Hennessey et al. v Durham (Region), 2025 CanLII 50820

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 29, 2025

CASE NO(S).: OLT-24-000878

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

Appellant: Gina Koutsaris Appellant: James McEwen Appellant: Steve Hennessey Appellant: Susan Segers Subject: Proposed Official Plan Amendment Description: To change land designation to permit development to meet the housing supply needs of Clarington Reference Number: Amendment #126 to the Clarington Official Plan Property Address: 2371 Nash Road Municipality/UT: Clarington/Durham OLT Case No: OLT-24-000878 OLT Lead Case No: OLT-24-000878 OLT Case Name: Hennessey et al. v Durham (Region)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Municipality of Clarington Request for: Request for an Order dismissing the appeals of Clarington Official Plan Amendment No. 126 by Steve Hennessey and James McEwen Heard: May 23, 2025 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Steve Hennessey	Self-represented*
James McEwen	Self-represented*
Municipality of Clarington	Robert Maciver, Colin Lyon
Regional Municipality of Durham	Samantha Whalen

DECISION DELIVERED BY J. INNIS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This motion, brought by the Municipality of Clarington (“Clarington”), seeks an order of the Tribunal dismissing the remaining site-specific appeals of Official Plan Amendment No. 126 (“OPA 126”) of the Clarington Official Plan, pursuant to section 17 (36) of the Planning Act (“Act”), on the grounds that the Tribunal lacks jurisdiction.

2OPA 126, which updates the Brookhill Neighborhood Secondary Plan (“BNSP”), was adopted by Clarington Council on May 21, 2021, and was approved with modifications by the Region of Durham on July 25, 2024.

3Appeals were filed under section 17 (36) of the Planning Act by Steve Hennessy and James McEwen (together the “Appellants”), whose properties at 2265 and 2325 Bowmanville Avenue (together the “Subject Properties”) lie within the area deferred from OPA 126 by Clarington Council. At a previous Case Management Conference held on February 7, 2025, the Tribunal declared OPA 126 to be in full force and effect for all lands within the BNSP, except those subject to the outstanding site-specific appeals and directed that Clarington bring a motion if they wished to challenge the validity of the appeals.

Legislation

4In considering the qualification of an appellant for an appeal of an official plan amendment, the Tribunal is guided by the requirements set out in the Act. Specifically, s. 17 (36) which establishes the criteria that must be met in order for an appeal to be considered valid.

Appeal to Tribunal

17 (36) Any of the following may, not later than 20 days after the day that the giving of notice under subsection (35) is completed, appeal all or part of the decision of the approval authority to the Tribunal by filing a notice of appeal with the approval authority:

1. A specified person who, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council. 1.1 A public body that, before the plan was adopted, made oral submissions at a public meeting or written submissions to the council. 1.2 The registered owner of any land to which the plan would apply, if, before the plan was adopted, the owner made oral submissions at a public meeting or written submissions to the council.
2. The Minister.
3. In the case of a request to amend the plan, the person or public body that made the request. 2006, c. 23, s. 9 (6); 2017, c. 23, Sched. 5, s. 80; 2024, c. 16, Sched. 12, s. 3 (3).

5The Tribunal's consideration of this matter is also guided by its Rules of Practice and Procedure (“Rules”), specifically those governing motions. Pursuant to Rule 10.4, the moving party is required to:

a. state the day, time and location of the hearing of the motion; b. state the precise relief sought; c. state the grounds to be argued, including a reference to any statutory provision or Rule to be relied on; d. be accompanied by an affidavit setting out a brief and clear statement of the facts upon which the moving party will rely, including exhibits of any documentary evidence to be used at the hearing of the motion; and e. state the names and addresses of the responding parties or their representatives and all persons to whom the notice of motion is to be given.

6Rule 10.6 requires that a responding party serve a notice that (underline for emphases):

(a) state the response to be made, including a reference to any statutory provision or rule to be relied on; and (b) be accompanied by an affidavit setting out a brief and clear statement of the facts upon which the responding party will rely, including exhibits of any documentary evidence to be used at the hearing of the motion.

SUBMISSIONS

The Municipality of Clarington

7Counsel for Clarington submitted that neither Mr. Hennessy nor Mr. McEwen, both self-represented Appellants, filed a Notice of Response to the motion in accordance with Rule 10.6. This Rule requires a responding party provide a notice clearly setting out the response being made, cite any statutory provisions or rule to be relied upon, and include an affidavit outlining the facts in support of the response, along with any relevant exhibits. Counsel argued that neither Appellant referenced any statutory provisions or procedural rules in opposition to the motion, nor did either submit an affidavit in support of their respective positions. While an affidavit of service was filed by Mr. Hennessy, it was distinguished from an affidavit in support of a response. On this basis, Counsel for Clarington submitted that no proper response was before the Tribunal to which a meaningful reply submission could be made by the Municipality.

8Council for Clarington provided background on the location and planning status of the Subject Properties. The Subject Properties in question fall within an area identified for future planning as part of a “Future Block Master Plan” area. This area was expressly deferred by Council and therefore, excluded from the boundaries of OPA 126 adopted by Clarington Council.

9Although the Subject Properties were part of the broader study area leading up to OPA 126, they were not included in the lands to which the official plan amendment applies. As such, the amendment has no operative effect on these properties and it was based on this planning context, that counsel submitted that the Appellants do not meet the eligibility criteria to bring an appeal under s. 17 (36) of the Act. While there is no dispute that the Appellants are the registered owners of the Subject Properties and that oral submissions were made prior to Council’s decision, they are not the owners of lands to which OPA 126 applies, which is a requirement under s. 17(36) of the Act. Furthermore, they do not fall into any of the other categories of eligible Appellants listed in that section being that they are not a public body, not a specified person, or the minister. Accordingly, Clarington counsel's position is that the Appellants lack standing under the Act and the appeals ought to be dismissed on that basis.

10The following map excerpt from Schedule A of the BNSP, dated April 2021, has been provided to illustrate the location of the Subject Properties in relation to the lands deferred by Council, and not included in OPA 126. The highlighted areas represent the properties that are subject of these appeals. No other changes have been made to the original Schedule A mapping beyond the identification of the Subject Properties for reference purposes.

11It was submitted by Clarington’s counsel that neither Appellant dispute that their lands are located within the “Future Block Master Plan” area that was deferred and excluded from the approvals under OPA 126; and that both Appellants have expressly acknowledged this in their respective submissions.

12Further, Clarington’s counsel advised the Tribunal that since Council deferred the Future Block Master Plan area, another landowner within the same area has successfully obtained planning approvals. That process, including the option to seek an alternative land use designation, remains available to the owners of the Subject Properties through a site-specific application. Counsel advised that any such application would need to amend the applicable planning instrument in force on the Subject Properties, namely the 2008 BNSP. Clarington counsel submitted that it remains open to the Appellants to pursue this route and that they have been encouraged to do so. Counsel also submitted that under Ontario’s planning framework, technical studies must precede any redesignation. It's not appropriate to designate land first and conduct studies afterwards. Instead, supporting studies are required at the outset to justify any proposed changes in land use designation. Lastly, Counsel for Clarington submitted that dismissing the appeals would not frustrate the intent of the Act, as a clear and lawful alternative remains available to the Appellants.

Mr. James McEwen-Appellant

13Mr. McEwen appeared as a self represented party and made submissions on his own behalf. He did not submit affidavit evidence and/or expert opinion evidence in support of his position. As such, the following summary reflects his personal statements and views, as presented in written and oral submissions.

14Mr. McEwen submitted that his property was improperly removed from the study area of OPA 126, despite being part of the BNSP area since its inception. He argued that Clarington’s decision to exclude his lands lacked justification and appeared to be in response to unrelated development pressures in the broader area.

15He objected to the requirement that he bring forward a separate site-specific official plan amendment, asserting that his property was already evaluated during the most recent secondary plan process. Mr. McEwen stated that planning consultants retained by Clarington had presented medium density options for his lands during public consultation, and he expressed support for one of those options at that time.

16Mr. McEwen took issue with the Clarington’s position that no supporting studies have been completed to justify a redesignation, arguing that the secondary plan update itself was a comprehensive planning exercise that considered his property. As such, he requested that Clarington’s motion, dated May 7, 2025, be dismissed, and that his appeal be permitted to proceed to a full hearing before the Tribunal.

Mr. Steve Hennessey- Appellant

17Mr. Hennessy appeared as a self represented party and made oral and written submissions in response to Clarington’s motion. While he submitted an affidavit, it solely confirmed service of his response to the motion record and did not include any expert evidence. His written materials included approximately 44-pages of documentation related to the BNSP update process and the Subject Properties.

18Mr. Hennessy submitted that his lands were within the BNSP update study area but were ultimately excluded from the approved boundaries of OPA 126. He expressed concern that this exclusion has effectively limited his ability to proceed with development and that the designation process did not appropriately account for the development potential of his property. He also submitted that pursuing a site-specific official plan amendment is a difficult and resource intensive process for individual landowners, citing the associated time, cost, and complexity, as significant barriers. He referenced a neighboring landowner who, in his view, decided to go through a similar site-specific process and ultimately sought and was granted approvals from the Tribunal.

19Mr. Hennessy maintained that the planning consultants retained by Clarington had proposed medium density designations for his lands during the secondary plan process and argued that such a designation would be appropriate, given surrounding land uses and infrastructure. He requested that the Tribunal dismiss Clarington’s motion and allow his appeal to proceed to a hearing on the merits.

ISSUES AND FINDINGS

20The issue before the Tribunal is whether the appeals filed by Mr. McEwen and Mr. Hennessy should be dismissed on the grounds that neither Appellant meet the eligibility requirements as set out in s. 17 (36) of the Act.

21Under Rule 10.6 of the Tribunal’s Rules, a responding party to a motion must file a notice of response setting out their position and citing any applicable statutory provisions or procedural rules to be replied upon. While both Appellants filed written responses, neither response identified any statutory provisions or rules to support their position. Nor did either Appellant provide any supporting materials that would assist the Tribunal in assessing whether the appeals are properly before it. As such, the Tribunal finds that neither Appellant established any legal basis for the Tribunal to consider their appeals under s. 17 (36) of the Act.

22Both Appellants expressed an interest in having their lands redesignated; however, they failed to demonstrate that OPA 126 applies to their properties. It is a foundational requirement of s. 17 (36) that an Appellant must be a person prescribed under the Act and specifically in the case of the Appellants “the registered owner of any land to which the plan would apply” (s. 17 (36) 1.2 the Act). While it is not in dispute that the Appellants are the registered owners of their respective properties, the Tribunal finds that their lands do not fall within the boundaries of OPA 126 and as such, they do not fulfill the requirements as the plan does not apply to their lands.

23Mapping evidence submitted by Clarington confirms and the Appellants do not dispute themselves that their properties are located within an area identified for future planning as part of a “Future Block Master Plan” area. This area was expressly deferred by Clarington Council and excluded from the boundaries of OPA 126 when it was adopted. Accordingly, OPA 126 has no operative effect on the Appellants lands, and as such they are not affected parties within the meaning of s. 17 (36) of the act.

24Clarington has submitted that the applicable planning instrument governing the Subject Properties remains the 2008 BNSP. Any proposed changes to land use designation for these lands must be pursued through a site-specific amendment to that secondary plan. Clarington has confirmed that this process is available to the Appellants. The Tribunal concurs that this is the appropriate planning mechanism available to the Appellants.

25The Tribunal further finds that the desire to redesignate lands that were part of a broader study area for OPA 126 is not, in and of itself, sufficient to establish standing under the Act. In order to appeal an adopted amendment, the affected lands must be legally subject to the amendment. The fact that the Subject Properties were within the study boundary does not confer standing, as the amendment was adopted without including those lands.

CONCLUSION

26For the reasons outlined above, the Tribunal finds that the Appellants do not meet the statutory eligibility requirements under section 17 (36) of the Planning Act, as the Subject Properties are not affected by OPA 126 and no other basis for standing has been established. As such, the motion is approved and the outstanding appeals by Mr. McEwen and Mr. Hennessey are dismissed.

ORDER

27THE TRIBUNAL ORDERS that the motion is granted and that the appeals by James McEwen and Steven Hennessy are dismissed.

“J. Innis”

J. Innis
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.