1., than if it were considering an official plan amendment to change the underlying designation itself.

70Appellant counsel advocated that a development proposal should optimize a site as much as possible to the limit of adverse impacts in order to deliver on Provincial policy objects for intensification in specified locations like the Subject Property. On this point, the Tribunal agrees with counsel for the City that the Secondary Plan is the City’s manifested expression of the Provincial objectives for the location and form of intensification. The Secondary Plan systematically implements the local vision, and the Tribunal was not presented with evidence that it is not appropriately conceived, in force, and being applied consistently by the City.

71While the text of Policy 5.1.1 does not precisely prescribe the extent to which a proposal may exceed the maximum or what must be provided to justify exceeding the maximum height and density, the Tribunal finds this vagueness does not leave the door wide open to any height or density so long as there are no adverse impacts. The hierarchy of designations in the Secondary Plan is a foundational organizing principle that the Tribunal finds should be upheld, even while providing flexibility through Policy 5.1.1. The Tribunal finds that where Policy 5.1.1. is applied to provide for some additional height and density beyond the MU2 designation, without leapfrogging beyond the higher designation, the hierarchy and organization underpinning the Secondary Plan is maintained.

72The Tribunal considers City Council’s approval of 7800 Hurontario as a reasonable use of Policy 5.1.1 in similar circumstances where the intent of the Secondary Plan was maintained while granting a modest increase in height without an official plan amendment but without jumping over the next higher MU1 designation limits.

73It is indeed unfortunate that City Staff did not request an official plan amendment to accompany the Proposed Development to facilitate its final height of 29 storeys and 9.53 FSI and instead interpreted Policy 5.1.1 as stretching to provide the latitude required to significantly exceed the maximum 20-storey height and 4.0 FSI density in the MU2 designation because the proposal demonstrated other important policy objectives. The Tribunal, however, does not agree that this was a reasonable application of Policy 5.1.1.

74The Tribunal acknowledges that the Appellant engaged in an iterative planning process working with City Staff under their direction that no official plan application was required. The Tribunal also acknowledges the Appellant’s work to conceive a project that delivers important policy objectives like pedestrian-friendly intensification near higher-order transit, high-quality urban design, and the preservation and expansion of natural heritage resources, however, that does not translate into unchecked height and density beyond the reasonable application of the applicable designation in the Secondary Plan. When City Council refused the Application against the recommendation in the Staff Report, it exercised its discretion reasonably and based on a sound understanding that Policy 5.1.1 should be applied to enable modest height and density increases that still uphold the Secondary Plan’s hierarchy of heights, densities and their locations, whereas approving the Proposed Development would not do so.

ORDER

75FOR THE REASONS ABOVE, THE TRIBUNAL ORDERS THAT the appeal is dismissed and the requested amendment to By-law 270-2004 is refused.

“A. Mason”

A. MASON

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.